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Outside the New York headquarters of Debevoise & Plimpton at 66 Hudson Boulevard (photo by David Lat).This week’s Judicial Notice is sponsored by

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Happy Father’s Day to all of my fellow dads. Or my fellow papas, as the case may be; in our family, the boys call me “Papa” and Zach “Daddy.”

There’s a lot going on in the world right now that’s disturbing or at least concerning—which I won’t tackle in these pages if it’s not law-related, because I stay in my legal lane. But I hope that amid all the chaos, you were able to spend time this weekend with your parents and/or your children. Zach and I are very blessed: we got to hang out today with both our kids and our parents, at a barbecue hosted by Zach’s parents that my parents attended as well.

Speaking of feeling fortunate, I was lucky to be joined by family and friends for a 50th birthday celebration on Thursday night. I was uncertain about publicly mentioning the party because I’m sure I’ll discover even more people that I should have invited but somehow missed (and I say “even more” because it’s already happened). But the event also served as an OJ reader and sponsor appreciation event, so I’d be remiss in not thanking my attendees in these pages. To everyone who joined me, thank you for coming—and apologies for not chatting with you enough on Thursday (which I described in my speech as the bar mitzvah I never had).1

I spent the two days before my big event out of town, speaking to more than 150 lawyers at a conference for the in-house legal department of a Fortune 500 company. It was a ton of fun; I love doing speaking engagements, and I hope to do more of them, especially for corporations and law firms. But being away for two days, then returning to finalize arrangements for my party, made for a whirlwind of a week. (I owe huge thanks to my amazing cousin Angela, who did so much of the event planning.)

I still found time to follow the legal news—to which we now turn.

Lawyer of the Week: Cara Petersen.

Over the past five months, a series of federal government officials have left their jobs, voluntarily or involuntarily, while making clear their views about Donald Trump or his administration. Add to the list Cara Petersen, who last Tuesday stepped down as acting head of enforcement for the Consumer Financial Protection Bureau (CFPB)—but not before sending a departure memo condemning what she described as an administration that “has no intention to enforce the law in any meaningful way.”

Petersen graduated from the University of Iowa Law School and worked at Arnold & Porter and the Federal Trade Commission before joining the CFPB in March 2011—during the agency’s stand-up and implementation phase, even before it opened its doors to the public. In her email, Petersen wrote, “I have served under every director and acting director in the bureau’s history, and never before have I seen the ability to perform our core mission so under attack.”

In February, Trump appointed Russell Vought, director of the Office of Management and Budget, as acting director of the CFPB. Vought and the Trump administration have halted almost all of the agency’s work and attempted to fire around 90 percent of its staff. And while the terminations have been temporarily paused as a result of ongoing litigation, much of the CFPB staff is on administrative leave.

“It has been devastating to see the bureau’s enforcement function being dismantled through thoughtless reductions in staff, inexplicable dismissals of cases, and terminations of negotiated settlements that let wrongdoers off the hook,” Petersen wrote to her former colleagues, in her pull-no-punches email. “While I wish you all the best, I worry for American consumers.” For more excerpts from Petersen’s message, as well as commentary from outside experts, see Reuters, The New York Times, The American Lawyer, Bloomberg Law, and Law360.

Other lawyers in the news:

In other personnel news, Brett Shumate was confirmed by the Senate, 51-41, to serve as assistant attorney general for the Civil Division at the U.S. Department of Justice (DOJ). The Civil Division plays a major role in defending much of the administration’s agenda, and Shumate, a Wake Forest Law alum and former partner at Jones Day and Wiley Rein, is already litigating cases involving such controversial subjects as tariffs and birthright citizenship.
Speaking of assistant attorneys general, Aaron Reitz stepped down as head of the DOJ’s Office of Legal Policy (OLP), after less than three months in the role, in order to run for Texas attorney general. Before he was nominated and confirmed to serve as head of OLP, Reitz served in the Texas AG’s office and worked as chief of staff to Senator Ted Cruz (R-Tex.).
Speaking of lawyers resigning on principle, in last week’s Judicial Notice I mentioned Kathleen Rubenstein departing as executive director of the Skadden Foundation, to avoid “endors[ing] actions that I believe will undermine its mission.” Perhaps she was referring to changes made to Skadden Fellowship application materials since her departure, including the removal of mentions of “racial justice” and “racial equity.”
Brad Bondi, co-chair of the investigations and white-collar defense practice at Paul Hastings, lost the election to serve as president of the D.C. Bar to Diane Seltzer, an employment lawyer who runs her own firm. Brad Bondi’s sister is Attorney General Pam Bondi, and some critics of the Trump DOJ rallied around Seltzer’s candidacy and against Brad Bondi’s.

In memoriam:

George Annas—a Harvard Law School graduate and leader in the field of health law, in which he wrote and taught for many years—passed away at 79.
Prominent M&A lawyer and former Simpson Thacher chairman Richard “Dick” Beattie, whose passing I noted in these pages last week, was the subject of a New York Times obituary, covering not only his time in private practice but his government service under Presidents Jimmy Carter and Bill Clinton.

May they rest in peace.

Judge of the Week: Justice Neil Gorsuch.

June is when the U.S. Supreme Court issues its biggest decisions. So between now and the end of the Term in either late June or early July, expect the justices to dominate not just the headlines of the legal press, but the ranks of Judge of the Week—with Justice Neil Gorsuch as today’s featured jurist, for two reasons.

First, Justice Gorsuch wrote the Court’s unanimous opinion in Martin v. United States. The Court ruled in favor of a family whose house was mistakenly raided by the FBI—including a six-member SWAT team that broke down the home’s front door, exploded a flash-bang grenade, and assaulted the occupants, before the agents realized they were in the wrong house. Legally, the case is a bit complicated, and additional proceedings will be required to determine if the family ultimately prevails in their case, brought under the Federal Tort Claims Act (FTCA); for more, see Ruling of the Week.

Second, Justice Gorsuch was the lone dissenter from Justice Amy Coney Barrett’s opinion in Commissioner of Internal Revenue v. Zuch. To the majority, Zuch was a case about whether the Tax Court has jurisdiction to resolve disputes between a taxpayer and the Internal Revenue Service (IRS) when the IRS is no longer pursuing a levy against that taxpayer. To Justice Gorsuch, the case was about the government treating a citizen unfairly. As he wrote in his dissent, which was two pages longer than Justice Barrett’s majority opinion, “the Court’s decision hands the IRS a powerful new tool to avoid accountability for its mistakes in future cases like this one.”

Taken together, these two opinions, combined with many others from his eight years on the high court, paint a clear picture of Justice Gorsuch’s distinctive jurisprudence. Call him “Justice Gorsuch the Libertarian,” as Sarah Isgur put it on Advisory Opinions. “If you are a government bureaucrat… if you’re the IRS, a prosecutor, a police officer, Justice Gorsuch is just not going to give you the benefit of the doubt. You’re not the white hat every single time—at all. He’s going to put you through your paces and expect square corners. He knows the resources that you have—and he was just not having it with the IRS in this case.” As a result, as Isgur’s co-host David French noted, Gorsuch provokes interesting reactions from some on the left: “You could tell they wanted so much to not like Justice Gorsuch, but he kept bringing up issues that they agreed with him on, and so there’s this very interesting aspect of, ‘Okay, I know I’m not supposed to like him at all, but he keeps ruling in a way that [I like].”

In other news about judges and the judiciary:

Speaking of Trump’s appointees to the Supreme Court, Zach and I argued in a February 2023 Times guest essay that important differences exist between Justices Gorsuch, Kavanaugh, and Barrett. Since then, that has become even clearer, with the three justices articulating distinctive versions of originalism—as explained by Professor Joel Alicea in his own Times guest essay (gift link).
Who’s the judge who ruled against Donald Trump’s federalization of the California National Guard in Newsom v. Trump (discussed below as Litigation of the Week)? That would be Judge Charles “Chuck” Breyer (N.D. Cal.), appointed to the federal bench by President Clinton in 1997. For more about Judge Breyer, 83, see this Politico profile by Kyle Cheney and Josh Gerstein. And for some thoughts on how he’s (quite) different from his older brother, Justice Stephen Breyer, 86, listen to my podcast interview with Judge Vince Chhabria, who clerked for both jurists—and is now Judge Breyer’s colleague on the Northern District of California.

Job of the Week: an opportunity at a top-tier plaintiffs’ firm.

Lateral Link is working with a top-tier plaintiffs’ firm in Austin in its search for litigators with three to eight years of experience who are eager to develop their trial and appellate skills in a collaborative, growth-oriented team-based environment. Nationally recognized for securing seven- and eight-figure results across a broad range of industries, the firm focuses on complex, high-stakes cases—many of which go to trial. Candidates with federal clerkships and strong academic backgrounds (T15 preferred) are especially encouraged to apply. The role offers significant trial work, with more than 20 trials scheduled for 2025, along with frequent appellate opportunities. Attorneys can expect meaningful mentorship, early responsibility, a non-hierarchical structure that values initiative and teamwork, and competitive compensation, including regular bonuses. To apply, candidates should send a résumé and brief cover letter to Senior Director Kelly Rizzo at krizzo@laterallink.com.

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Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

June is my favorite month—because it marks the start of my favorite season, contains my birthday (now a national holiday), and happens to be LGBTQ Pride Month. In recognition of the occasion, I wanted to interview a leading LGBTQ lawyer, ideally someone working on a matter in the news.

A recent guest on my podcast, noted technology litigator Neel Chatterjee, gave me a great idea. In discussing a pro bono matter that he was proud of, representing a gay couple that wanted to work with an adoption agency that refused to work with same-sex couples, he talked about the privilege of working with “one of the best lawyers I’ve ever worked with in my life”: Shannon Minter, legal director of the National Center for Lesbian Rights (now the National Center for LGBTQ Rights—on Monday, NCLR announced its name change).

Shannon was an excellent guest for another reason: he’s working on a headline-making case. He represents the plaintiffs in Talbot v. United States, a challenge to the Trump administration’s ban on transgender individuals serving in the military. And despite some reasons for concern, including the fact that the Supreme Court granted emergency relief to the Trump administration in a different (but distinguishable) case involving the ban, Shannon believes that when the courts take a closer look at the issue, they will be persuaded by his clients’ case.

Thanks to Shannon for his insight and candor, as well as his many years of tireless work in support of LGBTQ rights and equality.

Show Notes:

Shannon Minter bio, National Center for LGBTQ Rights
Shannon Minter bio, Wikipedia
Shannon Minter interview, by Mason Funk for OUTWORDS

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Shannon Minter, arguing before the California Supreme Court in In re Marriage Cases (photo by Paul Sakuma via Getty Images). Read more

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Then-U.S. attorney Damian Williams, speaking to the media after the conviction of former senator Bob Menendez (photo by Adam Gray via Getty Images).This week’s Judicial Notice is sponsored by

Chambers-ranked and Harvard-educated, Jeff is the trusted closer for high-stakes disputes. His battle-tested system of managed communications empowers clients to make clear, strong decisions in a calm, informed environment. It makes the right resolution obvious. If settlement seems impossible, call him.

Last week wasn’t exciting for me. And I’m fine with that, since next week will be hectic (for reasons I’ll explain in next weekend’s Judicial Notice).

A highlight was joining a friend and fellow legal commentator, Elie Honig, who guest-hosted The Dan Abrams Show on SiriusXM on Thursday. We discussed Trump v. Biglaw, the two recent rulings against the Trump tariffs—and then, after I signed off, Elie tackled Trump v. Musk (so I defer to him for commentary on that hot topic). Thanks to Elie for having me—and for the kind shoutout in his New York Magazine column on the tariffs litigation.

Also on Thursday, I joined my husband Zach as we presided over the SCOTUSblog liveblog of U.S. Supreme Court opinion announcements. Now that we’re into June, the opinions are getting especially exciting (and three from last Thursday are discussed below, as Rulings of the Week). Please join us for the next liveblog of opinion hand-downs, taking place this coming Thursday, June 12, starting at 9:30 a.m. (ET).

Now, on to the news.1

Lawyer of the Week: Damian Williams.

Speaking of Donald Trump, his war on Biglaw—and how firms have responded to it—is still leading attorneys to make noisy withdrawals from their firms. And the latest lawyer to leave is a prominent partner: Damian Williams, former U.S. attorney for the Southern District of New York.

Williams is departing from Paul Weiss, where he’s been for less than five months.2 At some point after his arrival, the firm (in)famously cut a deal with the Trump administration, to get out from under an executive order that chair Brad Karp described as posing an “existential crisis.”

Where is Williams going? He’s joining Jenner & Block, where he will co-chair the litigation department and practice out of the New York office. And his choice of firm speaks volumes: unlike Paul Weiss, Jenner fought the EO leveled against it—and obtained a permanent injunction blocking its enforcement, as well as Law Firm of the Week honors (shared with its counsel at Cooley).

To be sure, partners move firms all the time, for all sorts of reasons—as Ken White and Josh Barro noted on the latest episode of Serious Trouble. Discussing the departure of the quartet of Paul Weiss partners who left to launch Dunn Isaacson Rhee (Williams’s departure was not yet public), Barro and White suggested that while the departing partners might have been unhappy about Paul Weiss’s settlement, they might also have seen “a good business opportunity” here, in terms of the opportunity to brand themselves as tough and fearless litigators.

Williams might have seen a branding opportunity as well. “Jenner & Block fearlessly advocates for its clients and provides outstanding strategic counsel through their most difficult challenges,” he said in a statement. “I’ve seen firsthand how this firm expertly tackles the toughest cases and lives its values.” So while he didn’t say “my former colleagues at Paul Weiss are a bunch of cowards,” the implied contrast couldn’t be more clear.

In moving from Paul Weiss, with profits per equity partner of $7.5 million, to Jenner, with PPEP of $2.8 million, Williams surely took a pay cut. But as I often reminded candidates during my stint in recruiting, legal careers are long—and not all about the benjamins (see also the footnote of my recent post about the top 20 most profitable law firms). In thinking about a move, go beyond compensation and consider whether it advances your long-term career goals.

In the case of Damian Williams, it has been widely speculated that he might run for office someday—as suggested by his campaign-style personal website, which garnered attention during the Eric Adams controversy. If he does move into (Democratic) politics someday, a stint at Paul Weiss, the first firm to fold to Trump, would not be helpful. But leaving a capitulating firm for a courageous one—and taking a seven-figure pay cut in the process—is the stuff campaign ads are made of.

Other lawyers in the news:

Even more pointed than Damian Williams’s messaging was that of Kathleen Rubenstein, who resigned as executive director of the Skadden Foundation—the nonprofit behind the prestigious Skadden Fellowships, which support public-interest work by recent law school graduates. The Foundation is funded by partners at Skadden Arps, another firm that settled with the Trump administration. In a viral LinkedIn post, Rubenstein wrote that Skadden has not yet “risen to th[e] challenge” of “[t]his moment in history”—but expressed the hope the firm will ultimately “chart[] a path that respects the rule of law and honors the core values of the Skadden Foundation.”
Hiring Damian Williams wasn’t the only good news for Jenner. Partners Matthew Hellman and Lindsay Harrison were The American Lawyer’s Litigators of the Week, after securing a (second) reversal of class certification in a would-be class action over a 2018 data breach at their client, Marriott. Hellman and Harrison shared the honors with Devin Anderson and Craig Primis of Kirkland & Ellis, who represent Accenture (the IT company that managed the hacked database).
Once a successful and celebrated plaintiffs’ lawyer, featured in Erin Brockovichand Real Housewives of Beverly Hills, the disgraced and disbarred Tom Girardi was convicted of defrauding his clients of millions—and on Tuesday, Judge Josephine Staton** (C.D. Cal.) sentenced Girardi to 87 months.
In nominations news, the Senate confirmed John Eisenberg to lead the National Security Division of the U.S. Department of Justice (DOJ), and Trump nominated Laura Swett of Vinson & Elkins to chair the Federal Energy Regulatory Commission (FERC).
Kudos to Lauren Harrison and Mani Walia on the launch of their new litigation-finance firm, Signal Peak Partners—with commitments of more than $40 million. Harrison and Walia have worked in funding for years now, but they previously practiced as litigators at V&E and Susman Godfrey, respectively. [UPDATE (8:20 p.m.): As it turns out, Lauren Harrison was also at Susman Godfrey, starting in the Seattle office, prior to practicing at V&E.]

In memoriam:

Longtime Simpson Thacher partner Richard “Dick” Beattie—a leading M&A and private-equity lawyer, as well as former chairman of Simpson’s executive committee (1991-2004)—passed away at 86.
Former Susman Godfrey managing partner Lee Godfrey, a renowned trial lawyer, passed away, also at 86.

May they rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

Has Justice Ketanji Brown Jackson wrested the gavel away from Justice Sonia Sotomayor as “Justice of the Resistance”?

When Justice Jackson joined the Supreme Court in June 2022, most SCOTUS watchers expected her to be a reliable liberal vote. But during October Term 2023, the last complete Term before Donald Trump’s return to the White House, Justice Jackson sometimes sided with conservatives.

The former public defender voted for the prosecution in two criminal cases, Diaz v. United States (what expert witnesses can testify about) and Erlinger v. United States (who decides certain facts needed for a sentencing enhancement—and by what standard). Then in Fischer v. United States, she sided with the defendant—but that vote was “conservative” because she ruled in favor of a January 6 defendant, as did five conservative justices. (The sixth conservative, Justice Amy Coney Barrett, wrote the dissent—joined by Justices Sotomayor and Elena Kagan.)

But in January 2025, Trump began his second presidential term. And since then, Justice Jackson, 54—who has been taking boxing lessons, which “helps [me] to really get out any frustrations”—has been the most outspoken opponent of his agenda.

Last week, Justice Jackson wrote a spirited dissent in a case on the emergency aka short-order docket, Social Security Administration (SSA) v. American Federation of State, County, and Municipal Employees (AFSCME). The majority ruled in favor of giving team members from the Department of Government Efficiency (DOGE) access to certain SSA records. Justice Jackson wrote that “it seems as if the Court has truly lost its moorings”—and lamented that “once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them.”

Justice Jackson’s reference to the Court “once again” fanning the flames harked back to another dissent in a short-order docket case involving a challenge to a Trump administration policy, Noem v. Doe (last week’s Ruling of the Week). The majority allowed the administration to revoke a Biden-era immigration program called humanitarian parole, making hundreds of thousands of noncitizens subject to deportation. Justice Jackson accused her colleagues of “botching” the legal analysis and “undervalu[ing] the devastating consequences” of its decision.

Trump stuff aside, Justice Jackson is generally the most outspoken Democratic appointee on the Court these days. She dissented from the denial of certiorari in Nicholson v. W.L. York, Inc., arguing that the justices should have heard the race-discrimination case of a Black dancer at adult-entertainment clubs. And Justice Jackson dissented—solo—in Libby v. Fecteau, a case on the short-order docket in which the Court ruled in favor of Laurel Libby, a Republican state legislator who was punished for a social-media post that criticized transgender athletes’ participation in girls’ sports (and called out one such athlete by name).

In terms of their views, there might not be much daylight between Justices Sotomayor and Jackson; after all, Justice Sotomayor joined the Jackson-penned dissents in SSA v. AFSCME, Noem v. Doe, and Nicholson v. W.L. York, Inc. But note that Justice Sotomayor didn’t write any of those dissents herself; she was content to let Justice Jackson take the laboring oar. Also recall how Justice Sotomayor confessed, in remarks last year at Berkeley Law, that she was “working harder than ever” and just plain “tired.” I wouldn’t be surprised if Justice Sotomayor, 71, is intentionally slowing down—and stepping out of the spotlight to give Justice Jackson, the first justice to perform on Broadway, time to shine.

In other news about judges and the judiciary:

Chief Justice John Roberts, at the annual dinner of the Supreme Court Historical Society, delivered a toast “to the president of the United States.” Some first-time attendees were discomfited—not knowing that it simply was, to quote Tevye from Fiddler on the Roof, “Tradition!” (But if the toast really is just about showing “respect for the office,” as veteran SCOTUS litigator Carter Phillips told Ann Marimow of The Washington Post, why not toast to “the presidency”?)
Speaking of the president, here’s some shocking news: Donald Trump sometimes complains in private about his three Supreme Court nominees!
Speaking of SCOTUS nominees, Adam Feldman handicapped the field over at Legalytics. After crunching copious amounts of data, he reached a conclusion consistent with conventional wisdom: “Judge Ho is the obvious pick if Justice Thomas is the next justice to step down, and Judge Oldham likely gets the nod if Justice Alito is the first to leave.”
Last month, Representative Hank Johnson (D-Ga.) introduced the Transparency and Responsibility in Upholding Standards in the Judiciary Act (TRUST Act), which would clarify that a judge’s departure from the bench is no longer grounds to dismiss a misconduct complaint. In Bloomberg Law, Aliza Shatzman of the Legal Accountability Project called for passage of the Act, arguing that “the judiciary should make every effort to thoroughly investigate complaints, rather than sweeping misconduct under the rug by encouraging judges to leave quietly.”

In nominations news:

Trump’s first set of nominees, including Sixth Circuit pick Whitney Hermandorfer, had their Senate Judiciary Committee hearings—and nothing transpired to jeopardize anyone’s confirmation. For collected coverage, see Howard Bashman’s How Appealing.
In The Washington Examiner, Professor Rob Luther of Scalia Law, who worked on nominations during the first Trump administration, argued that Third Circuit nominee Emil Bove “will be a great judge.”
With Bove nominated to the New Jersey vacancy on the Third Circuit, the White House has turned its attention to the Delaware seat, with interviews reportedly underway. If you have any information to share about interviewees or contenders, please email me: davidlat at substack dot com.

Job of the Week: an opportunity for a commercial-litigation associate in Chicago.

Lateral Link is spearheading the search of a prominent Am Law 25 firm in Chicago for a commercial-litigation associate to join its market-leading team. This firm is looking for an associate with two to six years of experience in complex, high-stakes litigation matters. This is an outstanding opportunity to join a litigation powerhouse, receive unmatched training and resources, and enjoy top-of-the-market compensation in a supportive, team-oriented, hybrid work environment (three days in office). Partners at the firm are deeply committed to associates’ professional growth, offering robust formal training and hands-on guidance from the get-go. Prior Am Law 100 firm experience and top academic credentials are required. For immediate consideration, please email your résumé to Principal Zain Atassi at zatassi@laterallink.com.

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Last year, Cravath Swaine & Moore moved to new digs at Two Manhattan West (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Tired of talking about Trump stuff? You’ve come to the right place. Let’s turn our attention to another topic that people love to discuss: money—specifically, how much of it Biglaw firms made in 2024.1

The answer: a lot. Here are the key financial metrics for Biglaw as a whole, from The American Lawyer’s 2025 Am Law 100 rankings (based on 2024 performance):

Total gross revenue: $158.3 billion, up by 13.3 percent.
Revenue per lawyer (RPL): $1.28 million, up by 5.2 percent.
Profits per equity partner (PPEP): $3.15 million, up by 12.3 percent.

These numbers aren’t adjusted for inflation—which they handily outpaced, since inflation was around 2.9 percent in 2024. As Patrick Smith noted in his analysis of the Am Law 100, “[b]y the numbers, there is no other credible way to describe the overall performance of the 100 largest law firms by revenue: They crushed it.”

For purposes of comparison, here are the past five years of Am Law 100 performance:

So 2024 was Biglaw’s best year since 2021—which was its best year “in a generation,” per Am Law. Not too shabby!

In my analysis of last year’s Am Law 100 rankings, I predicted that 2024 would “end up being mixed—not as good as either 2021 or 2023, but better than 2022.” So I was two-thirds correct: while 2024 didn’t beat the banner year of 2021, it did come in ahead of 2023 (and of course 2022, which wasn’t pretty).

What about headcount? If you’ve been worried about the robots (or AI tools) taking lawyer jobs, I have good news for you: the attorney population of the Am Law 100 now stands at 123,953, after growing by 7.7 percent in 2024—much larger than the 1.8 percent increase in 2023. This fact makes the increases in revenue per lawyer and profits per equity partner even more impressive; when there are more lawyers around, RPL and PPEP can sometimes decline. (Why? Because there’s less work to go around, as to RPL, and because more lawyers means more in compensation costs, as to PPEP.)

That increase of 7.7 percent is a blend of multiple attorney populations. The ranks of equity partners increased at a slower rate, by 3.3 percent. But that’s still noteworthy because it means that in 2024, the Am Law 100 managed to increase PPEP by 12.3 percent even as the number of equity partners grew—no small feat. Compare this with 2023, where the number of equity partners actually declined slightly—meaning that the 9.3 percent increase in PPEP that year was achieved partly by shrinking the denominator. It’s more impressive to grow the entire pie, giving bigger slices to a bigger number of people, than to generate bigger slices by feeding a smaller number.

Meanwhile, the number of nonequity partners climbed by 10.1 percent in 2024—which means that there are now more nonequity partners in the Am Law 100 than equity partners, by a 51/49 percent ratio. I predicted last year that this would happen “in the next few years”; it actually took only one.

Now let’s take a closer look at three major metrics: gross revenue, revenue per lawyer, and profits per equity partner—where a new #1 firm narrowly beat out the usual leader in PPEP, Wachtell Lipton.

And you can probably guess who it is. Here’s a hint: $9.3 million goes really far at Costco….

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Abbe Lowell, leaving federal court in Los Angeles after a hearing in Hunter Biden’s tax prosecution (photo by Mario Tama via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The (detailed and lengthy) footnotes contain material that did not appear in the Bloomberg Law version of the piece. You can think of the footnotes as “bonus content” for Original Jurisdiction subscribers.

Four well-known litigators—Karen Dunn, Jeannie Rhee, Bill Isaacson, and Jessica Phillips—left Paul Weiss last month. Shortly thereafter, they launched Dunn Isaacson Rhee, which Dunn described as “a new litigation boutique specializing in high-stakes trials, investigations, and crisis management.”1

Also last month, prominent trial lawyer Abbe Lowell announced the founding of his own boutique, Lowell & Associates. This came after his departure from Winston & Strawn, where he had co-chaired the white-collar practice.

These boutiques share something in common besides timing and the presence of headline-making lawyers. I suspect both firms owe their existences to a certain Donald J. Trump.

Paul Weiss was the first of at least nine large law firms to reach controversial deals with the Trump administration, in which the firms agreed to provide pro bono legal services to support certain priorities of the administration. While the founding partners of Dunn Isaacson Rhee didn’t refer to the Paul Weiss settlement in announcing their departure, three out of the four have ties to Democratic politics—and it has been reported that they wanted to be able to sue the Trump administration “without limitations,” which having their own boutique allows them to do.

As for Lowell, he left Winston to start Lowell & Associates shortly after taking on New York Attorney General Letitia James, the target of a Trump administration investigation, as a client. And many other clients of his new firm are also in the crosshairs of Trump, as noted in a statement he shared with me:

In our first 30 days, we have filed a lawsuit and motion for preliminary injunction on behalf of a whistleblower attorney, Mark Zaid; co-counseled the complaint and preliminary injunction motion on behalf of AmeriCorps grantees; publicly defended Attorney General Letitia James and former DHS official Miles Taylor against the egregious and outrageous threats from this administration; drafted and filed an amicus brief for Judge Hannah Dugan; and advised immigration non-profit organizations on the administration’s executive orders.

“These early efforts reflect not only the volume and urgency of the challenges we face, but also the trust our clients and partners are placing in us,” he added.

Of course, partners leaving Biglaw to start their own firms is nothing new. It happened before Trump took office, and it will continue after he leaves office.

“It is unclear to me if the boutique creation can be meaningfully connected to the Trump executive orders,” said Indiana University law professor William Henderson, a longtime scholar of the legal profession. “Boutiques occur because partners with solid books want the autonomy to make their own decisions.”

But part of that autonomy includes the ability to take on clients and causes that it might be difficult or impossible to represent while at a large law firm. And with the Trump administration taking on such a wide range of issues and paying much closer attention to Biglaw, the universe of potentially problematic representations is significantly larger now, at least for lawyers at large firms—firms with large M&A practices, whose clients need their deals to get approved by the administration.2

“I’ve challenged federal and agency overreach under every administration since President Reagan,” said Lowell. “But what sets this administration apart is the sheer scale and scope of its intrusion into nearly every aspect of American life. That’s why Lowell & Associates is here—to defend against that overreach when it matters most.”

So it’s fair to say that recent activity in the boutique space “is closely tied to the Trump administration’s attacks on the legal industry,” as one legal recruiter told me. “From my conversations with partners launching new boutiques, they want the ability and the autonomy to fight the administration in court.”

And there’s a reason these lawyers are starting their own boutiques instead of simply moving to different large law firms.

“Leaving a firm because of its deal with Trump could have massive ramifications if the new firm they joined ended up doing the same,” this recruiter explained. “So, going on their own is the best option.” (This recruiter asked to remain anonymous because of the confidential nature of their conversations with partners who have left, or are thinking of leaving, their firms.)

So yes, the Trump administration might be intensifying the move of partners from Biglaw to boutiques. But it’s a trend that I predict will continue for quite some time, for at least three reasons.

First, and related to recent events, increased political polarization is making it harder for Biglaw firms to take on controversial cases. Large law firms have many more stakeholders and constituencies compared with boutiques, including more clients and employees—many of whom object to the firm taking on certain hot-button representations.

But these matters can be particularly meaningful and satisfying for individual attorneys to work on—and they can come from across the political or ideological spectrum. Back in 2022, for example, Paul Clement and Erin Murphy left Kirkland & Ellis to start a boutique after Kirkland announced it would no longer represent clients in Second Amendment matters.3

Second, Biglaw billing rates continue to climb, hitting record highs—which many litigation clients can’t afford, at least not to the extent that corporations executing billion-dollar transactions can.4 Not surprisingly, Lowell cited greater flexibility in billing rates as another attraction of launching his own firm, on top of more freedom in taking cases.5

Third, technology enables litigators at boutiques to handle certain matters that previously were the exclusive province of Biglaw. For example, if artificial intelligence tools can review and organize massive volumes of documents, an army of associates might not be required to litigate a large and complex case.6

The migration of litigators from Biglaw to boutiques is a trend with the wind at its back. The Trump administration might be accelerating it, to be sure—as it’s doing with many other trends in American society. But the allure of greater autonomy for Biglaw partners existed before Trump took office, and it will persist long after he’s gone.7

1They have since been joined by a fifth Paul Weiss partner, D.C.-based litigator Kyle Smith, who announced his move on LinkedIn last weekend.

2If a law firm takes on a case that makes the administration unhappy, the firm could find itself on the receiving end of an executive order—which might explain why some Biglaw firms are turning away pro bono cases that could tick off Trump, such as litigation to protect the rights of immigrants.

3Leaving Kirkland wasn’t Paul Clement’s first such move. Back in 2011, he left King & Spalding, after the firm refused to let him defend the Defense of Marriage Act (DOMA). He took his talents to a boutique, Bancroft, founded by Viet Dinh, another prominent conservative lawyer.

Bancroft no longer exists, after Kirkland hired all of Bancroft’s lawyers in 2016 (which is how Clement wound up back in Biglaw). But other boutiques continue to handle right-of-center cases and clients that it would be difficult to represent in the left-leaning world of Biglaw, such as Cooper & Kirk and Consovoy McCarthy.

On the other side of the aisle, I suspect that a desire to take on progressive but politically charged cases contributed to Roberta “Robbie” Kaplan leaving Paul Weiss to launch Kaplan & Company (later Kaplan Hecker & Fink) and Marc Elias departing from Perkins Coie to form Elias Law Group. Both conservatives and progressives can benefit from the freedom enjoyed by boutiques.

4For example, consider individual defendants in criminal cases. Even very wealthy individuals don’t have the same financial resources as, say, Fortune 500 companies. So it’s no coincidence that some of the nation’s top criminal defense lawyers—including two of my past podcast guests, David Oscar Markus and Alexandra Shapiro—practice at boutiques, where they can be more flexible on rates. (In addition, some Biglaw firms might be uncomfortable representing criminal defendants in cases with lurid allegations.)

5Boutiques might not be much cheaper (or cheaper at all) compared to Biglaw—but boutiques are definitely more flexible in billing arrangements than large firms, which tend to be bureaucratic about billing (partly because of pressure from transactional partners who mostly bill by the hour and want to hold the line on rates). Boutique founders like Beth Wilkinson of Wilkinson Stekloff and Scott Keller of Lehotsky Keller Cohen have told me that they—and their clients—value this flexibility.

6A fourth factor driving the rise of boutiques: client conflicts. Biglaw firms have far more of them, and they can prevent litigators from taking on some of the most interesting and important cases that come their way. And if a Biglaw firm has to decide whether to go with a litigation client, with a one-off matter that might settle the next week, or a transactional client, which the firm could be representing in deals for years, it will almost always go with the transactional client.

Name partners at boutiques like Tom Clare and Libby Locke of Clare Locke, Chris Clark of Clark Smith Villazor, and Steve Molo of MoloLamken have cited conflicts to me as a factor in their decision to leave Biglaw. In the case of MoloLamken, for example, the firm was able to handle residential mortgage-backed securities cases because it could be adverse to banks (which few Biglaw firms have the ability to do). And a conflict also contributed to David Boies leaving Cravath to launch Boies Schiller Flexner (which started off as a boutique in 1997, even though today it’s an Am Law 200 firm).

7The Biglaw-to-boutique trend is so well-established that now boutiques are spawning boutiques themselves—e.g., Kaplan Martin from Kaplan Hecker & Fink (now Hecker Fink), Elsberg Baker & Maruri from Selendy Gay Elsberg (now Selendy Gay once again), and Meier Watkins Phillips Pusch from Clare Locke.

And so many lawyers are making this move that there’s even a company out there dedicated to advising partners who want to leave Biglaw and launch boutiques: NexFirm, longtime sponsor of the Original Jurisdiction podcast.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts of podcast interviews; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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The James L. Watson Courthouse in Lower Manhattan, home of the U.S. Court of International Trade (photo by David Lat).This week’s Judicial Notice is sponsored by

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Guess what I received in the mail the other day? A membership invitation from AARP, formerly known as the American Association of Retired Persons (and not to be confused with the recent Supreme Court litigant, A.A.R.P.).

Later this month, I’m turning 50—and I’m okay with that. Five years ago, I almost died from Covid—so my general outlook is, “I’m just happy to be here.” If any of you who have preceded me into the second half-century of life would like to share your reflections or advice, please do so in the comments.

Now, on to the news.

Lawyer of the Week: Leonard Leo.

After the U.S. Court of International Trade (CIT) ruled against many of his tariffs in V.O.S. Selections, Inc. v. The United States of America (discussed below as Ruling of the Week), Donald Trump took to Truth Social to vent:

The [CIT] incredibly ruled against the United States of America on desperately needed Tariffs but, fortunately, the full 11 Judge Panel on the U.S. Court of Appeals for the Federal Circuit Court has just stayed the order by the Manhattan-based Court of International Trade.

Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of “TRUMP?” What other reason could it be?

I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions.

Leonard Leo is a “sleazebag” and “a bad person”? Finally, Trump and the far left agree on something!

Trump then broadened his attack to include the conservative Federalist Society— the powerful legal organization where Leo worked for many years, whose board of directors he continues to co-chair:

[Leo] openly brags how he controls Judges, and even Justices of the United States Supreme Court—I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!

What did Leonard Leo say in response to Trump’s attacks? Leo took the high road, issuing the following statement: “I’m very grateful for President Trump transforming the Federal Courts, and it was a privilege being involved. There’s more work to be done, for sure, but the Federal Judiciary is better than it’s ever been in modern history, and that will be President Trump’s most important legacy.”

A Cornell Law alum and lawyer by training, Leo served for many years as executive vice president of the Federalist Society, playing a crucial role in its growth in size and influence. He advised then-candidate Trump on judicial nominations, helping him win over traditional conservatives who doubted his bona fides. After Trump won the presidency, Leo took a leave from FedSoc to help the administration pick judges.

But the two men had a falling-out in 2020. And since then, the rift between them has been exacerbated by the fact that various Leo-supported jurists, including Justice Amy Coney Barrett, haven’t always voted with Trump in his second term.

Did Trump have a valid basis for blaming his loss in the tariffs case on Leo? Probably not. The panel in V.O.S. Selections consisted of Judges Gary Katzmann, Timothy Reif, and Jane Restani—appointed by Presidents Obama, Trump, and Reagan, respectively. As a Trump appointee, Judge Reif is the only member of the panel who could plausibly be blamed on Leo. But note this, from my podcast interview of one of Reif’s colleagues, Judge Stephen Vaden (an excellent primer on the CIT, if you’d like to educate yourself about that court):

[Another] unique thing about our court, David, is we have a statute that actually brings politics into play. We are the only Article III court, and I think the only federal court period, even counting the ones that are not Article III, where the statute [28 U.S.C. § 251] says that no more than five members of our court may be affiliated with the same political party….

President Trump had three appointments to the Court of International Trade. I was the last one to be confirmed. My colleague Miller Baker was confirmed before me, and he is also Republican-affiliated. But Tim Reif, who is also a Trump appointee, is a Democrat. He was one of the Democrats’ chief counsel dealing with trade matters in the House Ways and Means Committee, which has jurisdiction over trade matters, and yet he is a Trump appointee.

My guess, then, is that Leonard Leo had little or nothing to do with the selection of Judge Reif. And if you look at his Senate Judiciary Committee questionnaire—which reflects Reif’s solid Democratic credentials, including involvement in the political campaigns of seven candidates, all Dems—you’ll see no mention of Leo or the Federalist Society.

Instead, according to Reif’s SJC questionnaire, his name was forwarded to the White House by Robert Lighthizer, U.S. trade representative in the first Trump administration. Reif served as general counsel of the Office of the United States Trade Representative, appointed by President Obama, and he remained at the Office and worked with Lighthizer after the change in administration. I’m guessing that he made a positive impression, convincing Lighthizer that he was a “good” Democrat—so when the Trump administration had to appoint a Democrat to the CIT, they probably figured that Tim Reif was the kind of Democrat they could work with.

Given this, there’s probably little or no legitimate reason for Donald Trump to blame Leonard Leo for Judge Reif and the loss in the tariffs case. And even if Reif had voted the other way, Trump still would have lost, 2-1.

But Trump lashing out against Leo is revealing, as noted by The New York Times and Politico (via Howard Bashman of How Appealing). It suggests that the growing rift between the Federalist Society and MAGA—i.e., between the conservative legal establishment, which still has a commitment to the rule of law, and Trump loyalists, who want Trump to win at all costs—might now be a more serious and lasting rupture.

Trump’s broadside against Leo, FedSoc, and some of his first-term judicial appointments struck some prominent legal conservatives as counterproductive. As Professor John Yoo told The Times, “Calling for the impeachment of judges, attacking Leonard Leo personally and basically calling him as traitor, as far as I can tell—Trump is basically turning his back on one of his biggest achievements of his first term.” Or as John Malcolm of The Heritage Foundation said to Bloomberg Law, Trump’s comments about Leo risk “needlessly offending an ally.”

And could Trump’s comments have negative practical consequences for his administration—including its judicial appointments? According to the Wall Street Journal editorial board (gift link), Trump’s “attacks on judicial conservatives will hurt his own agenda and legacy,” making it less likely that they’ll retire on his watch—“lest they be replaced by partisan hacks.” In fact, as conservative commentator Ed Whelan tweeted, “Just yesterday, a very conservative appellate judge told me that s/he wouldn't take senior status because of concerns over who would be picked as successor.”

Now, there is a counterargument here—at least as to Justices Clarence Thomas and Samuel Alito, whom some conservatives would like to retire under Trump. As Professor Josh Blackman wrote at The Volokh Conspiracy, “In Trump-related cases, Justices Thomas and Alito are dissenting alone…. If I had to guess, Justices Thomas and Alito would not want someone like the three Trump appointees to replace them. They would want someone who votes like them…. Indeed, if the same sorts of people are advising Trump on his next batch of Supreme Court nominee who advised on his first batch, Thomas and Alito would just as well hold on.”

But as to Justices Thomas and Alito, I don’t believe that recent events will affect their plans very much, in either direction. I believe they’ve made up their minds—and I’m sticking to my prediction from last year that we won’t see a SCOTUS retirement during Trump’s term. And on that note, I’m hearing that Justice Alito, who has completed his hiring of law clerks for October Term 2025, has even started hiring for October Term 2026—which is on the early side for him. If you have names to share—I now have all of his OT 2025 clerks, but none for OT 2026—please email me, at davidlat at substack dot com.

Other lawyers in the news:

Congratulations to the lawyers who won the big tariffs case: Jeffrey Schwab, who argued the case for the private plaintiffs (five U.S. businesses harmed by the tariffs); Reilly Stephens, James McQuaid, and Bridget Conlan, Schwab’s colleagues at the Liberty Justice Center; Professor Ilya Somin of Scalia Law, who has been working with the LJC lawyers; Brian Simmonds Marshall of the Oregon Department of Justice, who argued the case for twelve plaintiff states; and the many other attorneys, from state AG offices across the country, who collaborated with Marshall on the case.
Kudos as well to prominent SCOTUS advocate Kannon Shanmugam on joining the Harvard Corporation, the senior governing board of Harvard University (Shanmugam’s alma mater, for both college and law school). He’s filling the seat being vacated by his partner at Paul Weiss, fellow HLS alum Ted Wells. Considering all of Harvard’s courtroom battles with the Trump administration, the Corporation will benefit from the addition of another great legal mind.
Two top deputies to Texas Attorney General turned U.S. senate candidate Ken Paxton, former solicitor general Judd Stone and former assistant attorney general Chris Hilton, were forced to resign from the Texas AG’s Office in 2023 over allegations of harassment—according to a lawsuit filed by Jordan Eskew, another former employee of that office.
Donald Trump nominated Paul Ingrassia—a 30-year-old who graduated from Cornell Law in 2022, most well-known for hosting a right-wing podcast—to lead the Office of Special Counsel (OSC), an independent agency that protects federal whistleblowers. The OSC was recently in the headlines because of litigation over Trump’s firing of its former head, Hampton Dellinger.

Judge of the Week: Judge Richard Leon!

The Trump administration is now 0-3 in the federal courts when it comes to defending its executive orders (EOs) aimed at law firms. On Tuesday, Judge Richard Leon (D.D.C.) ruled that Trump’s EO against WilmerHale was unconstitutional—violative of the First Amendment’s protections for free speech and free association, the constitutional rights to counsel and to due process, and the separation of powers.

Here’s the opening to his 73-page opinion, striking down the order “in its entirety”:

The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted, no Executive Order has been issued challenging these fundamental rights.

Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!

Exclamation points in the original—in fact, this benchslap of an opinion boasts 26 exclamation points (not counting one included in a direct quotation of Trump). But those who know Judge Leon shouldn’t be surprised; he’s an excitable guy. Back in 2013, he was spotted having lunch with Chief Justice John Roberts at Carmine’s, by an Above the Law reader who described Judge Leon as “a rather rotund, strangely dressed fellow, who kept yapping and waving his arms at Roberts.”

Judge Leon, a George W. Bush appointee, is the most conservative jurist to rule against a Trump Biglaw EO to date. He is also, according to Sarah Isgur of Advisory Opinions (AO), a highly respected trial judge—so his ruling against one of these EOs is yet another sign of their constitutional infirmity. (Despite her praise for Judge Leon, Isgur did take issue, as a former Fifth Circuit clerk, with his comparison of the EO to a gumbo that “gives the Court heartburn”—questioning what a D.C.-based, Massachusetts-born judge would know about gumbo.)

In other judicial news:

Chief Judge Steven Colloton (8th Cir.) dismissed a judicial-misconduct complaint against a district judge who participated in a clerk hiring boycott aimed at graduates of Columbia. But in his decision, Chief Judge Colloton stated that “a substantial question” exists as to “whether judges cross an important line when they… begin using their power as government officials to pressure private institutions to conform to the judges’ preferences”—and that “[t]he matter may be appropriate for study by those who revise and interpret the Code of Conduct.” (The judge who was the subject of the complaint isn’t named in the opinion, but according to Reuters, it’s Judge Daniel Traynor of North Dakota.)
Conservatives tend to be more critical than liberals of legal academia—which isn’t surprising, given the leftward leanings of most law professors. But according to an interesting study by Brent Newton of Penn State Dickinson Law, conservative Supreme Court justices are citing law-review articles more than liberals nowadays.

In nominations news:

In another departure from how judicial nominations were handled during Trump’s first term, the administration is further curtailing the role of the American Bar Association (ABA) in reviewing judicial nominees. As Attorney General Pam Bondi declared in a letter to ABA President William Bay, the Justice Department’s Office of Legal Policy (OLP) “will no longer direct nominees to provide waivers allowing the ABA access to nonpublic information, including bar records,” and “[n]ominees will also not respond to questionnaires prepared by the ABA and will not sit for interviews with the ABA.” (Although the ABA didn’t get a “sneak peek” or early access to nominees’ identities during the first Trump administration, as the organization did during the Obama administration, the ABA did get access to bar records, and nominees did respond to questionnaires and sit for interviews.)
What I mentioned as a possibility in last week’s Judicial Notice has now come to pass: Donald Trump announced that he’d be nominating one of his former defense lawyers, Principal Associate Deputy Attorney General Emil Bove, to serve on the Third Circuit (despite Bove’s lack of significant ties to either New Jersey or Delaware, the two states in the Third Circuit with vacancies). Trump praised Bove on Truth Social as “SMART, TOUGH, and respected by everyone.” (Well, maybe not everyone—Ed Whelan is not a fan.)
Bove will face some skepticism from the Senate. Trump’s picks for five district-court seats in Florida should be more well-received: Magistrate Judge Kyle Dudek (M.D. Fla.); Florida chief deputy attorney general John Guard (M.D. Fla.); and three Florida state appellate judges, Judges Jordan Pratt (M.D. Fla.), Anne-Leigh Gaylord Moe (M.D. Fla.), and Ed Artau (S.D. Fla.).

In memoriam: Justice J. Michael Eakin, who served on the Pennsylvania Supreme Court from 2002 until 2016, passed away at 76. May he rest in peace.

Job of the Week: an opportunity for a midlevel litigator at a leading entertainment-law firm.

Lateral Link is working directly with the hiring partner of one of the nation’s top entertainment-law firms. They’re looking for a top-shelf, midlevel litigator to join their team—and no prior entertainment experience is needed. This is a truly unique opportunity to work on some of the highest-profile cases in the country, involving some of the biggest names in show business. To be considered, please contact Director Buddy Broome at bbroome@laterallink.com.

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Is it just me, or are crises popping up all over the place? Major corporations, top law firms, and leading universities—among many other institutions—seem to be lurching from one crisis to another. And they need help—often from lawyers and law firms.

So it was an opportune time for me to welcome to the podcast one of the nation’s leading experts on crisis management: Debra Wong Yang, a longtime partner at Gibson, Dunn & Crutcher, where she chairs the crisis-management practice. Before joining Gibson, Debra served as U.S. attorney for the Central District of California (aka Los Angeles), and before that, she spent five years as a California state-court judge. These experiences equipped her well to help clients navigate some very challenging situations—a number of which we cover in our conversation.

If you’re involved in leading an organization that could face a crisis in the future—which is pretty much every organization—you’ll benefit from hearing about Debra’s experiences in the trenches, as well as her advice on how to prepare for a possible crisis. My thanks to Deb for taking the time to share what she’s learned over her long and distinguished legal career.

Show Notes:

Debra Wong Yang bio, Gibson Dunn & Crutcher LLP
Legends Limelight: Debra Wong Yang, by Katrina Dewey for Lawdragon
The Choice, by Katharine Whittemore for Boston College Law School Magazine

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Debra Wong Yang (courtesy photo via Gibson Dunn) Read more

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Karen Dunn (left) and Jeannie Rhee, entering court to represent Google in a landmark antitrust trial (photo by Samuel Corum/AFP via Getty Images).This week’s Judicial Notice is sponsored by

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I hope you’ve been having a meaningful Memorial Day weekend, taking time to honor and mourn the brave individuals who died while serving our nation in the armed forces. And I hope you’ve been having a relaxing long weekend, given the turbulent times in which we live.

The current moment has definitely been keeping legal journalists and commentators busy. In the past month, I’ve shown up in the pages of Corporate Counsel, which highlighted my podcast interview of former Bristol Myers Squibb general counsel Sandra Leung; the New Jersey Law Journal, which quoted me discussing ongoing turmoil at the U.S. Department of Justice; and the ABA Journal, which picked up a New York Times article (gift link) about how my former outlet, Above the Law, is speaking out against the Trump administration.

So there’s no shortage of news—to which we now turn.

Lawyers of the Week: Karen Dunn, Bill Isaacson, Jeannie Rhee, and Jessica Phillips.

Late on Friday afternoon, four prominent partners—Karen Dunn, Bill Isaacson, Jeannie Rhee, and Jessica Phillips—announced that they’d be resigning from Paul Weiss to launch their own firm. The news made it into The Times (gift link), as well as legal-industry publications like The American Lawyer, Bloomberg Law, and Law360.

The departures come two months after Paul Weiss cut a controversial deal with the Trump administration, which allowed the firm to get out from under an onerous executive order. Notably, three out of the four partners have supported Democratic politicians or done other things that might be viewed as anti-Trump:

Dunn helped multiple Democratic presidential candidates, including Kamala Harris in 2024, to prepare for their debates (as she discussed with me in a podcast interview);
Dunn co-chaired a fundraiser for Harris in October 2024, while Isaacson and Rhee served as co-hosts for the event;
Isaacson and Rhee made contributions to other Democratic politicians and organizations; and
Rhee worked on special counsel Robert Mueller’s Russia investigation.

(Jessica Phillips, daughter of the renowned Supreme Court advocate Carter Phillips, doesn’t appear to have significant ties to Democratic politics—and actually clerked for the archconservative Justice Samuel Alito.)

But it’s not the case that these Paul Weiss partners resigned to protest the settlement, which their departure email didn’t mention. In fact, according to The Times, Karen Dunn—a member of firm leadership, as co-chair of litigation—supported the deal, even helping chair Brad Karp persuade other partners to get behind it.

At the same time, this news is… not unrelated to the late unpleasantness. One source told The American Lawyer that the partners are leaving to launch a boutique that can take on the Trump administration “without limitations”—which, in light of these lawyers’ liberal leanings, isn’t surprising. If they remained at Paul Weiss, their litigating against Trump would raise the danger of the executive order being reimposed on the firm (which the settlement in no way precludes, at least as far as I know).

Dunn et al. aren’t the first top trial lawyers to leave Biglaw in order to take on Trump—they were preceded by Abbe Lowell, who left Winston & Strawn to launch Lowell & Associates—and they won’t be the last. I predict that in the weeks and months ahead, they’ll be joined by a number of other leading litigators yearning to breathe free (of the strictures of Biglaw).

I’m a big supporter of the rise of litigation boutiques (full disclosure: one of Original Jurisdiction’s longtime sponsors, NexFirm, advises partners on how to leave Biglaw and launch firms of their own). But I do have a concern: if more and more litigators leave large firms to launch boutiques, the transactional tilt of Biglaw, already quite pronounced, will grow even stronger. And I don’t think it’s a good thing—for either the legal profession or for individual firms—for Biglaw to abandon litigation.

Other lawyers in the news:

Noted Supreme Court advocate and SCOTUSblog founder Tom Goldstein filed what Bloomberg Law described as a “slew of motions” attacking the federal criminal tax charges he’s facing, amounting to what Law360 characterized as his “his most forceful attack” to date against the prosecution. According to Goldstein and his lawyers at Munger Tolles, some of the charges are legally deficient, while others are barred by the statute of limitations.
On Wednesday, Ford Motor Company sued multiple California lawyers and law firms in federal court in Los Angeles (C.D. Cal.), alleging that they engaged in fraudulent overbilling—e.g., by billing more than 24 hours in a day.
In happier news out of the Golden State, reality TV star turned entrepreneur Kim Kardashian graduated from California’s Law Office Study Program, an alternative route to becoming a lawyer that doesn’t require graduation from an accredited law school. She already passed California’s First-Year Law Students’ Examination aka “baby bar” and the Multistate Professional Responsibility Exam, so if she passes the CA bar exam, she should be able to become a practicing attorney.

In memoriam: South Florida defense lawyer Paul Donnelly passed away at 57, after experiencing a medical emergency in federal court. As David Oscar Markus reported on the Southern District of Florida Blog, Donnelly was “waiting to be called for a sentencing hearing before Judge [Jacqueline] Becerra. The marshals and co-counsel did all they could until rescue arrived. He died pursuing justice.” Paul Donnelly, rest in peace.

Judge of the Week: Judge James Ho.

In A.A.R.P. v. Trump, the U.S. Supreme Court held that a putative class of Venezuelan nationals in the Northern District of Texas were entitled to more notice than they were given on April 18, when the Trump administration attempted to deport them under the Alien Enemies Act (AEA). Along the way to this conclusion, the Court concluded that the district judge handling the case, Judge James Wesley “Wes” Hendrix (N.D. Tex.), constructively denied the AEA detainees’ request for relief by not granting them an emergency temporary restraining order quickly enough. The Court then remanded to the Fifth Circuit, directing it to proceed “expeditiously” in the case. (For more discussion of A.A.R.P.—which has nothing to do with old people—see last week’s Judicial Notice, as well as my post on class actions and universal injunctions.)

Consistent with its marching orders from SCOTUS, the Fifth Circuit scheduled A.A.R.P. for expedited oral argument. Judge James Ho issued a seven-page concurrence, going along with the order—but also delivering a “reverse benchslap” of the Supreme Court. (As I explained back in 2012, a reverse benchslap is when “a lower-court judge diss[es] a judge on a higher tribunal.”)

The gist of Judge Ho’s concurrence is that (1) Justice Samuel Alito’s dissent in A.A.R.P.—which was joined by Justice Clarence Thomas, for whom Judge Ho clerked (and whom he might replace someday)—was totally right; (2) the SCOTUS majority unfairly maligned Judge Hendrix, by suggesting that he didn’t handle the case expeditiously; and (3) the Court “disrespect[ed]” Donald Trump, by denying his administration “the right to express its views before any ruling is issued” (because the majority basically said that Judge Hendrix should have entered a TRO immediately, instead of giving the government 24 hours to respond).

The headline-grabbing quip of Judge Ho’s concurrence came as he was chastising the Court for concluding that Judge Hendrix didn’t act quickly enough: “We seem to have forgotten that this is a district court—not a Denny’s.” This eminently quotable one-liner got highlighted by everyone from the WSJ to Rolling Stone to Law360.

For praise of Judge Ho’s concurrence, see, e.g., Professor Josh Blackman, over at The Volokh Conspiracy (here and here), or former federal judge Paul Cassell, in a WSJ piece. For critical commentary, see, e.g., Professor Steve Vladeck at One First. And for a middle path, here’s Professor Will Baude of Divided Argument:

One can believe all of the following things:

Judge Hendrix is an upstanding man and a very good district judge.

His decision to tell the ACLU that Friday that he would not grant an emergency injunction/TRO without giving the government 24 hours to respond was reasonable, given what he knew at the time.

While reasonable, that decision was also an effective denial of any emergency injunction/TRO targeted at irreparable injuries (such as rendition to an El Salvador prison) that might happen in the next 24 hours.

The Supreme Court’s own conclusion (in AARP I) that those irreparable injuries were sufficiently imminent, and therefore that it should act to preserve the status quo, was also reasonable, and proved even more reasonable in hindsight.

In support of Baude’s fourth point, consider these comments by David French on Advisory Opinions:

Yes, this is not a Denny’s; they’re not open 24/7. And on the one hand, Judge Ho, I get that.

[UPDATE (7:21 p.m.): A reader drew my attention to 28 U.S.C. § 452, which provides as follows: “All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.]

On the other hand, your anger is misplaced. It’s not the Supreme Court that is causing this problem; it’s an administration that is thumbing its nose at the Supreme Court, not providing any process that would meet the definition of due process. And so that is why this is happening. It is not happening because the Court is saying, “Well, district courts need to be open 24/7, working around the clock.” It’s happening because the administration is pulling a fast one.

Put another way, it’s reasonable in theory to give a hypothetical presidential administration 24 hours to respond to a request for emergency relief from migrants who fear they’re about to be deported. But in practice, if you give the Trump administration 24 hours, “we have no assurance that the president isn’t going to put all these people on a plane to El Salvador, making the entire litigation moot,” as Professor Brian Fitzpatrick told me in a recent interview. (Justice Alito noted in his dissent that the administration promised that it wouldn’t deport the two named plaintiffs, A.A.R.P. or W.M.M., while the litigation moved forward—but the government conspicuously did not make a similar commitment about any of the other detainees.)

Other judges in the news:

In remarks at an American Law Institute event in Washington, D.C., Chief Judge William Pryor (11th Cir.) spoke out in defense of judicial independence, declaring that political leaders who deploy “inflammatory rhetoric” against judges are “play[ing] with fire in our toxic political climate.”
Speaking of Alabama-based judges who feed clerks to the U.S. Supreme Court, Justice Jay Mitchell resigned from the Alabama Supreme Court. He’s seeking the Republican nomination for Alabama Attorney General in the 2026 election, as reported by Yellowhammer News (via Howard Bashman’s How Appealing).
Former judge Richard Posner prevailed in a lawsuit by an Indiana man who claimed he was owed $170,000 for working at the now-dissolved Posner Center of Justice for Pro Se’s. Posner was represented by Steven Molo, Justin Ellis, and Ken Notter of MoloLamken, as well as David Beach of Eichhorn & Eichhorn.
In a recent episode of Divided Argument, Professors Will Baude and Dan Epps wondered why five SCOTUS justices recused in Baker v. Coates, a case leveling plagiarism accusations against bestselling author Ta-Nehisi Coates and others. As Gabe Roth of the watchdog group Fix the Court suggested to The Washington Post, four justices likely recused because one defendant in the case was the German conglomerate Bertelsmann, owner of Penguin Random House—which has published or will be publishing books by Justices Sotomayor, Gorsuch, Barrett, and Jackson. (Why Justice Alito also recused is less clear.)

In nominations news, Principal Associate Deputy Attorney General Emil Bove is apparently a top contender for a vacancy on the Third Circuit, according to Glenn Thrush and Charlie Savage of The New York Times (gift link). Conservatives had divergent reactions: Ed Whelan called it “disturbing news” over at National Review, citing Bove’s role as “DOJ henchman” during the “mishandl[ed]” prosecution of New York City Mayor Eric Adams, while Deputy Attorney General Todd Blanche, Bove’s current boss, praised him as “a brilliant legal mind and a dedicated public servant.”

In memoriam:

Judge John Duhé, Jr.—who served as a Louisiana state-court judge, a federal trial judge (W.D. La.), and a Fifth Circuit judge—passed away at 92.
Chief Justice Michael “Mike” Cavanagh—who served as a justice on the Michigan Supreme Court from 1983 to 2014, and as chief from 1991 to 1995—passed away at 84. Chief Justice Megan Cavanagh—the current chief is the daughter of a former chief—said that her father “embodied what it means to be a compassionate, thoughtful, and loving human being.”

May they rest in peace.

Job of the Week: an opportunity for an associate or counsel focused on international trade.

Lateral Link is assisting a repeat client and elite firm with a new, unposted search for an associate or counsel to join the international-trade subgroup of a larger national-security team. The practice is very busy and well-run, and the group continues to grow. The ideal candidate will have high academic achievement, excellent writing skills, and at least six years of relevant experience focusing on CFIUS, export controls, and international trade, including customs, trade policy, and remedies. The firm is well-known for enhanced mentorship and investment in laterals. For immediate consideration, email your résumé to Managing Director Vered Krasna at vkrasna@laterallink.com.

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A clerk walking the halls of One First Street (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

It’s hard to believe, but the current Term of the U.S. Supreme Court—October Term 2024, in SCOTUS parlance—is almost over. We’re presumably done with oral arguments—last week’s arguments in the birthright-citizenship cases constituted a special session—and now we’re just waiting for opinions to come down (or not come down, as the case might be).

Here’s something else I’ve been waiting for: the names of the law clerks for October Term 2025 that I’m still missing. That class of clerks will report for duty at One First Street in July, a little more than a month away, and I’m still missing five clerks: three for Justice Alito and two for Justice Barrett. (I’m already aware of Michael Bradley, Kate Hardiman Rhodes, and Matt Phillips.)

Does this mean that Justices Alito and Barrett still have open slots for OT 2025? No; to the contrary, I’m reliably informed that they have filled their slots for the upcoming Term, but I don’t have the names of these five clerks yet. Can you help me out? If so, please email me, at davidlat@substack.com, or text me, at 917-397-2751 (texts only—no calls). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text.

Before turning to the lists of clerk names, here’s some color commentary:

I believe that all nine active justices have hired all their clerks for OT 2025—and looking ahead, five out of nine have hired at least one clerk for OT 2026 (everyone except Justices Alito, Sotomayor, Barrett, and Jackson). In addition, three justices—Justices Thomas, Kavanaugh, and Barrett—have hired at least one clerk for OT 2027.
As I’ve mentioned before, analyzing clerk hiring patterns foreshadowed the retirements of Justices O’Connor, Souter, and Stevens. And while it isn’t a foolproof indicator—Justice Kennedy hired a full complement of clerks, then peaced out (and those hires got placed with other justices)—clerk hiring can be suggestive. So I’d say that Justice Alito hiring four clerks for OT 2025—as I’ve been told he has, even though I’m missing the names—provides at least partial support for my previous, somewhat contrarian prediction that he won’t retire during Donald Trump’s term (to the disappointment of many conservatives who’d like Justice Alito to be replaced by a more youthful jurist).
The same is true of Justice Clarence Thomas—a fortiori. He’s hired four clerks for OT 2025, whose names are all known to us (see below), plus an additional six (6!) clerks for the Terms after that.
Speaking of Justice Thomas, one of his OT 2027 hires is Dan Vitagliano, a 2020 graduate of St. John’s University School of Law—and, according to St. John’s law professor Mark Movesian, that school’s first-ever SCOTUS clerk. Congratulations to both Dan and St. John’s. If any justice would hire outside the T14—or maybe that should be the T17?—it would be Justice Thomas, who’s commendably open-minded when it comes to educational pedigree.
Vitagliano is currently cooling his heels as an associate at the powerhouse conservative boutique of Consovoy McCarthy (written about here and here). So is another future Thomas clerk, Tiffany Bates (who also clerked for Judge Kyle Duncan (5th Cir.)—one to watch when it comes to feeding). For a variety of reasons I won’t get into here, I don’t produce “feeder firm” rankings (despite occasional requests for them). But if I did, Consovoy McCarthy would be up there.
Speaking of small places with big SCOTUS feeding patterns, Tiffany Bates graduated from tiny Hillsdale College (total undergraduate enrollment of 1,700), which punches above its weight in producing SCOTUS clerks. It doesn’t hurt that Hillsdale—a Christian, classical liberal-arts college in Michigan, which doesn’t take federal government funding (a good thing in this day and age)—is conservative, as are most of the justices. Another institution that punches above its weight, also religiously affiliated, is my alma mater, Regis High School—a Catholic, Jesuit, all-boys school in New York City. Maybe some diligent readers can provide me with statistics on the Hillsdale and/or Regis alums who have gone on to clerk for the Court in recent years.
Fun fact: Michael Bradley (Notre Dame 2023 / Hardiman / W. Pryor), clerking for Justice Alito in OT 2025, is the ~~younger~~ older brother of Timothy Bradley (Notre Dame 2020 / Colloton / Sutton), who clerked for Justice Barrett in October Term 2022. [UPDATE (1:31 p.m.): Michael Bradley is the older brother of Tim Bradley; even though Michael graduated from Notre Dame Law School after Tim, Michael took some time off before law school. Another fun fact: their father is Professor Gerard “Gerry” Bradley, who taught at NDLS for many years and retired last year.]
Speaking of Chief Judge Jeffrey Sutton (6th Cir.), he’s the SCOTUS feeder judge who has sent clerks to the highest number of current justices—eight out of the nine. As noted by Sarah Isgur of Advisory Opinions (where Chief Judge Sutton was a guest earlier this week), he’s tied for this distinction with two others, Judges Amul Thapar (6th Cir.) and J. Harvie Wilkinson (4th Cir.). The first one of them to place a clerk with Justice Ketanji Brown Jackson “wins.”

Okay, that should suffice for now. For paid subscribers to Original Jurisdiction, I share actual clerk names—which won’t mean anything to most readers—below. As you can see, I’ve picked up a good number of hires since my prior roundup in February.

To repeat, please reach out with any hiring news that I have not yet reported (or any corrections, of course). You can contact me at davidlat@substack.com or 917-397-2751 (texts only—no calls). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text.

And here’s an incentive: if you provide me with a hire I don’t already know about, I’ll give you a complimentary six-month subscription to Original Jurisdiction, which will allow you to access all of OJ’s content (paid and free). Thanks!

[UPDATE (2:35 p.m.): I’ve explained this many times in the past, but I do not identify sources for my SCOTUS clerk hiring news—and would even go to jail to protect a source (at least for a few days).]

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No, they weren’t waiting in line to hear about universal injunctions (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

The U.S. Supreme Court heard oral arguments on May 15 in cases challenging Donald Trump’s executive order restricting birthright citizenship. Lower courts have issued nationwide or universal injunctions preventing the order from taking effect, which the Trump administration argues these courts lack the power to do.

I expected the arguments to cover universal injunctions and birthright citizenship, and they did. I did not expect extensive discussion of class actions under Federal Rule of Civil Procedure 23—which wound up being, according to Adam Feldman of Legalytics, one of the top three topics raised at the arguments. Or as Stanford law professor Mila Sohoni put it, in an excellent analysis at Divided Argument, “The breakout star of the oral argument was the Rule 23(b)(2) injunctive class action.”

I was not alone in being surprised by how prominently class actions figured in the arguments. Also caught off guard was Vanderbilt law professor Brian Fitzpatrick, a leading expert on class actions and author of the book The Conservative Case for Class Actions, whom I interviewed earlier this week.

“I was surprised by how much class actions were mentioned,” Fitzpatrick told me. “I realize they are a possible alternative to nationwide injunctions, but I didn’t realize how strong the interest was in them. It seemed that the government had put all their eggs in that basket—or that the justices saw class actions as the only viable alternative.”

Solicitor General John Sauer leaned hard on class actions in his argument. When Justice Elena Kagan asked what can be done about an illegal executive order, Sauer said that “Article III [of the Constitution] and the courts’ traditional equitable practices provide a range of tools to address that, including a potentially nationwide class action”—but that “a universal injunction is not one of those tools.”

Why might class actions be helpful to the Trump administration? Fitzpatrick explained that criticisms of nationwide injunctions fall into two buckets: formalist or technical concerns, and functional or practical ones. Class actions address both—at least in part.

On the formalist side, the government argues that it’s unconstitutional to award relief like an injunction to an individual who’s not a party to the case. Class actions address this by using the class certification process to make these individuals—i.e., individuals other than the named plaintiff in a class action—into formal or official parties.

On the functional side, there are a number of problems with universal injunctions. They encourage forum- and judge-shopping: plaintiffs challenging a nationwide policy get to pick where they file their case. They prevent percolation of legal issues through the lower courts: once a judge blocks some government action with a universal injunction, the action ceases, and other courts don’t get to rule on it.

And they’re unfair to the government—which can win the vast majority of lawsuits challenging a policy, but if one judge finds that policy unlawful, it gets frozen nationwide. As Sauer stated in the opening of his argument, universal injunctions “operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere.” If the government wins a challenge to a policy in one court, that ruling doesn’t stop plaintiffs from filing lawsuits in other courts. But if the government loses and gets hit with a nationwide injunction, it can’t implement that policy anywhere, full stop.

The class-action mechanism is less effective in addressing these practical problems, according to Fitzpatrick. Because class members are bound by an adverse ruling, the class action does fix the problem of unfairness to the government because of a lack of reciprocity. But it doesn’t address the problem of forum- and judge-shopping, since lawyers challenging a national policy can pick where to file their class action, and it also doesn’t allow for percolation, since granting relief to a nationwide class blocks that policy across the country.

In other words, there’s not much of a practical difference between a nationwide class action, on the one hand, and a universal injunction, on the other. As an example, Fitzpatrick cited a class action challenging the Trump administration’s policy allowing migrants to be deported to places other than their country of origin, so-called “third countries,” without giving them an adequate opportunity to object.

The lawsuit was brought by a coalition of immigrant-rights organizations, who (shrewdly) filed in the U.S. District Court for the District of Massachusetts—where Democratic appointees outnumber Republicans by 11-2, among active judges. The case wound up before Judge Brian Murphy, a Biden appointee.

Five days after the complaint was filed, Judge Murphy issued a temporary restraining order blocking the policy across the country. A few weeks later, and less than a month after the lawsuit was initiated, he certified a nationwide class and partially granted a preliminary injunction. (Yesterday, Judge Murphy ordered the administration to “maintain custody” of certain migrants who may have been deported to South Sudan, in possible violation of the injunction.)

One might argue that at least class actions require plaintiffs (and their lawyers) to satisfy Rule 23’s requirements for certifying a class, including what Sauer referred to as “the rigors of the certification process.” But an opinion the Supreme Court issued the day after the birthright-citizenship arguments calls even this argument into question.

In A.A.R.P. v. Trump, the justices extended their earlier order preventing the Trump administration from deporting alleged Venezuelan gang members under the Alien Enemies Act (AEA). The Supreme Court provided relief to a “putative” class, i.e., a class asserted to exist by the plaintiffs but not yet certified by the district court.

In fact, as Justice Samuel Alito complained in his dissent, “the Court issue[d] ‘preliminary relief’ to a putative class that the District Court has explicitly refused to certify,” and “without providing any substantive analysis suggesting that the District Court’s analysis of the class certification issue was incorrect.” In Alito’s view, even assuming a court can grant relief to a putative class, it “must at least consider whether class certification is likely” before doing so.

According to Georgetown law professor Steve Vladeck, “the majority’s holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief, even without resolving the likelihood of full class certification, is going to have an impact in lots of cases—well beyond the AEA.” In a post at One First, he characterized the court’s conclusion as a “quiet bombshell.”

Or, as Fitzpatrick told me, if a court can provide class-wide, injunctive relief to a “putative” class, without certifying the class or even determining that class certification is likely, “that’s giving away the whole ballgame—it’s functionally equivalent to a universal injunction.”

In Fitzpatrick’s view, the better practice is for a court to reach at least a preliminary conclusion on the likelihood of class certification before issuing temporary relief to a putative class. But he said he understands the appeal of providing immediate relief to a putative class, given how swiftly the Trump administration moves.

In A.A.R.P., for example, the plaintiffs alleged that the government planned to deport some migrants with only 24 hours’ notice. And as the Court pointedly noted—citing the case of Kilmar Armando Abrego Garcia, the Maryland man sent to an El Salvadoran prison—“the Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador.”

So even if a court takes only a few days to make preliminary findings about the likelihood of class certification, it might be too late for the class members. As Fitzpatrick said, “Today we arguably have more need than ever to give relief to a putative class—because we have no assurance that the president isn’t going to put all these people on a plane to El Salvador, making the entire litigation moot.”

If the Court overreached in granting relief to a putative instead of certified class, we could be looking at a situation where “the Court has acted wrongly in enjoining action that is probably, or even certainly, illegal,” lawyer and legal commentator Ed Whelan wrote at National Review. He added, “Another reason to condemn [the Trump administration’s] unconstitutional actions is that they predictably generate bad law that expands judicial power.”

In other words, Trump critics might argue—paraphrasing the old saying, “Hard cases make bad law”—”bad administrations make bad law.”

Returning to the birthright-citizenship oral arguments, certain comments by the justices resonate quite differently in light of the A.A.R.P. ruling that came out the next day. Justices Neil Gorsuch and Brett Kavanaugh asked multiple questions about giving preliminary relief to putative classes—presumably because they knew the Court was about to do just that in A.A.R.P., even if the advocates in the birthright-citizenship cases did not.

Explaining the appeal of the class-action mechanism over the universal injunction, Justice Kavanaugh said that at least the class action “complies with the rules.” And while jumping through the hoops of Rule 23 class certification “may all be a technicality” to some, he added, in the legal realm, “we care about technicalities.”

Well said, Justice Kavanaugh. What some might dismiss as “technicalities,” others might call “the rule of law.”

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D. John Sauer, at his confirmation hearing to serve as U.S. solicitor general.This week’s Judicial Notice is sponsored by

“Mr. DeMille, I’m ready for my close-up.” Late last month, I returned to the Above the Law offices for a fun photo shoot with my former colleagues—and now the article, by Elizabeth Williamson of The New York Times (gift link), is online.

Titled “The Website Where Lawyers Mock ‘Yellow-Bellied’ Firms Bowing to Trump,” Williamson’s piece (accurately) describes ATL as “a rage read for lawyers incensed at the firms that accommodated him.” If you agree with my criticisms of the Trump administration’s executive orders targeting law firms and the Biglaw settlements with the Trump administration, but seek something sharper (and snarkier) in tone, Above the Law is what you’re looking for.1

Speaking of legal media, if you’re interested in joining me in journalism, now is the rare time when three full-time jobs in this field are open: (1) Supreme Court correspondent at The New York Times, (2) managing editor at SCOTUSblog, and (3) executive editor at Executive Functions (the excellent Substack newsletter of Professors Bob Bauer and Jack Goldsmith). To those of you who might be interested in these positions, you’re welcome—and good luck.

Now, on to the news.

Lawyers of the Week: John Sauer, Jeremy Feigenbaum, and Kelsi Corkran.

On Thursday, the Supreme Court heard almost two and a half hours of oral argument in Trump v. CASA, Inc., Trump v. Washington, and Trump v. New Jersey—collectively, the birthright-citizenship cases. The plaintiffs in these cases, both states and private parties, challenge the legality of Donald Trump’s executive order, Protecting the Meaning and Value of American Citizenship. But much of the argument focused on the subject that was the basis of the government’s requests for emergency relief, namely, universal injunctions (a complex topic I previously explained here).

I participated in the SCOTUSblog liveblog of the argument (along with Will Baude, Amy Howe, Sarah Isgur, Zachary Shemtob, and Amanda Tyler). As soon as the arguments were over, I analyzed them in a live episode of Advisory Opinions (together with Amy, Sarah, Zach, and David French). And if that wasn’t enough for you, I offer additional thoughts under Litigation of the Week, infra.

For present purposes, I’d like to comment on the three advocates. D. John Sauer, Solicitor General of the United States, argued for the Trump administration; Jeremy Feigenbaum, the New Jersey Solicitor General, argued for the states challenging the order; and Kelsi Corkran, Supreme Court Director at the Institute for Constitutional Advocacy & Protection, argued for CASA, one of the private, organizational plaintiffs.

Overall, I agree with Amy’s comment on AO: the case was well-argued, on both sides. And I agree with Zach’s observation that Feigenbaum, who’s only 36, did a superb job, in only his third argument before the high court. He’s definitely one to watch among the next generation of SCOTUS superstars. (When it comes to oral advocates, Justice Elena Kagan, a former U.S. solicitor general, knows how to pick ‘em: Feigenbaum clerked for her, as did former U.S. solicitor general Elizabeth Prelogar—renowned for her prowess and polish at the podium at One First Street.)

Sauer had the toughest time, fielding some difficult questions from the justices. They seemed particularly concerned about (1) how the Court could reach the merits of birthright citizenship expeditiously, if the government never brings the merits before the justices (after constantly losing in the courts below and not appealing), and (2) the extent to which the Trump administration will follow court orders. But as I said on AO, if Sauer might not have sounded great up there, I don’t think it was because of any deficiency in his advocacy; he simply had difficult positions to defend, thanks to his marching orders from the administration. Put another way, he didn’t have a style problem, but a substance one (as discussed in more detail below).

Other lawyers in the news:

Two federal juries issued nine-figure verdicts in antitrust cases involving drugs and devices. Congratulations to the trial lawyers from White & Case, Weil Gotshal, Orrick, and the Wilks Law Firm, who won a verdict of more than $400 million for their client, Regeneron. And kudos to the trial lawyers from Kellogg Hansen, Berger Montague, Theodora Oringher PC, and Jeffrey L. Berhold PC, who won a verdict of $147 million for their client, Innovative Health.
The new (American) pope, Pope Leo XIV, is a lawyer—a canon lawyer. What does that mean? To find out, read Amanda Roberts’s interesting ABA Journal interview with Bishop Thomas John Paprocki (who is both a canon lawyer and a “lawyer lawyer,” admitted to the Illinois bar).
Lawyers from a major Biglaw firm and an elite boutique got caught up in an AI “debacle,” and their firms were ordered to pay $31,000 in sanctions (discussed below under Law Firms of the Week). Yikes.

In memoriam:

Ronald Goldfarb, who prosecuted organized-crime cases during the Kennedy administration and wrote numerous law-related books, passed away at 91.
Larry Turner—a prominent Philadelphia attorney, advocate for greater diversity in the legal profession, and longtime partner at Morgan Lewis—passed away at 65, from a cardiac event.

May they rest in peace.

Judge of the Week: Judge Lauren Peffer.

Lawyers aren’t the only ones getting in trouble for citing non-existent authorities created by AI. Judge Lauren Peffer of Broward County, Florida, got hit with ethics charges for allegedly quoting a book she never read and citing a recorded phone conversation that was “likely” fabricated by AI, during the course of her 2024 election campaign. The story got covered by Law.com, Law360, and the ABA Journal.

Specifically, during an interview with the editorial board of the South Florida South Sentinel, Judge Peffer claimed that “recent revelations” from Florida’s Ninth Judicial Circuit Court “have highlighted an image crisis” within the state’s judiciary. As authority for this proposition, she cited The Ninth Circus Court of Florida: My 30-Year Job from Hell!, a self-published e-book by a disgruntled former court employee. (I guess this is the new “Ninth Circus”? Conservatives called the federal Ninth Circuit the “Ninth Circus” back in its days as a left-wing bastion, but the court is significantly more moderate nowadays.)

After the editorial board questioned some of the book’s claims, Judge Peffer shared with the board the allegedly fake recording, which the ex-employee had posted online. In the purported recording, one judge claimed that a colleague’s “first love is power, then money, then white women. I’m not trying to be glib, but my guess is if [the judge] could have a perfect death, he would be buried under the Lincoln Memorial next to Clarence Thomas, in a solid gold coffin, and have a live white hooker buried with him as a sacrifice.” How charming.

And there is, of course, a huge irony in all this. As stated in the charges against Judge Peffer, “Your campaign theme was to restore the public’s trust, but your behavior did the opposite and brought harm to the dignity and integrity of the judiciary.”

In defense of Judge Peffer, I’ll say this (as a connoisseur of judicial scandals, having covered misbehaving judges for more than 20 years): the Florida judiciary does have “an image crisis,” and when I hear crazy things about Florida judges, I’m inclined to believe them. Why? If I had to pick the naughtiest state judiciary in the country, it would be the Sunshine State’s. Three judges from the same court getting charged with DWI over the course of six months is… impressive. Stay classy, Your Honors.

Other judges in the news:

Judge Hannah Dugan, the Wisconsin state judge accused of trying to help an undocumented immigrant evade federal agents, moved to dismiss the federal obstruction charges against her, citing judicial immunity. And she might find a receptive audience in Judge Lynn Adelman (E.D. Wis.), a Clinton appointee and former Democratic congressional candidate. Judge Adelman was previously admonished for writing a law review article criticizing Chief Justice John Roberts,for “disingenuous[]” testimony at his confirmation hearings,and the Supreme Court’s “hard-right majority,” for “undermining American democracy.”
Speaking of Chief Justice Roberts, he spoke out for at least the third time since Trump’s inauguration in defense of the rule of law. In remarks at Georgetown Law, he described the rule of law as “endangered” and warned against “trashing” the justices with “ad hominem” attacks, which “doesn’t do any good.” He also had warm words for his late colleague, Justice David Souter.
And speaking of Justice Souter, two of his former clerks, Professors Jeannie Suk Gersen and Kermit Roosevelt, wrote lovely tributes to him for The New Yorker and Bloomberg Law, respectively.
Justice Souter was known to enjoy running—a pastime pursued by many D.C. jurists, a number of whom participated in the ACLI Capital Challenge. Congratulations to the fastest Article III jurist, Judge Bradley Garcia (D.C. Cir.), who completed the three-mile course in 20:35. Last year, three members of SCOTUS participated—Justices Brett Kavanaugh (24:20), Amy Coney Barrett (26:09), and Ketanji Brown Jackson (33:24)—but this year, only Justice Jackson participated (with a time of 36:00).

Job of the Week: an opportunity for a midlevel litigation associate in Atlanta.

Lateral Link is assisting a premier Am Law firm in its search for a midlevel litigation associate to join its respected products-liability practice in Atlanta. Successful candidates will have 3-5 years of complex commercial-litigation experience at a large law firm, ideally with experience handling products-liability, mass-tort, or class-action cases. The firm welcomes attorneys already in Atlanta and those looking to relocate, provided they are committed to joining the Georgia bar. For consideration, send your résumé and law school transcript to Managing Director Marion Wilson at mwilson@laterallink.com.

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I’m very proud of the guests I’ve hosted on the Original Jurisdiction podcast, who are some of the most interesting and influential figures in the world of law. But I recently noticed a significant gap in their ranks: I’ve never hosted the general counsel or chief legal officer of a publicly traded company.

To remedy this, I went big: I interviewed Sandra Leung, who recently stepped down as executive vice president and general counsel of Bristol Myers Squibb (BMS), the biopharmaceutical giant that’s both a Fortune 100 and S&P 100 company. Sandy worked for BMS for almost 33 years, 18 of them as GC—so she’s an expert on the crucial role of in-house counsel, with lots of wise advice for GCs and CLOs. At the same time, as a former GC, she was willing to address hot-button topics that many sitting GCs might steer clear of—such as the Trump administration's executive orders targeting law firms, including how these orders should affect the thinking of GCs when considering which law firms to hire as outside counsel.

This interview is also timely because May is Asian American, Native Hawaiian, and Pacific Islander (AANHPI) Heritage Month—and Sandy, a past president of the National Asian Pacific American Bar Association (NAPABA), is a longtime leader in the AANHPI community. In our conversation, we discussed why she has devoted so much of her time and energy over the years to advancing diversity—and why she believes it remains essential for organizations, despite the backlash against DEI.

Thanks to Sandy for her time, insight, and many years of service to the legal profession. And congratulations to her on a long and successful tenure as GC.

Show Notes:

Sandra Leung bio, NAPABA
Bristol Myers Squibb GC to Retire After 33 years With Drugmaker, by Chris O’Malley for Corporate Counsel/Law.com
Bristol-Myers GC Sandra Leung To Retire After 33 Years, by Christine DeRosa for Law360

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Sandra Leung (courtesy photo) Read more

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Jeanine Pirro (photo by Theo Wargo via Getty Images).This week’s Judicial Notice is sponsored by

To all the moms out there, I hope you had a delightful Mother’s Day. Our family is fortunate enough to live near both my parents and my parents-in-law, so we were able to enjoy a celebratory brunch with both my mom and Zach’s mom. Having experienced firsthand the many benefits of living near my mother and mother-in-law, I understand why the typical American adult lives only 18 miles from their mom.

Zach and I have some exciting news to share. And no, we’re definitely not having a third kid—we’re not crazy.1

On May 19, Zach will be joining SCOTUSblog as executive editor. Dispatch Media recently acquired SCOTUSblog, and as Dispatch CEO Steve Hayes explained, it’s investing in SCOTUSblog “to ensure that it remains the go-to authority on the Supreme Court.” Hiring Zach as executive editor, a brand-new position, is part of that investment—and more hires will be announced soon. (The search for a managing editor remains open; you can read the job description and apply here.)

In addition to acquiring SCOTUSblog, The Dispatch is expanding its legal coverage by partnering with yours truly and Original Jurisdiction. Part of that collaboration involves me appearing more frequently on The Dispatch’s long-running legal podcast, Advisory Opinions—as I did last Tuesday, when I discussed St. Isidore of Seville Catholic Virtual School v. Drummond, the case out of Oklahoma about a proposed Catholic charter school, with Sarah Isgur and Amy Howe.

Now, on to the news—with apologies for the tardiness of this missive, as a result of a rather challenging weekend in our household (I’ll spare you the details). Please note that this roundup covers news through yesterday, Sunday the 11th; news from today will be included in the next edition of Judicial Notice.

Lawyers of the Week: Ed Martin and Jeanine Pirro.

On Thursday, Donald Trump pulled Ed Martin, a Republican political operative from Missouri with no prosecutorial experience, as his nominee to serve as U.S. attorney for the District of Columbia. Since taking over as acting U.S. attorney in January, Martin drew criticism for threatening to investigate Democrats, journalists, academic institutions (such as Georgetown Law), and other targets of the Trump administration, while at the same time firing and demoting career prosecutors who handled cases involving the president or his allies (e.g., January 6 prosecutions).

The withdrawal of the Martin nomination came after Senator Thom Tillis (R-N.C.) announced his opposition on Tuesday—“a good exercise of the Senate’s advise-and-consent power,” in the words of the conservative Wall Street Journal editorial board (gift link). Opposition from Tillis, a member of the Senate Judiciary Committee, suggested that getting Martin confirmed would be difficult, if not impossible.

As Trump told reporters, “I can only lift that little phone so many times of the day. It would be hard.” The collapse of Martin’s nomination raises the possibility that even Senate Republicans—who have voted for pretty much all of Trump’s nominees, including some very controversial ones—could have their limits. Might this be the start of a more normal relationship between Congress and the president, in which Congress serves as a significant check on presidential power?

As for Martin, Trump named him an associate deputy attorney general and pardon attorney at the U.S. Department of Justice (DOJ), which doesn’t require Senate confirmation. He’ll also lead the DOJ’s “Weaponization Working Group”—a body tasked with looking into “abuses of the criminal justice process” by local and federal law enforcement officers, which Trump critics fear could turn into a vehicle for exacting retribution against the president’s foes.

To replace Martin as interim U.S. attorney, Trump selected a longtime, outspoken ally, Fox News host Jeanine Pirro. Unlike Martin, Pirro has some prosecutorial experience, having served as the elected district attorney in Westchester County, New York. But that was almost 20 years ago—and today Pirro is best-known as a television personality who has made numerous controversial comments, including false statements about the 2020 presidential election.

As explained by Charlie Savage of The New York Times, it’s unclear whether Trump has the legal authority to name a second interim U.S. attorney, having already selected Ed Martin—who served for almost 120 days, the period of time provided for under federal law. So once again, Trump is testing the boundaries of his executive authority. (For more on that subject, see this Times op-ed (gift link) by Professor Jack Goldsmith, an expert on presidential power.)

Picking Pirro as interim U.S. attorney doesn’t mean he’ll select her as the long-term, Senate-confirmed U.S. attorney—but according to Kaitlan Collins of CNN, it’s “likely” that Pirro will eventually be nominated. If Pirro winds up getting nominated, some might wonder why Trump didn’t instead select an experienced, well-regarded career prosecutor without a history of incendiary statements—like Jessie Liu, U.S. attorney for D.C. during Trump’s first administration, who was confirmed by voice vote. But Liu over time took flak from Trumpworld for showing too much prosecutorial independence, not doing enough to protect the president’s allies (like Roger Stone) and prosecute his enemies (like former FBI official Andrew McCabe). So this time around, Trump will probably want a loyalist like Pirro in the position.

Other lawyers in the news:

Speaking of interim U.S. attorneys, Trump named former judge Joseph Nocella Jr. to serve in that role for the Eastern District of New York (aka Brooklyn), just as he named Jay Clayton as interim U.S. attorney for the Southern District of New York (aka Manhattan) last month. Senate Minority Leader Chuck Schumer (D-N.Y.) is currently blocking the nominations of Nocella and Clayton to serve as Senate-confirmed U.S. attorneys, to protest Trump’s handling of DOJ issues.
Speaking of Jay Clayton, he brought in a former Sullivan & Cromwell colleague, Amanda Houle, to lead the S.D.N.Y.’s criminal division—historically a powerful post, but maybe less powerful than it has been in the past (given the Trump administration’s effort to reduce the S.D.N.Y.’s independence).
There’s been significant turnover in the S.D.N.Y. U.S. Attorney’s Office over the past few months—but probably not as much as there has been down in D.C., at Main Justice. In the DOJ Civil Rights Division, typically staffed with around 380 lawyers, more than two-thirds of the lawyers have departed or been reassigned since the start of the Trump administration.
In other nominations news, the Trump administration is withdrawing Jonathan McKernan as its pick to lead the Consumer Financial Protection Bureau (CFPB), instead nominating him to serve as the Treasury Department’s undersecretary of domestic finance. Meanwhile, Trump nominated assistant U.S. attorney Brittany Bull Panuccio to the Equal Employment Opportunity Commission (EEOC), which would give Republicans a 2-1 majority at the EEOC if she’s confirmed.
Following in the footsteps of Law Firm Partners United, a group of in-house lawyers have launched a LinkedIn Group called General Counsels United (GCU), consisting of GCs opposed to “executive branch attacks on lawyers and law firms”—and around two weeks in, GCU already has more than 500 members.
Former Homeland Security Secretary Jeh Johnson is leaving Paul Weiss in order to “devote significant time and energy” to Columbia University, his alma mater (for law school), where he was just elected co-chair of the Board of Trustees. Both Paul Weiss and Columbia have been targeted by—and have tried to cut deals with—the Trump administration, leading Kathryn Rubino of Above the Law to suggest that Johnson might be going from the proverbial frying pan into the fire. Although Johnson’s departure from Paul Weiss comes a few weeks after the firm’s controversial settlement with the administration, there’s no indication that he’s resigning in protest of it; Johnson made no reference to the deal in the statement explaining his move. (To learn more about the fascinating career of Jeh (pronounced “Jay”) Johnson, check out our podcast conversation.)
Elsewhere in academia, the University of Chicago Law School announced its new dean: Professor Adam Chilton, who will take over on July 1 from Dean Thomas Miles (returning to the faculty, after a decade of decanal service).

In memoriam:

Sybil Shainwald, a legal crusader for women who were harmed by defective drugs and medical devices, passed away at 96.
Ronald “Ronny” Krist, another prominent plaintiffs’ lawyer who litigated landmark products-liability cases, passed away at 88.
Stephen Harmelin, former co-chair of Dilworth Paxson and a prominent figure in the Philadelphia legal community, passed away at 85.
Joshua Pruzansky, a former president of the New York State Bar Association and longtime lawyer on Long Island, passed away, also at 85.

May they rest in peace.

Judge of the Week: Justice David Souter.

On Thursday, Justice David H. Souter, who served on the U.S. Supreme Court from 1990 to 2009, passed away at 85. According to the Court—which announced the news on Friday, without specifying a cause—the justice died “peacefully” at home. Numerous outlets wrote about Justice Souter’s passing (and I commend you to Howard Bashman’s How Appealing for a comprehensive collection of coverage).

As noted in Amy Howe’s obituary for SCOTUSblog, David Hackett Souter was born in 1939 in Massachusetts and went on to graduate from Harvard College, Oxford (as a Rhodes Scholar), and Harvard Law. After a two-year stint in private practice in New Hampshire, he went into state government, serving as New Hampshire attorney general, a trial judge in the Granite State, and a justice on the New Hampshire Supreme Court. In May 1990, Souter was unanimously confirmed to the First Circuit, but he was on that court for a hot second: in July 1990, before issuing a single circuit opinion, the 50-year-old jurist was nominated to the U.S. Supreme Court.

Although he was nominated by a Republican, President George H.W. Bush, and confirmed 90-9, with unanimous Republican support, Justice Souter disappointed conservatives—bigly. Only two years after his confirmation, he voted against overruling Roe v. Wade in Planned Parenthood v. Casey. In fact, over his almost two decades on the Court, he voted for the liberal side more than two-thirds of the time in divided decisions and almost 80 percent of the time in the biggest cases, according to data compiled by Professor Lee Epstein.

Justice Souter’s leftward tilt played a major role in changing the SCOTUS confirmation process. As Tiana Headley and Kimberly Robinson explained in Bloomberg Law, Souter’s “betrayal” of the right “made way for the mantra ‘No More Souters,’ and efforts by Republican administrations to vet potential nominees more rigorously moving forward. They sought out nominees familiar in Federalist Society circles and with track records of service in Republican administrations and conservative rulings as appellate judges.”

But was Souter’s jurisprudence really a “betrayal”? As Linda Greenhouse suggested in her Times obituary for Justice Souter, his accusers “either failed to pay attention to his testimony before the Senate Judiciary Committee during his confirmation hearing in September 1990, or chose not to believe what they heard.”

When Senator Chuck Grassley (R-Iowa) asked then-Judge Souter of the First Circuit for his views about “judicial activism” and “government by the judiciary,” that was Souter’s cue to rail against out-of-control, liberal-activist judges. But Souter instead responded that “courts must accept their own responsibility for making a just society,” adding that “if the other branches of government do not deal with [a major social problem], ultimately it does and must land before the bench of the judiciary.”

Then-Judge Souter also had warm words for the liberal lion he was nominated to replace, Justice William J. Brennan Jr. When asked about Justice Brennan, Souter could have diplomatically praised Brennan’s many years of service to the judiciary, while stating that he (Souter) would “be his own person” on the Court. Instead, Souter lauded Brennan as “one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have.”

Whether or not their reaction was justified, conservatives did feel betrayed by Justice Souter. They tightened up the process for vetting the ideological bona fides of Supreme Court nominees—as did liberals, to avoid the problem from the other side—and today the Supreme Court, as well as the federal judiciary more generally, is far more polarized. Per Jeffrey Toobin, writing in The Times:

There was a time when moderate or even liberal Republicans like Souter held great sway on the court. There was John Marshall Harlan II in the 1950s, Potter Stewart in the ’60s and, in later years, Lewis Powell and John Paul Stevens, along with Blackmun, O’Connor and Kennedy, as well as Souter. That kind of moderate is gone now—gone from the Supreme Court and, it appears, the surface of the earth. Sadly, Souter’s wise jurisprudence disappeared long before the man himself left us.

Or Joe Patrice argued in Above the Law, “David Souter is a reminder of a time when the Supreme Court was less polarized and justices were not strictly vetted for ideological purity. He should be a model for judges everywhere.”

For more personal remembrances of Justice Souter, check out Adam Liptak’s piece for The Times (gift link), based on interviews with several former Souter clerks:2

Dean Heather Gerken, Yale Law School: “Justice Souter was the Supreme Court’s greatest common-law judge. He possessed the humility and humanity necessary to eschew grand generalities and focus on the real problems of real people.”
Judge Kevin Newsom (11th Cir.): although Justice Souter knew that “he and I saw law and judging differently, he never wanted to hear what I thought he would think—he wanted to know, in all honesty, what I thought.”
Judge Jesse Furman (S.D.N.Y.): “Those of us who had the privilege to spend a year with Justice Souter came away better human beings for it, and those of us who went on to become judges ourselves are certainly better judges for it.”
Professor Peter Spiro, Temple University Beasley School of Law: “He was old-school in the best possible way—respectful, engaged, unpretentious. There was this misconception of him as a recluse, but he was extremely gregarious, had a sharp sense of humor, loved his friends and colleagues. But he did not care for Washington and its trappings.”

Or consider the words of Professor Noah Feldman of Harvard Law, another former DHS clerk, writing in Bloomberg Law:

Clerking for Souter was the privilege of a lifetime. His kindness, his charm, and his elegance of character were all palpable beneath the formidable facade of New England reserve. Sitting in his office exchanging ideas and stories with him, as the light faltered, I knew, as I have rarely known anything before or since, that I was in a chain of transmission that went back to the Puritan fathers who were his literal ancestors and my metaphorical ones. He was the best and wisest man I have ever known.

I met Justice Souter once, in 2008, while serving as an usher at the wedding of Derek Ho—a former Souter clerk, now a partner at Kellogg Hansen—and Maria Glover, now a professor at Georgetown Law. The ushers knew Justice Souter would be in attendance, with some wondering who would get the privilege of showing the justice to his pew. But as the #1 fanboy of the federal judiciary, I had no doubt it would be me (sorry for that elbow to your ribcage, Charles—I hope it has healed by now).

I must confess that during his time on the Court, I didn’t fully appreciate the low-key Justice Souter. He wasn’t a flashy writer, like Justice Scalia. He didn’t make public appearances and say controversial things, like Justice Ginsburg. As journalists like to say, he didn’t “make for good copy”; he was kinda… boring.

But over the years, I acquired an appreciation for Justice Souter’s self-possession, quiet dignity, and apparent lack of a need for public attention and approval. While I don’t know that I’d want an entire bench full of Souters—it would certainly make my job a lot harder—I’m glad that there was at least one. Justice Souter, rest in peace.

Other judges in the news:

Justice Souter was famously reticent off the bench, but today’s justices are far chattier. At an event to commemorate the 125th anniversary of the U.S. District Court for the Western District of New York—which includes Buffalo, the city where he was born—Chief Justice John Roberts defended judicial independence, once again criticizing the use of impeachment to “register disagreement with a decision.” (He made the same point about impeachment in a public statement he issued last month.)
Not to be outdone, Justice Sonia Sotomayor told attendees at an event for the American Bar Association (ABA) that the job of lawyers “is to stand up for people who can’t do it themselves”; that “right now, we can’t lose the battles we are facing”; and that “we need trained and passionate and committed lawyers to fight this fight.” She didn’t mention the adversary in “this fight,” but one can guess.
Lower-court judges have plenty of opinions too. In a wide-ranging interview with James Taranto of The Wall Street Journal (gift link), Judge James Ho of the Fifth Circuit—a top SCOTUS contender in the Trump administration—discussed the sweeping powers of district judges, universal injunctions, and his clerk-hiring boycott. (Fun fact: if you recall the fine print on the boycott, it applies only to students who matriculated at YLS after “The Troubles”; as he told Taranto, Judge Ho actually has a Yalie in chambers next year.)
And former judges are speaking out too—150 of them, signing a letter to Attorney General Pam Bondi “condemn[ing] the Trump Administration’s attacks on the judiciary, including its recent arrest of Milwaukee County Circuit Court Judge Hannah Dugan in her courthouse.” The effort was spearheaded by retired judges Nancy Gertner (D. Mass.) and J. Michael Luttig (4th Cir.).
Sheriff Shawn “Mickey” Stines, accused of murdering Kentucky 47th Judicial District Judge Kevin Mullins, plans to mount an insanity defense. According to Stines’s lawyer, Jeremy Bartley, Stines was experiencing intense paranoia that his family was in danger in the period leading up to the shooting, as a result of a civil lawsuit in which he was named and deposed. Bartley denies the shooting had anything to do with a rumored relationship between Judge Mullins and Stines’s teenage daughter.

In nominations news, the Trump administration officially announced its first round of judicial picks. In addition to Whitney Hermandorfer, selected for the Sixth Circuit (and discussed in these pages last week), the president nominated four folks to serve on the Eastern District of Missouri: Joshua Divine, solicitor general of Missouri; Maria Lanahan, principal deputy solicitor general of Missouri; Judge Cristian Stevens, a member of the Missouri Court of Appeals since 2021; and assistant U.S. attorney Zachary Bluestone. Divine, who clerked for Justice Clarence Thomas and served as chief counsel to Senator Josh Hawley (R-Mo.), is nominated to a seat assigned to both the Eastern and Western Districts of Missouri.

Job of the Week: an opportunity for a corporate associate at a leading boutique.

Lateral Link is working with a well-regarded boutique firm that seeks a corporate associate to join its growing team. The ideal candidate will have four to six years of law-firm experience, with a strong background in M&A, LLC operating agreements, and corporate governance. Familiarity with entertainment contracts is preferred but not required. This is a unique opportunity to work on sophisticated corporate matters across a wide range of industries, including media and entertainment, technology, fashion, real estate, and lending. The firm represents private-equity investors and funds, portfolio companies, and both public and private businesses, offering associates high-level exposure and meaningful client interaction. The firm’s collaborative, low-bureaucracy environment values entrepreneurial spirit and quality of life. Associates enjoy hands-on deal experience and a supportive team culture that prioritizes professional development and work-life balance. For immediate consideration, please email your résumé to Vered Krasna at vkrasna@laterallink.com.

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(via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

Over the past few years, I’ve read many articles and attended numerous panels about whether artificial intelligence could replace lawyers. But what about judges—could AI replace them?

A 2013 paper by two Oxford University professors ranked more than 700 occupations based on their “probability of computerization,” with the #1 job being the least computerizable (recreational therapist) and the #702 job being the most computerizable (telemarketer). Interestingly enough, judges came in at #271, and lawyers were ranked #115—suggesting it might be easier for AI to replace judges than lawyers.

Judges themselves don’t seem too worried about losing their jobs to AI. In his 2023 Year-End Report on the Federal Judiciary, Chief Justice John Roberts noted that in light of “breathless predictions about the future of Artificial Intelligence,” some observers “may wonder whether judges are about to become obsolete.” His view: “I am sure we are not.”

“I predict that human judges will be around for a while,” Roberts wrote later on in the report. And he’s far from alone in holding this opinion.

Replacing human judges with AI is more complicated and riskier than it might seem. That was my main takeaway from an event I attended last week, “The Future of Adjudication,” part of the Law2050 event series sponsored by Texas A&M University School of Law. It featured two AI experts: former federal judge Katherine Forrest, now a partner at Paul Weiss, and Cornell University law professor Frank Pasquale.

Pasquale noted that although AI tools generate work product that resembles the result of human reasoning, they don’t engage in reasoning themselves. And they certainly can’t feel, which reduces the appeal of replacing human judges with AI ones—at least if we want our judges to have empathy. For example, Pasquale said, an AI platform can’t appreciate the gravity of a process such as sentencing.

All this resonated with me. At least some research suggests that people view human judges as fairer than AI judges—the so-called human-AI fairness gap.

Forrest echoed Pasquale’s point, reminding the audience that artificial intelligence isn’t human intelligence—it “is of us, but not actually us.” The moral code that informs our legal codes emanates from a complex set of rules that humans have agreed upon over time, Forrest explained. Many developers try to design AI tools that reflect these human values, but not all developers are so conscientious.

Forrest also raised the problem of “model drift.” Humans might develop an AI model to work in line with our values, but the model can evolve in ways that its original designers might find deeply problematic.

The idea of AI as a replacement for human judgment is tempting, according to Pasquale. But the more closely one scrutinizes it, the more concerns emerge.

Despite those risks and challenges, Pasquale and Forrest expressed optimism over how AI could assist or enhance human judges’ decision-making. For example, AI tools can help judges process large amounts of information more quickly, especially in complex cases—not unlike law clerks.

They can also serve as sounding boards for judges, another duty of law clerks. It’s not uncommon for judges to solicit the views of their law clerks before deciding how to sentence a defendant. One could imagine an AI tool making such sentencing recommendations—and researchers are already exploring the possibility.

Courts are experimenting with using AI for routine administrative tasks, such as reviewing filings for conformity with court rules. But as the technology continues to improve, it could be worthwhile for courts to explore use cases for AI that involve actual judicial decision-making. Perhaps courts could try using AI in minor cases—after obtaining consent from all parties—to get a better sense of the technology’s possibilities and limitations.

Here’s one idea. I’m going to trial in traffic court next week to contest a ticket I received in January. The stakes are low, and I’m contesting the ticket more as a matter of principle. If the court had told me back in January that I could make my case to a “judge-bot” and get an immediate ruling, I would have accepted.

Sure, submitting my case to an AI judge would risk getting a decision I’d view as unfair. But the same is true of appearing before human judges, who have their own biases and blind spots. And if we still prefer human judges, maybe a court could develop a pilot program where the parties could consent to the initial use of an AI judge but have a right to appeal its ruling to a human judge.

AI tools aren’t perfect, but neither are humans. And if AI judges’ decisions can be roughly as fair as those of human judges, but the AI rulings arrive more quickly and cheaply, that’s worth exploring.

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The complaint in the latest Litigation of the Week, Jane Doe No. 2 v. Clinton County, filed by Jacob Perrone of Dragon Lawyers PC (via Lowering the Bar).This week’s Judicial Notice is sponsored by

Last week was busy for me—in a good way. On Tuesday, I enjoyed moderating “The Future of Adjudication,” part of the Law2050 event series sponsored by Texas A&M School of Law. On Thursday, I went back into Manhattan to cover the Rally for the Rule of Law—where I spotted a cleverly repurposed Above the Law T-shirt.

On Friday, I watched Harlan in his school’s talent show, where he played a piano piece he wrote himself. And no, I didn’t leave after Harlan was done; I dutifully sat through the other 179.5 minutes of the show, in a packed, sweltering, smelly school gym. I was impressed by the young performers’ excellent efforts—but Zach left at intermission, quipping that Dante himself couldn’t have devised such an experience. (Harlan, I deserve something better than a “World’s Greatest Dad” mug this Father’s Day.)

Another highlight of my week was joining Advisory Opinions to debate cameras at the Supreme Court—where Amy Howe and I argued the pro-camera position, against Sarah Isgur and David French. It’s part of my new role in the expanded legal universe of The Dispatch, after its recent acquisition of SCOTUSblog (which is, by the way, looking to hire a new managing editor).

Now, on to the news.

Lawyers of the Week: Lisa Blatt and Roman Martinez.

When Lisa Blatt of Williams & Connolly and Roman Martinez of Latham & Watkins go up against each other at the U.S. Supreme Court, expect sparks to fly. The two shared Lawyer of the Week honors back in October 2022, after their feisty, funny oral argument in Andy Warhol Foundation, Inc. v. Goldsmith.

The two crossed paths again on Tuesday in A.J.T. v. Osseo Area Schools, a complicated case about the standard that students with disabilities must satisfy when claiming that they’ve been discriminated against in their education. But you don’t need to understand the underlying legal issues to appreciate the drama that unfolded at oral argument, nicely described by Ronald Mann at SCOTUSblog:

The argument heated up when Lisa Blatt, representing the school district, accused Martinez and [Assistant to the Solicitor General] Nicole Reaves, who appeared for the government, of “lying” when they said Blatt had changed her position….

Justice Neil Gorsuch was incensed by Blatt’s tone, and he immediately interrupted her to ask: “You believe that Mr. Martinez and the Solicitor General are lying? Is that your accusation?” When Blatt responded, “Yes, absolutely,” Gorsuch replied: “I think you should be more careful with your words, Ms. Blatt.” Not backing down, Blatt replied “Well, they should be more careful.…”

Gorsuch allowed the argument to continue for several minutes, but he soon returned to the topic to say that he was “still troubled by your suggestion that your friends on the other side have lied…, and I’d ask you to reconsider that phrase.… People make mistakes. You can accuse people of being incorrect, but lying is another matter.”

What followed was the most heated exchange between a justice and an advocate that I’ve heard in my decades of experience at the court. Feeling himself interrupted, Gorsuch admonished Blatt: “If I might finish.” He then proceeded for several minutes to read long quotations from her filings in the case, which he regarded as tending to “suggest you [were] arguing for a unique rule” in the education context, as Martinez and Reaves had stated. After a protracted sequence of those readings, he ended by asking Blatt: “Then would you withdraw your accusation?” When she said: “I’ll withdraw it,” Gorsuch concluded: “Thank you. That’s it.”

You can listen to the Gorsuch-Blatt exchange here (starting around 1:05:09). I’m a huge fan of Lisa Blatt (see generally our podcast interview), but I found this section of the argument hard to listen to.

But to her credit, Blatt did withdraw the accusation—and that wasn’t all. After the argument, she called Roman Martinez to issue a personal apology, which he graciously accepted. So as Sarah Isgur reported on Advisory Opinions, “All is well between Roman and Lisa. This was not meant to be some personal beef, a la Drake and Kendrick Lamar.”

Fair enough. But might it instead be a little bit like… Margo Channing and Eve Harrington in my favorite movie of all time, All About Eve?

According to a recent study by Professors Tracey George, Albert Yoon, and Mitu Gulati, Lisa Blatt boasts the highest win rate among the top 15 lawyers in private practice with the most Supreme Court arguments. During the period covered by the study (1970-2023), she won a staggering 88.9 percent of her argued SCOTUS cases—comfortably ahead of Paul Clement, at 75.8 percent..

But do you know who currently has a win rate of 85.7 percent as a SCOTUS advocate in private practice? Roman Martinez. Based on my review of his Oyez page, I believe he’s currently 6-1 in his high-court arguments since leaving the Office of the Solicitor General in 2016—with the Warhol case as his only loss.

Of course, Blatt has argued far more SCOTUS cases than Martinez (who’s not in the top 15), and the numbers quoted above don’t constitute an “apples to apples” comparison of their win rates using the same periods of time. But it’s fair to say that Lisa Blatt and Roman Martinez have very high win rates, and I suspect they like to keep it that way—which raises the stakes whenever they face off against each other.

Other lawyers in the news:

Speaking of SCOTUS advocates, congratulations to Roman Martinez’s colleague at Latham, former U.S. solicitor general Gregory Garre, who recently joined Lisa Blatt in the elite “50 or more SCOTUS arguments” club; Michael McGinley of Dechert, who argued three cases this Term, his debut Term before the Court; and Tacy Flint of Sidley Austin, a two-time cancer survivor who just made her own SCOTUS argument debut.
Former U.S. attorney (W.D. Tex.) and current Quinn Emanuel partner John Bash withdrew from the race for Texas Attorney General, explaining in a post on X that his family recently “had a health scare that threw into sharp focus how I should prioritize my time right now, and that is not running for office.” (I hope that this issue is now safely behind the Bash family.)
Another leading lawyer from the Lone Star State, Gibson Dunn partner Allyson Ho, was selected by Donald Trump to serve on a newly created Religious Liberty Commission. (If the Ho family is in da (White) House, might this bode well for the SCOTUS prospects of Allyson Ho’s husband, Fifth Circuit Judge James Ho?)
Speaking of presidential picks, Trump nominated Donald Korb, currently a partner at Sullivan & Cromwell, to serve as chief counsel of the Internal Revenue Service—a role he previously held, during the George W. Bush administration.
Speaking of S&C partners, co-chair Robert “Bob” Giuffra is receiving scrutiny from Democratic lawmakers over his role in helping to negotiate Paul Weiss’s deal with the Trump administration.
Principal Associate Deputy Attorney General Emil Bove III is aggressively investigating student protesters at Columbia, while Assistant Attorney General Harmeet Dhillon is reshaping the mission of the Civil Rights Division—in ways that aren’t sitting well with some longtime career lawyers at the U.S. Department of Justice (DOJ), according to reporting by Devlin Barrett of The New York Times.
High-profile litigator Abbe Lowell—who recently left Winston & Strawn, as discussed in these pages last week—is rapidly growing his new boutique, Lowell & Associates. He’s already hired at least five lawyers, including two former Skadden Arps associates who resigned in protest over Trump-related issues: Rachel Cohen and Brenna Trout Frey.
It seems that everything these days is about being pro- or anti-Trump, including the D.C. Bar election—in which Paul Hastings partner Brad Bondi, brother of U.S. Attorney General Pam Bondi, is running for president. Writing in National Review (gift link), Dan McLaughlin argues that D.C. bar members should vote based on Bondi’s qualifications and platform, not “guilt by family association.”

In memoriam: Robert Monks—a Harvard Law School graduate and former Goodwin partner, who became well-known for his work in corporate governance and shareholder activism—passed away at 91. May he rest in peace.

Judge of the Week: Judge Fernando Rodriguez Jr.

Can Donald Trump invoke the Alien Enemies Act of 1798 (AEA) to deport Venezuelan nationals deemed to be members of Tren de Aragua (TdA), a transnational gang that his administration has declared a “designated Foreign Terrorist Organization”? No, according to a federal district judge—and a conservative Trump appointee, no less.

On Thursday, Judge Fernando Rodriguez Jr. issued a permanent injunction blocking the Trump administration from deporting Venezuelan nationals in the Southern District of Texas based on the AEA and a March 15 presidential proclamation invoking the Act. In his 36-page opinion in J.A.V. v. Trump, Judge Rodriguez wrote that “the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”

Under the AEA, “alien enemies” who are 14 years or older can be “removed” from the United States by the President “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event.” Keeping that text in mind, here’s the core of Judge Rodriguez’s reasoning:

“At the time of the AEA’s enactment, the plain, ordinary meaning of ‘invasion’ was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of ‘predatory incursion’ and, to a lesser degree, ‘incursion,’ referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory.”
“Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not [describe an ‘invasion’ or ‘predatory incursion’ for purposes of the AEA]. The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of ‘invasion’ for purposes of the AEA.”
“As for ‘predatory incursion,’ the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation also falls short of describing a ‘predatory incursion’ as that concept was understood at the time of the AEA’s enactment.”

Five other district judges have temporarily blocked some deportations based on the AEA, but Judge Rodriguez’s ruling is the most sweeping and substantive so far. It’s certainly more meaty than the Supreme Court’s narrow, procedural ruling in Trump v. J.G.G., holding that (1) “[c]hallenges to removal under the AEA… must be brought in habeas” (not under the Administrative Procedure Act), and (2) a detainee under the AEA is entitled to judicial review as to “questions of interpretation and constitutionality” of the Act.

Judge Rodriguez’s opinion provides the judicial review that the Court alluded to in J.G.G.—employing a textualist, originalist approach. This is what you’d expect from a judge who was nominated by Donald Trump, received support from Texas’s two conservative senators, and is known among immigration practitioners as “the more conservative, more strict judge” in his Brownsville courthouse.

So if a jurist like Judge Rodriguez ruled against the Trump administration in J.A.V., there’s a decent chance that if the issue went to SCOTUS, opponents of the current AEA deportations could get at least two votes from a group of five justices—i.e., the conservatives, but excluding Justices Thomas and Alito—to form a majority when combined with the three liberal justices. But time will tell.

Other judges in the news (with a focus on the issue of judicial independence):

Justice Ketanji Brown Jackson delivered a speech at the First Circuit Judicial Conference in which she condemned “relentless attacks” on judges that “seem designed to intimidate those of us who serve in this critical capacity.” For more, including the full text of her remarks, see Howard Bashman’s How Appealing.
Around 20 former federal judges have formed an organization, the Article III Coalition, to defend the “independence and integrity of the judiciary” amidst growing threats. And yes, the threats are growing—not just against judges but against their families, as detailed in a disturbing Reuters special report.
Judicial independence also came up at the formal unveiling of the judicial portrait of Judge John Bates (D.D.C.), who was hit with impeachment articles after ruling that the Trump administration had to restore health-related webpages that were suddenly taken offline to comply with an executive order on gender. Four sitting Supreme Court justices—including Chief Justice Roberts, who praised Judge Bates as a “model trial judge”—attended the ceremony in his honor. In his own remarks, Judge Bates emphasized that judges “do not practice judging as a partisan enterprise” and “are not defined by the presidents who appoint them.”
Last week’s Judge of the Week, Milwaukee County Judge Hannah Dugan, was suspended by the Wisconsin Supreme Court, after being accused in a federal criminal complaint of helping a migrant from Mexico evade arrest. She can now focus her time and attention on fighting her criminal case—with the help of two high-powered lawyers who served in the George W. Bush administration, former U.S. solicitor general Paul Clement and former U.S. attorney Steven Biskupic (E.D. Wis.).

In nominations news:

Trump named his first judicial nominee, for a seat on the Sixth Circuit: Whitney Hermandorfer, who leads the Strategic Litigation Unit in the Tennessee Attorney General’s Office. For collected coverage—including a Wall Street Journal editorial (gift link) expressing relief that she appears to be a conventional, Federalist Society-style pick, not a MAGA ideologue—see How Appealing. I flagged Hermandorfer back in March as a contender, noting that she clerked for not one, or two, but three Supreme Court justices: then-Judge Brett Kavanaugh (D.C. Cir.), Justice Samuel Alito, and Justice Amy Coney Barrett (during her first Term on the Court).
More than a dozen candidates are interviewing for federal judgeships in Texas’s Southern District, which includes Houston, and its Western District, which includes Austin.

Job of the Week: an opportunity for a junior to midlevel bankruptcy associate.

Lateral Link is working with a highly regarded, Chambers-recognized boutique firm in St. Louis in search of a junior- to midlevel associate for its bankruptcy and restructuring group. This firm has been respected in the St. Louis community for several decades and is a great option for associates seeking an alternative to Biglaw. Attorneys at the firm enjoy a collegial and collaborative culture, a lower billable-hour target than large firms, and competitive compensation, without sacrificing complex, sophisticated work. Candidates with strong credentials and a desire to relocate to St. Louis are encouraged to apply by contacting Director Ashleigh Goldberg at agoldberg@laterallink.com.

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The Rally for the Rule of Law, held at Foley Square in downtown Manhattan on Thursday, May 1, 2025 (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Yesterday was Law Day—and this year, it took on added meaning for many lawyers.1 Thousands participated in a National Law Day of Action, centered around public events to express support for the rule of law, which were held in more than 50 cities across the country.

In New York City, an estimated 1,500 to 2,000 demonstrators gathered in Foley Square, across the street from federal and state courthouses, to rally for the rule of law—and to protest recent attacks upon it. The event was sponsored by the New York City Bar Association, the New York County Lawyers Association, the New York Council of Defense Lawyers, and the New York Civil Liberties Union.

Many protesters wore suits—but one sported an Above the Law T-shirt, with the words ‘No One Is’ added above the lettering (photo by David Lat).The crowd was, according to The New York Times, “as raucous as any demonstration in a politically vociferous city,” but “decidedly more wonky and dapper”: most of the protesters were lawyers, many in business attire. I’ve never attended a protest with so many suits (but not expensive ones—I got the sense that most attendees were public-interest or government lawyers).

Sheila Boston (photo by David Lat).The proceedings were kicked off at 1 p.m. by Sheila Boston, a past president of the New York City Bar Association and current litigation partner at Arnold & Porter.2 She led the demonstrators as they retook the attorney’s oath, followed by a chant: “The rule of law protects us all / Without it we will surely fall.”3

Adrienne Koch (photo by David Lat).Adrienne Koch, president of the New York County Lawyers Association and a litigation partner at Katsky Korins, emphasized the critical role of lawyers and bar associations in serving as “first responders” to attacks on the rule of law. Echoing the language of the national anthem, she argued that “sometimes, in order to be free, we have to be willing to be brave.”

Stuart Gerson (photo by David Lat).Stuart Gerson—a former acting U.S. attorney general, currently of counsel at Epstein Becker & Green—spoke about the importance of an independent, nonpartisan judicial branch. He expressed “a great deal of faith in the judiciary”—including, he noted, a number of appointees from Donald Trump’s first term who have ruled against the administration in his second.

Gerson led the Civil Division of the U.S. Department of Justice under President George H.W. Bush, and President Bill Clinton asked Gerson to serve as acting AG at the start of his administration. When Gerson asked Bush if he should accept, Bush said yes, telling him that “this is about country, not party”—words that accurately describe the current rule-of-law crisis, according to Gerson. (Gerson might be familiar to some of you as a board member of the Society for the Rule of Law—a group of conservative lawyers committed to democracy, the Constitution, and the rule of law—which I’ve written about previously in these pages.)

Steven Banks (photo by David Lat).The next speaker was introduced as someone who until recently worked at an unnamed “major law firm”: Steven Banks, former special counsel for pro bono at Paul Weiss. As I’ve previously discussed, Banks resigned from the firm in April, after it cut a deal with the Trump administration to get out from under an executive order.

Protesters’ signs called out various Biglaw firms by name, including Paul Weiss, Cadwalader, Kirkland & Ellis, and Latham & Watkins (photo by David Lat).Banks reminded the crowd that “pro bono” is “pro bono publico,” i.e., “in the public interest”—which includes legal work defending public rights, the rights of the poor, and the rights of the powerless against the powerful. He urged attendees to “do what you can to preserve the rule of law,” whether large or small.

Thomas Sipp (by David Lat).Steven Banks was followed by another lawyer who recently resigned from Biglaw: Thomas Sipp, who left Skadden Arps last month after it settled with the Trump administration—preemptively, i.e., without even being the subject of an executive order. He spoke movingly about how he came to the United States at age 10, raised by a single mom who barely spoke English. Times were tough—but he and his mother and sisters made it through, thanks to “people who looked out for us and asked for nothing in return.” (Sipp also shared his story with Michael Barbaro of The Daily.)

‘Hey Skadden, I found your spine in the trash—lying next to your values! Skadden: Trump’s $100 million lap dog.’Sipp said that despite the dark times, “I still have hope, which is why I’m here today.” But, he added, “Hope alone is never going to be enough. Hope is meaningless unless it leads to courage, courage to do what is right in the face of difficult decisions, courage to do what is right by our ancestors—whose own courage is the reason we get to be here today.”

Henry “Hank” Greenberg (photo by David Lat).Courage tied nicely into the remarks of Henry “Hank” Greenberg, a past president of the New York State Bar Association and current litigation partner at Greenberg Traurig.4 A former counsel to the New York State Attorney General, Greenberg centered his remarks around leadership, which he called “our solemn duty as obligation as lawyers.” After all, he noted, lawyers “built, fashioned, and made our institutions of government”—which lawyers must defend zealously against attacks on the rule of law, at least if we are to remain a free people.

Donna Lieberman (photo by David Lat).The rule of law and due process protect noncitizens as well as citizens—and the American Civil Liberties Union is playing a leading role in defending the rights of noncitizens under the current administration. According to Donna Lieberman, executive director of the New York Civil Liberties Union, the ACLU has filed more than 100 legal actions since Donald Trump’s inauguration—including many lawsuits to protect immigrants against illegal deportations.

‘Protect Immigrants’ (photo by David Lat).“No matter what you call them, immigration detention centers are prisons,” Lieberman said. “The cruelty and pain are staggering.”

“We have not, and we will not, allow the government to trample our rights, citizens and noncitizens alike,” Lieberman declared. “We are not afraid to stand up for what we believe.”

David Patton (photo by David Lat).Standing up for the unpopular has been a career focus for David Patton. Now a partner at Hecker Fink, he led the Federal Defenders of New York for twelve years, overseeing the work of lawyers representing indigent criminal defendants in the Southern and Eastern Districts of New York.

‘Hands off migrants, students, citizens, and the planet’ (photo by David Lat).It’s essential for lawyers to represent controversial clients and causes—which is why the executive orders against law firms are so threatening to the profession, according to Patton. They represent a “dangerous effort to silence lawyers,” sending the message that “if you speak up, if you stick your head above the trenches, if you represent someone who is disfavored, you will be targeted.”

Patton asked the assembled, “Will you speak up and say what needs saying?” The crowd responded with an enthusiastic shout: “Yes!”

The crowd at the rally was energized—and the beautiful weather certainly helped (photo by David Lat).After David Patton spoke, Sheila Boston returned to the stage, closing the proceedings by leading the crowd in the Pledge of Allegiance. As we all took the Pledge, I felt chills—the good kind, not the “Perkins Coie executive order” kind.

The rally concluded shortly before 2 p.m. The proceedings were peaceful, and there were no disruptions (aside from a woman who would occasionally shout indecipherable things while holding up an inscrutable sign reading, “Federal BAN human technology”).

There were no counterprotesters, or at least none that I noticed—and that didn’t come as a huge surprise. First, the event took place in New York City, which isn’t exactly MAGA country. Second, its subject matter wasn’t controversial; as Arent Fox Schiff partner Patricia Pileggi told The New York Law Journal, “It’s hard not to support the rule of law.”

Or at least it shouldn’t be. But as Hank Greenberg said at the rally, “There’s an ancient curse, ‘May you live in interesting times.’ And we live in interesting times indeed.”5

(Consider this a Notice and Comment post, where you can discuss recent news related to the rule of law. Comments are open to all readers, not just paid subscribers. Happy Law Day!)

1Since a 1958 proclamation by President Dwight D. Eisenhower, May 1 has been recognized as Law Day, “a day of national dedication to the principle of government under laws.”

2The rally speakers spoke in their individual capacities, not on behalf of any current or former employers, and I mention employment ties here for background only. But note that regarding the current and former bar association leaders, some of the associations themselves have issued official statements about recent events.

3Boston served as emcee for the proceedings, and in between the speakers, she led the crowd in various chants:

“Respect our judges / Give support / Stand behind them / And the court.”
“The Constitution is our guide / We uphold it, we abide.”
“The rule of law is why we’re here / It is what we hold most dear.”
“Hey, hey, what’s our call / Justice now for one and all.” 4Hank Greenberg confirmed to me that he’s no relation to Mel Greenberg, one of the founding partners of Greenberg Traurig.

5Yes, I know: the origins of the saying are uncertain, and it might not be that ancient.

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Can John Harvard go toe-to-toe with Donald Trump? (photo by David Lat)This week’s Judicial Notice is sponsored by

Last week brought exciting news in the world of legal media: SCOTUSblog, a leading source of news and analysis about the U.S. Supreme Court for almost a quarter of a century, was acquired by Dispatch Media, Inc., publisher of The Dispatch newsletter and producer of the Advisory Opinions podcast. For details, see Benjamin Mullin’s piece for The New York Times (gift link), as well as announcements by Amy Howe at SCOTUSblog, Steve Hayes at The Dispatch, and Sarah Isgur and David French at Advisory Opinions.

And I’m delighted to share that I have a personal connection to this news: as noted in Steve Hayes’s post, I’m partnering with The Dispatch as it works toward becoming, as Dispatch president Michael Rothman put it, “the definitive source for legal news and analysis in the United States.” So in the weeks and months ahead, expect to hear my voice on Advisory Opinions and read my writing in SCOTUSblog.

When I first entered legal blogging around 20 years ago, launching Underneath Their Robes (2004) and then Above the Law (2006), I drew inspiration from Tom Goldstein and Amy Howe, who founded SCOTUSblog in 2002—so it’s wild for me to think that I’ll now be contributing to SCOTUSblog’s pages. To quote Howard Bashman of How Appealing, another OG of legal blogging and role model for me, “the David Lat/SCOTUSblog partnership that we’ve all been hoping for will soon be a reality.”

I was extremely busy last week with work (e.g., introducing some of Original Jurisdiction’s loyal sponsors to Team Dispatch/SCOTUSblog). But I did make time to see Second Stage Theater’s production of Purpose, the new play by Branden Jacobs-Jenkins—and I’m glad I did. I’ll spare you a full review, since you don’t come to OJ for theater recs, and simply say it’s a must-see. (And there are legal angles: two characters are lawyers, one disbarred, and a federal criminal case figures in the plot.)

Speaking of exciting live events in New York, I’m looking forward to moderating The Future of Adjudication, an exploration of judging and dispute resolution in the age of AI. Taking place this Tuesday at 12 p.m., it’s free and open to the public, and lunch will be provided; you can register here (but don’t delay, since it’s pretty much at capacity).

Now, on to the news.

Lawyer of the Week: Edwin Kneedler.

Congratulations to Deputy Solicitor General Edwin Kneedler, a 45-year veteran of the Office of the Solicitor General (OSG) at the U.S. Department of Justice (DOJ). On Wednesday, Kneedler presented his 160th and final oral argument before the Supreme Court—and here’s what happened when he was done, as reported by Jimmy Hoover for The National Law Journal:

“Mr. Kneedler, if I may ask you to rise for a moment,” Chief Justice John Roberts Jr. said at the conclusion of Wednesday’s argument in the case Diamond Alternative Energy v. EPA, where Kneedler represented the federal agency. “You have just presented your 160th argument before this Court, and I understand it is intended to be your last. That is the record for modern times. You have carried out your responsibilities with extraordinary care and professionalism, conscious of your role not only as an advocate but also as an officer of this Court.”

And here’s a personal account posted on LinkedIn by William “Willy” Jay, a prominent SCOTUS advocate and OSG alum:

I have never seen before, and will surely never see again, a standing ovation in the Supreme Court—with the Justices participating. But the person we were applauding today, the legendary Deputy Solicitor General Ed Kneedler, deserves that honor and more….

Working with Ed was one of the great privileges of my time in OSG…. [T]he most rewarding moments were behind the scenes, when Ed sought to add some unique insight to a brief, or bring competing agencies to the right legal decision, in some case that no journalist would ever notice. And Ed, an unfailingly kind person, more than once lifted my spirits after I felt I’d made a mistake that let the Office down.

There is no one else like Ed Kneedler. But in the appellate bar, to be even a little like Ed Kneedler would be a lifetime achievement.

Congrats again to Ed Kneedler on his record-breaking career as a SCOTUS advocate. And thanks to him for his many years of service, to both the Court and the country.1

[UPDATE (5/3/2025, 7:26 a.m.): For more on Kneedler, see Adam Liptak’s New York Times piece, “A ‘Citizen Lawyer’ Gets a Standing Ovation at the Supreme Court.”]

Other lawyers in the headlines:

As mentioned last week, star litigator William Burck of Quinn Emanuel represents Harvard University in its legal battle against the Trump administration (discussed below as Litigation of the Week). Per The Times, he took the Harvard case without running it by the Trump Organization, the Trump family real-estate company, which he has been advising on ethics issues. Whether or not this was a technical conflict of interest, it didn’t sit well with Trump himself, who took to Truth Social and bashed Bill Burck: “Harvard is a threat to Democracy, with a lawyer, who represents me, who should therefore be forced to resign, immediately, or be fired. He’s not that good, anyway, and I hope that my very big and beautiful company, now run by my sons, gets rid of him ASAP!” A few hours later, Eric Trump, one of those sons, announced that the Trump Organization would indeed be firing Burck. Some observers might be thinking, “Why did Burck take on the Harvard case, knowing it might tick off Trump?” But Burck’s no fool, and he had to know that this could lead to his firing—which makes me wonder if he wanted to get fired. If so, it wouldn’t be the first time a lawyer started working for Trumpworld and then quickly decided, “Get me the hell outta here.”
Speaking of other lawyers in trouble with Trump or his administration, three assistant U.S. attorneys in the Southern District of New York (S.D.N.Y.)—Dominika Tarczynska, David Farber, and Christine Poscablo—got themselves taken off a case in which they were representing the Department of Transportation (DOT), which is trying to kill NYC’s congestion-pricing program. Their offense? They accidentally filed, on the case’s public docket, a confidential memo in which they criticized the DOT’s legal position, which they characterized as “exceedingly likely” to fail in court. A DOT spokesperson wasn’t so sure the uploading was inadvertent, wondering aloud, “Are S.D.N.Y. lawyers on this case incompetent, or was this their attempt to RESIST?” Shortly thereafter, the Department discharged the S.D.N.Y. team and handed the case over to the DOJ Civil Division. But I’m guessing this actually was an accident, for a few reasons:
- First, even though I’m a résumé fetishist who holds AUSAs in the Southern District in the highest regard, I realize they’re not infallible—having written hundreds if not thousands of stories, mainly during my 13 years at Above the Law, that could all be filed under “When Smart Lawyers Do Dumb Things.”
- Second, this happened after 9 p.m., outside normal business hours, when mistakes are most likely to happen—because lawyers are tired, sleep-deprived, and eager to get home.
- Third, it’s very easy to imagine how this could have occurred: the AUSA probably had a folder for this case full of documents with similar file names, and they simply clicked on the wrong file to upload.
- Fourth, the whole episode is more embarrassing to the AUSAs than it is actually damaging to the administration. As noted in a follow-up Times piece, the memo’s analysis isn’t news to either Judge Lewis Liman, who’s presiding over the case, or the lawyers defending congestion pricing (including the formidable Robbie Kaplan and Brandon Trice of Kaplan Martin).
- Fifth, the three prosecutors stated that this was an accident in a letter to Judge Liman. While I wouldn’t be surprised to learn that these AUSAs aren’t fans of the Trump administration, I also doubt that they would, as officers of the court, make a misrepresentation to a federal judge.
- In other drama out of the S.D.N.Y., three AUSAs who worked on the prosecution of New York City Mayor Eric Adams and were then placed on administrative leave—Celia V. Cohen, Andrew Rohrbach, and Derek Wikstrom—resigned. In their joint resignation letter, they claimed it was communicated to them that if they wanted to return to work, they had to “express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case. We will not confess wrongdoing when there was none.”
- In other DOJ news, but down in D.C. at Main Justice, around a dozen senior lawyers in the Civil Rights Division got reassigned—taken off matters like investigating police abuse and violations of voting rights, and instead placed on portfolios like handling public-records requests or adjudicating internal discrimination complaints. Don’t be surprised if resignations follow.
- Resignations can be voluntary or not so voluntary—and it appears that George Bogden’s resignation, as executive director of the Office of Trade Relations at Customs and Border Protection, was not so voluntary. Although he was a political appointee of the Trump administration and a staunch proponent of Trump’s tariffs, he was asked to step down after a Facebook photo surfaced that showed him at the 2019 wedding of Trump antagonist Miles Taylor, according to The Washington Post (gift link). Bogden appears to have no hard feelings toward Trump, writing on LinkedIn, “I continue to support President Trump, and I remain fully behind the policies that are delivering real results for the American people,” even though “I regret that I have fallen victim to character assassination.”
- There’s a whole lot of resigning going on: across the street from the Office of Trade Relations, three litigation associates at Kirkland & Ellis quit over their firm’s deal with the Trump administration. To read the resignation statements of Kevin Decker, Harold Grigsby III, and Maggie Hagen, look them up on LinkedIn.
- If they’re looking for new jobs, maybe they should apply to Clement & Murphy, where they can fight the Trump executive order (EO) targeting WilmerHale alongside former Kirkland partner Paul Clement—the subject of this New Yorker profile by Ruth Marcus (which cites my podcast interview of Clement).

In memoriam: former Fried Frank co-chair Arthur Fleischer Jr., who was both a prominent M&A lawyer and art collector, passed away at 92. May he rest in peace.

Judge of the Week: Judge Hannah Dugan.

On Friday, April 25, FBI agents arrested Judge Hannah Dugan of Milwaukee County Circuit Court. A two-count complaint charged her with (1) obstructing or impeding a proceeding before a department or agency of the United States and (2) concealing an individual to prevent his discovery and arrest.

The complaint alleges that on Friday, April 18, Judge Dugan personally helped Eduardo Flores-Ruiz, a criminal defendant appearing before her on domestic-violence charges, to exit her courtroom through a special “jury door.” This door led to a nonpublic area of the courthouse—allowing Flores-Ruiz to evade federal agents that Dugan knew were waiting to arrest him, in the public hallway outside her courtroom. But agents spotted Flores-Ruiz when he returned to a public portion of the courthouse, and although he managed to exit the courthouse without getting arrested, two agents confronted him outside and, after a foot chase, arrested him.

Judge Dugan, 65, is a former Legal Aid lawyer and well-known figure in Wisconsin progressive circles. She won election in 2016 and was reelected in 2022, with her current term set to expire in 2028. In a statement issued late on Friday, she declared that she “will defend herself vigorously and looks forward to being exonerated.”

In The Washington Post, Aaron Blake described Judge Dugan’s arrest as “a significant escalation” in the Trump administration’s attacks against jurists “it labels as radical activist judges who have ruled against many of its immigration actions.” Senate Minority Leader Chuck Schumer (D-N.Y.) decried the arrest as “an attack on the separation of powers,” pledging to “fight this with everything we have.”

In a Twitter thread, Wisconsin lawyer and former AUSA Dan Lennington offered the administration’s view of Judge Dugan’s arrest. He pointed out that (1) she adjourned the hearing and sent Flores-Ruiz out the side door covertly, without notifying his victims and the prosecutor (who remained in the courtroom, clueless as to what was going on); (2) it’s “very common” to execute arrest warrants inside a courthouse, where officers know the arrestee will be unarmed (since he went through courthouse security); and (3) by sending Flores-Ruiz out the jury door, Judge Dugan “put officers’ safety at risk” and “ignored the due process needs of the VICTIMS of his crimes, who were there in the court because of the alleged domestic battery.”

What happens next? According to Lennington, the (nonbinding) sentencing guidelines range is 8 to 14 months if Judge Dugan cooperates, but it’s “likely she will cooperate and get 12 months probation/no incarceration.” If she gets convicted at trial, he estimates that she could be looking at around 27 months. But if the case goes to trial, I think the chances of a hung jury are much higher than average: I could easily see a juror or jurors refusing to vote guilty because they believe Dugan did the right thing, or they think the case should never have been brought.

If the facts of this case sound familiar, it’s because a similar thing happened in the first Trump term. In 2018, Massachusetts District Court Judge Shelley Joseph and a court security officer were indicted on obstruction and other federal charges, after allegedly helping an undocumented immigrant evade federal agents under similar circumstances. Judge Joseph filed a motion to dismiss the prosecution, asserting judicial immunity and other defenses; the district court denied that motion, and the First Circuit declined to review that denial before a trial. By that point, it was already 2022, i.e., the Biden administration. The federal prosecutor handling the case dismissed the charges, as part of an agreement requiring Joseph to refer herself to the Massachusetts Commission on Judicial Conduct—and it appears that those judicial-discipline proceedings are still pending.

Other judges in the news:

Last week’s Judge of the Week, Fourth Circuit Judge J. Harvie Wilkinson, won plenty of plaudits for his opinion in Abrego Garcia v. Noem. But reactions to his opinion in a run-of-the-mill insurance dispute, Owners Insurance Company v. Walsh—specifically, the existential, metaphysical musings on the last page—are more mixed. Noted appellate litigator John Elwood commended it as “an unusually introspective conclusion” from a “superb judge,” but the Legal Style Blog castigated it as “atrociously bad judicial writing.” (I fall somewhere in between; I’m a longtime admirer of Judge Wilkinson, but I think this particular patch of prose would be more appropriate for his next romantic novel, as opposed to the pages of the Federal Reporter.)
Judge Pauline Newman, who will turn 98 in June, continues to fight her suspension from the Federal Circuit—but the odds of her returning to the bench are looking long. Her lawyer, Greg Dolin of the New Civil Liberties Alliance, received a skeptical reception from a D.C. Circuit panel at oral argument.
Ahead of a Wednesday hearing in Perkins Coie’s challenge to the EO leveled against it by the Trump administration, Donald Trump attacked Judge Beryl Howell (D.D.C.) as “an unmitigated train wreck.” But if he was attempting to intimidate Judge Howell, it didn’t work; she asked tough questions of DOJ lawyer Richard Lawson, as reported by The Washington Post (gift link), and he seemed short on answers. For example, Lawson couldn’t answer a question that many of us have been wondering: have Trump’s deals with the nine settling law firms been memorialized in detailed, written agreements, i.e., something more elaborate than Trump’s posts on Truth Social? My guess is that the Trump/Biglaw deals have not been “papered up,” with each side thinking it was better off without a more formalized deal (but if I’m wrong, please let me know).
On Tuesday, in a retrial—the first trial ended with a hung jury—a California state-court jury found Orange County Superior Court Judge Jeffrey Ferguson guilty of second-degree murder, for shooting and killing his wife in August 2023.
California judges are defendants, and California judges are plaintiffs: Judge Dean Pregerson (C.D. Cal.) and retired Magistrate Judge Jay Gandhi (C.D. Cal.) sued the City of Los Angeles, after losing their homes in the Palisades Fire. They allege that their losses were caused by the negligence of the Los Angeles Department of Water and Power, which failed to properly maintain critical water reservoirs.
During a private meeting of the Judicial Conference, Judge Richard Sullivan (2d Cir.) posed a provocative question: what if Trump ordered the U.S. Marshals Service—which oversees security for the judicial branch, but is itself part of the executive branch—to stop protecting certain judges? It’s “a scenario that weeks before would have sounded like dystopian fiction,” as Mattathias Schwartz and Emily Bazelon wrote in The Times—but you could perhaps say the same of many things that have happened over the past three months.

Job of the Week: an opportunity for healthcare lawyer in L.A. or S.F. (or remote).

Lateral Link is working closely with a leading Am Law 100 firm to find a healthcare attorney with at least three years of experience in Los Angeles or San Francisco. The firm will consider associates, counsel, or junior partners, and is also open to fully remote arrangements. The firm has a strong national presence, representing more than 2,400 clients, including hospitals, health systems, academic medical centers, private-equity funds, long-term care facilities, IPAs, and medical groups. Its healthcare practice has earned top national and regional rankings from Chambers USA, Legal 500, and U.S. News/Best Law Firms. For more information, please contact Managing Director Sean Hamrin, at shamrin@laterallink.com, or Senior Principal Susan Agopian, at sagopian@laterallink.com.

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Jeff Kichaven (courtesy photo)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Mediation is having a moment. Numerous headline-making conflicts are currently in or headed for mediation—everything from Russia v. Ukraine to Israel v. Hamas to Trump v. CBS Broadcasting, Inc.

What is mediation? Black’s Law Dictionary defines it as “a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.”

But beyond this basic definition, I realized that I didn’t know a great deal about how exactly mediation works, even though I consider myself reasonably knowledgeable about the law and legal processes. And I suspect that some of my readers, especially folks who aren’t commercial litigators, might feel the same way.

So as I generally do when I want to learn more about a subject, I reached out to an expert. Earlier this month, I interviewed veteran mediator Jeff Kichaven (pronounced KITCH-ay-vin, where “KITCH” rhymes with “which” and “ay” rhymes with “way”).

A graduate of UC Berkeley and Harvard Law, Jeff has worked as a mediator for almost 30 years. He’s ranked in Band 1 by Chambers, with respondents praising him as “highly skilled and knowledgeable,” “very sophisticated,” and “excellent on insurance issues”—in short, “one of the most professional neutrals in the U.S.A.”

Before becoming a mediator, Jeff practiced as a litigator for 15 years. He was inspired to enter mediation after seeing it succeed in one of his cases.

“The lawsuit had been pending for over three years,” Jeff recalled. “The mediator settled it in six hours—and the client was thrilled.”

I asked Jeff to walk me through the process of mediation, starting from the beginning. How does the ball get rolling? How does a case wind up in mediation?

“Lots of different ways,” he explained. “The most common is that ~~j~~udges might think that certain cases are taking up too much of their time, so they suggest mediation—and we know there’s no such thing as a ‘suggestion’ from a federal judge.”

But a nudge into mediation can come from other sources as well. It could come from a client—a chief legal officer, general counsel, or business executive, who has concluded that a case is consuming too much time and money, distracting the company from business goals. Or it could come from lawyers, who feel that they’ve brought the case to a point of diminishing returns—where further investment likely won’t change the final outcome much, making prompt resolution desirable.

When lawyers choose a mediator, they consider experience, reputation, potential conflicts, and other factors—including one factor that Jeff believes deserves more consideration, the mediator’s personality or style.

“I wish more lawyers would get on a quick phone or video call with a mediator they’re considering, just to make sure that they’re compatible and feel comfortable with this person,” he said. “If someone in the mediation doesn’t get along with the mediator for personal reasons, that mediator won’t be very effective.”

And one factor that Jeff thinks is overrated is subject-matter expertise: “What’s the difference between a novice and an expert in any area of law? Forty-eight hours.”

Mediators are used to picking up subjects quickly. What they really need to understand are the rules of evidence and civil procedure, through which the substantive issues get filtered.

“That’s why I focus on process, not preaching,” Jeff said. “Lawyers know the law, and lawyers know their cases. My job is to structure a conversation where they can use that knowledge to get results.”

Once the parties and their lawyers have agreed to work with Jeff as their mediator, they figure out scheduling, in terms of both the briefing and the mediation itself. They also decide whether the mediation will be done remotely, using a platform like Zoom, or in person—in which case they need to settle on a location. (Jeff is happy to travel anywhere in the continental United States for a mediation—and as he explains on his website, he doesn’t charge extra for travel time or expenses.)

Ahead of the mediation, the parties will send Jeff their briefs. He recommends a “shared” brief, which will go to both him and opposing counsel, and a supplemental “confidential” brief, provided only to him. The confidential brief allows each side to share with Jeff a more candid assessment of the case, knowing that it won’t be seen by the other side.

Also in advance of the mediation, Jeff will have calls (by phone or Zoom) with the lawyers. They’ll discuss the case and their clients’ positions, including the issues to be focused on during the mediation, and how the mediation will be conducted. This involves resolving a few key issues.

How long will the mediation last? The most common options are a full, eight-hour day, or a half-day, four-hour mediation. Jeff charges a flat fee of $12,000 for a full day or $8,000 for a half-day, with no additional charges or fees (unless the mediation runs over the allotted time, in which case he bills hourly).

Will clients be in attendance at the mediation? This is Jeff’s strong preference, considering that the client will ultimately have to sign off on any resolution of the case. And sometimes the client can benefit from hearing difficult truths from the mediator, a neutral third party.

Will any part of the mediation be a “joint session,” with all parties discussing the case with the mediator? Or will it all be the mediator meeting separately with each side and going back and forth, so-called “shuttle diplomacy”?

The general trend in the mediation world is away from joint sessions, Jeff said—and they can have certain disadvantages. You can get vigorous advocacy in joint sessions, which sometimes antagonizes the other side and leads to a full-blown argument. (One critical skill for mediators is the ability to manage joint sessions effectively, allowing the parties to express their views without things spiraling out of control.)

There may be some cases where emotions and tensions are running so high that a joint session doesn’t make sense. But Jeff doesn’t dismiss joint sessions out of hand—and generally favors having at least some part of the mediation as a joint session, even if just to address a narrower set of key issues. The problem with shuttle diplomacy is that it gives rise to a “hearsay” problem: is the mediator accurately conveying the other side’s view? Or have important pieces of information gotten lost along the way, as in a game of “telephone”?

This can apply not just to the substance of the other side’s positions, but the style of their delivery—including non-verbal aspects of communication.

“In a shuttle-diplomacy situation, sometimes the lawyer for one side will ask me, ‘Do you think they’re bluffing?’ And I generally have to say, ‘I don’t know—you should look those other lawyers in the eye and judge for yourself.’”

The day of the mediation will begin as discussed by the parties, with joint sessions (all sides and the mediator), private sessions (with the mediator and one side at a time), or both. The goal, of course, is to hammer out terms for resolving the case.

If the parties do reach agreement on a resolution, Jeff strongly recommends not concluding the mediation without signing a document confirming the material terms as a contract, as opposed to merely having an “agreement to agree.” Otherwise, the parties could get involved in a subsequent dispute over how they agreed to resolve their original dispute.

If the mediation doesn’t conclude with an agreement, that doesn’t mean it “failed,” nor does it mean that the mediator did anything wrong. There are some mediators who really try to force the parties into a settlement, but that’s not Jeff’s approach.

“Self-determination is one of mediation’s key values,” he explained. “People need to make their own decisions. Parties have a constitutional right to a jury trial, and I’m not here to bully them out of it. If they decide they’d rather take their chances in court—and they make a clear decision to do so, in a calm and informed environment—that doesn’t make the mediation unsuccessful.”

At the same time, it’s very satisfying for Jeff when he’s able to help parties reach an agreement to settle their case.

“When a case is stuck, mediators have both the skill and the motivation to help,” Jeff said. “When mediation works well, it’s a thing of beauty for both the lawyers and their clients.”

Disclosure: Thanks to Jeff Kichaven Commercial Mediation for sponsoring this post. Chambers-ranked and Harvard-educated, Jeff is the trusted closer for high-stakes disputes. His battle-tested system of managed communications empowers clients to make clear, strong decisions in a calm, informed environment. It makes the right resolution obvious. If settlement seems impossible, call him.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world, as well as the ability to comment on posts. You can reach me by email at davidlat@substack.com with any questions or comments about Original Jurisdiction, and you can share this post or subscribe using the buttons below.

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Dewey & LeBoeuf, RIP (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

On the surface, large law firms look stronger than they’ve ever been. The Am Law 100, the nation’s 100 largest firms based on revenue, collectively grossed a record $158 billion last year. Kirkland & Ellis became the first law firm in history to break the $8 billion mark in revenue——at $8.8 billion, within shouting distance of $9 billion—and posted profits per equity partner of $9.25 million.

So why did nine major firms rush to cut deals with the Trump administration—offering a total of $940 million in pro bono work to support causes endorsed by the president, among other concessions? And why did eight of these firms, including Kirkland, settle preemptively—before they were even hit with formal executive orders attacking them and their work?

It’s because Biglaw firms have feet of clay—which the executive orders were perfectly designed to smash.

Law firms aren’t like other billion-dollar businesses. They don’t own giant factories, warehouses full of merchandise, or valuable patents. Their key assets are their people—talented and hardworking lawyers who each bill thousands of hours a year, at rates up to $3,000 an hour.

Every night, these human assets go down the elevator and out the door. They don’t have to come back. And over the years, more and more lawyers have chosen not to, instead moving to rival firms.

When I graduated from law school around 25 years ago, the typical path was to join a firm after graduation, often the one where you had spent your 2L summer, and work there your entire career. It was relatively unusual for a firm to hire lateral partners—and especially rare among the elite New York firms, who prided themselves on “homegrowing” their talent.

That’s no longer the case today. In what has been accurately dubbed Biglaw’s free-agent era, virtually all firms hire lateral partners—including white-shoe firms that used to eschew hiring outsiders, such as Cravath and Davis Polk.

Is all this movement a good thing? Conventional wisdom views lateral partner movement negatively, blaming it for a more mercenary mindset among partners that reduces loyalty and collegiality. All the churn destabilizes firms and can cause them to collapse—à la Dewey & LeBoeuf, which went on a lateral partner hiring spree before imploding.

But if lateral partner hiring is such a bad thing, why has more lateral movement coincided with record profitability in Biglaw? I don’t think it’s a coincidence. I believe that lateral hiring, like non-equity partnership, gets a bad rap. And just like non-equity partnership, lateral movement can benefit both law firms and individual lawyers.

Firms that excel at lateral hiring—such as Kirkland, Milbank, Paul Hastings, and Paul Weiss—have supercharged their profits, outstripping rivals that do less lateral hiring (or aren’t as good at it). And lateraling can benefit lawyers as well.

The financial rewards can be obvious, with top laterals landing $20 million pay packages—but it’s not all about the benjamins. Instead, partners move to firms that are the best “platforms” for their practices. Partners might lateral because they believe the new firm will better support their practice, provide a superior cultural fit, or pose fewer client conflicts.

Lawyers and firms change, and they shouldn’t hesitate to part ways when they’re no longer a good fit. The notion that you should spend your entire career at the firm you happened to summer at your 2L year makes no sense—and I can’t think of any other industry that runs itself this way or looks down on moving to a different company.

But I agree that increased lateral movement has weakened firms as institutions. When a firm hits a rough patch, individual partners have less motivation to ride it out. Instead, they can—and often will—take both their talents and clients across the street, to a peer firm. (Because of legal-ethics rules protecting client freedom to choose their lawyers, firms generally can’t impose non-competes on partners.)

And when many top partners leave a firm in a short time period, that can start the process of the firm’s collapse. As Yale law professor John Morley observed, partner departures can lead to more partner departures, turning into “a spiraling cycle of withdrawals that resembles a run on the bank.”

The prospect of damaging defections was clearly on the mind of Brad Karp, the chairman of Paul Weiss, when he became the first Biglaw leader to reach an agreement with President Donald Trump. Karp said in a firmwide email defending the deal that after the administration issued its executive order targeting Paul Weiss, rivals started “to exploit our vulnerabilities, by aggressively soliciting our clients and recruiting our attorneys”—posing an “existential” threat to the firm.

Imagine you’re a transactional partner at a top M&A firm, such as Davis Polk or Wachtell Lipton. You need approvals from an alphabet soup of federal agencies for the billion-dollar deals your clients have hired you to close, as I recently told Noam Scheiber of The New York Times (gift link).

With the stroke of a pen, Trump has told the world that your firm is, in Karp’s words, “persona non grata with the Administration.” Clients call you to express worries that the federal government won’t sign off on their transactions—and suggest they might have to replace you as their lawyer.

Do you stick it out with your current firm, while the firm fights the government in court—for months, or even years? Or do you move your practice to a firm that’s in the administration’s good graces?

In some ways, the most profitable firms are the most susceptible to such pressure. It’s extremely hard to achieve and maintain astronomically high profits per partner. Defections of just a few big rainmakers can quickly dent those numbers. So it comes as no surprise that the firms settling with the Trump administration enjoy much higher profits per partner, on average, than the firms battling the administration in court.

That’s the duality of Biglaw: firms are both stronger and weaker than they’ve ever been. They’re enjoying record profitability, but maintaining sky-high profits requires them to hold on to their top rainmakers at all costs. That gives rise to a major Achilles’ heel—one the executive orders targeted with uncanny precision.

The challenge faced by law firm leaders today is how to hold together partnerships through non-financial means. As Indiana University law professor William Henderson noted around the time Dewey & LeBoeuf collapsed, “Money by itself is weak glue.” But figuring out what can replace it is easier said than done.

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Ted Olson (left) and David Boies, after arguing against each other in the Second Circuit in Argentina bondholder litigation (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Theodore “Ted” Olson, the renowned Supreme Court and appellate advocate, passed away on November 13 at the age of 84. The cause was a stroke, according to his wife, Lady Booth Olson. Obituaries ran in The New York Times, The Washington Post, Bloomberg Law, The American Lawyer, Law360, Reuters, and The Free Press.

His death was announced by his longtime law firm, Gibson Dunn & Crutcher. Chair and managing partner Barbara Becker said, “Ted was a titan of the legal profession and one of the most extraordinary and eloquent advocates of our time. He was creative, principled, and fearless—a trailblazing advocate who cared about all people. We mourn his loss profoundly and send our condolences to his wife Lady, a cherished member of our firm family, and to all of Ted’s loved ones.”

After graduating from Berkeley Law in 1965, Olson joined Gibson Dunn, where he spent most of his entire six-decade legal career. He founded the firm’s appellate and constitutional-law practice, which he helped turn into the powerhouse that it is today, and also became well-known for his First Amendment expertise.

A prominent conservative lawyer, Olson spent two stints away from Gibson, engaged in government service at the highest levels. From 1981 to 1984, he served as assistant attorney general overseeing the Office of Legal Counsel at the U.S. Department of Justice. He advised the Reagan administration on critical issues of executive power and also advanced Republican policy priorities, such as fighting racial preferences and excessive government regulation.

From 2001 to 2004, Olson served as U.S. solicitor general, the federal government’s top lawyer before the Supreme Court. Widely regarded as one of the finest SCOTUS advocates of his time—and, for that matter, of all time—he ultimately argued before the high court on 65 occasions, in both government and private practice.

He was appointed solicitor general by President George W. Bush, whom Olson represented in one of his most famous cases: Bush v. Gore, in which the Supreme Court issued a controversial ruling that resolved the disputed 2000 election in Bush’s favor. His opponent in that case was a legendary liberal lawyer, David Boies.

The Bush v. Gore adversaries became allies in Olson’s second most-famous case: Hollingsworth v. Perry (2013), which he regarded as his greatest legal legacy. In 2009, Olson and Boies led a legal team that filed a constitutional challenge to Proposition 8, California’s ban on gay marriage. They prevailed in a bench trial before Chief Judge Vaughn Walker (N.D. Ill.), and the state of California decided not to appeal. But intervenors, including the official proponents of Prop 8, stepped in and took the case to the Ninth Circuit. Olson and Boies argued the appeal, again emerging victorious.

The proponents sought review from the U.S. Supreme Court. In an opinion by Chief Justice John Roberts, the Court held that the proponents lacked standing to appeal in the first place. The Court therefore vacated the Ninth Circuit opinion, making Judge Walker’s opinion the governing law—and effectively legalizing same-sex marriage in California. This helped pave the way for the Court’s ruling two years later in Obergefell v. Hodges (2015), which brought marriage equality to the entire nation. (Boies and Olson co-authored a book about the case, Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality.)

In addition to Bush v. Gore and Hollingsworth v. Perry, Olson successfully represented Citizens United in Citizens United v. Federal Election Commission (2010), the landmark First Amendment case allowing corporations to make unlimited independent expenditures on political speech—a precedent loathed by the left. But reflecting his intellectual independence, he also argued and won Department of Homeland Security v. Regents of the University of California (2020), in which the Court rejected the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) immigration program—a ruling supported by progressives.

Hard-core partisans might view these various stances as inconsistent, but there are actually clear through lines. As noted by Andrew Wolfson of The Washington Post, “What many of Olson’s arguments had in common was that they alignedwith his libertarian brand of conservatism.” Or in the words of Joe Nocera—who became friends with Olson during the Prop 8 litigation that was also worked on by Nocera’s wife, Dawn Schneider—Olson “lived an exemplary life fighting for the things he believed in: free speech, equal rights, and the Constitution.”

Olson’s legal career boasted many triumphs, but his life was also marked by tragedy. On September 11, 2001, his wife Barbara Olson, a lawyer and conservative commentator, was killed when American Airlines Flight 77 was hijacked by Al Qaeda terrorists, who then crashed it into the Pentagon. Barbara had planned to fly out to Los Angeles (for a television appearance with Bill Maher) the day before, but stayed an extra day so she could be with Ted on the morning of his 61st birthday. She called him twice from the airplane: she reported what was happening on Flight 77, he told her about the other hijacked 9/11 planes, and they said their final farewells. His telephone from that morning is now in the collection of the Smithsonian.

Ted and Barbara were active in the Federalist Society, which is how I first met Ted. Back then, in my conservative days, I was vice president of the Yale Federalist Society, and I attended the annual barbecue they hosted at their home in Great Falls, Virginia, for leaders of FedSoc student chapters. The well-connected Olsons would also invite legal luminaries to their barbecues; at the one I attended in the summer of 1998, I got to meet Justice Clarence Thomas (and still have a photograph of me and Justice Clarence Thomas from the event, signed by the justice).

Ted served on the Federalist Society’s Board of Visitors, and over the years, I would sometimes reach out to him when writing about FedSoc. For example, I contacted him for my January 2021 story, The Federalist Society And The Capitol Attack: What Is To Be Done? At the time, voices both inside and outside FedSoc were criticizing the organization for not speaking out about the events of January 6—criticisms I was (and remain) sympathetic to. Ted reminded me that the Society itself does not take stances on issues, instead allowing its individual members to hold and articulate their own views. And this was something he appreciated firsthand: when he was litigating for marriage equality, some socially conservative members of FedSoc called upon the organization to condemn his work or to expel him, but the Society did neither.

The Federalist Society’s 2024 National Lawyers Convention begins today, and tomorrow night, Ted’s presence will be missed at the Barbara K. Olson Memorial Lecture, an annual lecture on limited government and the spirit of freedom. Ted delivered the inaugural Olson Lecture and attended in subsequent years, and I would try to say hello when I could, at either the lecture or the reception that followed. But it wasn’t always easy; Ted was a rock star at the Convention, constantly surrounded by a large group of well-wishers.

My favorite encounter with Ted took place in September 2015, when my husband Zach and I bumped into Ted and his wife Lady in the United Airlines lounge at LAX. Zach and I were on our way back to New York after our honeymoon in Australia—so it was the perfect opportunity to thank Ted for his years of work on behalf of marriage equality. He could not have been more gracious, saying that the four of us should have a celebratory dinner together when we were all back on the East Coast. (I wish I had taken a selfie of us, but I knew that Ted, not one to draw attention to himself, could be camera-shy; he initially demurred when I tried to take the photo that appears at the top of this post.)

As David Boies put it, “Ted Olson was a giant in the law, and a giant in life. He left the law, our country, and each of us better than he found us.” Theodore Bevry Olson, rest in peace.

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Redeeming the Dream: The Case for Marriage Equality

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(photo by Krisanapong Detraphiphat via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

When I started covering litigation finance in 2013, the field was, according to The New York Times, “an obscure corner of Wall Street.” Today, it has emerged from obscurity—and grown into a $15.2 billion industry, up from $9.5 billion just five years ago.

I’ve remained interested in litigation funding over the years, and in September, I headed out to Los Angeles to attend LITFINCON, a great conference hosted by Siltstone Capital. The three-day event—attended by a wide range of industry participants, including funders, investors, lawyers, bankers, and even a few judges—provided me with an excellent overview of the state of litigation funding.

As the industry has matured, the issues it faces have evolved. Here are three significant shifts in the world of litigation finance that I’ve seen over the past decade.

1. From Legality to Disclosure.

In the early days of litigation funding, the industry confronted significant questions about its legitimacy—and even its legality. A number of states had common-law or even statutory prohibitions of maintenance and champerty, ancient doctrines that prevent third parties from financing another person’s litigation (maintenance) or doing so in exchange for a share in the damages (champerty). Would states interpret and apply these laws aggressively, in a way that would threaten the viability of litigation finance?

Fortunately for supporters of the practice—as well as the recipients of funding, who might not be able to bring their cases without outside financial support—that didn’t happen. Some states construed their laws so narrowly that they became irrelevant to commercial funding—like New York, which bans champerty only when the purpose of taking the claim is “with the intent to sue.” Other states abandoned their laws entirely—like Minnesota, whose state supreme court abolished its common-law prohibition against champerty in a 2020 decision.

Instead of litigation finance’s underlying legality, the critical question it now faces is disclosure: must funding arrangements be disclosed in litigation, and if so, what exactly must be disclosed? Is disclosure of the existence of funding or the identity of the funder sufficient? Or must the funding agreement be disclosed in its entirety?

In the past decade, some states—including Wisconsin, West Virginia, Indiana, and Louisiana—have passed laws requiring varying levels of disclosure, depending on the context. On the federal level, legislation has been proposed that would require the disclosure of litigation funding: the Litigation Transparency Act of 2024, introduced by Representatives Darrell Issa (R-Cal.) and Scott Fitzgerald (R-Wis.).

The U.S. Judicial Conference’s Advisory Committee on Civil Rules also plans to study the issue of disclosure. And some individual federal courts, such as the District of New Jersey, have adopted or are considering disclosure rules.

The litigation-finance industry generally opposes these proposals. At a panel discussion at NYU Law School last month, Dai Wai Chin of Parabellum Capital said, in response to the notion of nefarious funders operating in the shadows, “We don’t have something to hide; we have something to protect. What we can’t have is prejudice coming from disclosure.”

Addressing the specter of funders exercising undue control over litigation, Andrew Cohen of Burford Capital asked, “Why do we not trust lawyers in this context to give independent, professional judgment? Why is litigation funding different from the current rules of legal ethics as they apply?” Existing ethics rules already require lawyers to provide clients with their best professional advice—even if the lawyers might have their own personal interests, as they always do.

Funders’ concerns over the negative effects of disclosure are understandable. Even if the existence of funding is disclosed only to the judge and not the jury, it can lead to a discovery sideshow that doesn’t go to the merits of a case and simply wastes time and money.

At the end of the day, though, the fact that the focus is now on disclosure is a victory for the funding industry. It shows how opponents of litigation finance, such as the U.S. Chamber of Commerce, have given up hope on shutting down funding entirely—and have turned to disclosure as a fallback position.

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2. From Fringe to Mainstream.

“My firm was somewhat reluctant to embrace litigation funding,” said Casey Grabenstein, a litigation partner at Saul Ewing. Mayer Brown litigation partner Michael Lackey put the point in even stronger terms: a decade ago, litigation finance “was just anathema” to him.

Their recollections are consistent with mine. When I first started covering the industry and mentioned it to attorneys in Biglaw, they’d respond with either befuddlement or skepticism. I wondered: would litigation finance remain on the fringes of law and finance—a profitable little niche for its participants, but a bit “sus” to the establishment?

The answer started becoming clear a few years ago. In 2021, Willkie Farr became the first major firm to publicly announce a partnership with a funder—a $50 million deal with Longford Capital. Other firms, including Cadwalader and Quinn Emanuel, followed suit.

Today, according to Lackey, “virtually every large law firm that does litigation probably has a funded case somewhere”—including his firm, Mayer Brown. In fact, according to Westfleet Advisors, a litigation-finance consultancy, Am Law 200 firms accounted for more than a third of total capital commitments in two of the past three years.

And funding has gone mainstream not just in law, but finance. Treating it as an important new asset class, major investment-management firms are now investing in litigation—like Fortress Investment Group, which has roughly $6.6 billion committed to legal assets.

Even insurance companies, some of the most staid players in finance, started exploring the space. For example, insurers like Liberty Mutual and HDI Global Specialty began issuing judgment-preservation insurance (JPI), which protects the trial-court awards of plaintiffs—and their law firms—if the judgments get reduced or reversed on appeal.

Pricing for JPI has risen by about 10 percent over the past year, according to Charles Agee of Westfleet—perhaps because some insurers have lost money on it. It wouldn’t be surprising to see some of them exit the market. But even if individual participants come and go, litigation finance in general has found its footing—and isn’t going anywhere.

3. From Growth to... Commoditization?

A decade ago, those of us who followed litigation funding wondered whether it was here to stay—and even if it didn’t get shut down by legal challenges, whether it had the potential for real growth. Now that it’s a $15 billion industry, the answer to that question is clear.

Now, if anything, some are wondering: has the industry grown too much, or too quickly? Several speakers at LITFINCON mentioned the dreaded C-word: “Commoditization.”

Burford Capital, the world’s largest provider of legal finance, described commoditization in a 2019 report as “more and more capital providers vying to enter the market, flooding lawyers with capital, thus resulting in lowered standards and race-to-the-bottom costs.” But after raising the prospect, Burford rejected it, arguing that even “as the industry continues to grow dramatically, the shift in front of us is—and indeed must be—the maturation of legal finance.”

Maturation but not commoditization seemed to be the dominant view among panelists at LITFINCON. As Wendie Childress of Westfleet noted, key indicators of commoditization, such as standardization in funding agreements and transparency in pricing, are still missing.

According to Benjamin Blum of the Flexpoint Ford private-equity firm, signs of commoditization might be starting to emerge in certain areas, such as the funding of litigation portfolios. But it’s not widespread, and one can understand why: the underlying assets don’t lend themselves well to commoditization.

Every lawsuit is different—not just in its facts and relevant law, but in terms of the law firm handling the case, the jurisdiction where it’s pending, and the judge overseeing it. As a result, each litigation presents a different investment proposition—especially in terms of large commercial cases, the traditional focus of funders, as opposed to consumer or mass-tort cases.

What does the future hold for litigation finance? In his opening remarks at LITFINCON, Mani Walia, general counsel of Siltstone Capital, expressed optimism.

Walia noted the arrival of many new industry participants, from Biglaw firms to investment funds to insurers. He highlighted recent innovations, including the rise of post-judgment insurance, the development of a secondary market for claims, and the harnessing of artificial intelligence, both to hedge existing investments and to make better investments in the future. But he stressed that if funding is to enjoy continued success, industry participants must continue to act ethically, responsibly, and with a focus on increasing access to justice.

Given the high cost of litigation today, many litigants can’t afford to bring their cases—or see them through to the end, in the face of vigorous opposition from well-heeled defendants—without help from funders. But funders must act fairly, with respect to both the claimants they finance and the claimants’ lawyers, for litigation finance to continue to flourish.

“There will continue to be innovation,” Walia said. “But ours is a young industry, and we need to make sure that there are no bad apples.”

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

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Will they stay or will they go? Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas, at a 2014 event at their shared alma mater, Yale Law School (screenshot via C-SPAN).This week’s Judicial Notice is sponsored by

You are cordially invited to The AI Revolution in Legal Writing, a webinar scheduled for Wednesday, November 20, at 1:30 p.m. (ET). Ross Guberman, renowned legal writing expert and founder of BriefCatch, and David Lat, founder of Above the Law and Original Jurisdiction, will discuss how artificial intelligence is transforming legal writing. They will cover the effect of AI on client expectations for quality and billing, strategies for training new lawyers to write effectively in the age of AI, and leveraging technology to maximize internal knowledge and to ensure consistent communication styles. The webinar is free; all you need to do is register. We hope to see you there.

I’m relieved I made it through last week. And that’s not (only) a reference to Election Day, when I stayed up until 4 a.m. and engaged in stress eating that would have put The Very Hungry Caterpillar to shame.

Our son Harlan was off from school for much of the week, which introduced some scheduling challenges. And then starting on Thursday, I spent three days in three different cities: Philadelphia, for a meeting of the Board and Advisory Council of FIRE; New York, for a panel at PLI’s Communications Law conference; and Seattle, for a panel at the 2024 NAPABA Convention. I love traveling, speaking, and meeting readers in person, but it is exhausting.

Now, on to the news—and if you were hoping for a break from election-related news, I’m sorry to disappoint you, since it dominated the headlines last week. For some counterprogramming, check out my podcast interview with Alexandra Shapiro, currently representing both Sean “Diddy” Combs and Sam Bankman-Fried.

Lawyer of the Week: David Warrington.

As I predicted last week, litigation over the results wound up not playing a big role in the election. But running a presidential campaign involves many other legal issues besides litigation, from complying with the complexities of federal election law to executing contracts with vendors across the country. So significant credit for Donald Trump’s successful campaign belongs to its general counsel, David Warrington.

A partner in the Northern Virginia office of the Dhillon Law Group—the litigation boutique founded in 2006 by prominent Republican lawyer Harmeet Dhillon, who has also done significant work for Trump—Warrington focuses his practice on both litigation and political law. Before joining Dhillon Law, he practiced at Kutak Rock and LeClairRyan (may it rest in peace). He graduated from Georgetown and Scalia Law.

According to Politico, Warrington “helped guide the Trump campaign through a maze of unprecedented political and legal challenges”—and he could be rewarded for his work by being named to the powerful role of White House counsel. Other contenders, according to Politico, The Wall Street Journal, and The New York Times, include Stanley Woodward, who has represented multiple Trump aides and allies in various proceedings; Holtzman Vogel partner William “Bill” McGinley, cabinet secretary in the first Trump White House; and Mike Davis, a Republican operative, former Gorsuch clerk, and recent Lawyer of the Week. I believe that Dave Warrington has the inside track—one source of mine flagged him for me back in August as a possible White House counsel—but Trumpworld is full of surprises, so stay tuned. [UPDATE (11/11/2024, 4:23 p.m.): Mike David tweeted, “I have made crystal clear—for many months—I am not going back into government.”]

What about attorney general, a critical role in the Trump administration? He could go with a political ally, such as Senator Mike Lee of Utah or Senator Eric Schmitt of Missouri. He could turn to alumni of his first administration, including Mark Paoletta, former general counsel of the Office of Management and Budget; Jay Clayton, former chair of the Securities and Exchange Commission; or John Ratcliffe, former director of national intelligence. Or he could select a state attorney general, like Andrew Bailey of Missouri or Kris Kobach of Kansas. We’ll know soon enough.

[UPDATE (11/11/2024, 4:23 p.m.): Additional contenders for AG, per USA Today, include former assistant attorney general Jeffrey Clark, who would be controversial because of his involvement in the effort to overturn the 2020 election, and Judge Aileen Cannon, who would be controversial because of her handling of the Trump classified-documents case. And Texas Attorney General Ken Paxton appears to be auditioning for the role, per The Washington Post.]

In memoriam:

Richard Winfield, longtime general counsel for The Associated Press and a stalwart defender of freedom of the press, passed away at 91.
Lawrence “Larry” Robbins—a former partner at Friedman Kaplan, Kramer Levin, and the Robbins Russell appellate boutique, which he founded—passed away at 72 (and only weeks after publication of his debut novel, The President’s Lawyer).
Alan Rachins, who wasn’t a lawyer but played one on TV—namely, Douglas Brackman Jr. of L.A. Law—passed away at 82.

May they rest in peace.

Judges of the Week: Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor.

Trump’s victory has triggered speculation over whether the two oldest members of the U.S. Supreme Court, Justices Clarence Thomas (76) and Samuel Alito (74), might retire. Some conservatives would like to see one or both of them step down during Trump’s second term—especially the first two years, when we know Republicans will have at least 53 Senate seats—so they could be replaced by similarly conservative but younger jurists. (For links to the copious coverage, see Howard Bashman’s How Appealing.)

For my thoughts on Justices Thomas and Alito, I refer you to my Thursday post, 4 Legal Implications Of Donald Trump’s Win. My bottom line: I could see Justice Alito retiring in 2025, followed by Justice Thomas in 2026 (although the odds of an Alito retirement are higher than a Thomas one, as suggested by Josh Blackman).

An addendum: the Thomas/Alito retirement talk triggered a rebuke by Federalist Society board co-chair Leonard Leo—a key adviser to Trump on judicial picks in his first term, before they had a falling-out—who issued a statement saying, “No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass. Justices Thomas and Alito have given their lives to our country and our Constitution, and should be treated with more dignity and respect than they are getting from some pundits.”

But I agree with conservative commentator Ed Whelan: “It’s one thing to guess what a justice will decide to do. It’s quite another to try to tell a justice what to do.” In my own discussion, I never purported to do the latter. (If I’m crass every now and then in these pages, though, don’t say you weren’t warned: as Judge Richard Posner quipped about my first blog, Underneath Their Robes, “It’s occasionally a little vulgar, but this is America in 2005.”)

This brings us to Justice Sonia Sotomayor. As discussed in The Washington Post and Politico, commentators like Josh Barro and Bakari Sellers, activists like Molly Coleman of the People’s Parity Project, and even unnamed Democratic senators have raised the possibility of the Wise Latina demonstrating her wisdom by allowing herself to be replaced by someone similarly progressive but younger—such as Judge J. Michelle Childs, 58, or even Vice President Kamala Harris, 60.

Successfully replacing Justice Sotomayor before Trump takes office strikes me as extremely unlikely. As mentioned in my Thursday post, Justice Sotomayor is 70—several years shy of the average SCOTUS retirement age of 75-plus over the past century, to say nothing of more recent liberal justices like Justice Ginsburg, who passed away in office at 87, or Justice Stevens, who retired at 90. Furthermore, as discussed in both the Politico piece and by Jay Willis of Balls and Strikes, the Democrats’ narrow margin in the Senate (51-49) and remaining time (around 40 days) make this gambit very risky. In Willis’s words, “for this ambitious bit of political hardball to work, everything would have to go right, which, when Senate Democrats are in charge of things, is generally not a good bet.”

Other judges in the news:

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(photo by Beata Zawrzel of NurPhoto via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

On Tuesday, November 5, former president Donald J. Trump defeated Vice President Kamala Harris in the 2024 presidential election. On Inauguration Day—January 20, 2025—Trump will be sworn in as the 47th president of the United States.

As I recently mentioned, I’m not a political commentator, nor do I aspire to become one (as my former Above the Law colleague Elie Mystal has). But if you want to talk politics, have at it. This is a Notice and Comment (N&C) post, so comments are open to all, not just paid subscribers. Lament or laud the 2024 election, as you see fit.

I’ll stick to the law stuff—specifically, implications of the Trump victory for four legal issues. Feel free to react in the comments to my thoughts as well.

1. Trump could cement—but probably not expand—the conservative supermajority on the U.S. Supreme Court.

During his first term, Trump appointed three conservative, relatively young Supreme Court justices: Justices Neil Gorsuch (57), Brett Kavanaugh (59), and Amy Coney Barrett (52). These appointments—especially those of Justice Kavanaugh, who replaced the less conservative Justice Kennedy, and Justice Barrett, who replaced the liberal Justice Ruth Ginsburg—shifted the Court significantly to the right. The resulting 6-3, conservative supermajority made possible the overruling of Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization.

The three liberal justices—Justices Sonia Sotomayor (70), Elena Kagan (64), and Ketanji Brown Jackson (54)—would give Trump a SCOTUS seat only over their (literal) dead bodies. They’re all under the average SCOTUS retirement age, which hovers somewhere north of 75, and they all appear to be vigorous and healthy (yes, Justice Sotomayor has diabetes, but she’s had it since she was a child and manages it well). It’s highly unlikely that any Democratic SCOTUS appointee will be going anywhere between now and 2029.

In contrast, Justices Clarence Thomas (76) and Samuel Alito (74) are in the ballpark of retirement age. Ed Whelan predicted over at National Review that Justice Alito will announce his retirement in spring 2025—i.e., the end of the current Term. And that makes sense to me, for a few reasons: (1) Justice Alito has never been a fan of D.C.; (2) Martha-Ann would surely love for him to retire, for obvious reasons; and (3) he’ll never write an opinion as consequential as his majority in Dobbs.

Justice Thomas is trickier. With originalism now in control at the Court, he’s arguably more influential than he has ever been—why would he want to leave now? Since he started speaking up at oral argument a few years ago, he seems to be enjoying his job more. And there might be a part of him that likes “sticking it to the libs”—which he gets to do with every day that he’s sitting on the Court.

But he might be persuadable—especially if the Trump administration implies (or promises) that they’ll replace him with one of his former clerks who would carry on his legacy, like Judge James Ho (5th Cir.) or Judge Kathryn Mizelle (M.D. Fla.). Ed Whelan suggested that Justice Thomas might retire in 2026, which seems at least possible to me (unless Justice Thomas wants to surpass Justice William O. Douglas as the longest-serving justice, which he’d do if he serves to the end of Trump’s new term).

With Republicans holding somewhere between 52 to 54 seats in the Senate, Trump will have ample leeway in selecting a nominee. He can make an ultra-conservative pick, lose the votes of a Senator Collins or Murkowski, and still get the nominee confirmed. So if Justices Thomas and Alito retire during the first two years of Trump’s term, when he’ll have a favorable Senate, Trump would be able to replace them with successors who are just as conservative—but decades younger.

That wouldn’t necessarily make the Court more conservative; after all, it would be hard to outflank Thomas and Alito on the right. But it would dramatically increase the likelihood of the conservative supermajority enduring for another generation.

2. Trump could shift the rest of the federal judiciary further to the right—but not as much as he did in his first term.

While the Supreme Court gets most of the attention, the lower courts, especially the circuit courts, are incredibly important. And during his first term, Trump left his mark, securing the confirmation of 234 nominees to Article III judgeships—including more than 50 circuit judges.

But it’s unlikely that he’ll come anywhere close to that in his second term. According to Bloomberg Law, at the end of last month, only 46 pre-election judicial vacancies remained for Trump, including some seats with pending nominees. That’s less than half of the 100-plus pre-election vacancies that Trump inherited in 2017, as a result of Republicans successfully blocking Obama nominees (and the Obama administration not even making nominations for a number of judgeships).

To be sure, new vacancies will arise during the course of Trump’s second term, with 25 circuit judges becoming eligible for retirement in 2025. But some of those 25 were appointed by Democratic presidents—and it’s increasingly the case that judges are waiting to retire until the party of their nominating president controls the White House.

So will Trump be able to move the lower courts further to the right? Sure—but it will be more of a nudge than a push, nothing as transformative as his first term.

3. The second Trump DOJ could be a lot like the first Trump DOJ—but much will depend on who goes into the administration.

If I had to guess, the U.S. Department of Justice (DOJ) in Trump’s second term will be similar to the DOJ during his first term. There will be relatively less emphasis on white-collar crime and relatively more emphasis on violent crime, including gang activity. There will be more focus on protecting religious liberty and investigating “reverse discrimination”—e.g., looking into whether schools are complying with the Supreme Court’s affirmative-action ruling—and less focus on environmental crime and minority voting rights. It will look in many ways like a traditional Republican DOJ.

One area where the first Trump DOJ diverged from a traditional Republican DOJ was in antitrust enforcement, where Team Trump took a relatively aggressive approach—which the Biden Administration maintained, under Jonathan Kanter at the Antitrust Division and Lina Khan at the Federal Trade Commission. I could see the second Trump administration continuing down the same path, especially when it comes to scrutinizing tech companies (except ones owned or controlled by Elon Musk).

In his first term, Trump sought—and sometimes obtained—DOJ investigations of his adversaries. This might happen in his second term as well, as outlined in The New York Times, and Politico recently drew up a list of Trump enemies who could be targeted—e.g., the Bidens, the Cheneys, prosecutors who have pursued Trump over the past few years, members of the January 6 committee, and members of the media.

But it’s also possible that Trump might not seek revenge (or seek it to a more limited extent than some people are expecting). Marc Short—chief of staff to vice president Mike Pence when Pence refused Trump’s request to not certify the 2020 election results, and therefore an object of Trump’s ire—told Peter Baker of The Times that he’s not worried: “I think there’s a lot of theater around that more than there is real sort of retribution.”

Would attempts by Trump to weaponize the justice system be successful? Much will turn on who enters his administration. A list of possible Trump DOJ appointees obtained by ABC News includes people like Steve Engel, former head of the Office of Legal Counsel (OLC), who joined with other top DOJ officials in January 2021 and threatened to resign if Trump named Jeffrey Clark attorney general so Clark could pursue Trump’s claims of election fraud. But that same list of potential DOJ picks also includes… Jeffrey Clark.

4. Jack Smith’s cases against Trump are not long for this world.

The extent to which the DOJ will become a personal tool of Donald J. Trump is unclear. Here’s something that is clear: Special Counsel Jack Smith’s two cases against Trump—the election-interference case that’s before Judge Tanya Chutkan (D.D.C.), and the classified-documents case that’s on appeal to the Eleventh Circuit, after being dismissed by Judge Aileen Cannon (S.D. Fla.)—are going away.

As Professor Ray Brescia of Albany Law School told me, “It seems clear that Smith is preparing to wind down his investigation and prosecution based on the longstanding Department of Justice policy of not prosecuting a sitting president. I am assuming he will step down before Inauguration.” (According to The Washington Post, Smith could still give Trump a little parting gift: a report of his findings, which could be scathing—and which Attorney General Merrick Garland would presumably make public, as he has pledged to do regarding special-counsel reports.)

So DOJ policy prohibits the prosecution of a sitting president, as noted by Professor Brescia. But does it require automatic dismissal of previously filed cases, without any action from Trump or his attorney general? Or does Trump have to “own it” politically, by taking some affirmative step to oust Jack Smith? (Not that I think Trump would have a problem with that—he’s previously said he would “fire [Smith] within two seconds” if reelected, and even if Smith should actually be dismissed by the attorney general, I could totally see Trump picking up the phone, calling Smith himself, and barking at him, Apprentice-style, “You’re fired!”)

In an October 2000 OLC memo, then-OLC head Randy Moss (now Judge Randy Moss) concluded that “a sitting President is immune from indictment as well as from further criminal process.” Moss also concurred with a 1973 OLC memo stating that “a grand jury should not be permitted to indict a sitting President, even if all subsequent proceedings were postponed until after the President left office.” But I’m unaware of any OLC memo specifically addressing the current situation, in which a former president gets indicted and then… becomes president again. (I can’t fault OLC for not exploring this issue; when he takes office in January, Trump will become only the second president, after Grover Cleveland, to serve nonconsecutive terms.)

The state prosecutions against Trump—the New York hush-money case in which Trump is scheduled to be sentenced later this month, and the Georgia election-interference case tied up in appellate proceedings because of the Fani Willis-Nathan Wade romance—are not controlled by DOJ policies. But they are, as a practical matter, going away—at least until Trump finishes his term, if not forever.

In the New York case, Trump is scheduled to be sentenced on November 26. But as legal experts told Politico, it’s unlikely that Justice Juan Merchan will proceed with sentencing a president-elect. Even a noncustodial sentence like probation would present issues—e.g., can a sitting U.S. president be required to check in with a state probation officer? But whether Justice Merchan would postpone sentencing until after Trump leaves office or get rid of the case entirely—perhaps by granting Trump’s pending motion to dismiss based on the Supreme Court’s immunity ruling—is unclear.

As for the Georgia case, many analysts agree with Steve Sadow, Trump’s lead attorney in Georgia, who previously argued that under the Supremacy Clause, state criminal prosecutions can’t move forward against Trump as long as he’s a sitting president. Whether that case would go away completely or could return in 2029 is also uncertain. But again, practically speaking, it’s going dormant—and will remain that way for years.

So those are some of my thoughts on the implications for four legal issues of Trump’s win. What are your views? Please share them in the comments of this N&C post, which are open to all readers (not just paid subscribers). I will not be opining on the political aspects of Trump’s victory—but you’re welcome to do so, and I look forward to your thoughts.

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If you ever get prosecuted by the U.S. Attorney’s Office for the Southern District of New York, I wish you luck—because you’ll need it. “The Office” has a very high conviction rate—and, like most U.S. Attorney’s Offices, the vast majority of its convictions get affirmed on appeal.

If you want to maximize your chances of either prevailing at trial or on appeal against the S.D.N.Y., then you should call Alexandra Shapiro (if you can afford her). She’s the rare lawyer who can go up against The Office and win—whether at trial, in the Second Circuit, or before the U.S. Supreme Court.

An alum of the S.D.N.Y. herself, as well as a former law clerk to the late Justice Ruth Bader Ginsburg, Alexandra is the co-founder (with Cynthia Arato) of a thriving boutique, Shapiro Arato Bach. Having her own firm allows Alexandra to take on cases and clients that she might not have been able to handle back when she was a partner at Latham & Watkins—whether because of client conflicts, the desire of large firms to steer clear of controversy, or Biglaw billing rates (because even if she’s expensive, she’s not Latham expensive, plus she enjoys more rate flexibility than a large firm).

Speaking of controversy, Alexandra currently represents two high-profile defendants going up against The Office: FTX founder Sam Bankman-Fried, appealing his fraud convictions to the Second Circuit, and Sean “Diddy” Combs, scheduled to go to trial in May 2025 on sex-trafficking and racketeering charges. She discusses these cases (to the extent that she can)—as well as her own interesting and impressive career, her approach to crafting appellate briefs, and her legal thriller, Presumed Guilty (2022)—in the latest episode of the Original Jurisdiction podcast.

(Programming note: as some of you might have noticed, this episode is a week early, based on my usual every-other-week schedule. But between now and the end of the year, the schedule might get a little funky because of the demanding schedules of my next few guests, plus the holidays. I will try to stick to Wednesday as the drop date, but I can’t guarantee much beyond that.)

Show Notes:

Alexandra A.E. Shapiro bio, Shapiro Arato Bach LLP
Shapiro Arato Bach’s Dynamite Trio: A Head-Turning Alternative to Big Law, by Emily Jackoway for Lawdragon
Presumed Guilty, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

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I hope everyone had a safe and enjoyable Halloween. Here in the Lat-Shemtob household, Harlan dressed up as a pirate, while Chase got stuffed into a Tigger costume. While they weren’t particularly creative—unlike some of the entrants in the Southern District of New York’s Halloween costume contest, the subject of this fun Wall Street Journal piece (gift link) by Corinne Ramey—the boys looked pretty darn cute (if I do say so myself).

At any house where Harlan confronted a choice of treats, he agonized over his decision, as if he were picking a Supreme Court justice. But his decision paralysis was probably a good thing in the end: it made him a very inefficient trick-or-treater, thereby reducing his candy haul. And if there’s one thing an already energetic, seven-year-old boy doesn’t need, it’s more candy.

Now, on to the news.

Lawyers of the Week: Rebecca Fitzpatrick, Sierra Elizabeth, Phyllis Jones, Sherry Knutson, and Charissa Walker.

Defending giant corporations in product-liability cases isn’t easy—especially when plaintiffs’ lawyers present juries with heartbreaking stories of unfathomable losses. Earlier this year, Abbott Laboratories and Mead Johnson went to trial to defend against allegations that their specialized formulas for premature babies cause necrotizing enterocolitis, a debilitating intestinal disease with an estimated mortality rate of more than 20 percent. The first two trials did not end well for Abbott and Mead, which were hit with verdicts of $495 million and $60 million, respectively.

But on Thursday, a third trial, held in the 22nd Judicial Circuit of Missouri (St. Louis), brought better news for the companies. Abbott and Mead were sued for $277 million in compensatory damages and $6 billion in punitive damages, based on theories of product defect, failure to warn, and negligence—and found liable on none. The trial lasted five weeks; the jury deliberated for three hours.

The companies still face around 1,000 similar lawsuits across the country, so their legal woes are far from over. Abbott CEO Robert Ford said that as a result of the litigation, his company might stop selling their preemie formula, which generates only $9 million a year in revenue—a prospect that has doctors in neonatal intensive care units in a state of “genuine panic,” according to Jonathan Davis, chief of the division of newborn medicine at Tufts Children’s Hospital.

For now, however, the defense verdict in Whitfield v. Abbott is a big win for Abbott and Reckitt, Mead Johnson’s parent—whose share prices rose significantly after the news. And it’s a big win for the five women lawyers who led the successful trial teams: Rebecca Fitzpatrick and Sierra Elizabeth of Kirkland & Ellis, who represented Abbott, and Phyllis Jones of Covington & Burling, who represented Mead Johnson together with Sherry Knutson and Charissa Walker of Tucker Ellis.

And Fitzpatrick and Elizabeth had to overcome another challenge as well. On October 24, Judge Michael Noble sanctioned their partner James Hurst, concluding that he tried to violate certain court orders related to evidence and arguments to the jury, and barred Hurst from presenting evidence or closing argument for the rest of the trial. The sidelining of Jim Hurst, a top trial lawyer, was surely an unwelcome development for the K&E team—but didn’t prevent them from prevailing in the end.

Other lawyers in the news:

Congratulations are in order for Andrew Goldstein—whose name might ring a bell from his role as a top deputy on the Mueller investigation—and Russell Capone. The two former federal prosecutors, now partners at Cooley, secured a non-prison sentence for Nishad Singh, former chief engineer of FTX, the defunct cryptocurrency exchange.
And kudos also to David Boies of Boies Schiller Flexner, who will be honored later this month as one of The American Lawyer’s 2024 Lifetime Achievement honorees—the occasion for this profile by Ross Todd.
The 2024 election is upon us, but bad actors from four years ago are still suffering the consequences of their misdeeds. Kenneth Chesebro, the Harvard Law graduate who played a key role in the “false electors” plot to keep Donald Trump in office, was indefinitely suspended from practicing law in New York. And Rudy Giuliani, previously disbarred in New York for his own election-related misconduct, must surrender some valuable and colorful assets—including a ten-room, luxury co-op on Manhattan’s Upper East Side, a vintage Mercedes convertible once owned by Lauren Bacall, and Joe DiMaggio’s No. 5 Yankees jersey—to Ruby Freeman and Shaye Moss, two Georgia election-poll workers who secured a $148 million defamation judgment against him.

Judges of the Week: Chief Judge Patrick J. Schiltz and Judge Mark Pittman.

When a trial judge has a strong belief that the law requires a certain result in a particular case, but appellate judges reviewing the decisions of that trial judge hold a clearly contrary view, how should the trial judge proceed? Two recent cases offer us the opportunity to explore this question.

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With a contentious election just around the corner, tensions are running high, and it’s easy to focus on what divides us. So my latest podcast interview, featuring Judge Kenneth Lee of the U.S. Court of Appeals for the Ninth Circuit, is quite timely. The son of immigrants from South Korea—and an immigrant himself, who came to the United States at age four—Judge Lee still believes in the greatness of America.

In our conversation, Judge Lee and I discussed his parents, including the challenges they faced after arriving in the U.S.; his high-powered legal career, including stints at Wachtell Lipton, the White House Counsel’s office, and Jenner & Block; the best and worst parts of being a judge; his philosophy of legal writing; and his approach to law clerk hiring. We also looked back on our time together at Wachtell, which is where we first met, some 23 years ago—and where Ken racked up billable hours that you’ll find hard to believe. But as his former colleague, I can attest that he works incredibly hard—now in service to the Constitution and laws of the United States.

Show Notes:

Kenneth K. Lee bio, Wikipedia
Kenneth Lee, Senate Judiciary Committee questionnaire

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

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Judge Amul Thapar of the Sixth Circuit, delivering the 2024 Joseph Story Distinguished Lecture at The Heritage Foundation (screenshot via YouTube).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

It’s hard to believe that Halloween is just a few days away. Our son Harlan, 7, is going as a pirate, while we’re stuffing Chase, 15 months, into a (super cute) tiger costume.

I’m generally not that into Halloween. But if I were, maybe I’d dress up as a McDonald’s employee, in light of the recent controversy—over whether or not Kamala Harris worked at Mickey D’s, not the food-poisoning litigation. Toiling under the golden arches is a role I know well, having worked at McDonald’s during the summer of 1992—and yes, I can prove it.

Now, on to the news.

Lawyers of the Week: Jacob Buchdahl, Elisha Barron, Tamar Lusztig, and Stephanie Spies.

Last year, litigation powerhouse Susman Godfrey secured a $787.5 million settlement for its client, Dominion Voting Systems, in Dominion v. Fox. The contingency fee it earned in that case, which I estimated to be a little more than $100 million, helped Susman snag the #4 spot in profits per equity partner in the Am Law 100. But the monumental win—and mammoth fee—set up a challenge for Susman: could it replicate such performance in 2024?

Here’s something that might help: Susman won a $1.6 billion verdict for the plaintiff in BML Properties Ltd. v. China Construction America Inc. After an 11-day bench trial, Justice Andrew Borrok of New York Supreme Court (Commercial Division) ruled in favor of BMLP, the developer of a Bahamian casino resort, and concluded that CCA, a Chinese contractor hired to work on that resort, engaged in fraud “established beyond doubt.”

And while I’m not privy to Susman’s fee arrangement with BMLP, I’m guessing the firm will be taking home another nine-figure fee, given its focus on contingency cases with the potential for huge verdicts. Kudos to the trial team of Susman partners Jacob Buchdahl, Elisha Barron, and Tamar Lusztig; associate Stephanie Spies; and Susman’s co-counsel, Mark Zauderer and Jason Cohen of Dorf Nelson & Zauderer.

Of course, Dominion was resolved through a settlement, while BML involves a judgment—one that CCA, represented by Debevoise & Plimpton, might appeal. So Susman’s victory here is not yet final—just as it wasn’t in the NFL “Sunday Ticket” antitrust litigation, where Susman won a $4.7 billion jury award that the judge subsequently tossed (in a ruling the firm is now appealing). But $1.6 billion is a big, big number—it could get reduced on appeal, or the parties could settle for a smaller amount, and the Susman lawyers could still make out like bandits. Expect the culinary offerings at Susman’s Manhattan holiday party to be extra special this year.

Other lawyers in the news:

Congratulations are also in order for Michael Ng, Daniel Zaheer, and their trial team at Kobre & Kim. They won a $605 million jury verdict for their client, California low-carbon fuels retailer Propel Fuels Inc., in a trade secrets case against Phillips 66 Co.
But again, remember that it ain’t over until all appeals are exhausted (or the case gets settled). Talented appellate attorneys can work wonders—as Paul Clement of Clement & Murphy and Kannon Shanmugam of Paul Weiss did in securing an Eleventh Circuit reversal of a $440 million judgment against four major cruise lines in a case involving the Helms-Burton Act, a (rather obscure) federal law concerning the U.S. embargo against Cuba.
I didn’t receive any responses to last week’s request for insight into the mindset of big-time tax evaders. But based on the case of former Moody’s general counsel John Goggins—sentenced on Thursday to eight months in prison for failing to file federal income tax returns for four years, during which he earned $54 million—I’m guessing that mental-health challenges are often involved.
If you share my fascination with Usha Vance, former Munger Tolles associate and possible future Second Lady, then check out Irin Carmon’s profile of Usha for New York Magazine (in which I’m quoted a few times).
Speaking of a second Trump administration, who might serve in leading roles at the White House Counsel’s Office, U.S. Department of Justice (DOJ), and other federal agencies? According to ABC News, contenders for attorney general include former SEC chairman Jay Clayton, Judge Aileen Cannon (S.D. Fla.), former DOJ official Jeff Clark, former White House lawyer Mark Paoletta, and former Senate Judiciary Committee lawyer Mike Davis. Other contenders for top jobs include Steve Engel, former head of the DOJ’s Office of Legal Counsel, and Will Levi, former chief of staff to attorney general Bill Barr. (On the AG pick, Ken White suggested on Serious Trouble that while Judge Cannon might be “extreme,” she’s not “Jeffrey Clark extreme”—and someone like Clark might be more along the lines of what Trump is looking for this time around, assuming Clark can win Senate confirmation.)
And speaking of lawyers and politics, Jim Walden of Walden Macht Haran & Williams—described by The New York Times as “a prominent and well-regarded lawyer, who has represented causes across the political spectrum”—is running to succeed the embattled Eric Adams as New York City mayor.

Judge of the Week: Judge Amul Thapar.

What can be done to bring a greater respect for free speech and intellectual diversity to American law schools? One claim that Judge James Ho (5th Cir.) makes in defense of his controversial clerk hiring boycotts is that there aren’t effective alternatives.

According to another leading conservative jurist and fellow Supreme Court shortlister in a second Trump administration, Judge Amul Thapar (6th Cir.), there are other options. He made his case while delivering the 2024 Joseph Story Distinguished Lecture at the Heritage Foundation, “Why Originalist Courts Need Originalist Classrooms”—which you can watch in its entirety on YouTube or read about in Bloomberg Law, The National Law Journal, and Reuters (with thanks to Howard Bashman of How Appealing for all the links).

In a nutshell, Judge Thapar argued that all too many law professors are “overwhelmingly anti-originalist” and “teach widely accepted originalist methods through a distorted, uncharitable and often inaccurate lens.” This slanted teaching has a negative effect in the world beyond law school because the students of these professors, after they graduate and become law clerks, are poorly equipped to advise judges—especially district or trial-court judges—on how to apply originalism.

But the situation might improve, Judge Thapar continued, if “taxpayers and donors alike demand it.” If taxpayers, who help support public law schools, and donors, a major financial resource for private law schools, threaten to withhold or actually withhold funds from schools that do a poor job of teaching originalism, we’d likely see positive change—because in legal academia, as in so many other sectors, “money talks.”

Over at The Volokh Conspiracy, Professor Josh Blackman opined that Judge Thapar’s approach “will have a negative impact on many innocent actors” because law students “have little control over what is taught, yet they will likely feel the brunt of any cut in funding.” While that’s true to some extent, I’d argue that clerk hiring boycotts harm innocent actors—mostly students—to a greater degree than funding cuts. A cut in overall funding for a law school affects not just students, but (highly paid) faculty members and administrators, including deans. But a clerk hiring boycott is felt most heavily by students—especially conservative students interested in clerking for conservative judges, who are so far the only participants in these boycotts. So if forced to choose, I’d favor wielding the power of the purse over clerk hiring boycotts (but of course one can argue that both strategies can be used).

In nominations news, confirmations will have to wait until the Senate returns after the election, but the Biden administration did name its fifty-fourth round of judicial nominees, two trial-court picks in California: Magistrate Judge Benjamin Cheeks (S.D. Cal.) and Los Angeles Superior Court Judge Serena Murillo (C.D. Cal.).

As for what will happen to the federal judiciary over the longer term, that will of course depend on what happens on Election Day. In this Times article (gift link), Mattathias Schwartz and June Kim take a deep, data-filled dive into how Donald Trump and Joe Biden have reshaped the federal judiciary by appointing, between the two of them, around half of all federal judges. Here’s the tidbit from the piece that I found the most notable: “Mr. Biden’s judges, on average, were somewhat more liberal than those nominated by his Democratic predecessors. Mr. Trump’s judges were, on average, ideologically similar to those nominated by previous Republican presidents.”

Ruling of the Week: Al Otro Lado v. Executive Office for Immigration Review.

Donald Trump has reportedly told advisors that immigration is the #1 issue in this election. And although polling suggests that the top concern of voters is actually the economy, immigration is up there.

So let’s talk about immigration—specifically, an opinion by a divided panel of the Ninth Circuit that raises an interesting issue of statutory interpretation. And if Trump wins the election and reverses some policies of the Biden administration, this ruling could have significant real-world implications as well.

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Many moons ago, when I was a litigation associate at a law firm, I spent a fair amount of time on discovery—yes, discovery and not e-discovery, because the process had not yet gone electronic. I would physically go to clients’ offices, review boxes and file cabinets brimming over with (paper) documents, and figure out how to extract from those documents the information needed for our case.

It was not fun. And it was stressful.

Today, of course, discovery is so much easier. Instead of doing what we did—sitting in windowless conference rooms, pawing through wall-to-wall boxes of documents (with rubber thimbles to avoid paper cuts), sometimes playing music to make the (many) hours pass more quickly—associates today review documents simply by clicking. And that’s assuming they’re even reviewing original documents for responsiveness and privilege, instead of having the work done by technology (or contract attorneys).

At the same time, discovery today is far more complicated. Cases can involve tens of millions of documents—vastly more data than what we had to deal with 25 years ago. Instead of taking paper form, these documents might be texts or WhatsApp messages, YouTube or iPhone videos, or team chats in Slack. And instead of being found in boxes and file cabinets, they might be found in laptops, on cellphones, or somewhere in the cloud.

Not surprisingly—and quite happily, for clients struggling to manage massive amounts of data—there are now lawyers, law firms, and alternative legal service providers (ALSPs) focused on e-discovery. And earlier this month, there was some significant news in that world.

Last week, Redgrave LLP, a leading e-discovery and information-law boutique, announced the arrival of three new partners—Robert Keeling, Ray Mangum, and Kristen Knapp—along with seven other lawyers in Washington, D.C. The group came from Sidley Austin, where Keeling founded and co-led the e-discovery practice.

Earlier this week, I interviewed Jonathan Redgrave, who co-founded the firm in 2010, and Keeling. We discussed the arrival of Keeling’s group—major news in the e-discovery world, where both Keeling and Redgrave are prominent practitioners. We also covered broader trends in e-discovery and information law—including, of course, the impact of generative artificial intelligence (Gen AI).

I began our conversation with a question: does the move of Keeling’s team from Sidley to Redgrave reflect a shift in the e-discovery space away from Biglaw firms and toward boutiques?

“First, on behalf of our entire team, we’re all very grateful for our time at Sidley,” Keeling said. “The firm has amazing leadership. It’s where we built our practice, and we hold our former colleagues in the highest regard. In fact, we hope to continue to collaborate with them going forward.”

“But to answer your question,” he continued, “we are seeing increased specialization in e-discovery, especially when helping clients address complex issues at the intersection of law and technology to meet the e-discovery needs in their most demanding cases.”

Here’s how specialization works at Redgrave. Unlike large, full-service firms, Redgrave doesn’t have a wide range of departments such as antitrust, commercial litigation, or white-collar defense. Instead, Redgrave partners with other firms, which it calls “merits counsel,” and those firms—Biglaw firms, midsize firms, or other boutiques—handle the relevant substantive law. Meanwhile, Redgrave handles the e-discovery and information-law aspects of the matter.1

This intense focus on e-discovery and information law gives rise to certain advantages for Redgrave. As Jonathan Redgrave told me, “Because we focus on this, we can be better at it.”

“E-discovery is getting more and more complex, with the volume and complexity of data growing exponentially, year after year,” he said. “For firms already covering so many other areas of law, does it make sense for them to also focus on what we do?”

Redgrave works with dozens of Am Law 200 firms that are eager to benefit from its e-discovery expertise. And unlike working with another full-service firm, working with Redgrave doesn’t create the same level of risk in terms of losing work to a rival. As Redgrave put it, “We’re not a threat: we’re not going to steal their antitrust or products-liability or white-collar work.”

Sometimes Redgrave is brought into a matter by full-service firms. More frequently, however, it’s hired directly by clients—often those that previously worked with Redgrave on another matter.

Clients appreciate not only the firm’s expertise in e-discovery and information law, but its competitive rates. It’s not simply that Redgrave’s billable-hour rates are lower than those of Biglaw (although they are). The firm is also flexible in its approaches, offering various alternative-fee arrangements as well as hourly billing.

“As a boutique, we can adjust and adapt, in real time, to the different ways that clients want to do business,” Redgrave said. “We don’t have 17 different committees that need to sign off on a billing arrangement or certain financial metrics we need to reach.”

Since its founding, Redgrave has expanded along with the size and scope of the e-discovery industry. After the arrival of Keeling’s group, the firm has almost 50 lawyers, plus 18 other legal professionals with expertise and advanced degrees in fields such as software engineering and information science. Their expertise is increasingly valuable in e-discovery, especially as generative AI reshapes the field.

“Gen AI is a transformative technology, and the impact on e-discovery over the next several years will be significant,” Keeling predicted. “We’ve already seen that Gen AI-based document-classification technologies have the potential to outperform traditional machine-learning-based approaches to Technology-Assisted Review (TAR).”

Keeling said that if generative AI is used correctly, it can find a higher percentage of relevant documents and reduce the percentage of irrelevant documents sent to review. And Gen AI can also provide contextual information about its decisions, such as excerpts from the document and the rationale for its determination.

“The main barriers at present are cost and speed—at this point, I don’t think Gen AI is practical for most large-scale reviews,” he said. Although reviewing documents using generative AI tools currently on the market is faster and cheaper than human review, it’s still not as fast and as cheap as TAR, according to Keeling. And if the user of generative AI gets the prompt or instructions wrong, leading to unreliable results, the tool will need to be rerun through the document set—using up additional time and incurring additional costs.

“But we’re also seeing lots of competition and innovation in this space,” Keeling said. “I expect rapid improvement on both of those fronts. In addition, Gen AI will have lots of other uses in e-discovery, from generating privilege log entries, to summarizing key documents, to helping attorneys search for relevant documents. It’s an exciting time to be in this field.”

So generative AI creates opportunities for e-discovery—but it also creates challenges. For example, take deepfakes and other documents that can be generated using AI. How do lawyers and judges authenticate evidence when it’s increasingly difficult to separate the genuine from the fabricated?

“It’s really going to be a hard problem,” Keeling said. “The deepfakes continue to get better and better.”

Keeling doesn’t expect that deepfakes will be a significant issue in a typical discovery response from a corporate defendant in civil litigation, which will largely consist of documents generated in the ordinary course of business. But there are going to be cases where a key piece of evidence is questioned and there are doubts about its authenticity, he said. “You can imagine the need to bring in competing experts to help the court resolve the dispute.”

Privacy is another challenge for lawyers working in e-discovery. Numerous laws and regulations focused on privacy, from the EU General Data Protection Regulation to the California Consumer Privacy Act, make it more difficult to work with data—and create potential legal liability for mishandling data, for both law firms and their clients.

“One of the biggest difficulties is that collecting documents in places with strict privacy laws can be more complicated and take longer as a result—for example, when dealing with EU custodians in a U.S. matter,” Keeling explained.

Ensuring that everything is done correctly when handling data, as e-discovery continues to become more complex and challenging, explains why Keeling isn’t worried about generative AI reducing the demand for e-discovery services or the opportunities for lawyers in the field.

“It’s very tempting to make a bold claim that Gen AI will eliminate first-pass responsiveness and privilege review, such as that often performed by contract attorneys today,” Keeling told me. “But if you look historically at other transformative technologies in the legal space, it hasn’t always played out like that,” he said.

The creation of case-law databases eliminated the need for law firm associates to go to the library and scour physical books, Keeling said. “But the ease of searching vast numbers of cases also changed expectations: associates were suddenly expected to find all the relevant cases, not just those their library had a copy of. It’s not that AI will replace humans; instead, humans who are efficient with AI will replace those who are not.”

“Gen AI machines are not separate, intelligent animals yet,” Redgrave said. “We are far from the singularity. While these machines have a lot of computing power, there’s still an incredibly valuable role for the human element.”

“Might there be, in the future, fewer jobs at the base level in e-discovery? Probably. But there will be a greater volume of work, as well as a greater demand for services at higher levels—which will bring greater rewards and satisfaction to lawyers.”

1Working with merits counsel was also the general model of Keeling’s group when they were at Sidley, except their group had more of a regulatory focus—e.g., antitrust, especially second requests—while Redgrave historically has worked more in the litigation space. So their practices are complementary and synergistic.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

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A SpaceX launch in June 2024 (photo by Miguel J. Rodriguez Carrillo / AFP via Getty Images).This week’s Judicial Notice is sponsored by

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Apologies for the belated nature of the edition of Judicial Notice (although lawyers used to midnight e-filing deadlines should note that I just made it). I do have a good excuse: this weekend was my 25th law school reunion. I had a great time, and if you’re on the fence about attending your next reunion, I’d urge you to just do it. I wasn’t the most popular kid in law school—something of a gunner, probably unbearable—but at reunions, everyone is exceedingly nice and happy to be there.

Funnily enough, I have many classmates that I became much better friends with after graduation. This might be because when I was in law school, I was stressed out, fixated on my studies, and not very social. As a result, I missed out somewhat on one of the best parts of law school: my classmates. This is why, when I speak at law schools, I always urge students not to neglect the social aspects of the experience.

Now, on to the news.

Lawyer of the Week: Mike Davis.

According to polls, the presidential race between Kamala Harris and Donald Trump is a dead heat. But prediction markets, which allow people to bet on the outcome of real-world events, favor Trump. As of this writing, Kalshi, PredictIt, and Polymarket all give Trump between a 56 and 60 percent chance of victory (although Polymarket might be skewed by $30 million in bets from just four accounts).

If you think Trump is probably our next president and want to know how he might handle legal issues like judicial nominations and U.S. Department of Justice (DOJ) appointments, then you should get to know Mike Davis. And there’s plenty for you to read: last month, he was profiled by Adam Wren for Politico, and just last week, he was profiled by Beth Reinhard and Marianne LeVine for The Washington Post (gift link). He also featured prominently in this Wall Street Journal article (gift link) by Jess Bravin and Ryan Barber, which quoted Davis saying that future Trump judicial nominees must be “even more bold and more conservative and more fearless” than those of the first Trump administration. And his pronouncements carry weight: as noted by the WSJ, Trump has praised Davis as “tough as hell” and said that “we want him in a very high capacity” in a second Trump administration.

After graduating from the University of Iowa College of Law in 2004, Davis parlayed a volunteer role on the 2004 reelection campaign of George W. Bush into a political-affairs role in the White House. Davis subsequently served at the DOJ, clerked for then-Judge Neil Gorsuch on the Tenth Circuit, helped Judge Gorsuch get confirmed to the Supreme Court, clerked for Justice Gorsuch, and worked for Senator Chuck Grassley (R-Iowa) as chief counsel for nominations on the Senate Judiciary Committee. These are excellent “Establishment” credentials.

But then Davis, 47, evolved. In the words of Trump adviser Steve Bannon, “Mike Davis was a standard-stock Republican, Federalist Society lawyer” who transformed himself into “a full f**king MAGA warrior.” Today Davis runs the Article III Project (A3P), the conservative, judiciary-focused advocacy group he founded in 2019, and he enjoys trolling and triggering the left online. In short, his trajectory mirrors that of the Republican Party—for better or worse, depending on your point of view.

Other lawyers in the news:

Leading trial lawyer Alex Spiro of Quinn Emanuel—currently defending New York City Mayor Eric Adams in his federal corruption case and charging only $1,000 an hour, a big discount from his usual $3,000 an hour—was profiled in The Wall Street Journal (gift link) by Erin Mulvaney and Corinne Ramey. Their piece concludes by quoting what Spiro said to me during our September 2022 podcast interview: “I’m a big believer that you’ve got to take risks in life and in court, and if you don’t, you’re just using the same playbook as everybody else.”
One risk I have never understood: committing massive tax evasion, in the millions of dollars, on the off chance that you’ll get away with it. Over the years, lots of lawyers have taken this risk—and gotten caught. Joining Hunter Biden in this club are former Rodney King lawyer Milton Grimes of Los Angeles, who pleaded guilty to willful tax evasion after being accused of owing the IRS more than $1.7 million, and former Biglaw partner Eric Lenzen of Milwaukee, who was sentenced to 16 months for failing to pay $2.46 million in taxes. (I can understand small-scale evasion, like taking cash under the table or fudging deductions, but I really don’t understand trying to evade seven figures of tax liability, especially on Biglaw income that’s reported to the IRS on Form K-1; if you can enlighten me, perhaps because you represent tax evaders, I’d love to hear from you.)

In memoriam:

Robert Bernstein, a longtime tax lawyer at the DOJ who became a prominent gay-rights activist after his daughter came out to him, passed away at 98.
Lilly Ledbetter—whose loss before the U.S. Supreme Court in the sex-discrimination case of Ledbetter v. Goodyear Tire & Rubber Co. triggered a fierce dissent from the late Justice Ruth Bader Ginsburg, followed by Congress’s passage of the Lilly Ledbetter Fair Pay Act of 2009—passed away at 86.

May they rest in peace.

Judge of the Week: Judge Frederic Block.

Last month, I wrote about Judge Frederic Block (E.D.N.Y.) and his new book, A Second Chance: A Federal Judge Decides Who Deserves It. It tells the stories of six defendants who applied to Judge Block for sentence reductions under the First Step Act, the 2018 law that allows a judge to reconsider a previously imposed sentence and reduce it—even if it was (and remains) lawful, and even if it was a life sentence.

How about… five life sentences? That’s the punishment that Judge Block imposed back in 1997 on Walter Johnson of Brooklyn, after he was convicted of robbery, cocaine possession, and witness tampering. And it’s the punishment the judge just reduced, as explained in his opinion in United States v. Johnson:

As of this October 24, Johnson will have been in jail for 28 years because of the sentences I imposed in 1997. He is now 61 years old. I sentenced him to three mandatory terms of life in prison under the “Three Strikes” provision of the Violent Crime Control and Law Enforcement Act, which had recently been enacted by Congress. I also exercised my discretion to sentence him to two additional life terms for two cocaine-based convictions because I considered acquitted conduct. I said at the time, “Mr. Johnson, you are a classic example of a person [who] has to be incapacitated so society is protected against you. You have a violent history. You’ve spent a lot of time in jail, And, when you’ve been out of jail, you have visited all sorts of harm to the community.”

Now, I am ordering his release.

The rest of the 26-page opinion explains the “extraordinary and compelling reasons” that led Judge Block to grant so-called “compassionate release” to Johnson. They included the harshness of his original sentence under the Three Strikes Law, his impressive rehabilitation while in prison, and a victim-impact statement from Crystal Winslow, who urged Judge Block to release Johnson. (Although Johnson was acquitted of raping Winslow, Judge Block took it into account at sentencing as so-called “acquitted conduct.”)

The opinion is very focused on Walter Johnson, in terms of his own unique circumstances—but it’s also about Judge Block, including his evolution as a jurist. As he wrote in the opinion’s penultimate paragraph, “Just like prisoners who have evolved into better human beings during their lengthy periods of incarceration, judges also evolve with the passage of years on the bench. When I sentenced Johnson in 1997, I had been a judge for only two years. But judges gain insights that with the passage of time only can come with experience on the bench and their judicial maturation. Now, having been on the bench for almost thirty years, the First Step Act has given me a second chance to reconsider the sentences I imposed on Johnson 27 years ago.”

For more about this very interesting case and opinion, see Corey Kilgannon’s article for The New York Times (gift link), including photos of Johnson and his wife after his release, and Andrew Denney’s article for The New York Law Journal.

Other judges in the news (hint: there’s a whole lotta benchslappin’ goin’ on):

Justice Anna Barbara Hantz Marconi of the New Hampshire Supreme Court was indicted for two felonies and five misdemeanors, premised on allegations that she attempted to interfere with a criminal investigation into her husband Geno Marconi, director of the New Hampshire Division of Ports and Harbors. Despite coverage by numerous media outlets (helpfully collected by Howard Bashman over at How Appealing), details are pretty scarce as of now.
Every week seems to bring new revelations in the scandal involving former bankruptcy judge David R. Jones (S.D. Tex.) and his paramour, bankruptcy lawyer Elizabeth Freeman, who worked on cases before him. In one newly disclosed text message, Freeman allegedly told a colleague at her former firm of Jackson Walker, in relation to the massive JCPenney Chapter 11 case they were about to file in Jones’s court, “Talked to Jones. He’s got us.”
The Fifth Circuit, in an opinion by Judge Edith Jones, removed Judge Janis Jack (S.D. Tex.) from long-running litigation over the Texas foster-care system—after going on for almost 20 pages about Judge Jack’s inappropriate conduct on the bench (see pp. 18-36 of the opinion).
Judge Stephanos Bibas, sitting by designation in the District of Delaware, benchslapped the plaintiffs’ lawyers in a proposed privacy class action against Amazon Web Services for “lazy lawyering.” He also ordered them ”to show cause about their possible breach of their duty of candor,” reflected in their making an apparently frivolous argument.
Judge Indira Talwani (D. Mass.) laced into Biglaw attorneys for overlitigating a case, complaining about what struck her as a “possible effort to try to gum up the works”—and implying that the lawyers might just be running up the tab.
I don’t normally mention birthdays in Judicial Notice, but I’ll make an exception for centenaries: happy 100th birthday to civil-rights lawyer and retired judge L. Clifford Davis, who hit this milestone on October 12.

In memoriam: Judge Joyce Hens Green—the third woman toserve onthe U.S. District Court for the District of Columbia, presiding over major cases involving the BCCI bank-fraud scandal and the rights of GuantánamoBay detainees—passed away at 95. May she rest in peace.

Ruling of the Week: Knowlton v. City of Wauwatosa.

I hope and pray that next month’s elections go smoothly, without any violence or unrest. But if problems do arise and authorities need to take action, they might be interested in the Seventh Circuit’s opinion in Knowlton v. City of Wauwatosa.

In fall 2020, the Milwaukee district attorney’s office decided not to criminally charge Joseph Mensah, a police officer in Wauwatosa, Wisconsin, in connection with the shooting death of Alvin Cole, a Black teen. Anticipating possible violence, the mayor instituted a limited curfew order that took effect after the DA’s announcement of the decision. The plaintiffs, who attended protests in Wauwatosa or were otherwise affected by the curfew, challenged its validity on constitutional and state-law grounds—most notably, the First Amendment.

In an opinion by Judge Amy St. Eve—one of the most prolific and influential circuit judges in the country, according to a new study—the Seventh Circuit upheld the validity of the curfew. The unanimous panel concluded that the limited, nighttime curfew was content-neutral, served a significant government interest (preserving public safety), was narrowly tailored (a nighttime curfew over five days), and left open ample alternative channels of communication (such as protesting during the daytime or after the expiration of the five-day curfew). Holding the curfew to be a permissible time, place, and manner restriction under the First Amendment, the panel affirmed.

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On Monday of last week, the customary first Monday of October, the U.S. Supreme Court kicked off October Term 2024. So I thought it might be a good idea to offer my listeners an overview of the 2024-2025 Term—and I could think of no better guide to the new SCOTUS Term than Morgan Ratner. I met Morgan this past July, when we participated in a Supreme Court “Year in Review” panel together, and I was struck by her talent for explaining complicated cases with exceptional clarity and accuracy.

Morgan’s knowledge of the Court shouldn’t come as a surprise. She has argued before the Court in nine cases, first as an assistant to the U.S. solicitor general and more recently as a partner at Sullivan & Cromwell. She clerked for two of the Court’s current members: then-Judge Brett Kavanaugh, during his time on the D.C. Circuit, and Chief Justice John Roberts.

Morgan graduated first in her class from Harvard Law School. Current and aspiring law students will be interested in—and perhaps surprised by—her advice on how to succeed in law school.

So listen to this episode and learn more about Morgan Ratner. For SCOTUS devotees, she’s someone you should get to know.

Show Notes:

Morgan L. Ratner bio, Sullivan & Cromwell
40 Under 40 - Morgan Ratner of Sullivan & Cromwell, by Lisa Helem and MP McQueen for Bloomberg Law
12 Lawyers Who Are The Future Of The Supreme Court Bar, by Jeff Overley and Katie Buehler for Law360

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

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Oklahoma Attorney General Gentner Drummond, arriving to testify before Congress at a hearing, ‘Havoc in the Heartland: How Secretary Mayorkas’s Failed Leadership Has Impacted the States’ (photo by Bill Clark/CQ-Roll Call via Getty Images).This week’s Judicial Notice is sponsored by

Happy seventh birthday to our son Harlan. He was a bit jaded this time around: “My seventh birthday isn’t as exciting as the others.” I said, “Wait until you hit 49.” At least he enjoyed his birthday party this afternoon at Sky Zone, a nearby trampoline park. In the past, we’ve held his birthday parties at home, but this time around, overwhelmed by work, Zach and I outsourced it (and felt no guilt about doing so).

On a more somber note, I hope that my readers in the south are safe in the wake of Hurricanes Helene and Milton. While it appears that the latter (thankfully) caused significantly less death and destruction than the former, individual experiences during natural disasters can vary greatly.

This week’s testimonial comes from a 3L at a T14 law school: “Original Jurisdiction has been my go-to resource as I enter the legal profession. I have used it to prepare for successful clerkship and OCI interviews, and I highly recommend it to incoming students who, like me, did not grow up in a law-centric household. In a day and age when accurate and concise reporting is sometimes lacking, I can always count on Original Jurisdiction to distill the issues in a thoughtful way.”

Now, on to the news.

Lawyer of the Week: Gentner Drummond.

On Monday, the U.S. Supreme Court returned to the bench for the start of October Term 2024. As Adam Liptak put it in The New York Times, the nine justices were “dour and diligent, methodically interrogating the lawyers before them.”

On Tuesday, they heard oral argument in the death-penalty case of Glossip v. Oklahoma. If defendant Richard Glossip’s name rings a bell, it might be because this isn’t his first time at SCOTUS: in Glossip v. Gross (2015), five justices rejected his Eighth Amendment challenge to Oklahoma’s three-drug protocol for lethal injection. Per Liptak, “Glossip’s case has been convoluted even by the standards of capital litigation”: he has filed six certiorari petitions, had two of them granted, faced nine execution dates, and received three last meals.

But this time, there’s a twist: Glossip’s request for a new trial enjoys the support of Oklahoma’s Republican attorney general, Gentner Drummond. Here’s the background (again from The Times):

On a chilly morning in January 1997, in Room 102 of the Best Budget Motel in Oklahoma City, a handyman named Justin Sneed beat the motel’s owner to death with a baseball bat. The rest of what happened is murkier. In exchange for a life sentence, Mr. Sneed testified that the motel’s manager, Richard Glossip, had commissioned the murder of its owner, Barry Van Treese. Based on that testimony, the only direct evidence linking Mr. Glossip to the crime, he was sentenced to death.

Last year, prosecutors disclosed long-suppressed notes that undermined Mr. Sneed’s testimony. They helped cause Oklahoma’s attorney general, Gentner Drummond, a Republican, to ask the state’s highest court for criminal matters to throw out Mr. Glossip’s conviction and order a retrial. Lawyers call such requests “confessions of error,” and courts ordinarily give them great weight. But the state court refused.

So at oral argument, former U.S. solicitor general Paul Clement of Clement & Murphy, representing Oklahoma, formed an unusual tag team with another former SG, Seth Waxman of WilmerHale, representing Glossip. They both argued against Chris Michel of Quinn Emanuel, a former clerk to Chief Justice John Roberts who was appointed by the Court to defend Glossip’s conviction and the judgment of the Oklahoma Court of Criminal Appeals (the state’s highest court for criminal matters).

Drummond’s refusal to stand by the conviction has been controversial. As he told The Times, “I’ve been criticized by prosecutors, attorneys general, and politicians”—and he acknowledged that he might get voted out of office for this. And he was implicitly criticized by Justice Clarence Thomas, who at oral argument appeared troubled by the possibility that the line prosecutors who tried the case, in being accused of misconduct, were thrown under the bus.

Others have hailed Drummond as a hero. In the words of Rex Duncan, the independent counsel who investigated the case (and ultimately recommended a new trial), Drummond’s decision “to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I’ve ever witnessed, and it was absolutely the correct legal decision.”

But will eight justices agree? (Justice Neil Gorsuch—who served on a Tenth Circuit panel that affirmed the denial of one of Glossip’s habeas petitions in 2013, before the new evidence came to light—is recused.) We shall see—assuming the Court reaches the merits. It could conclude the case is unreviewable (because the Oklahoma court’s ruling rested on “adequate and independent state-law grounds”); remand for an evidentiary hearing, which seemed to have buy-in from multiple justices at argument; dismiss as improvidently granted; or deadlock 4-4, which would affirm the Oklahoma Court of Criminal Appeals by an equally divided Supreme Court.

Other lawyers in the news:

Think you had a busy week? It probably wasn’t as busy as that of Cooper & Kirk partner Peter Patterson, who argued on Tuesday before the Supreme Court in Garland v. VanDerStok, aka the “ghost guns” case (discussed in more detail below), and then on Wednesday before the en banc Third Circuit in Range v. Attorney General, a Second Amendment challenge to the federal felon-in-possession law brought by a defendant convicted of making a false statement to obtain food stamps. The Third Circuit previously ruled in Range’s favor, applying the Supreme Court’s Bruen ruling, but SCOTUS remanded for reconsideration in light of Rahimi, in which the Court upheld the law against a challenge brought by a defendant subject to a domestic-violence restraining order. Good luck to the Third Circuit in trying to make sense of what I’ve dubbed Brahimi.
When it comes to “tak[ing] scrupulous care to assure the public that the [federal prosecutions of ex-president Donald Trump] are conducted in compliance with pertinent rules,” Professor Jack Goldsmith of Harvard Law School gave HLS alum Jack Smith a failing grade. As Goldsmith argued in a Times guest essay, Smith should have shown his work—i.e., he should have publicly defended the propriety of releasing new, negative information about Trump this close to the election.

Judge of the Week: Judge Stephen Higginson.

Among the federal appellate courts, the Fifth Circuit sucks up a disproportionate amount of oxygen. It’s hard to imagine any other circuit being the subject of a 4,500-word magazine feature, like the one that Pema Levy wrote for Mother Jones—replete with a kinda cool, kinda ominous illustration of the Fifth’s two most prominent jurists, Judges James Ho and Andrew Oldham.

But even if the media coverage might give you a different impression, Judges Ho and Oldham aren’t the only members of the Fifth Circuit. The 17-member court has five Democratic appointees—and Judge Stephen Higginson, a former Supreme Court clerk (to Justice Bryon White) and full-time law professor, is widely regarded as their intellectual leader. If progressives view Judge Ho as Darth Vader and Judge Edith Jones as the Empress, then Judge Higginson might be Obi-Wan Kenobi: “Help us, Judge Higginson—you’re our only hope!”

Judge Higginson, who was appointed in 2011 by President Obama, appeared in the news for two reasons this week. First, in terms of the hot-button issues for which the Fifth is most well-known, he emerged as a defender of the Deferred Action for Childhood Arrivals (DACA) program at a Thursday oral argument. Judge Higginson posed tough questions to Joseph Mazzara, the lawyer from the Texas attorney general’s office challenging the legality of DACA, which shields undocumented immigrants who arrived in the United States as children from deportation. Judge Higginson questioned the authority of Judge Andrew Hanen (S.D. Tex.) to block the program on a nationwide basis, as well as the wisdom of such a move: “The logic is people that are lifelong residents of Texas, if they lose the program, they’re going to go back to countries they never lived in? Is that the logic?”

Second, and perhaps more interesting for legal nerds who aren’t so into the culture wars, Judge Higginson authored a thoughtful opinion in UMG Recordings, Inc. v. Grande Communications Networks, LLC, a copyright-infringement case. The unanimous panel affirmed a jury verdict finding Grande, a large internet-service provider, liable for contributory infringement. But on the messier issue of damages, the Fifth Circuit held that the district court erred by calculating statutory damages on a per-song instead of a per-album basis.

In the age of streaming, the per-song approach makes more sense as a policy matter—which might explain why at least five circuits follow it. But Judge Higginson argued that the statutory text provides otherwise—and when policy arguments clash with statutory text, “the text must prevail.” The Copyright Alliance condemned the outcome of the Fifth Circuit case as “a cruel joke”—but don’t be surprised if the Supreme Court rules that only Congress can change the punchline.

Other judges in the news (including some updates relating to judges previously mentioned in these pages):

In May, Pennsylvania’s Court of Judicial Discipline told Judge Mark Cohen of the Philadelphia Court of Common Pleas to stop posting about his political views on social media. But he persisted—so the court suspended him without pay, effective immediately, until the expiration of his term at the end of the year.
Here in New Jersey, Bergen County Superior Court Judge Gary Wilcox was also suspended, also for social-media postings—specifically, TikTok videos featuring the judge, sometimes in chambers and sometimes in his robes, lip-syncing songs with “references to violence, sex, and misogyny.”
Shawn “Mickey” Stines, the former Kentucky sheriff accused of killing Letcher County District Judge Kevin Mullins, acted “in the heat of passion,” according to defense lawyer Jeremy Bartley—and therefore Stines’s “highest level of culpability should be manslaughter,” not murder, “based on the partial defense of extreme emotional disturbance.”
The relationship between former bankruptcy judge David R. Jones (S.D. Tex.) and former Jackson Walker partner Elizabeth Freeman—who worked on cases pending before Jones, who in turn approved fee requests for her—might not have been a total secret. It appears that at least two Jackson Walker lawyers and three court staffers knew about the romance before it became public last year.

Ruling of the Week: Moms for Liberty v. Brevard Public Schools.

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As the father of a school-age child, I worry about bullying. But bullying extends well beyond the playground. It follows us into adulthood—and even into the legal profession, according to a noteworthy new report that was released last week. Considering the challenges that lawyers already face, the idea of having to navigate them in the face of bullying behavior should trouble anyone concerned about lawyer wellness.

Twenty-four percent of lawyers experienced bullying within the past year, the study found. It was based on responses from more than 6,000 Illinois lawyers who completed a survey commissioned by the Illinois Supreme Court Commission on Professionalism in fall 2023.

One in four lawyers surveyed is no small number. In the words of Roberta “Bobbi” Liebenberg of the Red Bee Group, the consultancy that conducted the survey, “We found that bullying is prevalent in the legal profession in Illinois, and we believe it is equally prevalent elsewhere too.”

Liebenberg added that bullying disproportionately affects women, persons of color, LGBTQ+ attorneys, and attorneys with disabilities. This is particularly concerning given the gains these groups have made in terms of their representation in the legal sector over the years.

Specifically, the study found that 38 percent of female lawyers were bullied at work in the past year, compared with 15 percent of male lawyers. Thirty-five percent of Black lawyers, 34 percent of Hispanic lawyers, and 28 percent of Asian-American lawyers were bullied, compared with 23 percent of white lawyers. Twenty-nine percent of LGBTQ+ lawyers were bullied, as were 38 percent of lawyers with a disability.

The study also found that the prevalence of bullying could vary with age. Thirty-nine percent of lawyers between 25 and 35 reported being bullied, compared with 12 percent of lawyers between 66 to 76.

This made me wonder if different age groups could have different understandings of what constitutes bullying. Could bullying be, at least to some extent, in the eye of the beholder?

“The oldest cohort might have a different tolerance for bullying,” said study co-author Stephanie Scharf. “But it shouldn’t be surprising that the most junior people in the survey reported the highest incidence of bullying. Bullying is a power play—it’s using power against people—and the easiest people to use power against are the most junior.”

Scharf—who holds a Ph.D. in behavioral sciences as well as a law degree—also pushed back on the suggestion of subjectivity to the concept of bullying. She pointed out that in addition to providing a definition of bullying—“inappropriate behavior intended to intimidate, humiliate, or control the actions of another person, including verbal, nonverbal, or physical acts”—the study identified specific behaviors and asked respondents whether they had personally experienced them.

For example, 66 percent of lawyers bullied in the past year reported “verbal intimidation, such as disrespectful speech, insults, name-calling, shouting.” Fourteen percent mentioned “physical intimidation, such as hovering, invading personal space, throwing objects, stalking.”

How is the legal profession dealing with bullying? Not very effectively, according to the report. Only 20 percent of bullied lawyers reported it to a supervisor, upper-level attorney, or human-resources manager. Reasons for not reporting bullying behavior included not wanting to be perceived as weak or a “complainer” (34 percent), fear of the bully’s status (27 percent), and the belief that the employer wouldn’t do anything (27 percent).

Fear of employer inaction is understandable. Of lawyers who did report bullying, 52 percent rated their employer’s response as either “not sufficient” or “totally unsatisfactory.”

“Sometimes the bullies are powerful people in the workplace,” Scharf told me. “Maybe HR doesn’t want to upset the apple cart or create issues. But what they may not realize is that by doing nothing, they are creating issues.”

“Bullying adversely affects lawyers’ productivity, emotional well-being, and physical health,” Liebenberg said. “It results in increased job turnover and attrition from the profession.”

And bullying carries reputational costs for employers that are known to tolerate it. As Scharf put it, “What do people think about you and your lawyers when they see people doing this? Do you want a culture where people feel bullied, or where they feel included?”

Professor Tanina Rostain of Georgetown Law—whose scholarship focuses on the legal profession, but who wasn’t involved in the study—wasn’t surprised by its findings about the prevalence of bullying. She suggested that they shed light on other problems in the profession.

“I suspect that bullying in the legal profession reflects a number of factors,” she said. “They include the adversarial ethos run amok, when it’s from opposing counsel; pressures on lawyers in solo and small practices and a lack of accountability for their behavior, when it’s from lawyers inside firms; and complete lack of accountability of judges, as to how they behave in courtrooms.”

But even if she wasn’t surprised by the overall picture painted by the study, Rostain praised it as an important piece of work: “It’s such a smart report, done so thoughtfully, about something I hadn’t seen framed in this way.” She expressed hope it spurs further research and positive changes.

What might some of those changes look like? The report offered recommendations for addressing bullying. Employers should develop and implement anti-bullying policies, and they should train their employees on anti-bullying policies and procedures. Courts should do their part by adopting standing orders prohibiting bullying and incivility in legal proceedings.

And those who engage in bullying must be held accountable, the authors argued. As one survey respondent said, “It’ll never stop if there aren’t meaningful consequences to bad behavior.”

Law firms and other legal employers should review this research and consider what reforms they might want to institute in response. While it’s possible to imagine overbroad conceptions of bullying or anti-bullying efforts going too far, law school graduates deserve to enter workplaces where they will be treated with civility, dignity, and respect.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

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Shana tova to everyone who celebrated Rosh Hashanah. Our family spent the holiday with Zach’s parents, who live not far from us in New Jersey. We enjoyed his mother’s matzoh ball soup—one of Harlan’s top-ten favorite foods.

Then on Friday, we drove up to New Haven, arriving just in time for Harlan to rehearse his role as ring bearer in my cousin’s wedding. After he discharged his duties with aplomb at Saturday afternoon’s ceremony, we attended the evening wedding reception—which I unfortunately had to leave early so I could drive home to New Jersey, arriving shortly before midnight. Then at 6 a.m. on Sunday, I made my way to Newark Airport for a flight to Nashville—my current location, site of the 2024 annual meeting of the Association of Corporate Counsel, where I spoke earlier today.

After all this activity, which explains why this edition of Judicial Notice is arriving later than usual, I’m exhausted and short on sleep—but I’m hoping to catch up tonight, in a hotel room away from my two wonderful but exhausting boys. Thanks to Zach for manning the home front and making this possible.

Now, on to the news.

Lawyer of the Week: Gurbir Grewal.

Congratulations to Gurbir Grewal, outgoing director of the Enforcement Division of the U.S. Securities and Exchange Commission (SEC), on a successful three-year tenure. Under his leadership, the Commission handled more than 2,400 enforcement matters, resulting in orders for more than $20 billion in disgorgement, interest, and penalties; more than 340 industry bars against individuals; and the return of billions of dollars to wronged investors. A former state and federal prosecutor (in my home state of New Jersey), Grewal is taking his talents to Milbank, where he’ll join the litigation and arbitration group in the New York office. But I have a feeling that Grewal, a star of the white-collar bar, will return to government service in the future.

Other lawyers in the news:

Kudos to Professor Dorothy Roberts of Penn Law, recipient of a 2024 MacArthur Fellowship aka “genius grant.” Roberts will receive an $800,000 stipend, paid out over five years, in recognition of her decades of scholarship focused on racial inequities in social services.
Mark Martin, former chief justice of the North Carolina Supreme Court and current dean of High Point University School of Law, played an important behind-the-scenes role in Donald Trump’s efforts to overturn the 2020 election, according to a lengthy profile by Shawn Musgrave for The Intercept.
Adhering to the adage that the best defense is a good offense, Quinn Emanuel partner Alex Spiro moved to dismiss the bribery charge against his client, New York City Mayor Eric Adams. Spiro also moved for sanctions against the prosecution, accusing them of leaking details about the case to the media in violation of grand-jury secrecy rules. And he’s getting reinforcements, with three more top trial lawyers joining his team: Quinn co-managing partner Bill Burck, securities litigation co-chair Avi Perry, and former U.S. attorney John Bash III (W.D. Tex.). Mayor Adams can use all the help he can get: prosecutors informed Judge Dale Ho (S.D.N.Y.) that they’re likely to bring additional charges.

In memoriam:

Former Brooklyn district attorney Eugene Gold—most well-known for successfully prosecuting David Berkowitz, the notorious serial killer known as “Son of Sam”—passed away at 100.
Former Mayer Brown chair Bob Helman, passed away at 90, after a long illness.

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Eugene Meyer (left) and Leonard Leo, longtime leaders of the Federalist Society, in 2006 (photo by Scott J. Ferrell for Congressional Quarterly via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

In June, Eugene Meyer announced that he would be retiring as president and CEO of the Federalist Society for Law and Public Policy Studies—aka the Federalist Society or FedSoc, the nation’s largest organization of conservative and libertarian lawyers and law students. FedSoc retained CarterBaldwin, an executive-search firm, to spearhead the search for Meyer’s successor. And now, according to three sources connected to the Society, that search has been narrowed to five finalists.

I reached out to the Federalist Society for comment, providing them with the list of finalists I had received. Peter Robbio of CRC Advisors, the Society’s longtime public-relations firm, issued the following statement: “Out of respect for the candidates and to ensure integrity and candor, the deliberations of the search committee are confidential, and the Society won’t be commenting until the process is concluded.”

Founded in 1982, the Federalist Society today boasts some 90,000 members, an annual budget exceeding $25 million, and more than 50 employees. But these numbers don’t adequately capture the influence of the organization, which has played a key role in the evolution of the law over the past four decades—including the move of textualism and originalism from the fringes to the core of American jurisprudence, reflected most prominently in the overturning of Roe v. Wade in 2022.

And Gene Meyer, who has led FedSoc for 40 of its 42 years, played a key role in its rise. In the words of Ian Ward of Politico, “Meyer transformed the organization from a small ‘debating society’ for right-leaning law students into a legal and political powerhouse that has been involved in almost every high-profile conservative judicial appointment of recent decades, including those to the Supreme Court.” So the selection of Meyer’s successor is a momentous occasion—not just for the Federalist Society, but for the law and legal profession writ large.

The leadership transition comes at a critical time for the Society, as well as for the conservative legal movement more generally. The overruling of Roe by Dobbs v. Jackson Women’s Health Organization was a huge victory for the legal right— but with Roe “consigned to the ash-heap of history, the glue that has historically held the Federalist Society together is slowly becoming unstuck,” in Ward’s words.

Splits within the movement that were previously papered over, in service to the larger goal of pushing back against the excesses of legal liberalism, are now coming to the fore. They include divides between social conservatives and libertarians, supporters of judicial restraint and advocates of judicial engagement, originalists and common-good constitutionalists, and Never Trumpers versus MAGA people.

And these divisions will affect the future of FedSoc, which could go in either of two directions—embodied in its two key leaders, president Gene Meyer and board of directors co-chairman Leonard Leo. “Team Gene” would like to keep the Society focused on its original mission of “sponsor[ing] fair, serious, and open debate” about important legal issues. “Team Leonard,” on the other hand, would like to take FedSoc in a more political direction, turning it into a power player in politics—the path personally taken by Leo, who resigned as the Society’s executive vice president to help Donald Trump pick judges, followed by his current work as a conservative legal activist and D.C. power broker.1

One major unanswered question about the Federalist Society’s future is how much influence it would have—over judicial nominations, Department of Justice appointments, and legal issues more generally—if Trump regains the White House. As reported by Marianne LeVine and Azi Paybarah of The Washington Post, “Trump’s relationship with leaders and allies of the Federalist Society has frayed since he left office,” with the former president complaining “that his first-term Justice Department leaders were too weak, that his Supreme Court picks have tried to come across as too ‘independent,’ and that the court system has broadly been biased against him.” So FedSoc folks in a second Trump administration won’t hold nearly the same sway that they did during the first—i.e., judicial selection won’t be “insourced” to the Society, as former White House counsel Don McGahn memorably put it. But whether FedSoc’s influence will be modestly diminished or completely dissipated remains to be seen.

Let’s now turn to the five finalists:

Robert Alt. Alt is president and CEO of the Columbus-based Buckeye Institute, which describes itself as “an independent research and educational institution—a think tank—whose mission is to advance free-market public policy in the states.” Before assuming leadership of the Buckeye Institute in 2012, he was a director in The Heritage Foundation’s Center for Legal and Judicial Studies, working with former Attorney General Ed Meese. Alt graduated from the University of Chicago Law School (2002) and clerked for Judge Alice Batchelder (6th Cir.).
Michael Fragoso. Since August 2021, Fragoso has served as chief counsel to Senate Minority Leader Mitch McConnell (R-Ky.). He previously served as chief counsel for nominations on the Senate Judiciary Committee, working for Senators Chuck Grassley (R-Iowa) and Lindsey Graham (R-S.C.), and as deputy assistant attorney general in the Office of Legal Policy of the U.S. Department of Justice (OLP). He graduated from Notre Dame Law School (2012) and worked at Kirkland & Ellis before entering government.
Ryan Newman. Newman has served as general counsel to Governor Ron DeSantis (R-Fl.) since October 2021. During the Trump administration, Newman served as counselor to the U.S. attorney general, deputy general counsel at the U.S. Department of Defense, and acting assistant attorney general at OLP. Prior to his service in the executive branch, he worked as chief counsel to Senator Ted Cruz (R-Tex.). Newman graduated from the University of Texas School of Law (2007) and clerked for Judge Richard Leon (D.D.C.), Judge J.L. Edmondson (11th Cir.), and Justice Samuel Alito. Prior to law school, he graduated from West Point and served as an armor officer in the U.S. Army in Iraq.
Paul Ray. Since April 2022, Ray has served as director of the Roe Institute for Economic Policy Studies at the Heritage Foundation. Before that, he served as the Senate-confirmed administrator of the Office of Information and Regulatory Affairs (OIRA) and as counselor to the U.S. Secretary of Labor. He graduated from Harvard Law School (2011) and clerked for Judge Debra Ann Livingston (2d Cir.) and Justice Samuel Alito.
Dean Reuter. Reuter has worked at the Federalist Society since 2001 and assumed his current role, senior vice president and general counsel, in June 2021. He previously served in the Offices of the Inspector General for two different federal agencies, as counselor to the inspector general and deputy inspector general. He graduated from the University of Maryland School of Law (1986).

Collectively speaking, they’re all impressively credentialed and solidly conservative. They’re not the most diverse group—all straight white males, as far as I know—but remember that this is FedSoc, not the Biden administration picking a SCOTUS justice.

Each candidate has his own selling points. Alt has experience leading a conservative nonprofit. Fragoso is the most politically well-connected and knowledgeable. Newman and Ray have excellent credentials, including Supreme Court clerkships, plus government experience. Reuter has more than two decades at FedSoc, giving him the greatest institutional memory and insight into the organization’s workings.

I don’t have any particular insight into who’s most likely to get the job; if you do, please drop me a line. This is definitely a process worth watching, since it will shed light on the current state and future trajectory not just of the Federalist Society, but of the conservative legal movement in which FedSoc plays such a significant role.

As Ian Ward wrote in Politico, “the Federalist Society has always been—and continues to be—a mélange of competing factions and personalities, where libertarian academics, ambitious law students, white-shoe lawyers, and hard-driving conservative activists subtly jockey for influence and control. The selection of Meyer’s successor will indicate which faction currently has the upper hand, but it’s unlikely to end the race.”

1As I’ve previously explained, my personal preference is for FedSoc to serve as a debating society, not a political organ—and there’s only so far it can go into political territory. As I recently noted, its status as a 501(c)(3) organization under the tax code prohibits it from engaging in partisan political activity, endorsing candidates, and the like.

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Our independent judiciary has been described—accurately so, in my opinion—as “the crown jewel of our constitutional republic.” And when it comes to the federal judiciary, few of its members are as independent-minded as Judge Jed S. Rakoff.

Judge Rakoff, 81, has served on the Southern District of New York since 1996. During his almost three decades on the bench, he has authored more than 2,000 opinions—many of them groundbreaking and headline-making, and some quite controversial.

In addition to his prodigious judicial output, Judge Rakoff is a leading commentator on the American legal system. He contributes regularly to The New York Review of Books, and he wrote an excellent book of his own: Why the Innocent Plead Guilty and the Guilty Go Free, and Other Paradoxes of Our Broken Legal System (2021).

With a new Term of the U.S. Supreme Court starting next week, I thought it would be interesting to interview Judge Rakoff about his latest column for The Review, which discusses the current Court—and doesn’t pull any punches. And in our conversation, Judge Rakoff didn’t walk back any of his criticism. When I asked him if he respects the Court, he artfully dodged—and later on in our interview, he described the Court’s rulings on gun control as not only “misguided,” but “immoral.”

We found time to discuss fun stuff, too. We talked about his approach to clerk hiring—being in FedSoc is not a black mark—as well as his hobbies. In his spare time, he enjoys participating in international ballroom dance competitions (with his wife Ann), writing satirical lyrics to musical compositions, and officiating at weddings (91 and counting). Check it all out, in the latest Original Jurisdiction podcast.

Show Notes:

Judge Jed Rakoff bio, U.S. District Court for the Southern District of New York
Hon. Jed S. Rakoff, by Luke McGrath for the Federal Bar Association
The Most Conservative Branch, by Judge Jed S. Rakoff for The New York Review of Books

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Judge Jed Rakoff (photo by The Washington Post via Getty Images) Read more

Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System

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Last Tuesday’s event featuring MK Rothman and Joshua Kleinfeld (photo courtesy of the Berkeley Federalist Society).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

In May, I attended an excellent conference, hosted by the Knight First Amendment Institute, about the future of press freedom. The conference was held shortly after protesters had disrupted an event at the home of Dean Chemerinsky and his wife, Professor Catherine Fisk—and Chemerinsky was a speaker at the conference.

During a break, he and I chatted about whether things would get better or worse at law schools in terms of free speech. I expressed optimism, suggesting that with many pro-Palestine protesters exercising their speech rights, perhaps folks on the left who previously viewed free speech and “cancel culture” as non-issues would come around.

Dean Chemerinsky was not optimistic. And perhaps he was right, based on a disruptive protest that took place last Tuesday, September 24, at Berkeley Law.

The event was titled Restoring Democracy: The Debate Over Judicial Reform in Israel, and it was sponsored by the Berkeley Federalist Society. It consisted of a conversation between MK Simcha Rothman, a member of the Knesset (the Israeli legislature), and Professor Joshua Kleinfeld of Scalia Law, a former law clerk to former Israeli Supreme Court president Aharon Barak. (I’m not sure why Professor Kleinfeld, who’s not on the Berkeley Law faculty, was Rothman’s interlocutor.)

Rothman is a controversial figure. He belongs to the conservative Religious Zionism party, and he chairs the Knesset’s Constitution, Law, and Justice Committee, where he played a leading role in a wide-ranging overhaul of the Israeli judiciary—also controversial, the subject of large-scale protests across Israel in 2023.

The audience for the Rothman event—which was open to the general public, not limited to the Berkeley Law or UC Berkeley communities—contained a significant number of people who belong to UnXeptable. Founded a few years ago by Israelis living in the San Francisco Bay Area, the group describes itself as “a grassroots movement launched by Israeli expats in support of a democratic Israel.”

The members of UnXeptable are strongly opposed to Prime Minister Benjamin “Bibi” Netanyahu and the recent Israeli judicial reform, which they refer to as “the Judicial coup.” But at the same time, they support the existence of Israel as a Jewish state. As stated in their Core Principles, “We highly encourage people to bring Israeli flags and signs and, most importantly, bring more people who care about Israel as Jewish and democratic state.”

So here’s what happened last Tuesday, according to Haaretz (via The Jewish News of Northern California, which isn’t paywalled):

Carrying posters with the photos of the hostages being held in Gaza, the Israeli protesters surrounded Rothman when he entered the room, shouting: “What are you doing here in the middle of the war?” and “What have you done for the hostages?” ….

A representative of the law school opened the event by reciting a “civility statement” and emphasizing the importance of “respectful speech.”

Meanwhile, outside the auditorium, pro-Palestinian students, wearing kaffiyehs, had gathered, carrying signs bearing the names of Palestinians killed in the Gaza war. They directed their chants, not at Rothman, but rather, at the Israelis who had come to protest him.

“The counter-protesters, liberal Zionists, support the genocide in Gaza,” they chanted over and over.

A few minutes into Rothman’s response to Kleinfeld’s first question, the Israelis in the audience started shouting: “Go home!” and “Shame!”

They were unaware that several anti-Israel protesters were embedded in the crowd. One of them grabbed a microphone on the floor and began shouting: “Free, Free Palestine” and “Israel is a terrorist state.”

When a security guard tried to throw the anti-Israel protesters out, one of them shouted: “Why are you only throwing out the anti-Zionists? Why not the Zionists?”

“Don’t you understand that we hate him too?” an elderly Israeli woman who was part of the UnXeptable group said, pleading with the anti-Israeli protesters to leave the room.

“What you are doing is not helping the Palestinians. It is only harming them,” said another member of the UnXeptable group, as he grabbed the mic.

One could reasonably wonder whether disrupting Rothman’s event—instead of, say, asking him tough questions in Q&A—was advancing the goals of UnXeptable as well. But according to a tweet that UnXeptable posted after the protest, maybe shutting it down was their objective: “Determined protestors in Silicon Valley made sure that Rothman would not speak abroad and continue to lie….”

Back to The Jewish News:

As a shouting match erupted between the two groups of protesters in the auditorium, Rothman was escorted off the stage by police—not before he gleefully turned to members of the UnXeptable group and said: “Now we all know who your partners are.”

In the ensuing commotion, the anti-Israeli protesters ran to the main door of the auditorium, opening it so that the large group of pro-Palestinians protesters in the hallway could burst in. A fire alarm subsequently went off, and police shooed the entire crowd out.

An email sent by the Berkeley Law School a few minutes later notified ticket holders that “the speakers have decided to leave the building” and the event would resume on Zoom an hour and 45 minutes after the scheduled time.

For video of the event, see this tweet by Judy Maltz of Haaretz and this Powerline post by Steven Hayward (although some of the video embeds at Powerline seem to have been taken down). Much of the audio is in Hebrew, but you can get a better sense of what went down, including how the protesters were dressed and what their signs said. The protesters in the videos, some wearing blue and white capes with the Star of David on them, strike me as older than most law students.

Later in the day last Tuesday, Dean Chemerinsky sent a school-wide email about the disruption:

Dear Law School Community,

What occurred today in the Law School is unacceptable in an academic community. As I expressed in explaining our free speech policy at the beginning of the semester, we must be a place where all ideas and views can be expressed. There is no right to disrupt a speaker.

In clear violation of the policies of the Law School and the campus, an event was disrupted by audience members who refused to stop their loud protest despite being asked to leave. This forced us to shift to a virtual event on Zoom. Although I am glad the event could proceed, and the recording will be made available, I am deeply dismayed that this action denied the speaker his free-speech rights and the audience their chance to engage in person.

It cannot be in an academic institution that we only hear those messages that aren’t shouted down. It cannot be that we tolerate protests that disrupt events and the Law School’s functioning. In my message on free speech earlier this semester, I said that student disruptors of school events would face disciplinary proceedings. We will pursue that if any students participated in disrupting the event.

We will have many speakers this year, including other controversial ones. We must do all we can to make sure that what happened today never occurs again.

Erwin

Dean Chemerinsky also issued a public statement. It’s essentially the same as his school-wide email, but its final line is worded slightly differently (and maybe more directly): “The protesters violated campus rules, and we will pursue accountability for any students involved."

I asked Dean Chemerinsky whether he was aware of any students who participated in last Tuesday’s disruption. He responded: “As best we can tell, the disruptors were not law students, but outside members of the public. Many who were present have confirmed this.” If this is incorrect—as my regular readers know, I hate posting inaccurate information—please email me.1

The Berkeley Federalist Society also issued a statement, on Instagram:

We are deeply disturbed and disappointed by the disruptions that took place at our event yesterday, which was stormed and shut down by anti-Israel rioters. Our academic institutions cannot function as intended so long as the right to free speech is only selectively protected.

Here are a few thoughts about what transpired. First—and quite obviously—I agree with Dean Chemerinsky’s bottom line: what took place “is unacceptable in an academic community,” and any students who were involved must be disciplined.

Second, assuming it’s accurate that the disruptive protesters weren’t students at Berkeley Law, I wonder whether law school groups should consider restricting controversial events to members of the law school community. Some schools already do this—e.g., Yale Law School—and while it’s unfortunate, it might be necessary. (I asked Berkeley Law’s spokesperson, Alex A.G. Shapiro, whether events held at the school must be open to the public for some reason; he explained that it’s not required, and each hosting group decides if it wants an event to be open to the public.)

Third, note that the event was able to continue over Zoom. Perhaps any student group hosting a controversial speaker should come up with a similar Zoom backup plan—even if, in an ideal world, falling back to Zoom would not be necessary.

In this case, a number of precautionary measures were taken, as noted by Steven Hayward at Powerline. Attendees were warned at the start about the university’s speech policies, including possible discipline; security officers were present; and Berkeley’s chief of police and vice chancellor were in the room. But as subsequent developments demonstrated, even the best-laid plans can go awry.

Next month will mark the one-year anniversary of the October 7 attack on Israel and the start of Israel’s military intervention in Gaza, and there will definitely be protests. I hope—although won’t predict—that there are no disruptions, and everyone’s free-speech rights are respected.

P.S. I apologize for not writing about this earlier. Please email me promptly if you learn of similar events at your law school in the future.

1Speaking of inaccurate information, please note the correction to yesterday’s edition of Judicial Notice: Alex Spiro, New York City Mayor Eric Adams’s lead lawyer, earned his undergraduate degree at Tufts, not Harvard (which is where he went for law school). I apologize for mixing up my Boston-area schools.

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U.S. Attorney Damian Williams, breaking down the criminal case against New York City Mayor Eric Adams (photo by Angela Weiss/AFP via Getty Images).Zach and I just returned from a wonderful wedding weekend in Natchez, Mississippi. We had a great time, but juggling my newsletter duties with festivities and travel isn’t easy. I usually don’t get much sleep on Saturday nights, as I toil away on Judicial Notice—but this past Saturday, I pulled a full-on all-nighter.

Thanks to everyone who joined last Wednesday’s “virtual lunch.” Attendees from a wide range of fields—including criminal, First Amendment, tax, and trusts and estates law—engaged in lively conversation (and even some networking). Having discovered how easy it is to hold Zoom events with my readers, I think I’ll do more in the future, perhaps in a structured format—e.g., a talk followed by audience Q&A, a webinar with multiple panelists, or a debate.

Now, on to the news.

Lawyers of the Week: Damian Williams and Alex Spiro.

On Thursday, federal prosecutors unveiled a 57-page indictment against Eric Adams. He’s the 110th mayor of New York City, but only the second mayor to face criminal charges while in office. (The first was from more than 150 years ago: A. Oakey Hall, who was indicted—but never convicted—in connection with Tammany Hall corruption.)

The current indictment in United States v. Adams—which some experts believe will be superseded at a later date—contains five counts: one count of conspiracy to commit wire fraud, solicit foreign contributions, and accept bribes; one count of wire fraud; two counts of solicitation of a contribution by a foreign national; and one count of bribery. The gist of the prosecution is that for almost a decade, dating back to his years as Brooklyn borough president, Adams received more than $100,000 in luxury travel perks—e.g., business-class upgrades on Turkish Airlines, a heavily discounted stay at the St. Regis Istanbul—plus illegal campaign contributions. In exchange, Adams performed political favors for the government of Turkey, such as pressuring Fire Department officials into approving a new high-rise Turkish consulate building in time for a visit by President Recep Tayyip Erdogan.

Most folks are interested in the political implications of United States v. Adams, including whether it will bring Adams’s mayoralty to an end. But as a legal-world obsessive, I’m more interested in the face-off between U.S. Attorney Damian Williams of the Southern District of New York, one of the nation’s top federal prosecutors, and Alex Spiro of Quinn Emanuel, one of the country’s leading defense lawyers. (As for the judge, the Adams case was randomly assigned aka “wheeled out” to Judge Dale Ho, a former ACLU lawyer who took the bench last year.)

Williams and Spiro, now the subjects of numerous profiles, have interesting similarities and differences. Both are relatively young superstars: Williams is 44, and Spiro is 41. Both graduated from Harvard College, followed by rival law schools: Yale for Williams, and Harvard for Spiro. Both are former line prosecutors: on the federal side for Williams, who served in the office he now leads, and on the state side for Spiro, who worked in the Manhattan District Attorney’s Office.

Can Damian Williams, the high-flying prosecutor who brought down ex-senator Robert Menendez (D-N.J.) and former crypto magnate Sam Bankman-Fried (SBF), put another famous figure behind bars? Or can Alex Spiro—the renowned defense lawyer who has performed what Law360 called “courtroom miracles” for celebrities like Elon Musk and Alec Baldwin—work his magic yet again?

How will Spiro approach the case? When I interviewed him for my podcast, he emphasized how critical it is to frame a case—to “pick what the case is about” to the jury. As for how he’ll frame this prosecution, we already have some hints from his public comments at Adams’s arraignment, where the mayor pleaded not guilty to all charges. Speaking to reporters outside the courthouse, Spiro said, “This case isn’t even a real case. This is the ‘airline-upgrade corruption’ case.”

In fairness to the prosecution, “other allegations in the indictment are far more serious,” as veteran defense lawyer Ron Kuby noted in The Washington Post. Especially troubling to Kuby are the claims related to illegal campaign contributions, including the allegations of “straw” donors, which he said constitute “a direct assault on basic principles of democracy and sovereignty.”

But proving that Adams received benefits isn’t sufficient. As explained by James Burnham and Yaakov Roth in The Wall Street Journal, “The indictment spends many paragraphs discussing benefits received—many of them travel and entertainment—but is light on official actions promised in return.” So I could certainly see Alex Spiro—who has a background in psychology and excels at getting jurors to think in a practical, common-sense way—arguing to the jury that both the “quid” and “quo” of this alleged “quid pro quo” were pretty weak sauce.

Other lawyers in the news:

Professor Amy Wax of Penn Law was suspended for a year with half pay, starting in fall 2025, after a faculty hearing committee investigated allegations that she made racist, sexist, and homophobic remarks. She was also stripped of her endowed chair and summer pay in perpetuity.
The October 2024 issue of the ABA Journal features a profile of Robbie Kaplan, by Anna Stolley Persky: “Formidable Foe: Roberta Kaplan doesn’t back down from tough fights.”
Florida personal-injury lawyer Dan Newlin has spent $2.8 million—and counting—on television and digital advertising to promote Donald Trump (and himself).
Already disbarred in New York, Rudy Giuliani was disbarred in D.C. on Thursday.
Stewart Rosenwasser, a former prosecutor in Orange County, New York, reportedly died by suicide at 72, while in the middle of a shootout with FBI agents who were attempting to arrest him on bribery charges.

Judge of the Week: Judge Reed O’Connor.

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Judge Britt Grant (11th Cir.), speaking in 2019 at her alma mater (screenshot via Stanford Law School).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

What makes a judge a “superstar” of the federal bench? And how do appointees of former President Donald Trump fare in terms of achieving superstar status?

With Trump running for president anew and four out of nine U.S. Supreme Court justices in their seventies next year, these questions take on added importance. Justices tend to come from the ranks of lower-court superstars—so if Trump returns to the White House and gets to fill a seat (or seats) on the high court, he’d likely elevate one of his prior picks.

More than 20 years ago, New York University law professor Stephen Choi and University of Virginia law professor Mitu Gulati developed a methodology for evaluating judges that focused on three metrics: productivity, influence, and independence.1 They dubbed the judges with the highest overall scores “superstars” (with Judges Richard Posner and Frank Easterbrook of the Seventh Circuit as the top two back in 2003).2

For a new paper, Choi and Gulati applied their framework to the 77 federal appellate judges who were 55 or younger in 2020—43 Trump appointees and 34 non-Trump appointees, roughly a 55-45 percent split. The professors chose this group based on the reasoning that these jurists have the right combination of youth and judicial experience to be considered for the U.S. Supreme Court in the near future. They referred to this judicial cohort as “auditioners,” since some of them appear to be “auditioning” for a spot on the high court.

After reading their paper and finding it intriguing, I interviewed Choi and Gulati earlier this week. I began by asking them why they decided to undertake this project—and why now.

“There was so much hot air in the media about Trump judges being unqualified buffoons,” Gulati explained. “I’m no Trump fan, so I was inclined to believe a lot of it. But Steve and I thought we should look at some data.”3

“There’s always a lot of subjective, anecdotal information out there, like ‘this judge is precise’ or ‘this judge is good,’” Choi added. “We wanted to use objective measures. If you want to say Trump judges are bad or biased or don’t get cited, let’s look at the numbers.”

One possible prediction was that Trump judges would underperform. Based on Trump’s public pronouncements about how “his” judges would act and his own conduct in other spheres, some observers expected him to select judges based on their ability to deliver conservative outcomes or their personal loyalty to him—a “deviation from traditional norms of picking ‘good’ judges,” as explained in the study abstract.

But instead, according to Choi and Gulati, “Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.” This was, as Gulati told me, “not what we expected.”

The professors prepared top-10 lists for various metrics. In terms of productivity (adjusted for circuit norms to reflect how much judges on a given circuit tend to publish), Trump appointees took nine out of the top 11 spots (11 because of a tie). Four of the top 11—Judges Andrew Oldham, James Ho, Kevin Newsom, and Stuart Kyle Duncan—have been mentioned by various publications as possible Supreme Court nominees in a second Trump presidency.

For influence, based on citations to a judge’s opinions by federal and state courts outside that judge’s home circuit, nine of the top 10 were Trump judges. Four of the 10—Judges Kevin Newsom, Stuart Kyle Duncan, Britt Grant, and James Ho—have been cited by news outlets as potential high-court picks in a new Trump administration.

Finally, the professors looked at judicial independence—which they also labeled “maverick” status, defined as “a judge who is willing to deviate from other judges, and particularly so those closest to them in terms of political ideology.”

Their most interesting measure of independence was “partisanship” (or lack of), calculated based on how often a judge dissented against a majority opinion written by a colleague appointed by the same political party—e.g., how often a Republican appointee dissented from an opinion written by a fellow Republican appointee.

Of the least partisan judges, seven out of 10 were Trump appointees. Four of the 10—Judges Lawrence VanDyke, Andrew Oldham, James Ho, and David Stras—have been talked about in the media as Supreme Court contenders if Trump regains the White House.4

To Choi, the dominance of Trump judges on the list of most independent jurists came as the biggest surprise: “I thought we would have found more bias—and it pointed out to me the value of having objective data.”

I was surprised as well. When I looked at the complete ranking of judges by partisanship in Choi and Gulati’s paper, the 10 judges who scored the lowest on partisanship—i.e., the judges who are supposedly the most partisan—seemed to me, based on my anecdotal sense of various judges, to be less partisan than Choi and Gulati’s top 10.5

I asked the professors whether perhaps some of the Trump appointees might be scoring as “mavericks” because they are dissenting against fellow Republican appointees in a more conservative direction.6 They acknowledged this as a possibility and identified it as a subject for additional research.

Choi also suggested, however, that our anecdotal senses of judges might reflect cognitive biases, perhaps in favor of more recent cases or cases about hot-button issues that receive extensive news coverage. Their methodology gives equal weight to all cases, whether they concern abortion or ERISA. While Choi and Gulati have received some criticism for this, attempting to weight cases based on a subjective assessment of “importance” runs the risk of introducing the professors’ own biases into the mix.

It might be possible to evaluate the significance of cases based on a more objective measure—for example, the number of amicus briefs filed, which other professors have used to compare the salience of Supreme Court cases. This could be a fruitful follow-up inquiry.

And speaking of avenues for additional research, there are many other ways federal appellate judges could be ranked. One metric that sprang to my mind, given my (perhaps excessive) focus on credentials, would be a “prestige” ranking. It could include how often circuit judges are affirmed or reversed by the Supreme Court, how often they are cited with approval by the high court, and how often they send their own clerks into highly prestigious Supreme Court clerkships—i.e., so-called ”feeder judge” status.

For now, Choi and Gulati should be commended for a valuable contribution to our understanding of federal judges and the federal judiciary. While specific rulings and opinions by individual Trump appointees are open to question and criticism, attempts to paint them with a broad brush as lazy, uninfluential, or partisan will need to engage with this research in a serious and sustained way.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

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1What led Choi and Gulati to develop this methodology some two decades ago? Gulati gave me more background:

I was living in D.C., teaching at Georgetown, and playing squash at the University Club. There were judges there, they’d talk about who should be on the Supreme Court, and they’d mention things like the contenders’ law schools and clerkships—which struck me as bizarre. By the time someone is under consideration for SCOTUS, we have so much information on how they’ve behaved as judges.

So Steve and I thought to ourselves: why are we ignoring all this highly public, very useful information about judges? That was our motivation. Neither of us did constitutional law or had studied judges before, but we wanted to look at the data.

Choi and Gulati also hoped that tracking and publishing metrics would set up positive incentives for judicial behavior, by encouraging judges to be more productive and to write high-quality, influential opinions that would get widely cited.

2The professors received significant criticism for their original paper. For example, Gulati recalled, “Some judges criticized us by saying that we were undermining the dignity of the judiciary by engaging in ‘bean counting’—that we were demeaning the work of judges by reducing it to numbers.”

Gulati acknowledged that there are aspects to the work of judges that can’t be quantified. He argued, however, that the measures that can be quantified might shed light on the others: “In any workplace, some things are visible and some things are not visible. If you’re doing the visible things right—say you show up to meetings on time—that suggests that maybe you’re doing the other things right too. Most things in life I can’t measure, but maybe the things that I can measure will correlate with the things that I can’t.”

Of course, past performance is no guarantee of future results. In Choi and Gulati’s 2003 study, one of the top lower-court judges for independence was then-Judge Samuel Alito of the Third Circuit. As a justice, Alito has been criticized as insufficiently independent of the Republican Party (and rankings by political scientists do show him to be one of the most conservative members of the current Court).

3Before conducting their broader study of the judicial performance of Trump judges, Choi and Gulati researched how Trump appointees ruled in cases concerning religion (with Eric Posner) and guns (with Rebecca Brown and Lee Epstein).

4Choi and Gulati also prepared a ranking of judges by their total number of dissents and concurrences, another measure of independence. These were the top 10 by that metric:

Once again, Trump appointees dominate. They made up 55 percent of the total cohort under study, but 80 percent of the most productive judges.

5These were the 10 judges at the bottom of the partisanship ranking—strange, no?

Three of these judges—Judge Raymond Kethledge, former judge Paul Watford, and Chief Judge Sri Srinivasan—have been serious SCOTUS contenders over the years.

6For an anecdotal example, see Judge Ho’s concurrence in the judgment in Jackson Women’s Health Organization v. Dobbs, when that case was before the Fifth Circuit. The majority opinion was by a fellow Republican appointee—Judge Patrick Higginbotham, a Reagan appointee. Judge Ho wrote a concurrence in which he followed Supreme Court precedent but argued that “[n]othing in the text or original understanding of the Constitution establishes a right to an abortion.” The case then went up to SCOTUS, which used it as the vehicle for overruling Roe v. Wade.

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Sean Combs aka ‘Puff Daddy’ (photo by Shareif Ziyadat via Getty Images).This week’s Judicial Notice is sponsored by

Apologies if I owe you a call, text, email, or direct message on a social-media platform. To be honest, I’ve been in a bit of a funk over the past few weeks, seriously lacking in motivation. Sometimes I read messages, compose responses in my head, but can’t summon up the will to type up and send them. Sorry about that.

On the bright side, I think I’m turning the corner. I had a wonderful time speaking and attending panels at LITFINCON Los Angeles last week. Nerding out over litigation finance is my version of a Taylor Swift concert, the weather could not have been better, and The Maybourne Beverly Hills is a fabulous hotel. And while I adore my two boys—because they are, in fact, adorable—I also appreciate three nights of solid sleep on 600-thread-count sheets.

September is a splendid time to visit southern California—and it’s also a popular time for law clerks to transition into and out of chambers. So this week’s testimonial, fittingly enough, comes from a clerk who’s concluding a federal appellate clerkship: “I love Original Jurisdiction. It’s a great source for everything from caselaw developments to dealmaking to legal industry news.”

I pride myself on the diverse offerings of Original Jurisdiction, which include news, analysis, opinion, and career advice. Alas, I receive more requests for counsel than I can address in Asked and Answered. So if you have a question you’d like to pose, or if you just want to meet me and your fellow readers, grab a sandwich or salad and join OJ’s first “virtual lunch,” this Wednesday, September 25, from 1:30 to 2:30 p.m. (ET). Here’s the Zoom link (passcode “348334”) and the Google calendar entry.

Programming note: the next few weekends are insane for me. Between now and December, I have two weddings to attend, three conferences to speak at, and Harlan’s seventh birthday party to oversee—all falling on the weekends. Apologies in advance if any of this interferes with the normal schedule of Judicial Notice, which normally goes out on Sunday.

Now, on to the news.

Lawyer of the Week: Kannon Shanmugam.

Last Thursday, the U.S. Department of Justice announced the arrest of Panos Anastasiou for allegedly threatening to torture and assassinate six U.S. Supreme Court justices and their relatives. Last month, Judge Peter Messitte (D. Md.) set a June 2025 trial date for Nicholas Roske, accused of attempting to assassinate Justice Brett Kavanaugh.

While I don’t want to draw any direct links (lest I get sued by Sarah Palin), I think it’s fair to wonder whether some of the angry rhetoric surrounding SCOTUS, as well as the federal and state judiciaries more generally, is contributing to an overall climate in which judges and their families are harassed, threatened, or worse. And I’m not alone in entertaining these thoughts.

Kannon Shanmugam of Paul Weiss, a prominent Supreme Court and appellate advocate, raised this possibility in a speech he recently delivered to the Duke Federalist Society, “The Legitimacy of the Supreme Court.” And he identified a second, perhaps more important concern: how attacks on the Court’s legitimacy “are undermining public confidence in the Court and imperiling the rule of law.”

There are definitely real cases of judicial misconduct—including workplace harassment, as discussed in this MSNBC piece by Representative Hank Johnson (D-Ga.) and Aliza Shatzman of the Legal Accountability Project. But Shanmugam argued that some criticisms of the Court’s legitimacy, including the alleged ethics “scandals,” are either misplaced or exaggerated. (See also James Burnham’s piece for City Journal, which refutes the ethical attacks in more pointed fashion.)

Shanmugam’s speech garnered coverage in The Wall Street Journal, Bloomberg Law, and Law360. It also received some criticism, for his supposed attempt to curry favor with the justices he argues before in his day job.

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The founders of the Federalist Society, telling its origin story at FedSoc’s 40th anniversary celebration (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Welcome to the latest installment of my advice column here at Original Jurisdiction, Asked and Answered. If you have a question for a future edition of A&A, please email me at davidlat at substack dot com, subject line “Asked and Answered: [your topic].”

With the new school year ramping up, today’s request for advice is timely:

Dear A&A,

I’m a 1L at a T14 law school, and I’m writing to ask for your thoughts on whether I, an originalism- and textualism-attracted individual, should join the Federalist Society, given (1) its already-existing reputation among the political left, (2) its seemingly evolving reputation among segments of the right, and (3) the general increase in political polarization and tensions on campuses. I want to join the Federalist Society, but I worry that joining may (1) alienate me from some classmates and (2) harm future job or clerkship prospects.

So what say you: Is FedSoc still the place to go for law students interested in originalism and textualism? Or have increased campus tensions and negative media stories on the Supreme Court and FedSoc sufficiently raised the downsides of joining that you would advise against it? I suspect similar questions may be on many 1L students’ minds right now.

Sincerely yours,
Faint-hearted FedSoc-er

I posed follow-up questions to Faint-hearted and acquired additional information relevant to his situation:

He’s more drawn to public-law subjects like constitutional law and criminal law, as opposed to private-law subjects like contracts and corporate law.
He’s interested in possibly clerking, working as a prosecutor, or serving as a judge someday. As of now, his dream job would be to work for the Office of the Solicitor General (OSG) at the U.S. Department of Justice (DOJ). He’s open to working in Biglaw, but that’s not his main focus or ambition.
In terms of political leanings, he has no party affiliation and considers himself “politically homeless” right now. He described himself as “definitely libertarian-oriented” and “a classical liberal,” in favor of “free markets, free speech, and the strong protection of civil liberties. In general, I think we ought to live and let live.”

Based on his interests and career goals, my bottom-line answer to Faint-hearted is yes, he should join the Federalist Society. But let me unpack my reasoning.1

As an institution, the Federalist Society takes no positions on legal or policy issues—aside from its statement of purpose, which is “to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is, rather than what they wish it to be.” In other words, the Society itself is about serving as a forum for substantive debate, even if individual FedSoc members or leaders might work on particular cases or causes—which skew heavily to the right, but not exclusively so.2

And I believe that folks who have actually attended FedSoc events—instead of just reading about the Society, in left-leaning publications—would concur. I agree with what Kannon Shanmugam of Paul Weiss, a leading SCOTUS and appellate advocate, said about FedSoc in his recent (excellent) speech to the Duke Law Federalist Society, “The Legitimacy of the Supreme Court”:

For me, as one of the very few conservative and libertarian law students at top law schools in [the 1990s], the Federalist Society provided a rare forum in which to discuss legal issues with likeminded students. In the decades since, I have made countless friendships through Federalist Society events. But beyond that, in the words of its website, the Federalist Society’s “main purpose” is, and always has been, to promote “fair, serious, and open debate” on the legal issues of the day…. [N]ever has such debate been more essential than it is now.

So returning to Faint-hearted FedSoc-er, given (1) his keen interest in issues of public law, (2) his originalist and textualist leanings, and (3) the fact that he wants to join FedSoc (emphasis his), I believe that he should join FedSoc (emphasis mine)—unless there’s a good reason not to join, to which I now turn.

If he had told me that he’s strongly focused on private law, especially corporate law, and his dream job is to be a Biglaw partner focused on transactional work, then maybe my advice might be different. Biglaw firms are pretty left-leaning these days, so having FedSoc on your résumé could complicate your quest to become a finance or M&A or tax partner at an Am Law 100 firm.

Of course, another option would be to join FedSoc and not list it on your résumé—or list it selectively, only when it’s relevant and helpful to a particular opportunity. I’m told by a current 2L who belongs to FedSoc that student chapters do not make their membership lists public, precisely because of concerns over ostracism and “cancellation.” So a prospective Biglaw employer is unlikely to learn of your FedSoc membership unless you affirmatively mention it.3

My advice might also be different if Faint-hearted had told me, in response to my follow-up questions about his political affiliation, that he’s a registered Democrat. To be sure, because FedSoc is a non-partisan organization—and actually prohibited from engaging in partisan political activity, as a 501(c)(3) organization under the Internal Revenue Code—there’s no inherent conflict between being a Democrat and being in FedSoc. But in our politically polarized age, the unfortunate reality is that it’s harder to secure certain elite professional opportunities—e.g., Supreme Court clerkships, top jobs at the DOJ, federal judgeships—if you’re not on the right “team.”

And if you play for “Team Blue,” then FedSoc on your résumé could be a problem. Imagine someone on president-elect Kamala Harris’s transition team, trying to fill coveted Justice Department jobs, or a lawyer in the White House Counsel’s Office in a Harris Administration, seeking potential judicial nominees. If that person sees your résumé with FedSoc on it and one of comparable strength that’s FedSoc-free, they’re going with the other résumé.4 [UPDATE (2:10 p.m.): See what I posted in the comments about why the “leave it off your résumé” approach doesn’t work for political-appointee jobs and judgeships.]

That is not, however, the situation of Faint-hearted FedSoc-er. Although he’s not registered with either political party, given where the parties are right now, someone who is “libertarian-oriented” and “a classical liberal” is effectively a member of “Team Red,” at least for careerist purposes. As a practical matter, he’s more likely to get clerkships with Republican appointees, land a job at OSG in a Republican administration, or get nominated to the federal bench by a Republican president. And FedSoc, which is a powerful networking resource in conservative and libertarian circles, will help him in his professional advancement.

So that’s my advice. There are aspects of it that depress me—but in giving career advice to people, my philosophy is to accept the world as it is, not as it should be.

Readers, what do you think? Please share your thoughts in the comments.

1Disclosures: I was vice president of the Yale Federalist Society in law school, back when I was a conservative Republican and before I drifted leftward; I’m sympathetic to textualism and originalism as interpretive theories; and I participate from time to time in FedSoc events (sometimes advancing a “conservative” position, sometimes a “liberal” one, and sometimes neither). For participating in these events, I’m paid the Society’s standard honorarium—which is less than my standard speaking fee, but I’m fine with this because FedSoc gave me paid speaking opportunities before pretty much anyone else, so I consider them ~~grandfathered~~ legacied in. In addition, many FedSoc events are at law schools, and I believe the children—er, the law students—are our future. I don’t view my participation in FedSoc events as disqualifying me from opining on the Society—and I haven’t hesitated to criticize FedSoc when I feel it’s warranted (see, e.g., the #5 most-read article here at Original Jurisdiction)—but with the benefit of these disclosures, you can decide for yourself what weight to give my views.

2When renowned Supreme Court advocate Ted Olson, a longtime member of the Society (and its Board of Visitors), was arguing in the courts for marriage equality, some FedSoc members opposed to his efforts called upon the organization to condemn his work or to expel him. The Society did neither.

3Yes, some student FedSoc chapters will post the identities of their officers online. If you’re enthusiastic enough about FedSoc to become a board member, suggesting that it’s an important part of who you are, then you shouldn’t hide it—because you probably don’t want to work at a place that would hold the affiliation against you.

As Judge Stephen Vaden put it during our podcast conversation, responding to my closing question about career advice, you should be “honest about who you are… and only go to those [employers] who are willing to accept you for who you are.” And I agree with his advice, to a point: if your FedSoc-y leanings are important to who you are, then be open; if they’re a small part of your identity, and you really just want to be a funds partner at Kirkland, then feel free to not mention them.

4Team Harris won’t even bother bringing you in for an interview so you can attempt to explain that you joined FedSoc “for the debates”—à la men who used to read Playboy “for the articles.” It might very well be true, because FedSoc does put on excellent debates—just as Playboy published some quality articles over the years. But that’s the reality, whether it’s fair or not. (As for the free food at FedSoc events, you can attend the talks—and enjoy the food—without being an official member.)

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Where do I get my story ideas? Most arise organically out of the news, but some come from topic suggestions aka “pitches.” Sometimes pitches come from lawyers in the news, and sometimes they come from a lawyer or law firm’s public-relations or communications team—media-savvy professionals who work for attorneys and firms to help them secure favorable press (or avoid negative coverage).

Over the years, one of my best sources of pitches has been Dawn Schneider. After graduating from law school, Dawn worked in communications for two major corporations, Johnson & Johnson and Altria. She then combined her legal and media expertise and pivoted to focus on law firms, serving as director of communications at Boies Schiller Flexner. And then, ten years ago this month, she launched her own media-advisory firm, Schneider Group Media—where she continues to work for leading lawyers and law firms, as well as clients beyond the legal realm, helping them navigate a challenging, rapidly evolving media landscape.

I have a fair number of readers who are interested in “alternative careers”—roles that don’t involve practicing law, but where legal education and experience are valuable. So I thought it would be enlightening and enjoyable to interview Dawn, who has deployed her legal training and talent for communication in a cool and unusual way.

Thanks to Dawn for joining me, and congratulations to her on Schneider Group Media’s tenth anniversary.

Show Notes (Dawn doesn’t have much of an online presence—she prefers to keep the focus on her clients—but here’s her bio, as well as pieces I’ve written that resulted from her work):

Dawn Schneider bio, Schneider Group Media
On The Retirement Of Miles Ruthberg And The Rise Of Litigation At Latham & Watkins, by David Lat for Above the Law
A Leading Litigation Boutique Turns 25, by David Lat for Original Jurisdiction
Boies Schiller Star’s Ski Accident Tests Strength—and Builds It, by David Lat for Bloomberg Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Dawn Schneider (courtesy photo by Clark Hodgin) Read more

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Judge Pauline Newman, in chambers (photo by Bill O'Leary/The Washington Post via Getty Images).This week’s Judicial Notice is sponsored by

September 11 is a difficult day, especially for those of who live in the New York metropolitan area. My thoughts and prayers are with the families and friends of the nearly 3,000 people who were killed by the 9/11 attacks.

I was in New York City on 9/11, and this past Wednesday, I was in the city once again—in fact, in Lower Manhattan, a five-minute walk from where the Twin Towers once stood. The security guard in the lobby of my doctor’s office building was listening to the reading of the victims’ names as I checked in. I don’t have anything else to add; I just don’t want us to forget the terrible events of 23 years ago.

I was at my doctor for my annual physical. I’m happy to report that I’m basically fine—which I don’t take for granted, given both my age and my Covid-19 ordeal in 2020.

This week’s testimonial for Original Jurisdiction comes from the founding partner of a boutique firm focused on family law: “Original Jurisdiction is a great resource for us small-firm lawyers who want to keep up with the world of Biglaw. Lat’s topics are timely, his reporting is interesting, and his approach is thoughtful and balanced. Links to his work are at the top of my list for law student and young lawyer mentees.” Thanks to this reader for appreciating and sharing my work.

A few weeks ago, I held OJ “office hours” on a Wednesday evening. I greatly enjoyed my conversations with readers, covering everything from AI in Biglaw to the legal training given to police officers—but I believe attendance was depressed because of the late hour. So I’m going to try and host what my friend Ari Kaplan calls a “virtual lunch,” held during the workday, where folks can get together and discuss… well, whatever we feel like discussing. The next one will take place on Wednesday, September 25, from 1:30 to 2:30 p.m. (ET). Here’s the Zoom link (passcode “348334”) and the Google calendar entry; I look forward to seeing some of you there.

Now, on to the news.

Lawyer of the Week: Nabanita Nag.

If you talk to chief legal officers and general counsel, you’ll often hear about the need for the CLO or GC to have “a seat at the table.” This involves having input into major corporate decisions, as well as access to the chief executive officer. But there might be such a thing as too much access to the CEO—which brings us to Nabanita Chaterjee Nag, former chief legal officer of the railway giant Norfolk Southern.

Last Wednesday, Norfolk Southern fired Nabanita Nag as CLO and Alan Shaw as CEO, after an investigation by the company’s board revealed an undisclosed romantic relationship between the two. Although the relationship was consensual, it violated Norfolk’s company policies and code of ethics, which prohibit superiors from having personal relationships with those who report to them.

Even before the company’s announcement—which it made after an activist investor, Ancora Holdings, learned of the investigation and demanded more information—Norfolk employees wondered whether something was up between the two executives. When traveling on Norfolk business with other employees, Shaw and Nag would get into a car together after landing at the airport, while the rest of the entourage would hop into a separate passenger van, and stay a different hotel from the other Norfolk employees. According to The Wall Street Journal, these practices “raised eyebrows” among Shaw’s staff.

The turmoil comes at an especially bad time for Norfolk Southern, still dealing with the fallout from a February 2023 train derailment in East Palestine, Ohio. And Nag’s departure means that Norfolk is now looking for its seventh legal leader in seven years—at a time when legal issues loom especially large for the company, which has incurred $2 billion in litigation and remediation costs from the derailment.

Moral of the story: keep the CEO-CLO relationship in the boardroom, not the bedroom.

Other lawyers in the news:

Leading litigator Randy Mastro might resemble Santa Claus, but his hearing to serve as New York City Corporation Counsel was anything but merry. Members of the City Council criticized his aggressive advocacy on behalf of the rich and powerful, during many years as a Biglaw partner at Gibson Dunn and now King & Spalding. Last week, Mastro asked Mayor Eric Adams to withdraw his nomination, after it became clear that he lacked the votes for confirmation. [UPDATE (6:28 p.m.): Minutes after hitting “publish” on this post, I came across the news that Mayor Adams’s chief counsel, former federal prosecutor Lisa Zornberg, abruptly resigned on Saturday—for unclear reasons.]
In other news from NYC, former Manhattan District Attorney candidate Tali Farhadian and hedge-fund magnate Boaz Weinstein are divorcing, after 14 years of marriage—and it appears to be contentious, based on the busy docket in their divorce case and the big-name lawyers on both sides. Her legal team includes Marilyn Chinitz of Blank Rome, whose past clients include Tom Cruise and Michael Douglas, and his includes Robert “Bob” Cohen of Cohen Clair Lans, whose past clients include Melinda Gates and Donald Trump’s two ex-wives.
Maggie Goodlander—a former law clerk to Justice Stephen Breyer, former deputy assistant attorney general for antitrust, and spouse of U.S. National Security Advisor Jake Sullivan—won the Democratic primary for New Hampshire’s Second Congressional District. Given the district’s Democratic orientation, she’s probably bound for Congres.
In other news at the intersection of law and politics, Alberto Gonzales—the only lawyer to serve as both White House counsel and attorney general (during the second Bush Administration)—became the latest prominent Republican to endorse Kamala Harris.
Congratulations to Paul Butler, Allison Coffin, and Madeline Bardi of Akin Gump, recently recognized as Am Law’s Litigators of the Week for securing the dismissal of federal fraud charges against fellow lawyer Jeremy Schulman.

In memoriam: Caleb Graves, a Georgetown Law alum and litigation associate at Wilson Sonsini, passed away at 35—moments after crossing the finish line at Disneyland’s Halloween Half Marathon, apparently after going into cardiac arrest. May he rest in peace.

Judge of the Week: Judge Pauline Newman.

Earlier this month, the Judicial Council of the Federal Circuit unanimously approved a three-judge special committee’s recommendation to extend the suspension of Judge Pauline Newman for another year. The special committee claimed that Judge Newman, 97, “show[ed] troubling signs of cognitive decline.” As long as she is suspended, she cannot hear cases or participate in the work of the court.

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If you ask federal trial judges to name the toughest part of their job, most will cite sentencing. Sentencing a criminal defendant is a weighty decision, affecting years or even decades of that person’s life. And for many years, it was final: a judge couldn’t revisit it, even if there were major changes in the defendant or their circumstances.

That changed in 2018, when Congress passed the First Step Act (FSA)—with overwhelming bipartisan support, including from then-president Donald Trump. Under one of the law’s most important provisions, a federal district judge can reconsider a previously imposed sentence and reduce it—even if that sentence was (and remains) lawful, and even if that sentence was life imprisonment.

What are the requirements for granting this relief, known as “compassionate release”? The critical one is that the judge must find “extraordinary and compelling reasons” for doing so.

And what can constitute “extraordinary and compelling reasons”? It’s currently the subject of extensive litigation in district and circuit courts—which have issued conflicting rulings on multiple issues, making it likely that the U.S. Supreme Court will intervene. (The Court did tackle the FSA last Term in Pulsifer v. United States, but it interpreted a different part of the statute.)1

If and when the justices get involved, I have a reading recommendation for them: A Second Chance: A Federal Judge Decides Who Deserves It. In this engaging and enlightening new book, Judge Frederic Block of the Eastern District of New York presents readers with six defendants who filed motions for compassionate release in his court. He asks us to reflect on whether we would reduce their sentences—then reveals how he ultimately ruled.

Judge Frederic Block (courtesy photo)His decisions reflect decades of experience. Appointed in 1994 by President Bill Clinton, Judge Block celebrates his 30th anniversary on the bench later this month. And at age 90, he continues to hear cases as a senior judge—with no current plans to hang up his robes entirely.2

“I can’t retire until Glasser does,” Judge Block said—referring to Judge Leo Glasser, who at 100 is the oldest judge currently serving on the federal bench, and whose chambers are just down the hall.3

And Judge Block somehow finds time to write books as well. Last week, I visited him at home—a sunny, art-filled apartment in Greenwich Village, where he has lived for almost three decades—and interviewed him about A Second Chance. It’s his fourth book—or his fourth to be published, at least, since he has two completed manuscripts that he’s trying to publish, plus another that’s already 100 pages.

He started writing A Second Chance in July 2023, at the home in Greece where he and his wife Betsy spend the summers. By September, the book was more or less done—because, the judge told me, “At my age, I have to write fast.”4

I asked Judge Block what inspired him to tackle this topic.

“The First Step Act is probably the most significant piece of sentencing reform I’ve ever experienced,” he told me. “It really changed the sentencing landscape in the United States. In deciding motions for compassionate release under the act, I came across all of these fascinating stories—which gave me the idea for the book.”

The cases he shares in A Second Chance make for compelling reading. He begins with that of Justin Volpe, the former New York City police officer notorious for brutalizing Abner Louima, a wrongfully arrested Black man, in 1997. Judge Block then describes the cases of a drug dealer implicated in a murder, a computer programmer who accessed child pornography, and three Mafia defendants. In the end, the judge reduced the sentences of two of the six defendants.5

And he continues to receive motions for compassionate relief—as do judges across the country. As of January 2024, 4,680 inmates have been released by judges since the First Step Act took effect. Prior to the FSA, only the Federal Bureau of Prisons had the power to grant compassionate release—which it rarely exercised, granting relief to an average of only two-dozen defendants per year.

But as discussed in A Second Chance, and as Judge Block mentioned again when we spoke, federal prisoners constitute only about 10 percent of the total prison population in the United States. The remaining 90 percent are in state prisons and local jails. Judge Block believes that they too should be eligible for compassionate release—and describes his book as “my clarion call to all the states to follow Congress’s lead and enact their own First Step acts.”

I asked him: how likely is it that states will act? Proponents of criminal justice reform appear to have lost ground to the “tough on crime” camp. Donald Trump, who used to brag about signing the First Step Act, no longer talks about it—and instead claims on the campaign trail that he is “the law and order candidate.”

“I’m not overly optimistic,” Judge Block admitted. He suggested that in the current political environment, some politicians fear the electoral consequences of being seen as soft on crime.

But he noted that at least some states are considering reforms—including New York, where Senator Julia Salazar (D-N.Y.) has sponsored the Second Look Act. And he said that even if the odds are against him, he won’t stop “urging people to think about the issues our justice system faces—and the number-one issue, in my view, is mass incarceration.”

“After 30 years on the bench, I have the confidence and security to talk about the things that bother me,” Judge Block said. “So I’ve taken this opportunity to speak my piece.”

1Dissenting in Pulsifer, Justice Neil Gorsuch wrote that the First Step Act “may be ‘the most significant criminal justice reform bill in a generation’” (citing an amicus brief filed by Senator Dick Durbin (D-Ill.)).

2Judge Block has been on senior status for almost two decades, since September 2005—and described it to me as “the best judgeship you can have, because you have all this control.” Senior judges can decide how heavy a caseload they would like, and they can opt out of certain categories of cases they prefer not to hear (e.g., cases filed by pro se litigants, which Judge Block no longer handles). As for when he might step down from the bench completely, Judge Block told me that he takes it “year by year”—and as long as his health continues to hold up, he plans to keep on going.

For a deeper dive into Judge Block’s long and interesting career, check out our podcast conversation.

3Judge Glasser was appointed in 1981 by President Ronald Reagan and took senior status in 1993. Judge Block referred to Judge Glasser, who still comes into chambers four days a week, as “an inspiration.”

4Judge Block’s publisher, The New Press—where he worked with Diane Wachtell, editor of a landmark book about criminal justice, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness—also moved swiftly, in terms of taking A Second Chance to press. With an official publication date of this coming Tuesday, September 17, it arrives in time for the 2024 election—and Judge Block hopes it can contribute to a national discussion about criminal-justice reform.

5In the Second Circuit, whose case law controls Judge Block’s decisions, two key precedents are United States v. Brooker and United States v. Fernandez. According to Judge Block, Judge Guido Calabresi’s opinion in Brooker “gives broad discretion to sentencing judges” when ruling on FSA motions, while Judge Robert Sack’s opinion in Fernandez “walks Brooker back a little.”

The Fernandez court held that “[c]hallenges to the validity of a conviction—including potential-innocence claims—cannot qualify as ‘extraordinary and compelling reasons’” under the First Step Act. It also rejected the defendant’s argument in that case for compassionate release based on sentencing disparity—but left room for future defendants to assert such claims. As noted by Professor Doug Berman, Fernandez’s “discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: ‘We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of ‘extraordinary and compelling’ reasons to grant a sentence reduction.’”

What matters most to Judge Block when considering motions for compassionate release? To him, the most important factor is rehabilitation. Even though rehabilitation standing alone cannot warrant a grant of compassionate release, it can be considered along with other factors, allowing a judge “to do what is fair and just under the circumstances.”

He added that rehabilitation is especially persuasive for defendants who were initially sentenced to life imprisonment: “When you have someone in prison who was told that they were going to be there for life—with no expectation that this statute would be passed, expecting instead that they would die behind bars—and that person nevertheless turned their life around, they should be considered for a second chance.”

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The New Jim Crow: Mass Incarceration in the Age of Colorblindness

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It’s no accident that Karen Dunn is leading Kamala Harris’s debate prep (photo by Slaven Vlasic via Getty Images).This post is sponsored by

Last week was an exciting one for our family. Our six-year-old son, Harlan, completed his first week of second grade—which he gave an 8 out of 10. A score of 10 goes to the Disney cruise he went on last year, and a score of 1 goes to… summer camp. When I suggested that giving camp a 1 was overly harsh, asking him what score he’d give prison, he said, “Prison is 0.5, and jail is 0.25.” (Yes, Harlan knows the difference between prison and jail—and yes, conditions in jails are often worse than those in prisons, which include minimum-security facilities for some white-collar offenders.)

Meanwhile, our one-year-old son, Chase, took his first steps. If this video doesn’t make you smile, then you truly are a heartless lawyer—congratulations?

The latest testimonial for Original Jurisdiction comes from a law student at a top 20 school: “OJ is really helpful in informing me on what is going on across the legal universe, much of which I would not be aware otherwise. I appreciate the evenhanded, concise presentation as well.” (By the way, I could use some new testimonials; if you can help, please complete this form or simply email me.)

Now, on to the news.

Lawyer of the Week: Karen Dunn.

The 2024 election will probably be decided by the undecided: the (increasingly small) sliver of voters who (somehow) don’t have strong feelings about Kamala Harris and Donald Trump. And depending on what transpires, the presidential debate this coming Tuesday, September 10, could play a significant role in affecting their votes.

It’s unusual for a story starring a lawyer to become a most-read article on the website of The New York Times. But Karen Dunn, co-chair of litigation at Paul Weiss, is no ordinary attorney: she’s leading the vice president’s debate preparation, as chronicled in this behind-the-scenes look by Reid Epstein.

It’s not surprising that Harris tapped Dunn for this role. They worked together in 2020, when Dunn prepped Harris for her VP debate with Mike Pence, and Dunn is a debate-prep veteran, having worked on debates in four previous election cycles. For more about Dunn’s work preparing Barack Obama and Hillary Clinton for their debates, including how she first got involved in debate prep, check out our podcast interview.

Dunn also happens to be one of the nation’s top trial lawyers—and on Monday, a day before the debate, she’ll appear in the Eastern District of Virginia to give Google’s opening argument in the federal government’s second big antitrust case against the search-engine giant. This fact led to claims that Dunn has a “conflict of interest.” But coaching Harris for a debate—in Dunn’s personal capacity and on a volunteer basis, working with Harris in her capacity as a presidential candidate, not sitting VP—has nothing to do with Dunn’s in-court representation of Google against the U.S. Department of Justice.

As Professor Steven Lubet, a legal-ethics expert, told The Times, “Lawyers in private practice volunteer on political campaigns all the time. There’s no conflict between coaching debate prep and representing a client in a case opposed to the government.” Or as former Arnold & Porter managing partner Jim Jones said to The American Lawyer, responding to the “appearance of impropriety” argument, the appearance issue “doesn’t have anything to do with the rules of representation. It’s a question of whether the lawyer’s independent professional judgment would likely be compromised.” And so “to anyone who understands ethical rules, this idea that there’s somehow a conflict here is really kind of head-scratching and laughable.”

In memoriam:

Professor Frederick Schauer of UVA Law School—a renowned scholar of constitutional law, especially regarding free speech and the First Amendment—passed away at 78, after a long illness.
San Diego litigator John Alessio—who was just beginning his third term as managing partner of Procopio Cory, an Am Law 200 firm—passed away at 55, after a five-year battle with cancer.
Linda Deutsch—not a lawyer but a leading chronicler of them, as a reporter covering high-profile trials for the Associate Press for almost 50 years—passed away at 80 of pancreatic cancer.

May they rest in peace.

Judges of the Week: Judge Tanya Chutkan and Justice Juan Merchan.

Should Donald Trump’s status as a presidential candidate, including his busy campaign schedule, affect how judges handle the legal cases against him? I’m guessing most people have strong opinions—but I’m actually undecided.

On the one hand, as a theoretical matter, the election shouldn’t matter—which is the view of Judge Tanya Chutkan (D.D.C.), overseeing the federal election-interference case against Trump. After a hearing on Thursday, Judge Chutkan set a schedule for next steps in the case that calls for additional briefing and argument this month and next—i.e., before the election.

One of Trump’s lawyers, John Lauro, protested that her schedule could cause the government to release new (negative) information about Trump around a “sensitive time,” i.e., the 2024 election. Judge Chutkan responded that the election is “not relevant” to scheduling events in the case before her, adding, “I am definitely not getting drawn into an election dispute.”

Lauro said he plans to file a motion asking Judge Chutkan to dismiss the case based on the argument that Special Counsel Jack Smith was not properly appointed—which led to this amusing exchange, reported by The New York Times:

Mr. Lauro sought to defend his plans to challenge Mr. Smith’s appointment by arguing that Justice Clarence Thomas had questioned how Mr. Smith had gotten his job in a concurrence to the Supreme Court’s immunity ruling.

At one point, Mr. Lauro said that Justice Thomas had “directed” Mr. Trump’s legal team to pursue the motion. But he quickly amended himself, saying only that the justice had raised the issue in his concurrence.

Still, Judge Chutkan interrupted him before he made his correction, asking archly, “He directed you to do that?”

In Lauro’s defense, I can hardly blame him for thinking of the Thomas concurrence as tantamount to such a directive, since… it kinda was.

Lauro also cited the ruling of Judge Aileen Cannon (S.D. Fla.), which dismissed the classified-documents case after concluding that Smith was not properly appointed. But Judge Chutkan countered that she was bound by D.C. Circuit precedent to the contrary, and in any event, she did not find Judge Cannon’s ruling “particularly persuasive” (which is, according to Ken White of Serious Trouble, “federal-judge-speak for ‘that b**ch is crazy’”).

Judge Chutkan’s approach of treating Trump like any other defendant—simply one who has “a day job,” as she put it, of running for president—contrasts with that of our second Judge of the Week: New York Supreme Court Justice Juan Merchan. On Friday, Merchan postponed ruling on Trump’s motion to set aside the verdict in the Manhattan hush-money case on immunity grounds, moving it to November 12, and Trump’s sentencing, moving it to November 26. In a four-page letter to counsel, the judge wrote as follows:

Unfortunately, we are now at a place in time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute. Thus… the decision on the [motion to set aside the verdict] and the imposition of sentence will be adjourned to avoid any appearance—however unwarranted—that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate….

Adjournments for sentencing are routinely granted, often several times, in any number of other criminal matters pending in this courthouse, particularly when unopposed, for reasons ranging from personal circumstances to the scheduling needs of the parties involved. Given the unique facts and circumstances of this case, there is no reason why this Defendant should be treated any differently than any other.

So it’s interesting: Judge Chutkan argues that treating Trump like any other defendant means ignoring the election, while Justice Merchan argues that treating Trump like any other defendant requires taking the election into account. And I see merit in both positions—as do Jonathan Alter of The Times and Ankush Khardori of Politico. Readers, what do you think? I welcome your views in the comments.

Justice Merchan’s decision to postpone sentencing until after the election makes me more confident in my prediction that Merchan will give Trump a custodial sentence, i.e., some time behind bars (even if just a few weeks or months). I suspect that Merchan wanted to sentence Trump to something other than probation, but correctly realized that doing so now, just a few weeks before the election, could lead to gigantic—and gigantically unpredictable—political consequences (even if the sentence was stayed, as it surely would have been).

A custodial sentence could have helped persuade undecided voters to vote against Trump—or it could have helped Trump galvanize his base with cries of a “witch hunt.” So the safer and more prudent course is to wait until we know whether Trump will be the next president of the United States. My guess is that if he wins the election, Merchan will sentence him to probation, and if he loses the election, Merchan will sentence him to prison—allowing the curtain to then fall on the morality play, with Trump losing the White House and heading for the big house.

To sum up, as a political rather than legal matter, Trump’s strategy of “delay, delay, delay” ultimately worked: he goes into the November election a free man. As former Fourth Circuit judge J. Michael Luttig told The Times, the postponements secured by Trump, taken together, “have furthered the entirely understandable and legitimate impression at this point that the former president is indeed above the law.”

In other news about justices and judges:

To clarify something I mentioned regarding last week’s Judge of the Week, Justice Ketanji Brown Jackson, the $900,000 she received last year (and revealed in her latest financial disclosure) was only part of the $3 million total advance she’s receiving for her new memoir, Lovely One.
Joshua Kindred is no longer on the federal bench, having resigned in scandal—but controversies related to his cases continue, with one Alaska defense lawyer seeking a new trial for her client because an assistant U.S. attorney on the matter sent Kindred nude photos as part of their “flirtatious rapport.”
Former federal judge Nancy Gertner (D. Mass.), ethics scholars Stephen Gillers and James Sample, and Citizens for Responsibility and Ethics in Washington (CREW) filed an Eleventh Circuit amicus brief urging that court to remove Judge Cannon from the classified-documents case on remand. Although I have been highly critical of Judge Cannon’s handling of the case, I think it’s unlikely that the Eleventh Circuit will do this, speaking predictively rather than normatively. As noted by Sarah Isgur and David French on Advisory Opinions, appellate courts rarely grant this relief—and it’s not even being sought by Jack Smith, which is why the amici stepped in.

In memoriam: Judge Daniel Manion of the Seventh Circuit passed away at 82. As one of his former law clerks, Judge Stephen Dillard of the Georgia Court of Appeals, wrote on LinkedIn, Judge Manion “was a devout Catholic, a devoted family man, an incredible boss, an extraordinary mentor, the ultimate role model, an exceptional jurist, and a truly great American.” May he rest in peace.

Ruling of the Week: United States v. Deleon.

In United States v. Deleon, the Eleventh Circuit tackled this issue: “whether the victim was ‘physically restrained’ under the meaning of the [U.S. Sentencing] Guidelines when defendant Joseph Deleon walked into a store, pointed a gun at the cashier while demanding money from the register, received the money, and then left, all within about one minute.”

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Defamation law and copyright law: I have a keen interest in both, which shouldn’t be surprising given what I do for a living. So two litigations I’ve been following closely are (1) the various defamation lawsuits brought by Dominion Voting Systems—including its case against Fox News, which settled for a whopping $787.5 million—and (2) the copyright lawsuit brought by The New York Times against OpenAI and Microsoft.

Besides being fascinating cases with the potential to reshape the modern American media landscape, what do these matters share in common? The plaintiffs have the same lawyer: Susman Godfrey partner Davida Brook. Although she’s only 40, she has already been recognized as one of the nation’s top trial attorneys by Forbes, The American Lawyer, Law360, Lawdragon, and many other publications.

Davida and I first met years ago, when I spoke at Stanford Law School and she was a student (yes, I’m that old). So I thought it would be fun to catch up by having her on the podcast—and it was.

We discussed her impressive career path; the Dominion and Times cases, including their possible societal implications; and what it was like to work with and learn from the late Steve Susman, founder of Susman Godfrey and an all-time great courtroom advocate. You can tune into our conversation, covering these and many other subjects, in this new episode of the Original Jurisdiction podcast.

Show Notes:

Davida Brook bio, Susman Godfrey
Meet America’s Top 200 Lawyers (2024), by Liane Jackson for Forbes
Lawyer Limelight: Davida Brook, by Katrina Dewey for Lawdragon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Davida Brook (courtesy photo via Susman Godfrey) Read more

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Special Counsel Jack Smith is not going away—and good luck finding a photo of him with a smile on his face (photo by Drew Angerer via Getty Images).I hope you’ve been enjoying the Labor Day weekend. It’s hard to believe that summer is over—and I have mixed feelings about it.

On the one hand, I have a case of the “September Scaries,” that feeling of anxiety and dread that hits many of us in late August—as we realize that once Labor Day is behind us, we have no excuse for not being extremely productive. On the other hand, like many working parents, I’m looking forward to the start of the school year and the return of routines. August—after most summer camps are over, but before most schools have reopened—can be challenging, in terms of juggling childcare with work.

So I spent a lot of time last week hanging out with our six-year-old son, Harlan, ahead of his starting second grade tomorrow. But I did find time to join David Schultz for Bloomberg Law’s On The Merits podcast, where we discussed the hot topic of non-equity partnership.

With the new school year getting underway, I’m going with a law student for the latest Original Jurisdiction testimonial: “Coming from a non-lawyer family, I’ve found navigating the ‘black box’ nature of the legal field challenging. Original Jurisdiction’s balanced and enjoyable reporting has proven invaluable in informing me about the legal world and provided me the confidence to engage in discussions with lawyers and fellow students. I highly recommend OJ to any current or prospective law student looking to deepen their knowledge of the legal landscape!” Thanks to Jarin Jensen for this generous praise—and good luck to him in his 1L year at Yale Law School.

Now, on to the news.

Lawyer of the Week: Jack Smith and the Office of Special Counsel lawyers.

I was toying with the idea of skipping Judicial Notice for the holiday weekend, but Special Counsel Jack Smith foiled my plans. As Sarah Isgur quipped on Advisory Opinions, instead of taking it easy in August, Smith “appears to have been locked in a closet with only an electrical outlet, some MREs, and a typewriter.”

First, on Monday, Smith appealed the dismissal of the classified-documents case, filing his opening brief in the Eleventh Circuit. On Serious Trouble, Ken White described the brief as “very strong” and “completely brutal”—although, interestingly enough, it does not seek removal of Judge Aileen Cannon (S.D. Fla.) from the case.

I adhere to my prior prediction that the Eleventh Circuit will reverse Judge Cannon. But I remain uncertain about how the Supreme Court would rule if they decide to hear the case, given the strong feelings that some conservative justices have about the separation of powers and executive authority—reflected in, of course, their ruling in Trump v. United States (aka the immunity case).

Second, on Tuesday, Smith filed a superseding indictment in the election-interference case before Judge Tanya Chutkan (D.D.C.). In a written statement accompanying the indictment, Smith explained that the new document “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions” in the immunity case.

The updated indictment is nine pages shorter than the original, 36 pages versus 45 pages, thanks to the removal of various allegations discussing possibly official acts by Trump as president that might be subject to immunity—e.g., his speaking with U.S. Department of Justice (DOJ) officials about investigating the 2020 election. And the latest indictment was issued “by a new grand jury that had not previously heard evidence in this case,” to avoid any claim by Trump that it was “tainted” by allegations related to conduct protected by immunity.

But in Smith’s second bite of the apple, the bottom line remains unchanged. Trump still faces the same four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. This led former Trump DOJ official James Burnham to tell The Wall Street Journal (gift link), “Rather than try to really reshape the case in a way that complies with what the Supreme Court said, they tried to make basically cosmetic changes.”

What happens next? On Friday night, the prosecution and the defense filed a ten-page joint status report, setting forth their positions on how Judge Chutkan should proceed. Acknowledging the reality that this case isn’t going to trial before Election Day, Smith declined to propose a new timetable, stating instead that “[t]he Court’s decisions on how to manage its docket are firmly within its discretion.” Trump’s lawyers, John Lauro and Todd Blanche, did propose a specific schedule—and a pretty leisurely one at that, with briefing and argument on pretrial motions extending into January 2025. As noted by Politico, “Neither prosecutors nor the defense addressed another way the case might swiftly come to an end: If Trump wins the presidency again in November, he will be in a position to simply call it off.”

Other lawyers in the news:

Tom Girardi—the former star trial lawyer and soon-to-be-former husband of “Real Housewife” Erika Jayne—was convicted of four counts of wire fraud, after a 12-day trial before Judge Josephine Staton (C.D. Cal.).
Hampton Dellinger, who leads that other Office of Special Counsel—namely, the one concerned with aiding and protecting whistleblowers within the federal government—proposed a new policy for informing the public about the allegations that his office is investigating.
Please note the update added to last week’s Judicial Notice, regarding the lawyers who prevailed against the Federal Trade Commission in the battle over noncompetes. Credit for that victory should go not just to Gibson Dunn but to attorneys from Sullivan & Cromwell, the Fillmore Law Firm, the U.S. Chamber Litigation Center, and the Business Roundtable (who are named in the update).

In memoriam:

Betty Jean Hall—who fought successfully to open the coal industry to women, then fought for their workplace equality and safety—passed away at 78.
Traci Zeller—a white-collar litigator at Paul Hastings and also a well-known interior designer—passed away at 50 of an embolism.

May they rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

Congratulations to Justice Neil Gorsuch and his co-author and former clerk, Janie Nitze. Their book, Over Ruled: The Human Toll of Too Much Law, is now in its third week on the New York Times bestseller list.

Might he soon be joined on the list by his newest colleague, Justice Ketanji Brown Jackson? Her memoir, Lovely One—for which she received an advance of almost $900,000—will be published on Tuesday. And just as Justice Gorsuch did, she’s speaking with media outlets as part of her book promotion (including The Late Show with Stephen Colbert on Tuesday).

Justice Jackson kicked things off by speaking with Norah O'Donnell of CBS News—the justice’s first broadcast interview since joining the Court two years ago. Here are some highlights, as well as my own observations:

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“Stay in your lane” is generally wise advice. As a legal journalist, I regularly decline invitations to write or to speak about topics that are related to, but distinct from, the law.

But lawyers who fail to consider factors beyond the letter of the law sometimes can disserve their clients. Consider three cases, all from this year.

First, earlier this month, Walt Disney Parks and Resorts had to backtrack after massive public backlash. In February, Disney was sued by the estate of Kanokporn Tangsuan, a Long Island doctor who died from anaphylaxis shortly after dining at a Disney Springs restaurant. The wrongful-death complaint alleges Tangsuan was served food that wasn’t allergen-free, even though she and her husband repeatedly requested—and received—assurances that it was.

How did Disney respond? The company’s outside counsel filed a motion to compel arbitration—i.e., to avoid a public jury trial—based in part on the fact that Tangsuan’s husband, who filed the suit as representative of her estate, back in 2019 signed up for a free trial of the Disney+ streaming service that contained a mandatory-arbitration provision.

After outraged reactions on social media and negative national news coverage, Disney beat a hasty retreat. “At Disney, we strive to put humanity above all other considerations,” the company said in a statement. “As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”

Second, also this month, UCLA received quite the benchslap from a federal judge—and resultant bad publicity. In a lawsuit brought by three Jewish students arising out of pro-Palestine protests in the spring, Judge Mark Scarsi (C.D. Cal.) issued a preliminary injunction against the university, writing: “In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus” (emphasis in the original).

Judge Scarsi prohibited UCLA “from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas.” How did the university respond? In a statement, it complained that the court’s “improper” ruling “would hamstring our ability to respond to events on the ground”—and it appealed the decision.

This made many of us wonder: Why on earth does UCLA need the freedom to “knowingly allow or facilitate the exclusion of Jewish students”? Not surprisingly, UCLA reversed course: it dismissed its appeal, and in an internal announcement, it declared that if and when it learns of students being improperly blocked from campus areas or programs, “University officials will act to promptly restore access.”

Third, this past May, American Airlines did an about-face in a highly publicized case. Responding to a lawsuit brought on behalf of a 9-year-old girl who allegedly was recorded while using an airplane lavatory, lawyers for the company argued that the girl “knew or should have known” the bathroom “contained a visible and illuminated recording device” (an iPhone that a rogue flight attendant had secretly placed in the lavatory).

In news that should surprise no one, attempting to victim-blame a 9-year-old girl went over like a lead balloon. American Airlines promptly dropped that defense—along with the outside law firm that made it.

These are just a few recent examples of situations where legal technicalities trumped common sense, but they’re far from unique. Last fall, three university presidents at a congressional hearing gave dry and legalistic answers to questions about antisemitism on their campuses—when, in hindsight, they should have spoken from the heart.1

In response to these situations, attorneys understandably might protest: “We’re lawyers, not publicists or politicians. Shouldn’t we try cases in the court of law—and leave the court of public opinion to others?”

But, lawyer jokes aside, attorneys are people too. We possess common sense and empathy. So we should be able to see when not to make certain arguments for prudential reasons, their legal merits notwithstanding.2

There’s no ethical bar to looking beyond the strictly legal when representing clients. As Rule 2.1 of the ABA Model Rules of Professional Conduct makes clear, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

In sum, the legal profession needs to return to what Anthony Kronman, former dean of Yale Law School, called the ideal of the lawyer-statesperson. As he wrote in his 1993 book, The Lost Lawyer, an “outstanding lawyer—the one who serves as a model for the rest—is not simply an accomplished technician, but a person of prudence or practical wisdom as well.”

1Here’s another example of a situation where an excessive focus on legalities culminated in embarrassment. Back in 2007, when I was at Above the Law, I poked gentle fun at a silly song commissioned by a law firm to celebrate its recognition by Fortune magazine as a great place to work. The firm’s spokesperson sent me an anodyne statement, noting that “fun is not prohibited here”—and that should have been that.

But then the law firm’s managing director got involved, asserting copyright over the song and threatening legal action against me. That’s when the story blew up, getting picked up by numerous legal blogs—and eventually The New York Times. The Times article, by Michael de la Merced, has a delightfully deadpan title: “Unauthorized Enjoyment of Song Irks Law Firm” (gift link).

2That said, I recommend that lawyers handling high-profile cases at least consider working with publicists who focus on the legal sector (or other allied legal professionals with communications expertise).

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The Lost Lawyer : Failing Ideals of the Legal Profession

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Ben Affleck and Jennifer Lopez in happier times—February 2024 (photo by Lionel Hahn/WireImage via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Last week was family-focused for me. On Tuesday night, we had a celebratory dinner for my dad’s birthday. On Thursday, I played hooky and took Harlan to Legoland. So I’m a bit behind on work (and apologize if I owe you a return call, text, or email).

My week was also podcast-focused. In addition to recording my own podcast episode with Judge Kevin Newsom (11th Cir.)—about which I’ve received an unusually high amount of (positive) audience feedback, thanks to my wonderful guest—I joined Sarah Isgur and David French on Advisory Opinions. We looked ahead to the next Supreme Court Term before turning to my novel, Supreme Ambitions, and legal fiction more generally—and I’ve been inspired to return to my neglected manuscript for a sequel, following some of my characters from the Ninth Circuit to SCOTUS.

Programming note: I might take off next weekend for Labor Day, then turn the first installment of Judicial Notice after the holiday into a double edition. But it will depend in large part on the news—to which we now turn.

Lawyer of the Week: Chris Morvillo.

One of the nation’s leading white-collar litigators, Christopher Morvillo, 59, was among seven people who lost their lives in the sinking of British software mogul Mike Lynch’s superyacht, Bayesian. At the time of my Tuesday report, Chris and his wife Neda were still missing, along with Lynch and three others—but their bodies were eventually recovered, confirming the worst fears of their families and friends.

What caused a 180-foot, $35 million yacht to sink, so close to the Sicilian coast, during a storm that a nearby 137-foot yacht was able to survive? Italian authorities are investigating, and there have been a number of detailed news articles—including this piece for The Wall Street Journal, “It Sank in 15 Minutes: How Tragedy Struck Mike Lynch’s Yacht” (gift link).

I’d now like to focus not on Chris Morvillo’s death, but on his life—including a distinguished legal career spanning government and private practice, Biglaw and boutique. After graduating from Fordham Law in 1992, he practiced at Weil Gotshal for five years, then served for six years as an assistant U.S. attorney in the renowned U.S. Attorney’s Office for the Southern District of New York. After leaving the U.S. Attorney’s Office, he practiced at Morvillo Abramowitz, the white-collar boutique founded by his father, before joining Clifford Chance in 2011.

Less than 1 percent of federal criminal cases end with an acquittal at trial—so the acquittal that Morvillo and his Clifford Chance colleagues secured for Mike Lynch, after a three-month trial in San Francisco, was a remarkable victory. For his win in the Lynch case, Morvillo won Litigator of the Week honors from The American Lawyer—and it wasn’t his first time. In 2018, he was Litigator of the Week for a precedent-setting victory before the Second Circuit in a Foreign Corrupt Practices Act case.

What struck me in the many tributes and testimonials to Morvillo over the past few days, however, was how many focused on him not as a lawyer, but as a human being—kind and generous, warm and engaging (which you can a sense of from the video footage of David Oscar Markus’s podcast interview). As Jonathan Etra of Nelson Mullins, who worked with Morvillo at Weil and then the U.S. Attorney’s Office, told Law360, “You just will not find a nicer or more loving or giving person in the law or otherwise. There are chat groups going on all over the legal community trying to fathom this loss.”

Chris Morvillo’s father, Robert Morvillo, was also an alum of the S.D.N.Y. and a legendary white-collar defense lawyer. But even though they were both talented in the courtroom, they were very different as people. As white-collar lawyer Ronald Riopelle told The New York Post, Bob Morvillo “did not suffer fools easily,” “was very tough,” and “had a bit of a temper and a hard edge.” Chris “didn’t have that”; he was “a fun guy” and “a nice guy,” blessed with “a good sense of humor.”

I never had the pleasure of meeting Chris Morvillo. But based on what I’ve heard about him, the words that come to mind are “happy warrior” and “mensch.” May he and his wife Neda rest in peace.

Other lawyers in the news:

Judge Ada Brown (N.D. Tex.) blocked the Federal Trade Commission (FTC) ban on noncompete provisions—and the ruling (discussed in more detail below) was a nice win for a Gibson Dunn team led by Allyson Ho and Eugene Scalia, Law360’s Legal Lions of the Week.

[UPDATE (9:23 p.m.): Sharing the honors: Charles Fillmore and H. Dustin Fillmore III of the Fillmore Law Firm, representing Ryan LLC, the plaintiff company, alongside Gibson; and Robert Sayles and Boyce Holleman of Bradley Arant, Jeff Wall and Judd Littleton of Sullivan & Cromwell, Jordan Von Bokern and Tyler Badgley of the U.S Chamber Litigation Center, and Liz Dougherty of the Business Roundtable, representing the U.S. Chamber of Commerce and associated intervenor plaintiffs.] * St. Louis Prosecuting Attorney Wesley Bell and Missouri Attorney General Andrew Bailey continue to battle over the fate of Marcellus Williams, a longtime death-row inmate. In the latest development, Judge Bruce Hilton will hold an evidentiary hearing related to Bell’s request to resentence Williams to life without parole (which Bailey opposes). * Thanks to his representation of longtime client Delta in anticipated litigation over the CrowdStrike-caused global tech outage that crippled the airline for days, David Boies was the subject of a detailed profile in The Wall Street Journal (gift link)—featuring a great photo of Boies standing next to a giant gorilla sculpture. * Dr. Jeff Shuren played a key role at the FDA in regulating medical devices. His wife, Allison Shuren of Arnold & Porter, represents makers of such devices—and Dr. Shuren didn’t recuse himself from certain matters in which he should have, at least according to an exposé published in The New York Times. * Bank robber turned jailhouse lawyer turned Georgetown Law professor Shon Hopwood was charged last year with assault, in connection with allegations of domestic violence—and on Wednesday, the U.S. Attorney’s Office for D.C. added two charges of obstruction of justice and five counts of contempt, for violating the conditions of his release. (Most of the case documents are sealed, which is why details are spare.)

In memoriam: Jerry Hernandez, 61, a well-known personal jury lawyer in Bexar County, Texas, was found dead in his home—possibly the result of a murder-suicide carried out by his wife. May he rest in peace.

Judge of the Week: Judge Kenneth King.

To make a rough analogy to the law of qualified immunity, consider the following to be “clearly established”: judges should not order the handcuffing of teenage girls who have not been convicted—or even accused—of any crimes. Judge Roger Benitez (S.D. Cal.) did that to a 13-year-old girl last year, and he was punished for it. So Judge Kenneth J. King of Michigan’s 36th District Court should have known better.

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Here’s a trivia question for devotees of Original Jurisdiction: excluding Supreme Court justices and Judge Aileen Cannon, who has been most frequently recognized in these pages as Judge of the Week? It’s a tie between a pair of four-time honorees: Judge James Ho (5th Cir.), whom I’ve previously interviewed, and Judge Kevin Newsom (11th Cir.)—my latest guest on the Original Jurisdiction podcast.

This month marks the seventh anniversary of Judge Newsom’s appointment to the U.S. Court of Appeals for the Eleventh Circuit. And although seven years is not a long time by the standards of judicial service, Judge Newsom has already developed a national reputation as one of the sharpest thinkers and writers on the federal bench.

How has he put himself on the map? Many of history’s most celebrated jurists have done so through dazzling dissents, such as Justice John Marshall Harlan, often called “The Great Dissenter,” and Justice Antonin Scalia.

But Judge Newsom has done so through a more unusual vehicle: the concurrence (including the occasional self-concurrence, i.e., a concurrence to his own majority opinion). In a series of thoughtful and scholarly concurrences, he has tackled some of the messiest doctrinal areas and knottiest problems in American law, including standing, nondelegation, complex First and Second Amendment issues, the burden-shifting analysis of McDonnell Douglas v. Green, and jurisdiction under Bell v. Hood.

Judge Newsom and I discuss why he writes these concurrences—plus Justice Elena Kagan’s critique of superfluous concurrences, how to hire great law clerks (and feed them to the Supreme Court), and the potential utility of AI for originalism—in the latest episode of the Original Jurisdiction podcast.

Show Notes:

Judge Kevin C. Newsom bio, U.S. Court of Appeals for the Eleventh Circuit
Remarks of Judge Kevin C. Newsom, Harvard Journal of Law & Public Policy
Interview of Judge Kevin Newsom, by David Oscar Markus for For the Defense

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

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Christopher J. Morvillo (Clifford Chance)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

In June, Christopher Morvillo of Clifford Chance—who served as a federal prosecutor in Manhattan (S.D.N.Y.) from 1999 until 2005, before going on to become one of the nation’s top white-collar litigators—won a remarkable victory. After a lengthy federal fraud trial in San Francisco, he secured across-the-board acquittals for his client, Dr. Mike Lynch—a British software mogul known as “Britain’s Bill Gates.”

Lynch founded and led Autonomy, a business-software company that Hewlett-Packard bought for $11 billion in 2011. In 2012, Hewlett-Packard took an $8.8 billion writedown on the acquisition, alleging “serious accounting improprieties”—and more than a decade of civil and criminal litigation followed, including Lynch’s criminal trial.

Mike Lynch’s trial before Judge Charles Breyer (N.D. Cal.) lasted for almost three months. The jury deliberated for only two days before returning not-guilty verdicts on all charges against Lynch and his co-defendant Stephen Chamberlain, a former executive at Autonomy. It was a huge win for Morvillo, his Clifford Chance colleagues, and their co-counsel at Steptoe, led by Brian Heberlig and Reid Weingarten.

For a behind-the-scenes look at the trial, check out David Oscar Markus’s very recent interview of Morvillo on For the Defense. For Morvillo’s thoughts on the victory—including generous praise and thanks for his colleagues, co-counsel, and family—see his LinkedIn post (via The New York Post), which ends as follows:

And, finally, a huge thank you to my patient and incredible wife, Neda Morvillo, and my two strong, brilliant, and beautiful daughters, Sabrina Morvillo and Sophia Morvillo. None of this would have been possible without your love and support. I am so glad to be home.

And they all lived happily ever after….

Lynch invited Chris Morvillo on a celebratory trip aboard his 56-meter sailing yacht, Bayesian.1 The yacht set sail with 22 people aboard, 10 crew members and 12 passengers—including Lynch’s wife, Angela Bacares; Morvillo’s wife, jewelry designer Neda (Nassiri) Morvillo; and another member of Lynch’s defense team, Clifford Chance associate Ayla Ronald, and her partner Matthew Fletcher.

And then, on Monday, tragedy struck. Sometime after 4 a.m., while Bayesian was anchored off the coast of Sicily, the vessel was caught in a freak storm and hit by a waterspout—essentially a tornado at sea. The yacht sank almost immediately. By the time a local fisherman arrived on the scene to help, all he could see were cushions and a few planks, floating on the surface of the water. The wreckage now sits 50 meters below the surface, complicating search and recovery efforts.

Fifteen people survived, including Angela Bacares, Ayla Ronald, and her partner. One remarkable story was that of Charlotte Golunski—a current colleague of Lynch at his post-Autonomy venture capital firm, Invoke Capital—and her one-year-old daughter:

After going into the water, Golunski lost her grip on her 1-year-old daughter, Sophie, when a wave smashed against them, taking the child out to sea…. The same wave returned the girl a short time later in what was described as something of a miracle.

In an interview withItalian newspaper la Repubblica, Golunski said that she briefly lost her daughter for about two seconds due to the intensity of the sea but was then able to retrieve the child.

“I held her afloat with all my strength, my arms stretched upwards to keep her from drowning,” Golunski told the newspaper, according to a translation.

One body—that of Thomas Recaldo, Bayesian’s Canadian-born chef—was recovered. Six people remain missing: Mike Lynch and his daughter Hannah; Chris and Neda Morvillo; and Morgan Stanley International chairman Jonathan Bloomer and his wife Judy.

Gary Lincenberg of Bird Marella—who represented Lynch’s co-defendant, Stephen Chamberlain—told Jack Newsham of Business Insider that Morvillo and his wife “are presumed to be passed away.” The terrible news about Lynch and Morvillo came shortly after the untimely death of Chamberlain, who was struck and killed by a car while jogging this past Saturday in the English village of Stretham. As Lincenberg told Newsham, “In the course of 48 hours, I can’t process what has happened, but both of our clients, as well as Chris and his wife, are gone.”

Clifford Chance didn’t immediately respond to requests for comment from Business Insider and Law360, but later issued a statement to The New York Times: “We are in shock and deeply saddened by this tragic incident.”

As of this writing, there has been no comment from the Morvillo family—a legal dynasty, especially here in the New York metropolitan area and in the white-collar world. Chris’s father was the late Robert Morvillo, a renowned criminal-defense lawyer who founded Morvillo Abramowitz, a leading white-collar boutique. Bob Morvillo had four sons—Christopher, Gregory, Scott, and Robert—and they all became lawyers. Greg was a partner at Orrick who now has his own firm, Morvillo PLLC; Scott, a former assistant U.S. attorney in Brooklyn (E.D.N.Y.), is now a partner at Seyfarth Shaw; and Rob is the chief legal officer of Olo, a B2B software company focused on the restaurant sector that went public in 2021.

Returning to Chris Morvillo, I’ll leave you with the words of fellow defense lawyer David Oscar Markus—who, it’s hard to believe, had Morvillo on his podcast just last week: “For a guy coming off the win of his career and about to celebrate with his client and family, I cannot imagine a worse tragedy. I am sick about it. I am thinking about his two daughters and the rest of his family, his colleagues, and everyone else who knew Chris—a shining light in our white collar criminal defense world. He will be greatly missed.”

[UPDATE (2:38 p.m.): This post was updated based on information in this Times article, specifically, the statement issued by Clifford Chance and the names of Jonathan Bloomer’s wife and Ayla Ronald’s partner.]

1Some news accounts have described Bayesian as chartered—which was possible, for $215,000 a week—but I think it’s fair to describe the yacht as Lynch’s. According to the BBC, the vessel’s registered owner was Revtom Ltd., an Isle of Man corporate entity whose sole owner was Lynch’s wife. And the name of the yacht refers to Bayesian theory—the subject of Lynch’s doctoral dissertation, as well as the foundation of the software that gave rise to his fortune.

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Camille Vasquez, who rose to fame for representing Johnny Depp in Depp v. Heard, is switching firms (photo by Nathan Congleton/NBC via Getty Images).This week’s Judicial Notice is sponsored by

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It’s August, so you’re probably not up to much besides relaxing—and that’s true for me too. My husband Zach and I headed off to the Hudson Valley for the weekend for an early anniversary celebration (and we thank Zach’s parents for watching our two sons in our absence, which made our getaway possible).

The latest testimonial for Original Jurisdiction comes from Zack Austin, who’s on quite the “vacation” between clerking and firm life: “As a deckhand on a three-masted sailing ship tumbling through the South Pacific, I often wonder, ‘How will I get my fix of legal news during the 20 minutes a week I have email access?’ Fortunately, Original Jurisdiction is my trusty port of call. David Lat’s prose is as crisp as a new sail. He plumbs the depths in search of stories no one else is covering, all while maintaining an even keel and anchoring his reporting to the facts. Like a boat beating upwind, he presents both sides. And if you don’t know larboard from starboard when it comes to the hot-button legal issue everyone is talking about, then you can trust David to unravel it. Plus—as anyone who’s had a glass of grog with him will say—he’s even kinder and wiser in-person than he is online.” I thank Zack for his warm words—and wish him smooth sailing for the remainder of his trip.

Now, on to the news.

Lawyer of the Week: David Zionts.

It’s not often that an opinion from a circuit court causes a corporation to gain billions of dollars in value. But after the Third Circuit’s ruling in Schaffner v. Monsanto Corporation, a big win for Bayer in the seemingly endless litigation over its Roundup weed killer, the company’s share price rose more than 13 percent—adding more than $2 billion to its market capitalization.

In an opinion by Chief Judge Michael Chagares, the Third Circuit held that a federal law regulating pesticides preempted a Pennsylvania statute requiring Monsanto, a Bayer subsidiary, to place a cancer warning on Roundup’s label. The ruling creates a circuit split, with the Third Circuit on one side and the Ninth and Eleventh Circuits on the other—and increases the chances that the Supreme Court will get involved, possibly in a way that terminates the Roundup litigation that has already cost Bayer more than $10 billion.

Who does Bayer have to thank for this? For starters, David Zionts of Covington & Burling, who argued the case before the Third Circuit. A former law clerk to Judge Merrick Garland and Justice Stephen Breyer, Zionts focuses his practice on appellate and international law. He won Lawyer of the Week honors back in 2022 for representing Ukraine against Russia before the Hague-based International Court of Justice—and whether or not his Third Circuit win ends up sticking, there’s no denying that Zionts handles some of the most interesting and important cases on the planet. If Schaffner ends up going to the Supreme Court, it would be an excellent vehicle for allowing him to make his SCOTUS debut.

Judge of the Week: Judge Mark Scarsi.

Most universities aren’t back in session, but the campus culture wars rage on. Elite schools continue to make changes to their leadership—with Dr. Nemat “Minouche” Shafik stepping down as Columbia’s president, and Harvard Law School Dean John Manning stepping up to serve as provost of Harvard University. A conservative legal academic who clerked for Judge Robert Bork and Justice Antonin Scalia, Manning has served as interim or acting provost since March, but he’s now assuming the role on a permanent basis (which makes him a top contender for Harvard’s presidency).

And prominent universities continue to get into trouble for mishandling antisemitism on campus—as UCLA just did in Frankel v. Regents of the University of California, a lawsuit brought by three Jewish students in the wake of protests against Israel’s military intervention in Gaza. Judge Mark Scarsi (C.D. Cal.) issued a preliminary injunction that prohibits the university “from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas.”

Here’s the powerful, incredibly effective, widely quoted opening paragraph of Judge Scarsi’s 16-page ruling, a fine example of judicial writing that makes legal issues accessible and understandable to the general public (emphasis in the original):

In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.

Considering the circumstances described by Judge Scarsi, you’d think that UCLA wouldn’t have fought this. But apparently it did, with a university spokesperson telling The New York Times that the injunction “is improper and would hamstring our ability to respond to events on the ground”—because UCLA needs the freedom to knowingly allow or facilitate the exclusion of Jewish students from parts of campus.

Expect to hear more about Judge Scarsi, a former Milbank partner who was appointed in 2020 by President Trump, in the near future. As noted by Sarah Isgur on Advisory Opinions—where she and David French discussed the UCLA ruling along with two others, one in favor of MIT and one against Harvard —Judge Scarsi is also presiding over Hunter Biden’s criminal tax case, going to trial next month.

Ruling of the Week: United States v. Smith.

Is the Fifth Circuit too conservative, even for the (already quite conservative) Supreme Court? Professor Brian Fitzpatrick came to the Fifth Circuit’s defense in the pages of the National Law Journal. (I have my own theory about the Fifth Circuit and its relationship to SCOTUS, which I plan to share in a future post.)

Here’s one thing the Fifth Circuit definitely isn’t: boring. Consider their latest high-profile ruling, in the case of United States v. Smith.

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The Chicago headquarters of Winston & Strawn, one of several Chicago-founded firms where non-equity partners outnumber equity ones (by David Lat).A reminder: the inaugural Original Jurisdiction “office hours” will take place today at 8 p.m. (ET). I’m going to hop online for an hour and talk to whoever wants to join me, about whatever people want to talk about. It will be very informal, and you can join or leave the session whenever you please. For the Zoom link and passcode, please scroll to the bottom of this Judicial Notice post (for paid subscribers). Thanks!

What’s in a name—or a title? When it comes to “partner,” a lot.

In two lawsuits—one filed in February against Thompson Hine, and one filed in July against Duane Morris—lawyers allege their firms mistreated and discriminated against them. And they lay some of the blame on their status as non-equity partners.

Rebecca Brazzano, the ex-partner suing Thompson Hine, describes her title of income partner as “meaningless” and “more akin to an albatross.” Meagan Garland, the partner suing Duane Morris, claims in her complaint that Duane Morris “unlawfully classifies its non-equity partners as ‘partners’ and business owners of the Firm for taxation and employment purposes, when in fact these non-equity partners are employees who misleadingly bear the title of ‘partner.’” Both firms deny the allegations and are fighting the lawsuits.

What exactly is a non-equity partner? In most businesses, a partner is “a co-owner or investor in a business,” with an equity or ownership stake and an entitlement to share in the profits. So “non-equity partner” might sound like an oxymoron—a “non-partner partner.” (Leave it to lawyers to come up with such a ridiculous—or clever—redefinition of a term.)

Regardless of what you call them, non-equity partners are proliferating. The number of non-equity partners in the nation’s 100 largest law firms rose by 5.3 percent in 2023, while the number of equity partners actually declined. With non-equity partners representing 49.4 percent of all partners in these firms, they will likely outnumber equity partners in the near future.

The Rise Of Non-Equity Partnership

Non-equity partnership took off after 1985, when The American Lawyer started publishing rankings of law firms according to various financial metrics—including the closely watched statistic of profits per equity partner. Law firms strive to keep this number high, which projects strength in the market.

Having a tier of non-equity partners who are less highly compensated than equity partners allows firms to maximize the payouts to the equity partners—at least compared to the traditional partnership model in which (1) all partners were equity partners and (2) compensation was lockstep, i.e., based purely on seniority. And paying equity partners generously—or from their perspective, what they’re worth—is essential to holding on to major rainmakers in an increasingly active lateral market.

For decades, firms with all-equity partnerships tended to be, as a group, more profitable and prestigious than firms with non-equity partners. As Professor Bill Henderson of Indiana University Maurer School of Law reported in a 2006 article in the North Carolina Law Review, profits per partner were “significantly higher in single-tier firms,” which he attributed to these firms’ “higher levels of reputational capital”—i.e., greater prestige.

But times have changed—and to the extent that non-equity partnership was once seen as déclassé, that’s no longer true.

“There is no cachet to having a single-tier partnership,” said Bruce MacEwen, president of the law firm consultancy Adam Smith, Esq. “Latham and Kirkland have not been single-tier for years—and they have plenty of cachet.”

Today, 85 of the 100 largest law firms have non-equity partners. And their ranks include such venerable names as Cravath Swaine & Moore and Simpson Thacher & Bartlett.

Some critics of non-equity partnership see it as a degradation—of both the English language and the notion of partnership, reflecting law’s unfortunate transformation from a learned profession to a cutthroat business. But it’s not necessarily a negative development; non-equity partnership might just be an update of the concept of partnership.

As MacEwen pointed out to me, elite consulting firms and investment banks might have as many as eight to 10 tiers of professionals—and they’ve been like this for years. Having more than just three or four roles—partner, associate, and counsel or of counsel—is simply a hallmark of what it means to be a modern professional-services firm, in an increasingly complex environment for the delivery of legal services.

The Advantages Of Non-Equity Partnership

There are reasons why the non-equity partnership is increasing in popularity. The bottom line is that it’s useful, to both law firms and individual lawyers.

“Well-conceived and well-managed non-equity partner tiers can fuel strong and highly profitable growth,” said consultant Peter Zeughauser of the Zeughauser Group. “They can materially contribute to a high-performing culture.”

The non-equity tier is used by different firms in different ways. Some firms, like Kirkland & Ellis, treat non-equity partnership primarily as a way station on the path to equity partner. And from the firm’s perspective, the longer track is a feature, not a bug.

“The original brilliance of the idea was the so-called ‘Chicago model,’ named after the Chicago-founded firms—most famously Kirkland—that pioneered it,” explained Zeughauser. “These firms used the non-equity-partner track to lengthen an associate’s time before making equity partner. Firms make most of their money on experienced senior associates with partner titles whom they can charge a lot of money for and who don’t require a lot of training. And shrinking the equity partnership increases profits per equity partner.”1

Other firms use the non-equity tier for so-called “service partners”—who don’t generate enough business to justify getting paid like equity partners, but who still play an important role in serving clients (often in niche areas like tax or ERISA). Still others might use it for former equity partners who are looking to slow down as they get older—“a glide path for retiring partners,” as Janet Stanton of Adam Smith, Esq. put it last year in a detailed analysis of non-equity partnership.

Being able to call non-equity partners “partners” offers multiple advantages to firms. First, the more exalted title allows firms to bill out these lawyers at higher rates—which can be extremely profitable. Case in point: Kirkland & Ellis, where it’s been estimated that the average non-share partner bills close to $2 million more than they are paid.

Second, to the extent that they’re up-and-coming lawyers who want to start building books of business, it’s easier to attract clients when your business card says “partner.” As Janet Stanton wrote, “Thrusting an associate directly into full equity status, and judging them immediately by their performance in roles they have never assumed and have no training for, invites disaster all around.” Non-equity partnership can be a “reasonable transition period,” in which associates are presented as partners to the outside world and mentored in their business-development efforts.

Third, the non-equity role can be useful for retaining service partners. As noted by Stanton, there are many “highly proficient, productive, and desirable lawyers” who just happen to lack the desire or talent for business generation—and who might otherwise be lured away by firms willing to make them partner.

Fourth, having a non-equity tier can be used for trying out lateral partner hires. If they turn out to be good fits, they can be promoted to equity partners; if they don’t, the firm can part ways with them more easily (because depending on a firm’s partnership agreement, dismissing equity partners can present challenges).

And non-equity partnership can be appealing to individual attorneys as well. As a group, lawyers place a lot of stock in prestige—one factor that drew at least some of us to the high-status legal profession. People you meet at a cocktail party or relatives at Thanksgiving will raise their eyebrows approvingly when you say you’re a law firm “partner”—and they won’t have any idea about the difference between equity and non-equity.

Non-equity partnership at top law firms is a bit like grade inflation at elite universities: it’s arguably misleading, at least to outsiders—a kind of doublespeak, where an “A” isn’t really an “A” and a “partner” isn’t really a “partner.” But both practices have become increasingly widespread because their advantages, for the institutions and individuals on the inside, outweigh the obfuscation to the outside world.

Best Practices For Firms With Non-Equity Partnerships

So at the end of the day, non-equity partnership can be a useful tool for law firms that want to attract or retain talented lawyers while maximizing their leverage—and profits per equity partner. But like any tool, non-equity partnership must be used wisely.

If non-equity partnership gets a bad rap, that might be because many firms haven’t been deploying it correctly. As Janet Stanton put it, “Having an interim partnership tier or tiers makes theoretical sense, but in reality, it has been incredibly poorly managed by firms.” Or in Peter Zeughauser’s words, “Biglaw’s challenge is that poorly conceived and managed non-equity tiers have spread like a cancer, marking too many firms with underperforming cultures.”

So how can firms reap the rewards of non-equity partnership while avoiding the pitfalls? Here are some recommendations.

First, firms must have a clear vision for their non-equity partnership. In Stanton’s words, “Make sure you know why you have/want non-equities and exactly what purpose they should serve.”

Second, firms need to be internally transparent about the meaning of non-equity partnerships. Individual non-equity partners should know exactly where they stand. Are they still on track for equity partnership, or have they been passed over? If they’ve been passed over, can they remain at the firm indefinitely in the non-equity tier, or are their days numbered? Non-equity partnership should not be used to string along lawyers who aspire to equity partnership but will never get it.

Third, firms must actively manage their non-equity partnership. It’s all too easy for the non-equity tier to turn into an “island of misfit toys”—neglected in favor of the equity partners, who bring in the bulk of the business, and the associates, who are seen as the future of the firm. Or as Stanton put it, non-equity shouldn’t be “a parking lot for ‘pretty good’ senior associates with no real champions nor noticeable rainmaking skills.”

Firms that take a “set it and forget it” approach to their non-equity partnership could end up losing rather than making money from these lawyers—which defeats a key purpose of having a two-tier partnership. A 2023 report by Reuters found that non-equity partners billed significantly fewer hours than their equity counterparts—and it’s not hard to understand why.

As Peter Zeughauser told me, “Without any stake in the firm’s profits, over time non-equity partners tend to work fewer hours. So they’re more expensive and they generate less revenue. Over time, firms can get really sloppy with them.” Or as Bruce MacEwen put it, “Billing 1,400 or 1,500 hours a year, while getting paid $300,000? That’s not a bad life.” (Rebecca Brazzano, the former non-equity partner suing Thompson Hine, billed only 567 hours in 2020 and 936 hours in 2021, according to the firm.)

So what does active management entail? According to Janet Stanton, “It’s about good management hygiene: set clear expectations, reward the lawyers who exceed expectations, counsel the lawyers who don’t meet them, and ease out the lawyers who will not meet them.”

That might be easier said than done at some firms. “I’m just amazed at how uncomfortable lawyers are with having uncomfortable conversations,” Stanton told me. And it can be uncomfortable to have a difficult discussion with a non-equity partner—who, by virtue of having been at the firm for a while, will likely have some strong relationships, internally or with clients.

Active management also involves thinking carefully about the type of work that’s given to non-equity partners. It must be interesting and important enough to keep these lawyers engaged, but not to the detriment of developing associates.

“Most partners don’t like training associates,” said Zeughauser. “They’d much rather have a non-equity partner who already knows how to practice law and whose work they don’t have to review—it makes life a lot easier. But are the non-equity partners blocking opportunities for associates? Is the non-equity partner getting work that would otherwise have gone to an associate—work that can help the associate develop the skills necessary to become an equity partner?”

Fourth and finally, law firms shouldn’t use the non-equity tier to make themselves look, to the outside world, more diverse than they are. Meagan Garland’s lawsuit alleges that Duane Morris underpays its women and minority lawyers—and implies that making them non-equity rather than equity partners contributes to that pay gap.

In their research into non-equity partnership, MacEwen and Stanton came across what they described to me as “anecdotal” rumblings that non-equity partnership at some firms is a “ghetto” for diverse lawyers. And although they were unable to find data to support these specific claims, it is a fact that women and people of color are underrepresented among the ranks of equity partners at major law firms.

In 2023, only 23.7 percent of equity partners at multi-tier law firms were women and just 9.6 percent were people of color, according to the National Association for Law Placement. Non-equity partners as a group were significantly more diverse: 33.3 percent women, 14 percent people of color.

So firms should continue their efforts to diversify their equity partnerships. It’s not sufficient to diversify their non-equity partnerships, tout all the diverse lawyers on their websites with the “partner” title, and call it a day.

The old “up or out” model, in which associates either made (equity) partner or left the firm, was a creature of tradition. And while it still works for some law firms and lawyers—including my former firm, Wachtell Lipton, which has a single-tier partnership and the highest profits per partner in Biglaw—it doesn’t work for all.

If a lawyer still excels at and enjoys their work, and if the law firm still values that lawyer’s contributions, keeping that lawyer at the firm as a non-equity partner can make sense—as long as both parties agree on what they talk about when they talk about “partnership.”

An abridged version of this article previously appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033).

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1Fellow Biglaw nerds / history buffs might be interested in the competing definitions of “Chicago model.” A 2011 Am Law Daily piece by Brian Baxter uses it in Zeughauser’s sense, referring to firms with a large number of non-equity partners compared to equity partners (who earn much more than their non-equity counterparts). A 2018 New York Law Journal piece by Christine Simmons describes Chicago-model firms similarly, as ones in which “lawyers make non-equity partner after about seven years and then, if they prove their business-generating potential within three to five years, they are promoted to equity partners”—and if they don’t, they’re out.

But a 2013 New Republic article by Noam Scheiber, citing Professor Bill Henderson, contrasts the Chicago model with the up-or-out Cravath model, describing the former as “less competitive”—reflecting the fact that the Chicago firms “typically had far more partnership slots available for the associates they brought on and promoted many more of them.” Although “traditionally less profitable,” the Chicago-model firms had the virtues of being “less rigid and hierarchical.” The New Republic piece was picked up by a Slate story by Mark Obbie, which characterizes the Chicago model as follows: “If the ‘Cravath model’ of up-or-out competition to make partner proves too daunting, there’s the alternative ‘Chicago model’ of moving in a straight line from summer clerkship through the associate ranks to the promised land.”

I think there’s a definition of “Chicago model” that can reconcile these different definitions. I view the “Chicago model” as basically the Kirkland model—because it’s always about Kirkland—in which (1) it’s less competitive to make non-equity partner, something that happens after six or seven years; (2) non-equity partners then have a few years in which to prove their business-generation prowess, which is highly competitive; and (3) if they succeed, they move up to becoming (obscenely well-paid) equity partners—and if they don’t, they’re out.

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Justice Neil Gorsuch, speaking at the Reagan Library about his new book, Over Ruled (photo by Apu Gomes via Getty Images).This week’s Judicial Notice is sponsored by

I enjoyed speaking to the American Bar Association’s House of Delegates on Monday about current issues facing the legal profession, including AI (of course), work-life balance (or your preferred term for this topic), mental health and wellness, and more. And being in Chicago gave me the chance to have dinner at Kasama, the world’s first (and only?) Filipino restaurant to win a Michelin star, which was amazing.

I wish I could have stayed for longer, but it’s hard to take extended trips when you have two young kids at home. Speaking of which, Zach and I took Chase to the pediatrician for his one-year physical—or “well visit,” as they call them these days—and he’s doing great. He’s in the 95th percentile in terms of weight and the 97th percentile in terms of length, so he’s a big boy.

As I mentioned last week, I see August as a time for trying out new ideas, so here’s one: Original Jurisdiction “office hours.” For paid subscribers, I’m going to hop online for an hour and talk to whoever wants to join me (which might be nobody, but I hope not). I’ll field any questions people might have—think of it as a Reddit “Ask Me Anything” (AMA)—or we can just gab and gossip if nobody has questions.

The first session will take place this coming Wednesday, August 14, at 8 p.m. (ET), and the Zoom link and passcode appear at the end of this post. Because of the level of my Zoom subscription, no more than 100 participants can join, and it will be first come, first served (but I’d be shocked if we come anywhere close to 100).

Now, on to the news.

Lawyers of the Week: Jonathan Kanter and the United States v. Google trial team.

Right out of the gate, the Biden administration took an aggressive approach to antitrust enforcement—initially with mixed results. In the first two years or so, it suffered some high-profile losses at trial, especially in criminal cases involving so-called “no poach” agreements.

But these losses will perhaps be overshadowed by the latest developments: on Monday, the Antitrust Division of the U.S. Department of Justice secured a landmark victory in United States v. Google. Judge Amit Mehta issued a 277-page opinion concluding that “Google is a monopolist, and it has acted as one to maintain its monopoly.” It’s arguably the biggest government win in an antitrust enforcement action since the Microsoft case 20 years ago.

So I’m bestowing Lawyer of the Week honors upon Assistant Attorney General Jonathan Kanter, who leads the Antitrust Division, and the more than two dozen DOJ lawyers on the Google trial team. Over the course of a ten-week trial, they went up against Google—one of the world’s richest and most powerful companies, represented by three formidable firms: Williams & Connolly, Wilson Sonsini, and Ropes & Gray. And the Justice Department lawyers came out on top.

The next stage is litigating over the proper remedy, which could be tricky. The most obvious remedy, preventing Google from paying smartphone makers like Apple to make Google their phones’ default search engine, seems insufficient to address Google’s market power. But the second most obvious fix, breaking up Google into several smaller companies, might be excessive. So Judge Mehta faces a “Goldilocks” challenge of finding a remedy that’s “just right.”

Given how much still lies ahead—not just the remedial proceedings, but inevitable appeals and (possible) settlement talks—it’s far too early to figure out the broader, long-term implications of the case for Big Tech, antitrust law, and the intersection of the two. But for now, Kanter and his DOJ colleagues are entitled to a victory lap, over a win that Kanter described as sitting “on the Mount Rushmore of antitrust cases.”

Other lawyers in the news:

Roberta “Robbie” Kaplan, a recent Lawyer of the Week for her noisy withdrawal from the firm formerly known as Kaplan Hecker & Fink, issued a response to Law.com to allegations that she’s a tough boss: “Am I a competitive perfectionist who obsesses about my cases? Absolutely. Do I sometimes yell when under stress? For sure. But my job is not fighting parking tickets. I have taken on some of the world’s biggest bullies in the most complex matters and have won.”
Uber’s chief legal officer, Tony West, is taking an unpaid leave from the company to work on the campaign of Kamala Harris—who happens to be his sister-in-law. West is married to Kamala’s sister Maya, and he has served as an adviser to Kamala for more than two decades, going all the way back to her 2003 campaign for San Francisco district attorney.
Those of you who have been following the life and crimes of South Carolina lawyer Alex Murdaugh might appreciate “The Dark Secrets of the Murdaugh Family Dynasty,” by Valerie Bauerlein for The Wall Street Journal (gift link).
Good luck to Sidley Austin associate Matt Simpson, off to Paris to compete in the Paralympic games, which start on August 28. Simpson, who is blind, plays for the U.S. in goalball, a team sport designed for people with visual impairments. This will be Simpson’s third Paralympics, after Tokyo in 2021 and Rio in 2016 (where he took home a team silver medal).

In memoriam: Pete Winstead—a founding shareholder of Winstead, the Dallas-based, Am Law 200 firm—passed away at 84. May he rest in peace.

Judge of the Week: Justice Neil Gorsuch.

According to an old Capitol Hill joke, “The most dangerous place in Washington is between Chuck Schumer and a TV camera.” But maybe a close second is between a TV camera and a Supreme Court justice with a book to sell.

Justice Neil Gorsuch’s latest book, Over Ruled: The Human Toll of Too Much Law, was published on August 6. So it should come as no surprise that in the past week, Justice Gorsuch has been giving plenty of interviews. And as justices often do when in book-selling mode, he’s been doling out newsworthy nuggets unrelated to the topic of his book.

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By next Thursday, August 16, creditors must vote on whether to approve the Chapter 11 liquidation plan of FTX, the once high-flying cryptocurrency exchange. FTX’s former CEO, Sam Bankman-Fried aka SBF—the son of two Stanford law professors, who went on to become one of the world’s youngest billionaires—is behind bars. He’s in the process of appealing his convictions for fraud, conspiracy, and money laundering, as well as his 25-year prison sentence.

Ryne Miller served as general counsel of FTX US, one of several corporate entities that was part of the sprawling FTX empire. Working out of New York, he was not part of SBF’s high-living, Bahamas-based inner circle. But after a fateful phone call in November 2022 from SBF’s father, Joe Bankman, informing Ryne of a multibillion-dollar “liquidity hole”—some $8 billion to $10 billion in FTX customer deposits that had somehow gone missing—he played a crucial role in responding to the situation. By the end of that week, FTX was in bankruptcy.

Why did Ryne leave a partnership at Sullivan & Cromwell, one of the world’s leading law firms, to become the GC of FTX US? Should he have noticed certain red flags at the company, such as the lack of a board or a weak compliance function? What lessons does he draw from his time at the company? And how is he putting them to work today at his new law firm, Miller Strategic Partners, which marks its one-year anniversary next month? Ryne and I covered all this and more, in the latest edition of the Original Jurisdiction podcast.

Show Notes:

Ryne Miller bio, Miller Strategic Partners
Former FTX general counsel starts his own law firm, by MK Manoylov for The Block

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Ryne Miller (courtesy photo) Read more

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President Biden and Chief Justice Roberts shake hands at the 2024 State of the Union, as Justices Jackson and Kennedy look on (photo by Shawn Thew via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

President Joe Biden might be a lame duck, having withdrawn from the 2024 presidential race. But he has publicly declared that he will finish the rest of his term—and judging from this week’s news, he’s planning to make the most of his remaining time in office.

On Monday, in a speech at the Lyndon B. Johnson Presidential Library and an opinion piece in The Washington Post (gift link), President Biden outlined three proposals for reforming the U.S. Supreme Court. They’re preliminary and therefore short on details, but here’s a summary of their key points.

I’ve tried to keep it concise, but so much more could be written on these complex issues—like the 300-page report issued by President Biden’s Commission on the Supreme Court in December 2021. Each section begins by quoting the text of President Biden’s essay in the Post, followed by analysis from myself and others.

1. An amendment to overrule the immunity decision.

First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws—not of kings or dictators.

This is, of course, an effort to override the Court’s decision in Trump v. United States, recognizing fairly broad immunity for a president’s official acts. And because it’s a constitutional amendment, it frees us up to focus on policy considerations and what the law should be, not what the law currently is—or as Vice President Kamala Harris would say, “what can be, unburdened by what has been.”

As a procedural matter, I like the president’s willingness to propose a constitutional amendment. My own view is that the Constitution should be easier to amend, and more amendments should be floated more regularly—because otherwise the power to amend will atrophy, which it arguably already has.

As a substantive matter, I also support the amendment—but not strongly, and I’m open to persuasion. As previously explained, I don’t love the Trump opinion as a policy matter because my personal opinion is that a president violating the law is a greater threat to our polity than a cycle of presidents prosecuting their predecessors. So I have no problem with overriding it by amendment.

Note my word choice: while I don’t love the immunity opinion, I don’t hate it, and I’m not terrified by it. I think there’s a case to be made that critics of the ruling are reading too much into it, at least in terms of the breadth of the immunity it recognizes.

I urge you to read Professor Philip Bobbitt’s thoughtful essay in Just Security, “A Prudential Way Forward in Trump v. United States.” In this measured and elegant take on Chief Justice John Roberts’s opinion, Professor Bobbitt argues that the decision, properly construed, does not place the president “above the law.” Responding in more detailed (and persuasive) fashion to the dissents’ troubling hypotheticals than the Chief Justice did, Professor Bobbitt’s essay could be described as “stuff that I wish had been included in the Trump opinion.”

2. Term limits for the justices.

Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

This proposal leaves many open questions, as noted by Professor Josh Blackman at The Volokh Conspiracy. For starters, is a constitutional amendment required?

The Good Behavior Clause of the Constitution provides that justices “shall hold their Offices during good Behaviour,” which has been interpreted as providing for life tenure. Some scholars who support or are at least open to Biden’s term-limits proposal as a policy matter, such as Dean Erwin Chemerinsky on the left and Professor Ilya Somin on the right, believe that as a legal matter, it must be implemented through a constitutional amendment.

But other scholars argue that this proposal can be enacted by an ordinary statute. For example, consider Professor Akhil Amar’s 2021 testimony before President Biden’s SCOTUS Commission. Under Amar’s proposal, an active justice after 18 years of service would transition to “Emeritus” status, not unlike senior status on a circuit court. An Emeritus Justice “would not routinely sit with active-service justices en banc, but would be available to do so in cases when the Court is short staffed,” and would perform other specified duties—perhaps sitting on circuit courts, as some retired justices currently do. But the Emeritus Justice would still be a justice, just as a senior judge is still a judge—consistent with the Good Behavior Clause.

What’s my take? Setting aside the issue of whether an amendment is required and evaluating this proposal as simply another proposed constitutional amendment, I support it. As a policy matter, the case for term limits is strong—which is why numerous senators, on both sides of the aisle, have expressed support for or at least openness to the idea over the years (as noted by Fix the Court).

I can’t make the case any better than Professor Amar, so I’ll just refer you to his 18 arguments in favor of 18-year term limits. One thing I’d highlight about his version of the proposal, with which I strongly agree: it would not apply to current justices, whom the Amar proposal denominates “Legacy Justices”—and whose “service, tenure, rights, and responsibilities on the Court shall remain unchanged, provided that at any time, a Legacy Justice may elect to take Emeritus status.”

In other words, the current justices would be ~~grandfathered in~~ exempt, and any term limits would be implemented only prospectively. This proposal should not be viewed as an effort to mess with the current composition of the Court by ousting Chief Justice Roberts, Justice Thomas, and Justice Alito. Instead, it should be about first principles and the optimal design for our constitutional system, not short-term political advantage.

3. An enforceable ethics code for the Court.

Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. The court’s current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

This proposal raises many issues, including who would enforce the code and how. If enforcement is handled by folks outside the judiciary, such as Congress, there could be a separation-of-powers problem. The Court itself would likely have the last word on the issue, barring a constitutional amendment. And given both the Trump ruling and the justices’ responses to congressional criticism on ethics issues, I think the justices would hold unconstitutional any attempt to have Congress police their ethics.

One possibility, recently suggested by Justice Elena Kagan, is that well-respected judges from the lower courts could be appointed by the Chief Justice to a committee tasked with enforcing the code. Opponents have raised both constitutional and practical concerns about this idea, which I don’t deny or dismiss. But I’d be open to at least giving this proposal a try. (And I like David French’s idea of having the committee members come exclusively from the ranks of senior rather than active judges, so their own Supreme Court ambitions wouldn’t affect their ethics judgments.)

Critics of this proposal have raised the specter of lower-court judges “going after” justices for ideological or partisan reasons, but I think this unlikely. The judiciary is culturally conservative and respectful of hierarchy, so I don’t think lower-court judges would lightly vote to censure a justice—i.e., judges would vote against justices only in fairly egregious cases of misconduct. And you could build in additional safeguards as well: for example, you could make sure the committee is “bipartisan,” i.e., composed of both Republican and Democratic appointees, and you could require a two-thirds or three-quarters supermajority before any justice is sanctioned.

What are the chances of any of these proposals becoming reality? Vice President Kamala Harris replacing President Biden as the Democratic Party’s presumptive nominee shouldn’t change anything, since Harris immediately issued a written statement supporting the reforms after their announcement. In fact, based on some of her past statements and current advisers, “there are small signs that, if elected president, Harris would prioritize the issue more forcefully than Biden ever has,” per Politico.

The real problem is that these proposals require bipartisan support—which they most definitely do not have. In fact, Republicans and Democrats don’t even agree on whether there’s a problem to be solved.

Conservatives see Biden’s “reforms” as a “political assault on the Supreme Court,” according to the Wall Street Journal editorial board (gift link). As conservative lawyer Mark Paoletta put it, Biden’s package is a “dangerous proposal to destroy the Court’s independence” by trying to delegitimize or sideline conservative justices.

Or in the words of Leonard Leo, co-chair of the Federalist Society, “Let’s stop pretending this is about undue influence [on the justices]. It’s about Democrats destroying a Court they don't agree with.” Leo added, “If Democrats want to adopt an across the board ethics ban for all branches, I am in favor of that: no jets, no meals, no speaking honorariums, no gifts for anyone from anyone for any reason in any branch, starting with Congress”—a measure that Congress would be unlikely to adopt.

It’s clear, then, that President Biden’s proposals are not getting enacted anytime soon—if ever. But they’re still a worthwhile subject for discussion by legal and Supreme Court nerds—like the audience of Original Jurisdiction.

Readers, what are your views? If you were in charge, how would you structure the Court? Please share your thoughts in the comments to this post—a Notice and Comment (“N&C”) post, meaning that comments are open to all (not just paid subscribers). Thanks!

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Vice President Kamala Harris hugging Justice Ketanji Brown Jackson after Justice Jackson’s confirmation to the U.S. Supreme Court (photo by Jim Watons/AFP via Getty Images).Hosting your child’s first birthday party is exhausting—and not something the kid will ever remember. But Zach and I did it, and it went smoothly. I’ve been told that no first birthday party is complete until the celebrant cries—as I apparently did at my own—but Chase is such an agreeable baby that he didn’t let loose until after all the guests were gone. Thanks to everyone who attended and helped out, including several readers of this fine newsletter (especially my mom and mother-in-law, who brought homemade turkey lumpia and ice-cream cake, respectively).

And thanks to everyone who tuned in for the recent webinar I moderated about how artificial intelligence is transforming legal recruiting. For anyone who wanted to attend but missed it, Haistack.ai has posted a video of the proceedings.

This week’s testimonial for Original Jurisdiction comes from Wendy R. Leibowitz, a fellow writer and editor: “This is the only legal publication where I not only learn about legal developments, but I care deeply about the author! David brings so much of himself to his writing, which makes his Original Jurisdiction quite original. It brings home the impact that the law has on our lives, our families’ lives, our communities, and our country. I remember when David was hospitalized with Covid—and I felt that I was going to lose a scholar, an important voice, a fellow journalist, and yes, a friend. (We’ve never actually met, though I would recognize him and his children if we ran into each other.) Thank you for expanding my legal world and my personal jurisdiction!” Wendy, the thanks are all mine.

Now, on to the news.

Lawyer of the Week: Kamala Harris.

The biggest news that took place since the last edition of Judicial Notice was President Joe Biden withdrawing from the presidential race—and endorsing Vice President Kamala Harris, who appears to have sewn up the Democratic Party’s nomination. And while I generally don’t bestow Lawyer of the Week honors upon people who happen to be lawyers but make news in another field, I’m making an exception for Harris—because her legal career has been extensively discussed in the past week, as it will be between now and November, and because there are a few legal angles to her taking over at the top of the Democratic ticket.

By now we’ve all heard about how she failed the California bar exam the first time—and we’ll continue to hear about it from Donald Trump, I’m guessing. I don’t think it says much about her ability to serve as president, an office that’s about exercising judgment and leadership, not memorizing the rule against perpetuities or the exceptions to the rule against hearsay.

In contrast, Harris’s record on criminal justice, during seven years as San Francisco district attorney (2004-2011) and six years as California attorney general (2011-2017), is definitely relevant to her candidacy. And it will be heavily scrutinized and hotly debated, since it contains material that can be used by both supporters and critics.

“Wearing the two hats—reform-minded progressive and tough prosecutor—has compelled Harris to perform a balancing act,” in the words of The Wall Street Journal. Or for the Culture Club fans among you, on criminal justice Harris has been a kama kama kama kama kama chameleon (actually a helpful mnemonic for pronouncing her first name—COMMA-la and not kuh-MAHL-uh, per the candidate herself).

There has been talk about whether legal objections could be raised to Harris’s candidacy, in terms of issues like ballot access and campaign finance—including a complaint filed with the Federal Election Commission by Dhillon Law Group, protesting the transfer of Biden’s $96 million war chest to Harris. But according to election-law experts like Ben Ginsberg, Professor Rick Hasen, and Marc Elias, courtroom challenges to Harris succeeding Biden are weak. See (or hear) also Advisory Opinions, where Sarah Isgur and David French interviewed Professor Derek Muller—a right-of-center scholar who similarly predicted that any lawsuits would not affect the course of the election.

Given the leftward lean of the legal establishment, expect the Harris campaign to benefit from some of the best lawyering money can buy. The Harris camp is already receiving help from former U.S. attorney general Eric Holder and his law firm, Covington & Burling, in vetting possible running mates. Paul Weiss partner Karen Dunn, an expert in presidential-debate prep, will reprise her role in preparing Harris (this time for a debate against Trump rather than Mike Pence).

If Harris were to face a serious legal threat to her candidacy, even more top lawyers and law firms would rush to her aid—starting with the 40-plus former Justice Department officials who signed a letter endorsing her. So at the end of the day, I’d say the same thing of Kamala Harris that I’d say of Donald Trump: victory or defeat must come at the ballot box, not in the courtroom.

Other lawyers in the news:

Speaking of San Francisco district attorneys, current DA Brooke Jenkins is being sued by a former employee, Jovan Thomas—who lost his job after sending a “reply all” email to Jenkins and her entire office asking, “What color panties [do] you have on.” According to Thomas’s lawsuit—which alleges invasion of privacy and defamation, among other claims—his “panties” email was misdirected.
Catch him if you can: disbarred Ohio lawyer Richard Louis Crosby III used false identities to land seven law firm jobs—before getting caught and pleading guilty to federal fraud charges.
On a cheerier note, congratulations to the 2024 honorees of “They’ve Got Next: The 40 Under 40,” Bloomberg Law’s fourth annual award recognizing the accomplishments of stellar young lawyers nationwide.

In memoriam: civil-rights lawyer Michael A. Hardy passed away at 69 from cancer. May he rest in peace.

Judge of the Week: Justice Elena Kagan.

The nine justices of the U.S. Supreme Court are off the bench until the first Monday in October. But they can still make news—as did Justice Elena Kagan, in spicy remarks made during an interview in Sacramento at the Judicial Conference of the Ninth Circuit (which she oversees as circuit justice).

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You might be surprised by how much time and money goes into picking a jury in a major case (via Getty Images).An abridged version of this article previously appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033). The longer version includes additional background and detail, plus some “war stories” that Original Jurisdiction readers should appreciate.

Are reports of the jury trial’s death greatly exaggerated? While jury trials are less common than they were decades ago, we’ve seen a surprising number of them in the headlines in 2024: E. Jean Carroll’s civil case against former President Donald Trump for sexual abuse and defamation, Manhattan district attorney Alvin Bragg’s criminal case against Donald Trump over hush-money payments, gun prosecutions of Hunter Biden and Alec Baldwin, and the corruption case against Senator Bob Menendez.

With the exception of the Baldwin case, which was dismissed mid-trial, all these cases went to verdict. And here’s something else they probably shared in common: trial or jury consultants.

“There’s been a big shift in the legal industry over the past 20 years,” said Dr. Eric Rudich, managing partner of Blueprint Trial Consulting. “In the early 2000s, senior partners might say, ‘Why do I need a consultant? I’ve done a million cases.’ But now they say, ‘I need a jury consultant to see how I should try this case.’ Today most attorneys and their clients view engaging a jury consultant as an integral part of their overall preparation for trial.”

“I have not gone to trial in 15 years without a jury consultant,” said Orin Snyder of Gibson Dunn & Crutcher, one of the nation’s top trial lawyers. “Trying cases is a team sport, and even if there’s a captain or quarterback, an integral part of the team in modern jury practice is a highly skilled and effective jury consultant.”

So what exactly do jury consultants do? For starters, real-life trial consulting is nothing like the television show “Bull,” where Dr. Jason Bull (Michael Weatherly) was practically a mind reader—whose team also hacked into the computers of prospective jurors, which no reputable consultant would actually do. (“Bull” was highly unrealistic even though one of its creators, Dr. Phil McGraw, actually worked as a jury consultant before becoming the television personality known as “Dr. Phil.”)

Imagine a company is about to launch a new product. Before it does so, it engages in extensive research. It surveys potential customers. It comes up with different versions of the product and compares them. It convenes numerous focus groups to gauge consumers’ reactions. This is, in a nutshell, what a jury consultant does—except the product is their client’s case.

Trial consultants provide a wide range of services. They conduct community research surveys, convene focus groups, hold mock trials, assist with jury selection, and prepare demonstrative exhibits or visual aids to educate the jury. Trial lawyers and their clients can select from this menu of options, depending on their needs and budget.

This requires consulting firms to have “a lot of disciplines under one roof,” according to Renato Stabile of Dubin Research & Consulting. Stabile and DRC’s founder, Josh Dubin, are lawyers by training. But their staff of approximately 60 also includes experts in psychology, data science, statistics, graphics, and technology. Experts with Ph.D. degrees in psychology or communications are not uncommon in jury consulting.

Turning to jury selection, for which trial consulting firms are most well-known, the process more aptly would be named “jury deselection,” Stabile said.

“You can only get rid of people from the jury, either for cause or using peremptory strikes,” he explained. “Don’t fall in love with any particular person because if the other side is doing their job, that individual won’t make it onto the jury. The most important task is to remove the so-called ‘nightmare jurors.’”

And in high-profile cases, weeding out problematic jurors is easier said than done. Lawyers must watch out for what Stabile called “stealth jurors,” who don’t reveal their true feelings about the relevant issues because they want to be part of the case. As an example, he cited the Trump hush money case, where certain people in the jury pool claimed they could be fair and impartial—until postings on their social-media accounts suggested otherwise.

Stabile and his colleagues perform extensive research to inform their work. Before trial, they might conduct a community attitude survey, surveying thousands of jury-eligible individuals in the jurisdiction where the trial will take place.

This might be followed by a mock trial lasting two to four days. Lawyers or consultants present key evidence and arguments to perhaps 50 to 100 mock jurors, jury-eligible individuals who live in the jurisdiction and are paid for their time. Throughout the presentation, jurors use iPads to answer questions and provide reactions in real time, in the same way a focus group gives live feedback on a televised presidential debate.

After the presentation is over, the jurors are divided into smaller panels to deliberate for several hours, just like real juries. Provided with jury instructions and a verdict form, they’re asked to reach a decision. The lawyers and consultants watch the deliberations, either through one-way glass or recordings. After the deliberations, the consultants might ask questions of the jurors, to figure out why they decided certain issues the way they did—just as pollsters might do for a focus group.

Because there are multiple mock juries, the consultants and lawyers can detect patterns, to see what jurors consistently find persuasive or not. The consultants then write up their findings in research reports.

This research then informs what lawyers advance as key themes of the case; which witnesses they call, and how they prep them; which evidence gets used, and how it’s presented; how the lawyers write their opening and closing statements; what questions they ask of potential jurors, in questionnaires and voir dire; and which jurors the lawyers strike.

“I have not had any recent case where the results of a jury focus group did not materially impact my ultimate trial strategy,” said Snyder of Gibson Dunn.

In the biggest cases with the highest stakes, consultants might run multiple mock trials, over a span of weeks or even months.

“In a large case, the best jury research is iterative,” said Rudich. “You might use a first jury exercise to develop some potential themes and strategies, and then you do a second exercise to fine-tune those strategies.”

And then once a trial gets underway, consultants participate in the picking of the jury—a process that varies greatly, from court to court and even from judge to judge. Sometimes lawyers have a bigger role, and sometimes judges have a bigger role. Sometimes there are jury questionnaires, and sometimes there are not. In rare cases—like certain organized-crime trials, as well as some of the Trump trials—the jury might be anonymous, to the public or even to the lawyers.

The number-one factor in terms of how much jury consultants can make a difference is time. They can be maximally effective if lawyers are given lists of potential jurors well in advance of selection and the process is not rushed. A well-staffed consulting firm can research hundreds of jurors overnight, if given the opportunity. In contrast, if a judge speeds through the process or limits the questioning of prospective jurors, the consultants can’t add as much value.

As you might expect given all the work they do, hiring a jury consulting firm is not cheap. It can run anywhere from tens of thousands of dollars, for a limited exercise spanning just a few days, all the way into the millions—for hiring a consulting firm that joins the case early, assists in guiding discovery, works on developing the litigation strategy, and helps execute that strategy during a months-long trial.

In light of the cost, it’s important to manage client expectations about consultants. As David Oscar Markus of Markus/Moss, one of the country’s leading criminal defense attorneys, told me, “When clients are spending all this money on a trial consultant, we have to be clear with them: hiring a consultant is just another tool in the toolbox. Nobody is a magician or a miracle worker. We are hiring a consultant to maximize the chance of a good result.”

And good results are not guaranteed. Just ask Donald Trump, who hired consultants in the E. Jean Carroll and hush-money cases—and lost both.

Sometimes the facts, the law, or the pool of potential jurors in the jurisdiction are too unfavorable to be overcome. As a result, sometimes hiring a jury consultant actually ends in settlement rather than a trial, if the research suggests the case is too difficult to win. (Stabile of DRC noted that another reason trial consulting has grown as an industry is because litigation funders are using focus groups to assess trial risk and evaluate settlement offers, with trial-consulting services being used more frequently for due diligence and risk assessment.)

“Picking a jury is a combination of skill and luck,” Stabile said. “Sometimes you get bad bounces. There will be situations where a case just isn’t going to go your way. In the Trump hush-money case, for example, he was in a very difficult jurisdiction.”

So is hiring a consultant worth it? Most definitely, according to Snyder of Gibson Dunn: “Yes, it’s expensive—but if you have a client who can afford it, in every instance it’s a great investment.”

And nowadays, the push to engage a consultant often comes from the client.

“As trial practice has evolved, more and more clients are asking about focus groups,” said David Markus of Markus/Moss. “We have found focus groups helpful for several reasons. You get feedback about what themes resonate with jurors. You learn about what kinds of jurors are good or bad for your case. And working with a consultant also forces you to focus earlier than usual on a case, as opposed to doing all your prep shortly before trial.”

And then once trial is underway, Markus values the ability to have consultants doing social-media and other background research into potential jurors offsite, while he and his colleagues focus on what’s happening in the courtroom. In one case, the consultants tracked down a juror who was posting about the case on social media—repeatedly, in violation of the judge’s instructions. Thanks to their work, Markus was able to get that individual, whom he did not want on the jury, removed for cause.

Jury consultants can also help defense lawyers decide which witnesses to call and how to prepare them—or not prepare them, as Markus related to me.

“My friend David Gerger and I were representing an Italian national named Francesco Scaglia in a criminal antitrust case. He was this young, energetic, wonderful client, and when you spoke with him, he was engaging and funny.”

“Given the facts of the case, he had to testify. After trying to prep him for five minutes, with our jury consultant in the room, our consultant told us we had to stop. Francesco was terrible—stiff, trying too hard to memorize, and not being himself.”

“Our consultant told us to put him on the stand ‘blind’—without prep. This was terrifying to us as trial lawyers. We might spend days or even weeks prepping a client.”

“But we listened to our consultant and put Francesco on blind. He was great—charming, funny, and authentic. The jury loved him—and even though the trial ran four weeks, he was acquitted after less than two hours of deliberations.”

Jury and trial expert Robert Hirschhorn learned about the value of jury consulting in 1984, when he was going to trial in what he thought was an unwinnable case. He hired pioneering trial consultant Cathy “Cat” Bennett, a psychologist who started advising lawyers on jury selection as early as 1972.

After she revamped his case and he won, Hirschhorn was hooked on jury consulting. He went on to work for (and later marry) Bennett, and they picked juries together in several famous cases—including the 1991 criminal trial of William Kennedy Smith, in which their client was acquitted. A year later, in 1992, Bennett died of cancer—but more than 30 years later, Hirschhorn’s consulting firm still proudly bears her name.

Most jury consultants today rely heavily on data and mock trials. As Stabile of DRC told me, “We are big believers in following the data, even when it’s counterintuitive. While experience in a courtroom is incredibly important, and I wouldn’t discount the value of an experienced trial lawyer’s intuition, nobody will have tried enough cases to match the kind of data sets we’re working with.”

Hirschhorn takes a more old-school approach. Although he also collects data and conducts focus groups—which he claims are accurate in civil cases, on the issue of liability, more than 80 percent of the time—he believes there’s no substitute for looking a potential juror in the eye, in open court, and relying on your intuition.

“A lot of people want to make you think it’s all science,” he told me. “At least the way I do it, maybe 20 or 30 percent of it is science. It’s really instinct, with a little science sprinkled in there.”

“I’m all about reading people, and I don’t let my brain talk me into or out of a juror,” he continued. “A lot of other consultants rely exclusively on juror profiles—but if my instincts go against the profile, I’ll go with my instincts. I let my heart and gut lead the way.”

He shared the story of picking a jury for plaintiff’s counsel in an asbestos case. One potential juror worked for an insurance company. Most consultants would have recommended striking her from the jury, on the reasoning that insurance companies don’t like paying out money in personal-injury cases—but Hirschhorn did not.

“Why did I leave her on the jury? She was wearing a necklace with a crystal—a very out-there necklace, not what you’d expect from an employee of an insurance company.”

“So we kept her on the case, but it settled before a verdict. Afterwards, that juror walked up to us and asked how much we would have asked for had it gone to verdict. After we said $15 million, she said, ‘That’s not enough money in this case.’ And it was the necklace that gave her away.”

Hirschhorn has been picking juries this way for forty years. But he doesn’t think jury consulting will last forever.

“Consultants will eventually be replaced by AI,” he predicted. “In the beginning, the AI tools will just crunch data and produce demographic profiles, so they won’t replace us. But once AI progresses to the point where it can evaluate nonverbal communication, recognize emotion, and detect empathy, that’s when the game will change.”

“I don’t know if that will take 20, 30, 40, or 50 years. But it will happen—eventually.”

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One of the most consequential developments of the last Supreme Court Term was the overruling of Chevron v. Natural Resources Defense Council, Inc., the 40-year-old precedent directing courts to defer to agencies’ reasonable interpretations of ambiguous statutes. It came about through two cases: Relentless, Inc. v. Department of Commerce, argued by Roman Martinez, and Loper Bright Enterprises v. Raimondo, argued by former U.S. solicitor general Paul Clement (a past podcast guest).

Today I’m pleased to be joined by Roman Martinez. One of the leading Supreme Court advocates of his generation, Martinez, 45, has argued 14 cases before the Court. But none has been as consequential—or controversial—as the aptly named Relentless.

How does Martinez respond to claims that Relentless will have relentlessly negative consequences for American society? We explore the implications of the overturning of Chevron—along with Martinez’s clerkships for then-Judge Kavanaugh and Chief Justice Roberts, his thoughts on the old versus new SCOTUS argument formats, his style as a Supreme Court advocate, and his “secret weapon” in preparing for high-court appearances—in the latest Original Jurisdiction podcast.

Show Notes:

Roman Martinez bio, Latham & Watkins
Roman Martinez profile, Chambers and Partners
40 Under 40: Roman Martinez, Washington Business Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Roman Martinez (courtesy photo via Latham & Watkins) Read more

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‘I come in peace’: Usha Chilukuri Vance (photo by Chip Somodevilla via Getty Images).This week’s Judicial Notice is sponsored by

Belated birthday wishes to our youngest son, Chase, who turned one last week. We consider ourselves very blessed to have such a happy and healthy baby.

Thanks to everyone who tuned in for the webinar I moderated about how artificial intelligence is transforming legal recruiting. For anyone who missed the event, I believe that Haistack.ai will be posting a video recording online, which I’ll share with you. And then this Wednesday, July 24, I’m moderating another webinar, a review of the recently concluded Supreme Court Term; you can register here.

This week’s testimonial for Original Jurisdiction comes from Molly Abraham, VP, Legal, at Coinbase: “I love when OJ pops up in my inbox. I know I can count on the latest legal news in page-turning fashion. Life goals now include being Lawyer of the Week.” My thanks to Molly—who’s had a fascinating career at the cutting edge of law and technology, having served as general counsel of a flying-car company before Coinbase—for her kind words.

Now, on to the news—of which there’s no shortage.

Lawyer of the Week: Usha Vance.

On Monday, former president Donald Trump picked Senator J.D. Vance (R-Ohio), 39, as his running mate. Although Vance is a lawyer by training, a 2013 graduate of Yale Law School, his legal career was brief. After a one-year clerkship for Judge David Bunning (E.D. Ky.) and a short stint at Sidley Austin, Vance transitioned into finance, followed by politics—and the rest is history.

The legal world has been far more fascinated by Vance’s wife, Usha Chilukuri Vance, 38.Her husband has described her as “brilliant” and “way more accomplished than I am”—and whether that’s true or not, there’s no disputing that she has a legal résumé to die for. She graduated from Yale College, summa cum laude; the University of Cambridge, which she attended on a Gates Scholarship; and Yale Law School, where she met J.D. in 1L “small group.” She clerked for Judge Amul Thapar (E.D. Ky.) from 2013 to 2014, then-Judge Brett Kavanaugh (D.C. Cir.) from 2014 to 2015, and Chief Justice John Roberts from 2017 to 2018—and juggled her SCOTUS clerkship with caring for a newborn (Ewan, now 7—subsequently joined by Vivek, 4, and Mirabel, 2).

In between her Kavanaugh and Roberts clerkships and again after SCOTUS, Usha worked as a litigator at Munger Tolles & Olson (MTO), where her clients over the years included Walt Disney, PG&E, and the University of California. While at MTO, she was viewed as liberal or moderate—and as of 2014, she was a registered Democrat.

But by 2022, the year that J.D. ran for the Senate, she had switched her registration to Republican. And then last Wednesday night, Usha arguably embraced her role as “MAGA’s potential second lady,” in the words of the L.A Times. Donning a cobalt blue, off-the-rack dress by Badgley Mischka, she introduced her husband at the Republican National Convention. In a subtle rebuttal to the view that her husband, a Trump critic turned running mate, struck a Faustian bargain, Usha declared, “The J.D. I knew [at YLS] is the same J.D. you see today—except for the beard.”

Note my wording: she “arguably embraced” her MAGA role. As Vivia Chen wrote in her Substack newsletter, Usha’s RNC speech was marked by an “undertone of ambivalence”—and she never once mentioned Trump. If you review the transcript of her remarks—courtesy of Rev.com, the service I use to generate first drafts of my podcast transcripts—you’ll look in vain for the T-word.

Even if Usha hasn’t gone 100 percent MAGA, she has definitely made sacrifices for the sake of her husband’s career. Immediately after J.D. was announced as the Republican vice-presidential candidate, she resigned from Munger, putting her high-powered legal career on hold. In a statement, she said, “In light of today’s news, I have resigned from my position at [MTO] to focus on caring for our family.”

And perhaps Usha has already made some sacrifices? Even though she graduated from law school more than a decade ago and clerked for SCOTUS, she was only an associate at the time of her resignation—making me wonder whether her path to partnership might have been affected by her having worked remotely from Cincinnati, where the Vances moved after her Roberts clerkship, or whether she ever worked part-time at any point.

Many observers probably have the same question as Vivia Chen when it comes to Usha Vance: “What is this serious, brainy woman doing in MAGA Land?” Have her political views evolved in a MAGA direction, as J.D. Vance claims his have? Have both Vances been consumed by ambition? Or is Usha not down with Trump, but doing this out of love for—and loyalty to—her husband?

Maybe time will tell. Or maybe we’ll never know. Marriages are often mysterious—sometimes even to the people who are in them.

In November 2011, my husband Zach and I met J.D. and Usha at a poker night in New Haven hosted by Professor Amy Chua, one of the Vances’ mentors. They were very impressive, and even then, years before Hillbilly Elegy rocketed J.D. to fame, you could tell they were going places. On the train ride back to New York, I said to Zach that they reminded me of a certain other YLS power couple: Bill and Hillary Clinton.

Other lawyers in the news:

In other news about a YLS grad in a high-profile position, but from the other side of the aisle, David Cole is stepping down as legal director of the ACLU.
In other news from the RNC, Representative Matt Gaetz (R-Fl.) heckled former speaker of the House Kevin McCarthy on the convention floor—and then got counter-heckled, as shown in this TMZ video, by an unidentified “senior citizen” who called Gaetz an “ahole.” The senior citizen came forward on LinkedIn—and he’s a retired Kirkland & Ellis partner, Richard Porter**.
Congratulations to Law360’s Rising Stars of 2024, “158 attorneys under 40 whose legal accomplishments belie their age” (including Shanu Bajaj of Davis Polk, a past podcast guest).

In memoriam: Neal Sonnett—a prominent criminal-defense lawyer in Florida, as well as a leader in the American Bar Association—passed away at 81. May he rest in peace.

Judge of the Week: Judge Lawrence VanDyke.

How has Judge Lawrence VanDyke never been Judge of the Week? Recall that I bestow these “honors” based not on a normative assessment of awesomeness, but based on who’s being talked about—for good or ill. And Judge VanDyke has been frequently discussed, ever since Trump appointed him to the Ninth Circuit in 2020.

To his admirers on the right, “LVD” is a conservative truth-teller on the notoriously liberal Ninth Circuit, calling out the excesses of his wayward colleagues. To his critics on the left, he is, to quote the title of a piece by Matt Ford for The New Republic, “The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America.”

Whether you love him or hate him, there’s no denying that Judge VanDyke won’t be winning the Ninth Circuit’s “Mr. Congeniality” prize. His opinions can be “blistering” and “ballistic”—which is how lawyers described his dissent from the granting of rehearing en banc in United States v. Duarte. (Judge VanDyke coined a neologism for a dissent from a grant of rehearing, “disgrantle”—itself quite controversial, reflected in the comments on this LinkedIn post by Cory Webster.)

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David Boies and Sigrid McCawley at the Lauderdale Yacht Club (courtesy photo by Saloa Boies)This post is sponsored by

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What does it mean to be a “survivor”? How do people make it through adversity? And what do we learn from these experiences?

I’ve thought about these questions a lot since 2020, when a near-death experience with Covid-19 sent me to the hospital for about three weeks—including almost a week on a ventilator. It profoundly affected me—and, among other things, brought me back to writing.

Survivorship isn’t a foreign concept to Sigrid McCawley, managing partner at Boies Schiller Flexner and one of the nation’s leading litigators. In addition to handling complex commercial litigation, McCawley represents survivors of sexual abuse and sex trafficking—most notably, victims of the late financier Jeffrey Epstein.

And in light of something difficult she went through earlier this year, I asked McCawley: might she be a survivor herself?

She politely rejected the term, insisting that she is in no way comparable to the true survivors she has the privilege of representing. But regardless of the label, there’s no doubt she endured a life-threatening, life-altering experience—and will never be the same, in ways both good and bad.

Sigrid McCawley and her family in Vail, Colorado, the day before her accident on February 13, 2024 (courtesy photo)In February, McCawley and her husband took their four children on an annual family ski trip to Vail. One day, after working in the morning, McCawley hit the slopes with her oldest son. While taking a run on a mountain she had skied “hundreds of times,” her boot came out of her ski, and she fell—hard.

The pain was immediate. And excruciating.

“I have never felt pain like this in my entire life—and I’ve delivered four kids,” McCawley told me. “I thought my leg had come off my body.”

As a trio of ski patrollers towed her down the mountain, at breakneck speed—in a rescue toboggan she feared was “surprisingly flimsy”—McCawley was physically shaking from the pain.

“I’m Catholic, and I was saying the Hail Mary over and over again—in between swearing and thinking I was going to throw up.”

McCawley had broken her femur—in five places—as well as her tailbone (which she didn’t learn about until later). Running from the hip to the knee, the femur is the longest and strongest bone in the body—and one of the most painful to fracture, given the tremendous amount of force required to break it. Because of the complications it can cause, a femoral fracture can even be life-threatening if not addressed immediately.

Upon arriving at Vail Hospital, McCawley was rushed into four hours of emergency surgery. A metal rod and supporting wires were inserted into her right leg—and will remain there the rest of her life.

She wound up staying in the hospital for five days. And while McCawley was most definitely immobilized, her work continued apace.

Three days after the accident, she and her partner David Boies filed Bensky v. Indyke, a lawsuit against Jeffrey Epstein’s longtime lawyer and accountant for allegedly “aiding, abetting, and facilitating” his sex trafficking. McCawley reviewed and edited drafts from her hospital bed—but let her trusted colleagues take the lead, given she was still in great pain (and on “serious painkillers”).

The surgery and hospital stay were only the beginning of a long and laborious recovery. She left the hospital in a wheelchair. Over the months that followed, she transitioned from a wheelchair to a walker to crutches to a cane (in a shiny rose gold). Her progress was steady, but slow—sometimes painfully so, given how eager she was to return to her old routines.

A few weeks ago, she resumed walking. But walking remains painful, and running is off-limits until the fall—which has been tough for McCawley, an avid runner who completed the New York City Marathon in 2021. Her skiing days might also be over, according to her orthopedist (although she’s hoping to prove him wrong).

So 2024 thus far has been uniquely challenging for Sigrid McCawley. She has had to juggle her recovery—involving ongoing pain, difficulty sleeping, numerous doctor visits, physical therapy sessions that leave her exhausted (and often in more pain)—with the demands placed on her as a top trial lawyer, leader of a major law firm, and mother of four.

But in a series of chats we’ve had over the past few months, McCawley showed nothing but good cheer, grace, and gratitude—for her doctors, physical therapists, and Boies Schiller colleagues, among others. I asked her what she has taken away from this experience.

In a comment that definitely resonated with my own Covid ordeal, when I received get-well wishes from around the world, McCawley cited “the loveliness of the human spirit. I feel so blessed to be surrounded by so much love—from my kids, spouse, family, friends, BSF colleagues, and the many other people in my life who worried and cared for me.”

For years, McCawley has been a leader and a doer—someone whom clients, colleagues, and family members have depended upon. Since her ski accident, she has had to depend on others. She’s had no choice in this—for example, having to have associates or her son carry her bags—“but the role reversal has been tough, and I still feel guilty.”

And some of her discomfort with vulnerability—which led her to be initially circumspect about her accident and its consequences, with both clients and colleagues—might have a gendered aspect: “As a woman in litigation, I’ve always felt that I have to be strong and to look strong, that I can’t flinch. Maybe this is all in my own head, but I’ve always felt this way.”

McCawley told me, “I’ve never had anything that knocked me out quite like this—and I feel I’ve learned how brave I can be. And I’ve always thought of myself as empathetic, but this experience has taken it to a new level.”

Sigrid McCawley and I at Think Coffee in Manhattan, June 2024 (courtesy photo by Dawn Schneider)For our final conversation, McCawley and I met up in person in New York City late last month. She came up from Fort Lauderdale for oral argument on motions to dismiss in Bensky, the case she filed from her hospital bed back in February—and her return to the courtroom struck me as a return to form for the hard-charging litigator.

During the lengthy proceedings—which pitted her against veteran litigators from two top firms, Hughes Hubbard & Reed and Patterson Belknap—McCawley deftly fielded tough questions from Judge Arun Subramanian. And while he hasn’t yet issued a ruling, it appeared to me, based on the judge’s comments from the bench, that Bensky isn’t getting dismissed (at least not in its entirety).

After the hearing, McCawley and I adjourned to a nearby café. Wearing a white dress suit, a smart choice given the summer weather, she navigated the uneven Manhattan sidewalks with ease—in heels, while wheeling a stylish Louis Vuitton rollaboard (which I offered to handle for her, but she refused).

As usual, she was in good spirits. She had celebrated her birthday just two days ago, and two weeks ago she had returned from a European vacation with extended family. (She purchased the Louis Vuitton suitcase while in Paris, as a birthday gift to herself.)

Although she had to take it relatively easy during her trip, hanging back at times with some older members of the group, she was pleased she had been able to do a good amount of walking. She was even able to stand for hours—and dance a little—at a Taylor Swift concert in Edinburgh.

Sigrid McCawley and her daughter at a Taylor Swift concert in Edinburgh, June 2024 (courtesy photo)Sipping a vanilla latte, McCawley recalled to me how five years ago, in July 2019, Jeffrey Epstein was arrested on federal sex-trafficking charges—and the world became aware of his predations. It was a watershed event for McCawley, who had been representing Epstein survivors since 2014—and whose work contributed to the arrests of Epstein and his co-conspirator Ghislaine Maxwell.

Over the years, McCawley and her Boies Schiller colleagues have represented survivors who have obtained many millions in Epstein-related settlements—including $365 million in a class action filed against two major banks that had Epstein as a client. And even though Epstein died five years ago and Maxwell is serving a 20-year prison sentence, the litigation spawned by their misdeeds continues—with Bensky as only the latest example.

But while she did some reflecting on the past when we met up, marveling at how dramatically her life and career have changed over the last five years, McCawley focused on the present and future. She talked about an important new client: the family of John Barnett, the Boeing whistleblower who died by suicide this past March. She alluded to a recent Zoom deposition with John Legend, a supportive witness for one of her cases. She mentioned the upcoming midyear meeting of the Boies Schiller partnership—where she and her colleagues would have much to discuss.

At the end of 2024, the iconic founder of BSF, David Boies, will step down as chair. McCawley, a 22-year veteran of the 27-year-old firm, ran to succeed him. And although she didn’t secure the role of chair—which went to her co-managing partner Matthew Schwartz, a former federal prosecutor based in New York—she will continue to play a major role in running the firm.

“On the leadership side, I’ve been very active this year,” she said. “We had a great 2023 as a firm, and we went into 2024 very strong.”

One recent highlight: last month, the Supreme Court declined to hear the last outstanding challenge to the $2.7 billion settlement in the Blue Cross Blue Shield antitrust case—a settlement that provides for attorneys’ fees amount to 25 percent of the settlement amount. Although this $675 million in fees will be split among several firms, BSF’s share will be in the nine figures, according to David Boies.

McCawley is also looking forward to an event she’s hosting at the firm on July 30. It’s to recognize Disability Pride Month and will feature a fellow Florida lawyer, disability-rights advocate Haley Moss.

As chair of the pro bono committee at Boies Schiller, McCawley is exploring how the firm’s considerable resources—which over the years have aided survivors of sex abuse and trafficking, LGBTQ couples seeking to get married, and undocumented immigrants—can be used to advance the rights of people with disabilities.

“Until now, I’ve never had to deal with any physical disability or limitation,” McCawley said. But the past few months have given her a new sense of perspective, after she has had to endure accessibility challenges at gas stations, hospitals (of all places), and her own house (which she had to radically revamp after coming home).

“Today I have an even more profound respect for people with disabilities than I did before,” she said. “It has been mind-blowing to me to see what they have to deal with every day. And I’m eager to hear from organizations interested in working with us at Boies Schiller to elevate these conversations, push things forward, and have an impact on the law.”

An abridged version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

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Judge Aileen M. Cannon (public domain - U.S. District Court for the Southern District of Florida)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Oops, she did it again. Judge Aileen Cannon (S.D. Fla.) issued yet another newsworthy ruling—bonkers or bold, depending on your point of view—in the classified-documents prosecution of former president Donald Trump.

Or maybe I should say “former” prosecution, since Judge Cannon just dismissed it. Here’s the opening paragraph of her 93-page order in United States v. Trump (cleaned up, as I’ve done with most of the quotations here):

Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order. The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding.

Considering that Judge Cannon heard oral argument on this issue on June 21 and 24, issuing a ruling in less than a month qualifies as “rocket docket” speed by her standards.

But she did have some great research assistance—from a Supreme Court justice. As Professor Leah Litman tweeted:

Justice Thomas’s “Cannon-currence” worked.

In the Trump immunity case, Justice Thomas wrote separately to suggest the special counsel was unlawfully appointed; the reasoning laid out the roadmap for this (wrong) result/decision.

No other justice joined the Thomas concurrence in Trump v. United States. But I’m guessing we’ll know their views on this issue soon enough—and Judge Cannon’s order includes favorable citations to no fewer than five justices (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett).

Here are excerpts from Judge Cannon’s opinion (cleaned up and with no external quotation marks added, since these are all direct quotations):

The Motion before the Court challenges the legality of Special Counsel Smith in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further.
The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing “Officers of the United States.” The Appointments Clause sets as a default rule that all “Officers of the United States”—whether “inferior” or “principal”—must be appointed by the President and confirmed by the Senate. It then goes on to direct that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.” The Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money from being “drawn from the Treasury” unless such funding has been appropriated by an act of Congress.
Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment—28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.
The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.
The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.
Special Counsel Smith argues that the use of special attorneys throughout American history “amply confirms the Attorney General’s authority to appoint the Special Counsel here.” The Court disagrees. At most, the history reflects an ad hoc, inconsistent practice of naming prosecutors from both inside and outside of government (typically in response to national scandal) who possessed wildly variant degrees of power and autonomy. The lack of consistency makes it near impossible to draw any meaningful conclusions about Congress’s approval of modern special counsels like Special Counsel Smith—much less its acquiescence to Section 515 as a vehicle for such appointments.
Congress—historically, and in the present moment—has shown that it knows how to create offices for special counsels. In 1924, Congress did so in response to the Teapot Dome scandal….. In 1978, Congress passed the much-discussed (and now-defunct) Independent Counsel Act. In fact, there are statutes on the books right now that create offices for “special counsels” with unique jurisdictions…. All this stands to demonstrate that Congress knows how to legislate in this space. And when it does, it does so expressly and unequivocally.
In the end, there does appear to be a “tradition” of appointing special-attorney-like figures in moments of political scandal throughout the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision. When scrutinized, this spotty historical backdrop does not “amply confirm[] the Attorney General’s authority to appoint the Special Counsel here.”
On a more fundamental level, adopting the Special Counsel’s untenable interpretation of Sections 515(b) and 533 erodes the “basic separation-of-powers principles” that “give life and content” to the Appointments Clause by wresting from Congress its constitutionally prescribed role in the officer-appointing process. It also destabilizes Congress’s carefully crafted statutory structure for DOJ.
The parties disagree about the precedential value of a passage from United States v. Nixon [which states that Congress “has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.”]
Following a comprehensive review of the Supreme Court record, the Court concludes that the disputed statement from Nixon is dictum. The issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedly precedential in several areas—for example, in its pronouncements on the justiciability of an intrabranch controversy; the test for issuing Rule 17(c) subpoenas; and application of executive privilege in the face of a valid subpoena. Those issues were presented, argued, and carefully considered. The same is not true of the Attorney General’s statutory appointment authority. At most, Nixon assumed that antecedent proposition, without deciding it.
Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight…. The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” For these reasons, the Court concludes it is not entitled to considerable weight.
This brings the Court to its final point on the Appointments Clause challenge, prior to addressing remedy. Up to this juncture, the Court has proceeded under the premise, advanced by Special Counsel Smith, that he is an “inferior Officer,” not a principal officer requiring Presidential nomination and Senatorial consent…. [T]he Court elects, with reservations, to reject the principal-officer submission and to leave the matter for review by higher court.
The Court turns lastly to the remedial question: what to do about the absence of “Law” authorizing Special Counsel Smith’s appointment? Defendants seek dismissal of the Superseding Indictment, arguing that “Jack Smith lacks the authority to prosecute this action,” and that “any actions [thus] taken by Smith are ultra vires.” …. Because Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law, the Court sees no way forward aside from dismissal of the Superseding Indictment. And the Special Counsel does not propose an alternative course.
For all of the reasons the Court found no statutory authority for the appointment, Special Counsel Smith’s investigation has unlawfully drawn funds from the Indefinite Appropriation…. The Court need not reach the question of remedy here, having found the Appointments Clause violation to warrant dismissal. But as discussed below, there is good reason to believe that the Appropriation Clause violation serves as a separate, independent basis to dismiss.
Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme—the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.
The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not. In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse.”
In the end, it seems the Executive’s growing comfort in appointing “regulatory” special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases. Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country’s history. Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care.
The Court thus returns to where it started. The Appointments Clause is “among the significant structural safeguards of the constitutional scheme.” So too is the Appropriations Clause, which carefully separates Congressional control of the “purse” from Executive control of the “sword.” The consequences of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).

And that’s all she wrote. Again, these are excerpts; you can access the full document here.

Readers, what do you think? Please share your takes in the comments to this post—a Notice and Comment (“N&C”) post, meaning that comments are open to all (not just paid subscribers). Thanks!

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Left to right: Alex Spiro, Alec Baldwin, Luke Nikas, and Heather LeBlanc (photo by Ross D. Franklin via Getty Images).Welcome to the first edition of Judicial Notice since Independence Day. I hope that you and your families had an excellent Fourth of July. Our family spent it up at our place in the Berkshires, in western Massachusetts—and we were up here again this weekend, although about to return to New Jersey.

Looking ahead, on Thursday, July 18, I’m moderating a webinar about how AI is transforming legal recruiting and hiring. Sponsored by Haistack.ai, the event is free and open to all, and you can register here.

Then on Wednesday, July 24, I’m moderating a panel for the New York City Bar, which will feature three Supreme Court experts—Professor Brian Fitzpatrick of Vanderbilt Law, Sullivan & Cromwell partner Morgan Ratner, and Professor Stephen Vladeck of Georgetown Law—analyzing the latest SCOTUS Term. You can register here.

I’m a legal rather than political commentator, and I try to stay in my legal lane. But given its gravity, I have to acknowledge yesterday’s assassination attempt against Donald Trump at a campaign event in Butler, Pennsylvania. Regardless of your feelings about Trump, we should all be able to agree with President Joe Biden: “There’s no place in America for this type of violence.”

The fact that the Butler shooting even occurred, along with some of the discussion that took place in its wake, unfortunately reflects where we are right now as a country. And even if it’s not legal news per se, it goes to why lawyers and the rule of law are so important: in a nation like ours, marked by a great diversity of viewpoints, we need to be able to resolve our differences without resorting to violence.

Now, on to the legal news—of which there’s a ridiculous amount, since this is a double edition covering two weeks. Don’t be afraid to skim, and apologies if you find my discussions too cursory or if I’ve missed any notable news. Please mention, in the comments to this post, any stories, observations, or arguments I’ve overlooked.

Lawyers of the Week: Luke Nikas, Alex Spiro, John Bash, and Heather LeBlanc.

I didn’t expect Alec Baldwin to get convicted of manslaughter for the tragic death of cinematographer Halyna Hutchins. The criminal case had a lot of holes, and Baldwin had assembled an amazing legal team, featuring Quinn Emanuel partners Luke Nikas, Alex Spiro, and John Bash, plus Heather LeBlanc as local counsel. But I expected an acquittal after brief deliberations; I did not expect the case to implode, mid-trial, in spectacular fashion.

But implode is exactly what happened. On Friday, during the third day of Baldwin’s trial in New Mexico’s First Judicial District Court, Judge Mary Marlowe Sommer dismissed the case with prejudice—or in Judge Sommer’s words, “scorching prejudice”—meaning that the case cannot be refiled.

The facts are messy, but the CliffsNotes version is that the prosecution mishandled critical ammunition evidence. After holding a hearing featuring testimony from prosecutor Kari Morrissey, who was subjected to a withering cross-examination by Spiro, Judge Sommer concluded that the prosecution’s “willful withholding of this information was intentional and deliberate”—and that there’s “no way for the court to right this wrong.”

While the case was ultimately dismissed because of the government’s screw-up, Baldwin’s lawyers deserve a lot of credit for the win. Most obviously, they unearthed this evidentiary issue—through their questioning of an early witness, a crime-scene technician—and pursued it to its logical end. It all culminated in a dramatic, in-court examination of the ammo, straight out of Perry Mason.

But beyond that, Team Baldwin doggedly called out the prosecution’s missteps at every turn. Last year, his legal team got the charges downgraded because Baldwin was improperly hit with a firearm enhancement based on a law that wasn’t passed until after the shooting—oops. This year, in the weeks leading up to the trial, they moved to dismiss the case based on defects in the grand jury proceedings, the legal theory of the case, and FBI testing that broke parts of the gun—double oops.

Judge Sommer rejected these arguments, and the case went to trial. But thanks to the narrative of prosecutorial bad faith that the Quinn Emanuel lawyers carefully crafted over a period of many months, I’m guessing that the judge went into trial with greater skepticism toward the government’s case. So when this problem with the ammunition evidence arose, Judge Sommer was primed to come down on the prosecution, hard—and that’s exactly what she did.

The dismissal came as a great relief to Alec Baldwin, who wept and hugged his lawyers in court, but it doesn’t mark the end of his legal troubles. While the criminal case seemed dodgy, the matter seemed eminently appropriate for civil litigation—which Hutchins’s widower, former Latham & Watkins associate Matthew Hutchins, continues to pursue. Although Baldwin and Hutchins reached a settlement in October 2022, Hutchins has not yet been paid, so he has not yet dismissed his wrongful-death suit. Stay tuned.

Other lawyers in the news:

Rudy Giuliani had a bad two weeks: first he got disbarred in New York, and then his bankruptcy case got dismissed—which means that his creditors, including two Georgia election workers who secured a $148 million defamation judgment against him, can now pursue and possibly seize his assets.
Those election workers, Ruby Freeman and Shaye Moss, are represented by Michael Gottlieb of Willkie Farr—who along with Igor Timofeyev of Paul Hastings was named Litigator of the Week by Am Law Litigation Daily. The duo won a Second Circuit victory in a complex case over the validity of nearly $2 billion in bonds issued by Venezuela’s national oil company.
Sullivan & Cromwell partner Brian Glueckstein has billed more than 4,000 hours in the bankruptcy case of the FTX cryptocurrency exchange—which, at his current hourly rate of $2,375, amounts to $9.5 million. According to Reuters, it also works out to “billing close to 11 hours a day on a single case, five days a week, for 18 months straight.” Living the Biglaw dream?
For those of you who have been following the sad and sordid saga of former Greenberg Traurig partner Allan Kassenoff and his late ex-wife, former assistant U.S. attorney Catherine Youssef—who went through brutal divorce proceedings, with devastating consequences for their three daughters—read Francesca Block’s Free Press piece, a deep dive into the drama.

In memoriam:

Martin Stolar, a prominent civil-rights lawyer known for working on progressive cases and causes, passed away at 81, from heart failure.
Abe Krash—a longtime partner at Arnold & Porter and litigator in Gideon v. Wainwright, in which the Supreme Court held that the Sixth Amendment guarantees the right to counsel to indigent defendants—passed away at 97.

May they rest in peace.

Judges of the Week: Chief Justice John Roberts and Judge Joshua Kindred.

Because this installment of Judicial Notice covers two weeks, I’m taking the liberty of naming two Judges of the Week—although one of them is now a former judge.

First up is Chief Justice John Roberts. As this Term drew to a close, he “showed himself firmly in charge” at the Supreme Court and “led the Court’s conservatives to curb federal power,” per Jess Bravin of The Wall Street Journal. For a closer look at the power of Chief Justice Roberts—exercised through his vote, his authorship of landmark opinions, and his leadership behind the scenes—I refer you to my Boston Globe piece, “It’s John Roberts’s Supreme Court After All.”

Second, let’s talk about Joshua Kindred, who was appointed by President Trump in 2019 to the U.S. District Court for the District of Alaska. Kindred abruptly resigned from the court, triggering lots of speculation over why—much of which was confirmed when the Judicial Council of the Ninth Circuit made public a 30-page order describing the results of a lengthy investigation into allegations of judicial misconduct.

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Are we all originalists now? Definitely not; originalism has no shortage of critics.

But as the latest Term of the U.S. Supreme Court made clear, originalism is the dominant mode of constitutional interpretation at One First Street today. As the justices debate the doctrine’s finer theoretical points, such as the proper use of history and tradition, it’s clear that the debate is no longer “originalism or not originalism,” but “which originalism” or “whose originalism.”

So it’s more important than ever to understand the originalist mindset. And if you’re looking for help on that front, I have a book recommendation: Professor Randy Barnett’s new memoir, A Life for Liberty: The Making of an American Originalist. As promised by its subtitle, the book provides excellent insight into originalism as a theory—but as an engaging and enjoyable memoir, it’s far more fun to read than any casebook or treatise.

What drew Randy Barnett to originalism? Why does he view his losses in two landmark Supreme Court cases—Gonzales v. Raich, a Commerce Clause challenge to criminalizing medical marijuana, and NFIB v. Sebelius, a nearly successful effort to topple the Affordable Care Act—as victories of a sort? Why did he decide to write a memoir—and why does he think you should, too? All this and more is revealed—on the latest episode of the Original Jurisdiction podcast.

Show Notes:

Randy E. Barnett bio, Georgetown University Law Center
A Life for Liberty: The Making of an American Originalist, Amazon
Libertarianism Updated, by Randy E. Barnett for Law & Liberty

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Professor Randy E. Barnett (courtesy photo) Read more

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Chief Justice John Roberts is not to be underestimated (photo by Jacquelyn Martin via Getty Images).A version of this essay originally appeared in The Boston Globe, but my contributor’s agreement with The Globe allows me to republish it here. The footnotes contain material that did not appear in the Globe version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

Over the past few years—and the past few months, weeks, and days—the Supreme Court has reminded us of its power. As the nine justices resolve major issues of national importance, from abortion to gun rights to all things Trump, they have attracted increasing scrutiny—and understandably so.

Much ink has been spilled over individual justices. We have read at great length about Justice Clarence Thomas’s vacations and Justice Samuel Alito’s flags (or, to be more precise, his wife’s flags). On a more substantive level, commentators have focused on the Court’s two newest members, Justices Amy Coney Barrett and Ketanji Brown Jackson, who have demonstrated their independence from the conservative and liberal wings, respectively.1

Relatively little attention has been paid to the “first among equals,”2 Chief Justice John Roberts—and one can understand why. The unassuming Roberts makes few public appearances, rarely speaks to the press, stays out of ethical trouble,3 and doesn’t write books. One of the least publicity-seeking justices since David Souter, Roberts prefers to speak through his work.4

And when you look at that body of work—whether you admire it, abhor it, or something in between—his power and influence become clear. This is John Roberts’s Court, and the other justices are just sitting on it.5

First, Roberts is important simply because of his vote. In the Term that just ended, he was the justice most frequently in the majority: according to Adam Feldman of Empirical SCOTUS, Roberts was on the winning side a staggering 96 percent of the time.6 For the two Terms prior to that, Roberts was in the majority an average of 95 percent of the time, second in 2022 only to Justice Brett Kavanaugh. In contrast, the two justices who were in the majority the least this past Term, Justices Sonia Sotomayor and Elena Kagan, were in the majority only 71 percent of the time.

To be sure, Roberts might not be as powerful as he was four years ago. Before Barrett replaced the late Justice Ruth Bader Ginsburg in 2020, creating a six-justice conservative bloc that could lose a vote and still prevail, Roberts was both chief and swing justice. But even if he’s no longer the swing justice, he remains a swing justice. As noted by SCOTUS watcher Sarah Isgur, today’s Court is a “3-3-3″ Court, consisting of three liberals, three staunch conservatives, and three justices—Roberts, Kavanaugh, and Barrett—who control the outcomes in divided cases.7

Second, Roberts has issued some of the Court’s most consequential opinions. This shouldn’t be surprising: as the most senior justice, he assigns the opinion when he’s in the majority (which, as noted, is almost always the case). And there are certain opinions, especially ones reviewing major executive actions, that are expected to come from a chief justice. One of the most famous examples is the 2012 opinion upholding the Affordable Care Act, written by—you guessed it—Roberts.

Consider Roberts’s opinions from just the most recent Term. He wrote Trump v. United States, which will go down in history as one of the most important precedents on presidential power; Loper Bright Enterprises v. Raimondo, which overruled the 40-year-old Chevron doctrine and could dramatically curtail the power of administrative agencies; Fischer v. United States, which narrowly interpreted an obstruction-of-justice law, possibly benefiting hundreds of Jan. 6, 2021, defendants (including Donald Trump); and United States v. Rahimi, which cabined the Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen, hopefully keeping guns out of the hands of dangerous people.

And that’s only the latest Term. Over the past five Terms, Roberts has authored opinions like Students for Fair Admissions Inc. v. President and Fellows of Harvard College, which ruled against racial preferences in college admissions; Biden v. Nebraska, which held unlawful the Biden administration’s student loan forgiveness program; West Virginia v. Environmental Protection Agency, which rejected the EPA’s Clean Power Plan, based on an increasingly important legal theory called the “major questions doctrine”; and Allen v. Milligan and Moore v. Harper, two critically important cases about election law.

Third, and finally, Roberts exerts influence through his leadership of the Court. I realize some progressives are laughing right now, given their narrative that Roberts has lost control of the Court to right-wing ideologues, but let me explain.

Despite his grandiose title of “chief justice,” Roberts is not the leader of the Court in the way that a chief executive officer is the leader of a company. Unlike a CEO, he can’t fire his colleagues or tell them what to do. Yes, he assigns opinions when in the majority, presides over courtroom proceedings, and speaks first at the justices’ private conferences. But other than these and similar responsibilities (and a slightly higher salary), he’s just like his other colleagues, one vote out of nine.

Of course, the Chief Justice can try to persuade or pressure his colleagues to vote in certain ways, especially in high-profile cases. And while we don’t know what happened behind the scenes at One First Street this past Term, some facts suggest he has been doing just that—successfully.

In the 2023-2024 Term, 46 percent of cases were decided unanimously—a significant increase from the 35 percent average of the preceding five Terms. One of those cases was Trump v. Anderson, concerning Trump’s eligibility to appear on the Republican primary ballot in Colorado—a highly contentious, politically charged case, where it benefited the reputation of the Court to present a united front. It wouldn’t be surprising if Roberts—trying to improve the Court’s weak (but improving) approval rating, during extremely polarized times—made extra efforts during this past Term to forge compromise.

What about the complaint that Roberts failed to police the ethics of his colleagues? Again, remember: he’s not the boss of them, and other than attempts at persuasion, he lacks any tools for regulating their behavior. His duties as chief justice do not include telling associate justices where to vacation or what flags they—or their wives—can fly.

In light of his limited power over his colleagues, Roberts deserves credit for the Court’s issuance last November of a written Code of Ethics—the first such code in the 235-year history of the Court. It would have been easy for the justices to do nothing, allowing the storm of bad publicity to blow over. The fact that they did issue a code—which required unanimity from nine people who clearly hold different views on their ethical obligations—was itself an achievement. Even if it lacks enforcement provisions, the Code establishes standards against which the media and the public can evaluate the justices’ conduct.8

It’s customary to refer to periods in Supreme Court history based on the chief justice, such as the Warren Court or the Rehnquist Court—but this doesn’t mean the chief justice controlled the direction of that court. For many years of the Rehnquist and Roberts Courts, two swing justices, Justices Sandra Day O’Connor and Anthony Kennedy, called the shots, at least in the most controversial cases.

For better or worse, those days are gone. Make no mistake: the Roberts Court is Roberts’s Court.

1Justice Barrett in particular has been the subject of a veritable cottage industry of coverage. See, e.g., Adam Liptak for The New York Times, Stephen Vladeck for The New York Times, Ann Marimow for The Washington Post, David Savage for The Los Angeles Times, Alex Swoyer for The Washington Times, Andrew Chung for Reuters, Kimberly Robinson for Bloomberg Law, and Lawrence Hurley for NBC News. (Thanks to Howard Bashman of How Appealing for most of these links.)

Original Jurisdiction readers, you heard it here first: before all of these articles were published, I observed that Justice Barrett is “parting ways with fellow conservatives when she disagrees.”

2Language nerds might enjoy this Wikipedia entry on “primus inter pares,” the Latin phrase meaning “first among equals.” It notes that this expression has been used to refer to such figures as “the chair of the Federal Reserve in the United States, the prime minister in parliamentary systems, the president of the Swiss Confederation, the chief justice of the United States, the chief justice of the Philippines, the archbishop of Canterbury of the Anglican Communion, and the ecumenical patriarch of Constantinople of the Eastern Orthodox Church.”

3One Globe commenter complained that I didn’t mention that Chief Justice Roberts’s wife “makes millions taking bribes from attorneys who in all probability will have business before the Court.” Umm, no.

As someone who worked as a legal recruiter for two years, I’m well aware that Jane Sullivan Roberts, managing partner of the D.C. office of Macrae, is “[o]ne of Washington’s most insightful and experienced legal recruiters.” I’m unaware of any ethical violations by Chief Justice Roberts associated with his wife’s career. As Mrs. Roberts previously stated, she intentionally does not work with lawyers who have ongoing business before the Court.

Here’s what Gabe Roth of Fix the Court, nobody’s idea of an ethics dove, said about Mrs. Roberts in our podcast conversation: “She’s brilliant. She's wealthy. She quit her job [at a law firm] and is still brilliant and is still wealthy. She was a partner, and now she’s a recruiter. It’s a total job switch. Good for her.”

Yes, I know: there’s an argument that Chief Justice Roberts, in his financial disclosures, should have referred to his wife’s recruiting income as “commissions” rather than “salary.” But I don’t believe this to be a violation. Here’s why.

Like many successful recruiters, Mrs. Roberts receives what’s called a “draw”—a regular and fixed payment, which is then offset against her future commissions. This is helpful to recruiters because it evens out what would otherwise be “lumpy” income. A draw qualifies as a “salary,” which is defined as “fixed compensation paid regularly for services.” So I don’t believe referring to Mrs. Roberts’s income as “salary” is an ethical violation.

But to remove any doubt, Chief Justice Roberts currently refers to Mrs. Roberts’s income as “recoverable base salary”—i.e., a draw—”and commission.” As his financial disclosure for calendar year 2022 explains, this new language “clarified” the nature of his spouse’s income “over prior year reports.”

4I like the title of this Fix the Court post: “John Roberts Accepts No Large Gifts, Writes No Books, and Has No Billionaire Buddies (That We Know Of).”

5I included this language about the Chief’s jurisprudence—”whether you admire it, abhor it, or something in between”—to make clear that I’m not taking a normative stance in this piece on his rulings, including his controversial opinion in the Trump immunity case. I’ll have more to say about that in the next edition of Judicial Notice. (As I previously mentioned I would, I took off last weekend for the Fourth of July holiday.)

6It’s actually 96.61 percent, to be exact—so 97 percent if you round up.

7Yes, I realize that some on the left vigorously resist the “3-3-3” characterization. They want to emphasize that the six Republican appointees are all very conservative, and the differences between the Roberts/Kavanaugh/Barrett wing and the Thomas/Alito/Gorsuch wing are trivial. Fair enough.

But it’s not just right-of-center analysts like Isgur who subscribe to the “3-3-3” theory. Last night, I watched “The Supreme Court’s Year in Review,” co-presented by the Forum on Life, Culture & Society (FOLCS) and the 92nd Street Y. Dean Bill Treanor of Georgetown Law—who’s not a conservative, and who had plenty of criticism for the some of the Roberts Court’s latest rulings—said this about SCOTUS: “The Court has three wings: three liberals, three conservatives, and three ‘real conservatives’” (to laughter).

8For additional views of mine on the SCOTUS ethics code, see Originalist Perspectives on Ethics and the Supreme Court, a Federalist Society panel where I took the “liberal” position of arguing in favor of a code. My fellow panelists, all to my right, opposed adopting a Code, essentially arguing that it would constitute caving to a bad-faith campaign by the left to weaponize ethics concerns against conservative justices whose rulings they oppose. (The justices ultimately saw it my way; the panel took place on November 9, 2023, and four days later, the Court announced its Code of Conduct.)

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Anti-Trump protesters in front of the U.S. Supreme Court (photo by Julia Nikhinson via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This morning, October Term 2023 came to an end at the U.S. Supreme Court. The Court issued three opinions.

First, in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Court held that a claim brought under the Administrative Procedure Act “accrues when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action.” Justice Amy Coney Barrett wrote for the Court and Justice Ketanji Brown Jackson dissented, joined by Justices Sonia Sotomayor and Elena Kagan.

Second, in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton—the big social-media cases out of Florida and Texas, consolidated for purposes of issuing opinions—the Court vacated the judgments of the Eleventh and Fifth Circuits. According to the opinion of the Court by Justice Kagan, “neither Court of Appeals properly considered the facial nature of NetChoice’s challenge.” Justices Clarence Thomas and Samuel Alito issued opinions concurring in the judgment, and Justice Neil Gorsuch joined the Thomas concurrence. No justice dissented.

Finally, in what most folks viewed as the main event, the Court issued its eagerly awaited opinion in Trump v. United States. Here’s some key language from the majority opinion by Chief Justice John Roberts, joined by all six conservative justices:

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

What about the argument that immunity places a president “above the law”? Here’s what the Roberts opinion says on that score:

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.

The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The Court therefore vacated the opinion of the D.C. Circuit, which painted with a much broader brush, and remanded for further proceedings.

And what does all this mean, practically speaking, for the federal prosecution of Donald Trump on charges related to the 2020 election? Again from the Chief’s opinion:

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. We offer guidance on those issues below.

Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions.

Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

So it’s hard to figure out the exact implications of this ruling for the Trump case currently pending in the U.S. District Court for the District of Columbia (D.D.C.); Judge Tanya Chutkan will have to apply the SCOTUS opinion to the allegations before her. But one thing is clear, if wasn’t clear already: this case is not going to trial before the November 2024 election.

Justice Barrett, who joined all of the Chief’s opinion except Part III–C, wrote a concurrence. She disagreed with the majority on the extent to which “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.”

Justice Sotomayor dissented, joined by Justices Kagan and Jackson, and Justice Jackson filed a dissenting opinion of her own. Here’s the opening paragraph of the Sotomayor dissent:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

And here’s her closing:

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

As noted by Amy Howe in the SCOTUSblog liveblog, Justice Sotomayor omitted the adverb “respectfully” before the verb “dissent.”

So did Justice Jackson, in a dissent exploring “the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States.” From the conclusion of the Jackson dissent:

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

The reference to “prevent[ing] Presidents from becoming Kings” echoes a line from an opinion Jackson wrote as a D.D.C. judge, declaring that “presidents are not kings.”

So, readers, what do you think? Needless to say, I haven’t had the chance to digest 119 pages of opinions, so I welcome your observations to guide me as I read.

Please share your thoughts in the comments of this Notice and Comment post—which I’ve opened up to all, not just paid subscribers. While I’m guessing most of you will focus on the Trump immunity ruling, please feel free to talk about other decisions from the Term or the Court more generally.

Thanks for your insights, as always, and early wishes for a wonderful Fourth of July.

P.S. I also look forward to hearing what Sarah Isgur and David French have to say about the Trump ruling over at Advisory Opinions—part of The Dispatch, which you can check out using this special offer for subscribers of Original Jurisdiction.

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The Supreme Court of the United States, July 2022 (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

We’re officially into summer (in case the brutally hot weather left any doubt on that score), and our 6-year-old son Harlan had his first day of summer camp. He seems to be enjoying it, even if we’re short on particulars; he seems to think that the first rule of summer camp is that you don’t talk about summer camp.

In addition to faithfully logging on to SCOTUSblog on Wednesday, Thursday, and Friday mornings—hey, did you hear that Chevron got overruled?—I did make time for fun. On Wednesday night, I saw Merrily We Roll Along, my first Broadway musical in ages. It’s closing soon (July 7), so if you’re hoping to check it out, don’t delay.

The latest testimonial for Original Jurisdiction comes from Louise G.: “Witty, topical, informative—and my birthday is also on Juneteenth!” I extend my thanks—and belated birthday wishes—to Louise.

If you can provide some kind words about this newsletter, please complete this form. You don’t need to provide your full name or affiliation in doing so, although I welcome them if you do.

A quick programming note: I might take next weekend off from Judicial Notice, in honor of the Fourth of July holiday. I’d then make the subsequent installment a double edition, as I occasionally do around big holidays. It will depend in part on the news—to which we now turn.

Lawyer of the Week: Roberta Kaplan.

On Wednesday, the New York legal world was rocked by the news that Roberta “Robbie” Kaplan, the superstar litigator who founded Kaplan Hecker & Fink (KHF) seven years ago this month, would be leaving the firm. She announced her departure after The New York Times informed her lawyers that it would be publishing an exposé containing allegations that she mistreated colleagues at KHF—issues that had previously led her to step down from the firm’s management committee last fall.

The Times article containing the claims about Kaplan, written by Katie J.M. Baker, appeared on Friday. I won’t repeat all the allegations here, which are literally juicy; there’s a subhead in the piece titled “The Meatball Incident.” But you can read the piece for yourself here (gift link), then draw your own conclusions.

Where is Robbie Kaplan going next? Together with Tim Martin, her former KHF colleague, she’s launching Kaplan Martin, a smaller boutique focused on civil litigation, internal corporate investigations, and strategic advisory work. They’ll be joined at their new firm by Steven M. Cohen and Mitra Hormozi, two former federal prosecutors who previously served as top lawyers at MacAndrew & Forbes Holdings and Revlon Inc., respectively.

While it’s unusual and surprising to see a founding partner ousted from her firm, I wasn’t shocked to hear that some lawyers at Kaplan Hecker & Fink—now Hecker Fink, per its website—had issues with Kaplan. Although I hadn’t heard specifics, I was generally aware of her reputation as sometimes challenging to work for—and even asked about it in our podcast interview. She denied the rumors, telling me that while she was stressed out a lot as a young partner at Paul Weiss, “I don't think anyone today—you can ask them yourselves—has a problem with me as a boss.”

Speaking for myself, I’ve had only pleasant interactions with Robbie Kaplan—and not just as a journalist (because people tend to be nice to folks who write about them). During my two-year detour from journalism into legal recruiting, I worked for a number of firms, including KHF—and Kaplan and her then-colleagues, including Sean Hecker and Julie Fink, treated me as a respected partner in the search for talent. In other words, I never felt like the “hired help,” which is how certain other firms and partners treat recruiters. (Disclosure: I made a placement at KHF, for which Lateral Link and I were paid a standard commission.)

And I’m not alone in having no issues with Kaplan. I’ve spoken—over the years, and over the past few days—with clients and colleagues who admire and enjoy working with her. They have not had experiences like the ones described in The Times, and I wouldn’t be surprised if some or even many of them follow her to Kaplan Martin. This is not to question the accuracy of the anecdotes about Kaplan. It’s simply to say—regarding not just Kaplan, but any other reportedly difficult boss—YMMV. (See also Judge Aileen Cannon, whose clerks have had diverse experiences.)

Runner-up for Lawyer of the Week: Barry J. Pollack. A reader wrote to me, “You should consider Barry Pollack at Harris St. Laurent & Wechsler for Lawyer of the Week. He represented Julian Assange in last week’s plea deal (and for years before that), and earlier this month, he got an acquittal in D.C. Superior Court in the highly publicized sexual-assault trial of lawyer Jonathan Jeffress. That’s a pretty impressive couple of weeks.”

[UPDATE (7/1/2024, 9:46 a.m.): “Saw your praise for Barry Pollack, which was great. Lead counsel Sara Kropf deserves a big shout-out, too. She did the opening, cross-examined the complainant for three days, and hammered home in a very effective way how little sense the complainant’s version of events actually made. And it was clear that the jury absolutely loved her.”]

Judge of the Week: Justice Neil Gorsuch.

Justice Neil Gorsuch was a force to be reckoned with at One First Street last week, writing opinions for the Court in three of its most important and high-profile cases:

Harrington v. Purdue Pharma L.P. In a 5-4 decision, the Court rejected the Chapter 11 reorganization plan of Purdue Pharma, maker of the prescription painkiller OxyContin—a plan that would have provided billions of dollars to address the opioids crisis, but would also have provided the billionaire Sackler family, which previously controlled Purdue, with broad protection from opioids-related civil liability. Joined by Justices Thomas, Alito, Barrett, and Jackson, Justice Gorsuch held that “the Bankruptcy Code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seeks to discharge claims against a nondebtor [the Sacklers] without the consent of affected claimants [plaintiffs suing the Sacklers].” Justice Kavanaugh—who parts ways with Justice Gorsuch more often than you might expect, given their similar backgrounds—wrote the dissent.
Ohio v. Environmental Protection Agency. By another 5-4 vote, the Court temporarily blocked the EPA’s “good neighbor” plan, an attempt to address air pollution drifting across state lines. Justice Gorsuch was joined by all the conservatives except Justice Barrett, whose dissent was joined by all the liberals.
City of Grants Pass v. Johnson. In a 6-3 decision along ideological lines, the Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not prevent cities from enforcing generally applicable laws against camping on public property. Justice Sotomayor dissented, arguing that these ordinances unconstitutionally punish people simply for being homeless.

And although the Court’s opinion in Loper Bright Enterprises was written by Chief Justice Roberts, Justice Gorsuch deserves some credit (or blame) for the overruling of Chevron v. Natural Resources Defense Council, the 40-year-old precedent directing courts to defer to agencies’ reasonable interpretations of ambiguous statutes. As discussed in my recent podcast interview of Evan Wolfson, who played a key role in bringing about marriage equality, major SCOTUS rulings don’t happen in a vacuum. Instead, they result from years-long efforts to change hearts and minds—and Justice Gorsuch was a leader in efforts to overturn Chevron.

Of course, judges are judges, not litigants or advocates. As Professor Kristin Hickman said to Lydia Wheeler of Bloomberg Law, “These are real people with real legal concerns at stake here and they’re the ones who win or lose cases, not judges or justices.” Professor Michael McConnell agreed, telling Wheeler, “I tend not to think about things as personal wins for [judges].” But McConnell acknowledged that “you can’t deny [Gorsuch has] been the champion of reining back Chevron”—dating back to when McConnell and Gorsuch served together on the Tenth Circuit.

For lower-court judges, especially ones with SCOTUS ambitions, criticizing Supreme Court precedents can be risky. But then-Judge Gorsuch wasn’t afraid to “go there” in attacking Chevron—an effort he continued as Justice Gorsuch, including in a 2022 opinion when he wrote that Chevron “deserves a tombstone no one can miss.” Echoing that language in his Loper Bright concurrence, he couldn’t resist taking a victory lap: “Today, the Court places a tombstone on Chevron no one can miss.” Chevron, rest in peace.

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Ruling of the Week: Loper Bright Enterprises v. Raimondo.

The Supreme Court issued nine opinions last week, including rulings in the following noteworthy cases:

Murthy v. Missouri. Splitting 6-3, with the three most conservative justices in dissent, the Court turned away this lawsuit alleging that the Biden Administration unconstitutionally pressured social-media companies to censor content. In an opinion by Justice Barrett, the Court held the plaintiffs lacked standing.
Moyle v. United States. The Court dismissed this case as improvidently granted—as Adam Liptak put it in The Times, the SCOTUS version of “never mind”—which means that, for the time being, emergency abortions remain available in Idaho. (In a bit of an “oops” moment, the Court accidentally posted this decision a day early, as first reported by Bloomberg Law.)
Fischer v. United States. By a 6-3 vote—but not a party-line 6-3, with Justice Jackson joining Chief Justice Roberts’s majority opinion, and Justice Barrett writing the dissent—the Court gave a relatively narrow reading to 18 U.S.C. §1512(c)(1), the obstruction statute used to charge more than 300 defendants in January 6-related cases.

Chief Justice John Roberts announced that Monday will be the last day of the Term, which means that we’ll (finally) get the Trump immunity decision. Buckle up.

The biggest decision of last week was Loper Bright Enterprises v. Raimondo, in which the Court overruled its landmark decision in Chevron v. NRDC (1984). There has been—and will be—an immense amount of journalistic and scholarly commentary on the demise of Chevron. I won’t (and can’t) summarize it all here; as usual, I refer you to invaluable sources like SCOTUSblog and How Appealing, which have been collecting much of it. For now, I’ll just make three brief points.

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Happy Pride—and happy June 26. As the Supreme Court hands down its final decisions of the Term over the next few days, it’s worth reflecting on how June 26 is the day the Court issued three of its landmark gay-rights decisions: Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015).

Obergefell was issued in 2015, the same year that my husband Zach and I got married. And I would say that we—and really all married same-sex couples in the United States—owe a debt of gratitude to my podcast guest for today: Evan Wolfson, founder of Freedom to Marry, the groundbreaking campaign that won marriage equality in the United States and ignited a global movement. Evan has garnered many awards for his work over the years, including recognition as one of the 100 most influential lawyers in America by The National Law Journal and one of the 100 most influential people in the world by Time Magazine.

What led Evan to focus his career on the fight for same-sex marriage? What was his thinking in launching Freedom to Marry? What are some secrets of the success of the marriage-equality movement? And what lessons can it offer to other struggles for social justice?

Check out our conversation to learn all this and more. Thanks to Evan for joining me—and for his decades of work in advancing marriage equality and LGBTQ rights, both in the United States and around the globe.

Show Notes:

Evan Wolfson bio, Dentons
What the Freedom to Marry Campaign Can Teach Middle East Peacemakers, by Evan Wolfson for U.S. News & World Report

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Evan Wolfson (courtesy photo) Read more

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Justices Amy Coney Barrett and Clarence Thomas, after Justice Thomas swore in Justice Barrett (photo by Nicholas Kamm/AFP via Getty Images).A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

“I assure you, I have my own mind.”

This is how then-Judge Amy Coney Barrett responded at her 2020 confirmation hearings, when Sen. Chris Coons (D-Del.) questioned her about how much she’d follow the jurisprudence of the late Justice Antonin Scalia (for whom she clerked). She sounded similar notes in responses to written questions from the late Sen. Dianne Feinstein (D-Calif.), stating repeatedly that “if I am confirmed, you would be getting Justice Barrett, not Justice Scalia.”1

As she completes her fourth Term on the U.S. Supreme Court, Justice Barrett is making amply clear that she has her own mind. She’s parting ways with fellow conservatives when she disagrees—especially on the interesting and important issue of how to use history when interpreting the Constitution.

Make no mistake: Barrett is a conservative, and she believes history has a role to play in constitutional law, as conservatives generally do. She joined the majority opinions in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and rejected a constitutional right to abortion, and New York State Rifle & Pistol Association v. Bruen, which directed lower courts reviewing gun laws to decide whether they are “consistent with the Nation’s historical tradition of firearm regulation”—a test widely viewed as favorable to gun rights.

But when it comes to relying heavily on history and tradition in constitutional interpretation—the approach taken by Justice Samuel Alito in Dobbs, by Justice Clarence Thomas in Bruen, and by lower-court judges trying to follow these decisions—she has some concerns. For example, in a separate concurrence in Bruen, she raised questions about “the permissible use of history” in constitutional interpretation—and cautioned against giving history “more weight than it can rightly bear.”2

This wasn’t Barrett’s first expression of skepticism toward the utility of history. Consider her concurrence in the 2021 case of Fulton v. City of Philadelphia, about whether a Catholic social-services organization could refuse to certify same-sex couples as foster parents, antidiscrimination law notwithstanding: “While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.”3

Last year, Justice Barrett dialed it up a notch. In Samia v. United States, about whether the admission of a nontestifying codefendant’s confession violated the Confrontation Clause, Justice Thomas authored an opinion for the Court relying in part upon historical practice in finding no violation—but Barrett didn’t go along.

Although she agreed with the bottom-line conclusion of no constitutional violation, Barrett declined to join the history-focused portion of the Thomas opinion—which she dismissed as “beside the point.” She concluded her separate concurrence as follows: “While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.”

Then last week, Barrett took the gloves off. Even though she was a college sophomore when Thomas joined the Court in 1991, making him almost three decades her senior, she wasn’t afraid to disagree with him—vigorously.

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In Vidal v. Elster, a trademark-law case about the constitutionality of the “names clause” of the Lanham Act, Thomas wrote an opinion upholding the clause against a First Amendment challenge—and relied heavily on history in doing so. Because “a tradition of restricting the trademarking of names has coexisted with the First Amendment,” there was no constitutional problem with rejecting an application to register “Trump Too Small” as a clothing trademark.

Once again, Barrett agreed with Thomas’s ultimate conclusion, but took a hard pass on his history lesson. In a concurrence joined by the three liberal justices, Barrett called Thomas’s approach “wrong twice over.” She disputed the accuracy of his historical analysis, but more importantly, she complained that “the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”

Barrett instead advocated a standard focused less on history and more on the purposes of trademark law and First Amendment precedent. Under this standard, restrictions on trademark registration would be “permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.”

Thomas and Barrett are both conservatives and originalists. Their vigorous disagreement on a critical question for originalism—how to use history and tradition in constitutional analysis—garnered notice.

Some conservatives and originalists raised concerns about Barrett’s Vidal v. Elster concurrence. Professor Michael Ramsey of the University of San Diego, while expressing some agreement with Barrett, suggested her “reasonableness” approach isn’t based on the original meaning of the constitution—the touchstone for originalist analysis.

Professor Josh Blackman of the South Texas College of Law also questioned Barrett’s approach, which he described as a “means-ends balancing test—the exact sort of test that Bruen rejected”—and not grounded in originalism: “For all of Barrett’s criticism of the majority’s originalist analysis, she offers no originalist analysis of her own.”

This methodological debate might seem obscure or abstruse to some. Why does it matter?

For better or worse, the Supreme Court and lower courts are increasingly turning to history to decide the meaning of the Constitution. Settling how and why history can be used in constitutional interpretation will therefore shape what rights we enjoy as Americans, how much power government has over its citizens, and more. In fact, expect two concrete examples in the very near future.

First, in United States v. Rahimi, the Court will decide whether it violates the Second Amendment to prohibit the possession of firearms by persons subject to domestic-violence restraining orders. Expect history and tradition to play major roles.4

Second, look for historical discussion when the Supreme Court decides Trump v. United States, concerning whether and to what extent a former president enjoys presidential immunity from criminal prosecution.

The debate over history isn’t confined to the conservative wing of the Court—and relying on history doesn’t always yield conservative outcomes. In Consumer Financial Protection Bureau v. Community Financial Services Association, Thomas wrote a majority opinion rejecting a challenge to the CFPB’s funding mechanism, based in part “on the history against which that text was enacted, and congressional practice immediately following ratification.”

And in a noteworthy concurrence, Justice Elena Kagan found additional support for the majority’s conclusion by looking at historical examples of funding structures used by Congress after the enactment of the Appropriations Clause.5 Such reliance on post-enactment history and tradition is controversial, especially on the right—and was criticized by a prominent conservative jurist, Judge Kevin Newsom of the Eleventh Circuit, in a February speech at Harvard Law School. But Kagan was joined in her CFPB concurrence not just by her fellow liberal justices, but also by—yes, you guessed it—Barrett.6

It’s too early to say who will prevail in this debate over the use of history and tradition in constitutional interpretation. But there’s no denying that Justice Barrett has her own mind—and isn’t afraid to speak it.

1Although she is most definitely her own justice, Justice Barrett has frequently acknowledged and expressed gratitude for her mentors, including Justice Scalia and Judge Laurence Silberman of the D.C. Circuit, for whom she also clerked. After Judge Silberman’s passing in 2022, she spoke with me for the obituary I published in these pages, sharing frank and often funny recollections.

2Her concurrence notwithstanding, Barrett joined Thomas’s majority opinion in Bruen in full. But according to Mark Joseph Stern of Slate, her Vidal v. Elster opinion “suggests she has buyer’s remorse about signing on to Bruen, a significant expansion of the Second Amendment that’s arguably the most radical and unworkable ‘originalist’ opinion she’s joined so far.”

For additional criticism of Bruen—specifically, its reliance on legislative inaction—see this thoughtful piece by Professor Fred Vars, The Dog That Didn’t Bark Is Rewriting the Second Amendment. As noted by Vars, one prominent critic of relying on legislative inaction was Justice Scalia, who argued in a 1987 opinion that it is impossible to “draw any conclusions regarding [legislative] intent from the failure to enact legislation.”

3In her Fulton concurrence, Barrett addressed the controversy around Employment Division v. Smith, in which the Court (in an opinion by Justice Scalia) held that “a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise.” Critics of Smith have cited history in arguing for its overruling, but Barrett opined that “the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.”

But in Fulton, the Court did not reach the issue of whether Smith should be overruled—and Barrett was fine with that. As explained in her concurrence, deciding Fulton did not require revisiting Smith, and figuring out what should replace Smith presents several difficult questions.

4Not long after this column was originally published on Bloomberg Law, the Court issued its eagerly awaited opinion in Rahimi. By a vote of 8-1, the Court held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

In his opinion for the Court in Rahimi, Chief Justice John Roberts explained that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (emphasis added). This reminded me of what Justice Barrett wrote in Vidal v. Elster, urging the Court to focus less on history and more on identifying “a generally applicable principle” (emphasis added). Or as she wrote near the end of that concurrence, “I see no reason to proceed based on pedigree rather than principle.”

For additional discussion of Rahimi, see this Notice and Comments post, including the comments, and yesterday’s Judicial Notice news roundup. For purposes of this column, suffice it to say that Rahimi reflects the ongoing disagreement between Justices Barrett and Thomas on the use of history, with Barrett voting with the majority and Thomas dissenting.

5In her Vidal v. Elster concurrence, Barrett cited Kagan’s concurrence in the CFPB case prominently, for the proposition that “the longstanding practice of the political branches can reinforce our understanding of the Constitution’s original meaning.”

6In her (very interesting) concurrence in Rahimi, Justice Barrett sounded critical notes about post-enactment history, explaining that “for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.”

She acknowledged that while post-enactment history “can be an important tool” in constitutional interpretation, its use “requires some justification other than originalism simpliciter.” Some possible justifications are the ones identified in her Vidal v. Elster opinion: post-ratification history “can ‘reinforce our understanding of the Constitution’s original meaning’; ‘liquidate ambiguous constitutional provisions’; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome.”

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Judge Aileen M. Cannon, during her July 2020 confirmation hearing (screenshot via Senate Judiciary Committee video).This week’s Judicial Notice is sponsored by

I hope everyone had a happy Juneteenth, which commemorates the ending of slavery in the United States. It’s an important reminder that words on paper—like the Emancipation Proclamation, issued in 1863—need to be made real by action. And I’m honored to share my birthday with “America’s Second Independence Day,” a federal holiday as of 2021. Thanks to many of you for your kind greetings—and thanks to all of you for your readership and support of Original Jurisdiction.

The latest testimonial for Original Jurisdiction comes from Maria Ho, head of research at Vault Law: “At Vault, it is important that we stay current on what is happening in the legal world and understand the factors that might be driving changes in associate opinion and the Vault law firm rankings. Original Jurisdiction is one of my ‘must-reads,’ as it provides an incredibly up-to-date, thoughtful, and readable summary of the most relevant news and trends.”

My thanks to Maria for the commendation—and for all the work that she and her colleagues put into the Vault 100, their ranking of the nation’s most prestigious law firms. The new Vault 100 was just published (and I analyzed it here).

Now, on to the news.

Lawyer of the Week: Steven Calabresi.

Over the past year, Professor Steven Calabresi—a member of the Northwestern Law faculty since 1990 and a co-founder of the Federalist Society, where he co-chairs the Board of Directors—has been all over the news. His evolving views on Donald Trump and Trump-related legal matters are chronicled in this recent Balls and Strikes piece by Jay Willis. Whether or not you agree with Willis’s theory for Calabresi’s changes of heart, his post raises the possibility that Calabresi could use a bit more “message discipline.” While I admire thinkers who are willing to change their minds, too many rapid shifts raise the possibility of being too quick on the trigger (or keyboard).

Typically, Steve Calabresi does battle with folks on the left. But last week, he set tongues wagging by excoriating a prominent conservative: Judge Jerry Smith (5th Cir.). Professor Calabresi and Judge Smith disagree on the use of unpublished opinions and whether new federal judgeships need to be created—and it seems that Calabresi is taking their disagreements personally. Here’s an excerpt from a Volokh Conspiracy post by Calabresi, responding to an email from Judge Smith:

I now think that the power, and life tenure, you have had in the 36 years since your appointment has gone to your head and has turned you into an arrogant bully who throws a hissy fit over a BLOG post trying to intimidate a mere private citizen, and who has refused to take senior status for twelve years even though you have been eligible to do so since November 7, 2011.

You are like the character Gollum in J.R.R. Tolkien’s The Hobbit and The Lord of the Rings who has, after 36 years in power, been corrupted by wearing the ring of power for too long. You are a walking, living example of why federal judges should not have life tenure as active duty judges, but should be required to assume senior status after 18 years. You have become a part of the problem with the federal judiciary, and not the solution, which you were meant to be, in 1987, when President Ronald Reagan appointed you on the advice of Attorney General Ed Meese.

Tell us how you really feel, Professor Calabresi. And again, that’s just an excerpt. For the juiciest parts, start from the bottom of page four—with the paragraph beginning, “It is ironic that Judge Smith is so opposed to the obvious need for a new judgeship bill, since Judge Smith himself was appointed to a new seat”—and continue from there.

Calabresi later thought better of his caustic remarks. So he retracted them—but not before Howard Bashman shared the original version of the post on How Appealing, and not before it made the rounds by email and by text (which is how I learned about it, from readers who sent it along with “OMG read this” messages).

My advice to Professor Calabresi: take a temporary break from punditry, step away from your computer, and enjoy summer in Chicago. It’s one of America’s great cities, especially when it’s not frigid (and I’m looking forward to visiting in August, when I’ll be participating in a panel at the ABA Annual Meeting).

Other lawyers in the news:

Also at the Volokh Conspiracy, Professor Josh Blackman broke down the division of oral arguments in the Office of the Solicitor General (OSG). Solicitor General Elizabeth Prelogar argued almost 19 percent of OSG cases in the Term now drawing to a close, which Blackman noted is the highest percentage in a quarter-century. His post hints at the possibility that she might be taking too many arguments—but when you review his list of her arguments, many of them are critically important cases that it might make sense for the SG to argue.
In response to the effort by Tennessee Attorney General Jonathan Skrmetti and 20 other AGs to get the American Bar Association (ABA) to remove “explicitly illegal consideration of race” from law-school accreditation standards, Illinois Attorney General Kwame Raoul sent a letter to the ABA on behalf of 19 state AGs that criticizes “baseless attacks on diversity, equity and inclusion efforts and programs.” Game on.
Trump legal advisor Boris Epshteyn (pronounced EP-stine), aka the world’s most notorious alum of Georgetown Law and Milbank, was arraigned on Tuesday on election-interference charges in Arizona.
And speaking of other lawyers in deep doo-doo, Ohio lawyer Jack Allen Blakeslee, who gained notoriety for allegedly pooping into empty Pringles cans and leaving them all over the place, got his law license reinstated.

In memoriam:

Brian Blomain, an associate in the Philadelphia office of Marshall Dennehey, passed away at 29 from a sudden health event.
Molly Donovan, 43—a partner in the New York office of Bona Law, an antitrust boutique—was struck and killed by a school bus in Mamaroneck, New York, while walking her son Michael, 6, to school. Michael was pronounced dead on the scene; Donovan was taken to the hospital, where she later died.

May they rest in peace.

Judge of the Week: Judge Aileen Cannon.

In the three and a half years that I’ve been writing Original Jurisdiction, who is the lower-court judge who has most frequently been named Judge of the Week? Until this week, there was a three-way tie between Judges James Ho (5th Cir.), Kevin Newsom (11th Cir.), and Aileen Cannon (S.D. Fla.), who were all four-time “winners” of JOTW honors (which, I should remind you, are bestowed based on who’s being talked about or generating buzz, not any normative judgment of judicial fabulosity).

But now the tie has been broken—and Judge Cannon is the undisputed champ. She wound up in the headlines for two reasons.

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The Supreme Court of the United States (by Mindaugas Dulinskas via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Yesterday and today, the U.S. Supreme Court issued a total of nine opinions. We’re still waiting on about a dozen cases—including some blockbusters, such as the Trump immunity case and the challenges to Chevron deference—so stay tuned.

This morning, the Court did issue its eagerly awaited opinion in United States v. Rahimi. In an opinion by Chief Justice John Roberts that was joined in full by seven other justices, the Court rejected a facial challenge to the enforcement of 18 U.S.C. §922(g)(8). In plain English, as summarized nicely by Amy Howe on the indispensable liveblog of SCOTUSblog, the Court held “that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”

The Chief’s opinion ran a concise 18 pages. The remaining opinions—concurrences from Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, plus a dissent from Justice Clarence Thomas—took the total to 103 pages.

I’m attending and speaking at a conference today, so I probably won’t get to dig through the Rahimi opinions until tonight. But I will do so, and then I’ll share my thoughts in this weekend’s edition of my Judicial Notice news roundup.

Perhaps you can give me a head start. What jumps out at you from Rahimi? Which justice’s opinion do you find most persuasive? What are the implications of Rahimi for the future of the Second Amendment? Please share your thoughts in the comments of this Notice and Comment post—open to all, not just paid subscribers.

My last two N&C posts, about the conviction of Donald Trump and the Flag-gate controversy involving Justice Alito, generated a total of more than 400 comments. And based on those comments, it’s clear that you’re opinionated, smart, well-informed, and civil (at least by internet standards).

So please, have at it in the comments to this post. I look forward to your insights.

P.S. I also look forward to the thoughts of Sarah Isgur and David French of Advisory Opinions, one of my favorite podcasts. They broke down the Thursday opinions here, and they’ll have analysis of the Friday opinions later today.

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Cleary Gottlieb Steen & Hamilton, a longtime member of the Vault 20 (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Lawyers love prestige, and lawyers love rankings. If you’ve spent any time on LinkedIn over the past few weeks, you’ve surely seen lawyers posting about themselves, their colleagues, or their law firms getting recognized in the 2024 Chambers and Partners rankings, which were released earlier this month. While I’m skeptical of certain other systems for ranking lawyers and law firms, I have a lot of respect for Chambers, which I regard as the real deal.

The Chambers rankings are partner-focused. For associates’ perceptions of firm prestige, the Vault prestige rankings are where it’s at. And while some observers might discount the views of associates, the Vault rankings matter because law students and young lawyers consider them when deciding where to work. Law is a talent-centric business, and top law firms need to focus on not just hiring great talent in the lateral market, but also entry-level hiring. Making it into the Vault 100, and then rising in the Vault rankings over time, will help a firm greatly in recruiting—which is ultimately the key to a firm’s future.

This morning, Vault announced the 2025 Vault 100—the nation’s 100 most prestigious law firms, based on a survey of 20,000 Biglaw associates across the country. Here are the top 10 firms, with change in rank from last year noted parenthetically (“—” means no change):

Cravath, Swaine & Moore (—)
Wachtell, Lipton, Rosen & Katz (—)
Skadden, Arps, Slate, Meagher & Flom (—)
Latham & Watkins (—)
Sullivan & Cromwell (—)
Kirkland & Ellis (+1)
Davis Polk & Wardwell (-1)
Paul, Weiss, Rifkind, Wharton & Garrison (+1)
Simpson Thacher & Bartlett (-1)
Gibson Dunn & Crutcher (—)

For the seventh year in a row, the so-called “V10” firms remained the same, with only minor changes in order. It’s further proof that prestige is “sticky,” i.e., difficult and slow to change (as I recently discussed in the context of law-school rankings).

The top five firms didn’t change at all. In the rest of the top 10, Kirkland and Davis Polk traded places at #6 and #7, and Paul Weiss and Simpson swapped spots at #8 and #9. These shifts are small, so I wouldn’t read too much into them. But it’s worth noting that Kirkland and Paul Weiss made some major hires in the lateral partner space in recent years, and perhaps associates have noticed.

Let’s now look at the rest of the top 20, followed by the biggest gainers and losers in the latest Vault rankings—including my analysis of what trends these moves reflect.

Here are the firms ranked #11 to #20—and once again, there wasn’t a lot of change:

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Jeffery Lamar Williams aka Young Thug, during happier times (photo by Kieran Frost/Redferns via Getty Images).Happy Father’s Day to all the dads out there. The first highlight of my week was fatherhood-related: our son graduated from first grade. The second highlight was joining Sarah Isgur on Advisory Opinions (AO) to discuss the latest controversy involving Justice Samuel Alito, the conviction of Hunter Biden, the Young Thug trial, and six new Supreme Court decisions (which we managed to do in under 90 minutes).

Speaking of fatherhood and podcasting, check out my interview of Michael Williams if you haven’t already. Mike juggles his busy trial practice at Kirkland & Ellis with raising 11 kids, so I take my hat off to him, and he offers lots of great advice for working parents.

This week’s testimonial for Original Jurisdiction comes from Satyen Gupta, an associate at an Am Law 100 firm: “When you’re first starting out in the legal world, there’s so much you don’t know, and it can be hard to speak with senior attorneys about latest developments and industry trends. Luckily, Original Jurisdiction makes it a breeze.” Thanks to Satyen for the warm words—and if you’d be willing to offer your own testimonial for OJ, which you can think of as an early birthday gift for me (my birthday falls on Juneteenth), please fill out this form.

Now, on to the news.

Lawyers of the Week: Leo Wise and Derek Hines.

On Tuesday, a jury in Delaware federal court found Hunter Biden guilty on three felony counts: one count of illegal gun possession—specifically, possessing a firearm while he was “an unlawful user of or addicted to any controlled substance,” in violation of 18 U.S.C. § 922(g)(3)—and two counts of making false statements (on forms related to the gun purchase). While I wasn’t surprised by the verdict, I was surprised by how it came just three hours and five minutes into deliberations.

The Hunter Biden conviction arrived just two weeks after former president Donald Trump was convicted of 34 felony counts at his Manhattan hush-money trial—which led Jimmy Kimmel to quip that Hunter is “now only 31 felonies away from being the Republican nominee for president.” Writing in The New York Times, Charlie Savage opined that “under tremendous political pressure, 12 jurors in both cases appear to have taken their jobs seriously, weighing the evidence and delivering convictions”—i.e., the system worked.

President Joe Biden stated after the verdict that he would not pardon his son or commute his sentence, so Hunter’s fate presumably lies in the hands of Judge Maryellen Noreika (D. Del.). Former Justice Department lawyer Tom Dupree, now at Gibson Dunn, predicted to CBS News that Hunter will get prison time, but not a particularly long sentence—between one to two years. That’s also what former federal prosecutor Ken White calculated Hunter’s federal sentencing-guidelines range to be—but the guidelines are advisory, and White said on Serious Trouble that if he were representing Hunter, “I would be cautiously optimistic that I could get a noncustodial sentence or at least something a lot less than a year or two in federal prison.” (As I said on AO, disagreeing with Sarah Isgur, I’m closer to Dupree than to White: I think Judge Noreika will force Hunter to spend at least some time behind bars, maybe six months or so.)

What about Hunter’s prospects on appeal? He could challenge § 922(g)(3), using the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen to argue that the government can’t take away someone’s Second Amendment rights based merely on the status of being an addict. But that’s probably a long shot, and even if he can get his gun conviction reversed, his two false-statement convictions are likely to be upheld (although he could get a lower sentence if the gun charge falls).

The lead lawyers for the government were Leo Wise, a longtime federal prosecutor who currently works for the DOJ’s public-integrity section, and his colleague Derek Hines. While the evidence against Hunter was extensive, jury trials involving public, politically connected figures can be unpredictable, and Hunter had a formidable defense team from Winston & Strawn, led by veteran defense lawyer Abbe Lowell. So Wise and Hines deserve significant credit for the convictions.

And the two prosecutors could benefit from their victory should they decide to pursue opportunities in private practice, according to legal recruiter Amy Savage of Lateral Link. As she told the National Law Journal, “Depending on the firm’s hiring strategy, they might want a splash hire. And having someone who has been highly visible speaks not only to their expertise, but also to their credibility in the marketplace.”

Judge of the Week: Justice Amy Coney Barrett.

Yes, I have thoughts on the latest controversy swirling around Justice Samuel Alito, based on secret recordings of him and his wife, Martha-Ann, made at a Supreme Court Historical Society gala by a progressive filmmaker named Lauren Windsor (who pretended to be a conservative Catholic when speaking with the Alitos). You can hear my views—including a funny story involving me, Mrs. Alito, and the Alitos’ son Phil—on Advisory Opinions (starting around 57:20).

But enough about Justice Alito; let’s instead focus on Justice Amy Coney Barrett. As one of the three justices in the middle of a 3-3-3 Court, she’s powerful simply by virtue of her vote—reflected in how, after Chief Justice Roberts and Justice Kavanaugh, she’s the third most-likely justice to be in the majority. And she also might hold the future of American constitutional law in her hands.

Since it was mixed in with the mifepristone and bump-stock cases, Vidal v. Elster might have been easy to overlook. It concerns the constitutionality under the First Amendment of the “names clause” of the federal trademark law, the Lanham Act, which prohibits registration of a mark that “[c]onsists of or comprises a name… identifying a particular living individual, except by his written consent.” This topic might seem esoteric, but the case garnered media attention because of a Trump angle: attorney Steve Elster sought to register “Trump too small,” for use on shirts and hats.

With apologies to the trademark-law nerds among you, what’s most interesting about this case is not the Lanham Act issue. Instead—as Sarah Isgur and I discussed on AO (around 25:52), and as Kyle Jahner and Aruni Soni explained for Bloomberg Law—it offers a window into the justices’ differing approaches to constitutional interpretation.

Since the Court’s big Second Amendment decision two years ago in Bruen, the methodology employed by Justice Thomas in that case—aka “text, history, and tradition” (THT), as described by Justice Kavanaugh in his concurrence—seemed destined to become the dominant mode for deciding whether the Constitution recognizes a given right. Many lower-court judges, especially those on the more conservative or originalist end of the spectrum, started deploying THT aggressively in constitutional cases.

But now SCOTUS might be saying, “Not so fast.” And the justice telling everyone to slow their roll is, surprisingly enough, Justice Barrett.

In his Elster opinion, Justice Thomas employed a THT approach. After conducting a detailed analysis of the history of American trademark law, he concluded that the names clause “has deep roots in our legal tradition,” and more specifically, “a tradition of restricting the trademarking of names has coexisted with the First Amendment.”

In her concurrence—which was joined in part by the three liberal justices—Justice Barrett countered that “the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.” Instead, Justice Barrett argued for “a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech.”

The clash between Justices Thomas and Barrett raises a broader question: what is the proper role of history and tradition in constitutional analysis? Here is Justice Barrett’s view (citations omitted—but note that one of her citations is to Justice Elena Kagan’s concurrence in the recent case about the funding mechanism for the Consumer Financial Protection Bureau, which I predict will become another key opinion in this debate):

To be sure, tradition has a legitimate role to play in constitutional adjudication. For instance, the longstanding practice of the political branches can reinforce our understanding of the Constitution’s original meaning. A course of deliberate practice might liquidate ambiguous constitutional provisions. The views of preceding generations can persuade, and, in the realm of stare decisis, even bind. But tradition is not an end in itself—and I fear that the Court uses it that way here.

In her first two Terms of the Court, Justice Barrett seemed to assume a don’t-rock-the-boat, “I’m just happy to be here” role. But with her brilliant concurrence in Biden v. Nebraska last June—a pellucid analysis of the “major questions” doctrine—and now her concurrence in Elster, her colleagues are on notice: Justice Barrett is an intellectual force to be reckoned with on the Court. And she won’t hesitate to part ways with her senior colleagues if she disagrees with their views.

In nominations news, the Biden Administration announced its fifty-second round of judicial nominees: assistant U.S. attorney Mary Kay Costello (E.D. Pa.), assistant U.S. attorney Laura Margarete Provinzino (D. Minn.), and California Superior Court Judge Noël Wise (N.D. Cal.). All three nominees have the support of their home-state (Democratic) senators—but getting confirmed will get increasingly difficult as we get closer to the November elections.

In memoriam: Judge Harry D. Leinenweber—a member of the Northern District of Illinois bench since 1985, on senior status since 2002—passed away at 87. May he rest in peace.

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Ruling of the Week: Garland v. Cargill.

We’re in the middle of June, so the U.S. Supreme Court is busy cranking out opinions. It handed down opinions on Thursday and Friday, which you can access here and here (via Howard Bashman of How Appealing).

And since the mifepristone case, FDA v. Alliance for Hippocratic Medicine, ended “with a whimper”—in an opinion by Justice Kavanaugh, the Court unanimously ruled that the plaintiffs lacked standing—last week’s biggest decision was Garland v. Cargill. Writing for the six conservatives, Justice Clarence Thomas held that based on the National Firearms Act’s definition of a “machinegun,” the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.” The Court therefore affirmed the Fifth Circuit (which got reversed in the mifepristone case, and will probably end the Term with a less-than-stellar track record before SCOTUS).

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(photo by Jacobs Stock Photography Ltd. via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Twenty years ago this month, I wrote my first post as a legal blogger, which sent me on an unusual professional journey. A few months after revealing myself as the author of the pseudonymous Underneath Their Robes blog, I left behind a promising career in the law to become a full-time blogger. And that’s how I’ve been making a living ever since (aside from a two-year detour into legal recruiting).

As a current legal journalist and former legal recruiter, I have firsthand experience with what it’s like to transition out of law into a different but related career, one that draws on a legal education and experience but doesn’t involve billing hours. And I also know about the subject from having written about it. For years, I wrote and edited posts for the Career Alternatives column at Above the Law, and one of my first freelance piece for a print publication was an article for the New York Observer, Do You Believe In Life After Law? (profiling lawyers who left the profession for baking, banking, catering, fiction writing, and standup comedy).

Not surprisingly, I’m frequently asked for advice on how to transition out of law—sometimes by lawyers who are downright unhappy, and sometimes by lawyers who like but don’t love what they do (which is how I’d describe my former self). It’s also a common subject raised by founding members of Original Jurisdiction during their one-on-one calls or coffees with me.

Since I unfortunately don’t have the time to speak to every individual who asks me for my thoughts on this subject, I thought I’d write about it for my advice column here at Original Jurisdiction, Asked and Answered. If you have a question for a future edition of A&A, please email me at davidlat at substack dot com, subject line “Asked and Answered: [your topic].”

Here’s today’s question (a composite of inquiries I’ve received over the years):

Dear A&A,

I’m a junior associate in Biglaw. I haven’t been here that long, but I’m already pretty sure that I want to leave—not just my firm, which is fine as firms go, but the practice of law.

I realize that being a junior associate at a firm often involves a lot of drudgery. But when I look ahead to what midlevel or senior associates are doing, or even what partners are up to, their work doesn’t appeal to me either.

And there’s no other job within the law that cries out to me either. I’m not one of those people who went to law school with a plan like “work in Biglaw for two or three years, pay off loans, and become a [prosecutor/public defender/public-interest lawyer/law professor].”

To be honest, I went to law school without a clear sense of what I wanted to do with my J.D. degree. And maybe that explains my current predicament.

I feel a bit lost. And yes, I do have outstanding student loans. Please help!

Yours truly,
Bewildered in Biglaw

Thanks for your message, Bewildered. If it’s any consolation to you, you’re far from alone. Here are four steps I’d recommend to someone in your shoes.

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1. Get yourself in good financial shape.

When law students or lawyers tell me that they’re interested in an alternative career and ask me for one piece of advice, I often quip, “Marry rich.”

It’s a joke, but there’s a grain of truth to it. Very few alternative careers will pay you as handsomely as practicing law—especially since you work in Biglaw, and especially when you’re just starting out in a new field. In 2006, my first full year as a blogger/writer, I earned less than $50,000. That’s less than what I earned as a law clerk or an assistant U.S. attorney, and far less than what I earned in 2002, my last full year at Wachtell Lipton (more than $270,000, in case you were wondering—I looked up my earnings history on the Social Security website, which can be fun to do).

I don’t know your financial situation—you mentioned student loans, but I don’t know if you have a mortgage, a spouse or kids to support, elderly parents who need help—so I’ll speak in generalities. What I’d recommend is that while you figure out what to do next, get your financial affairs in order. Pay off as much of your educational debt as possible, don’t on additional debt (like a mortgage), and save as much as you can.

When you’re working long hours in a stressful Biglaw job, it’s only natural to want to “treat yourself” when not toiling away—with gourmet meals at high-end restaurants, lavish vacations, and designer clothes. If you’re seriously thinking about leaving the law, though, do your best to avoid these temptations—and try to put yourself in a situation where you can get by with a modest income, or maybe even no income, for an extended period of time.

2. Figure out what you want to do next.

This is easier said than done, but there are multiple things you can try. For example, you can certainly take a career-aptitude test, which can be easily found online; I didn’t do this myself, but I have met others who found it helpful.

My path out of the law was fairly common: I had a hobby or side hustle that gained traction. I started a blog, it garnered traffic and notice, and that gave me the confidence to think that I could quit the law and make it as a writer. (It also helped that I had no student loans, plus savings from my years as a lawyer—see point #1, supra.)

So… just try stuff! If you’re interested in journalism, look into doing some freelance work (consistent with your firm’s policies about outside writing). If you enjoy baking, experiment with recipes on the weekends; maybe you’ll make treats for family and friends, and it will expand from there. If you aspire to a career as an artist, start taking some classes or producing some art, and see where it takes you.

If you want to become a novelist, join a fiction-writing workshop or begin working on a manuscript. Follow in the footsteps of Helen Wan, author of The Partner Track, and Allison Leotta, author of the Anna Curtis series of novels. They worked on novels while juggling demanding jobs as a corporate lawyer and federal prosecutor, respectively—and after encountering success, they became full-time writers.

You might say, “I bill 2500 hours a year—I don’t have time for hobbies!” I worked at Wachtell, so I feel your pain.

You might have to transition to a less time-consuming legal job, one that allows you to explore outside interests, as a way station en route to leaving the law entirely. That’s one reason I went to the U.S. Attorney’s Office in New Jersey: it offered better work-life balance than the S.D.N.Y. and E.D.N.Y., and I could focus on appellate work—which gave me ample control over my schedule.

3. Get some help.

In my recent podcast interview of Bryan Garner, the world’s leading legal lexicographer, his response to my closing question about advice was to remember these words: ”I need your help.” And don’t be afraid to use them.

Bryan’s wise advice definitely applies in the context of careers. If you don’t even know where to begin in thinking about your next act, there are professionals who are well-equipped to guide you.

It could be beneficial to speak with a career coach. Two coaches with expertise in the legal space specifically are Jordana Confino, a Yale Law grad and lawyer turned coach and consultant, and Keira Chassman, LCSW, who works as both a clinical therapist and legal recruiter. And I know there are many other excellent coaches; Keira and Jordana just happen to be two coaches I was in contact with recently (Jordana as a podcast guest). Feel free to mention other coaches in the comments to this post.

There are also online resources specifically aimed at lawyers who are thinking of moving on from the law. For example, check out the websites of Leave Law Behind and Ex Judicata—both of which also offer coaching, if you’re interested.

4. Don’t burn bridges as you leave the law.

During my time at Above the Law, I enjoyed reading and writing about bridge-burning departure memos. But while they might be fun to read—and fun to write, in the moment—they could turn out to be professionally problematic if you try to return to the law.

And yes, it might very well happen. Careers are long. If you’re disillusioned about practicing law right now and eager to leave, you might find the idea of returning to be impossible to imagine. But you might leave the law and discover that the grass on the other side is not, in fact, greener. You might change as a person, or your personal circumstances might evolve, in ways that could make returning the right decision.

Almost two decades removed from practice, I have no plans to return to the law—and I don’t know that anyone would have me if I did.1 But I’ve met lawyers who have returned to practicing after leaving for careers in journalism, finance, and the entertainment industry, among other fields. And when they did, their good relationships and reputations in the legal community were enormously helpful.

So that’s my advice for lawyers who are thinking of making their great escape. Readers, anything you’d like to add?

1But I still keep my New York law license active—mainly to keep my mom honest when she tells people, “My son is a lawyer.”

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I’ve been honored to have some of the nation’s leading litigators on this podcast. But I have not had a guest who’s both a renowned courtroom advocate and parent of 11 children—until today.

Meet Michael Williams. After graduating from Georgetown Law, summa cum laude and first in his class, he clerked for then-Chief Judge Douglas H. Ginsburg of the D.C. Circuit and Justice Anthony M. Kennedy of the Supreme Court. Mike then joined the D.C. office of Kirkland & Ellis, where he is a share aka equity partner. He has won numerous honors and accolades over the years, recognized by Chambers and Partners, the Legal 500, and The American Lawyer, among others.

Despite his dazzling legal career, Mike is most proud of being a dad. He had his first child while still in law school, two children during his clerkships, and eight children during his time at K&E. In our conversation, we talked about his contrasting clerkship experiences; what it’s like being a litigator at Kirkland, including how the firm has evolved over the years; why at heart he’s more of a trial rather than an appellate lawyer; and most importantly, how he balances his busy practice with the demands of parenthood (although note that he’s not a fan of the term “work-life balance”).

Kudos to Mike on all his professional and personal success, and early wishes for a happy Father’s Day to him and all the other dads out there.

Show Notes:

Michael F. Williams, P.C., Kirkland & Ellis
Michael F. Williams profile, Chambers and Partners
How Does He Do It? Kirkland Partner at Home With 11 Kids, by Vivia Chen for Law.com

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Michael F. Williams (courtesy photo by Kristen Hartley) Read more

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Left to right: Abbe Lowell and his controversial client, Hunter Biden (photo by Samuel Corum via Getty Images).Last week marked my twentieth anniversary as a legal blogger. On June 5, 2004, I published a mission statement for Underneath Their Robes (UTR), my very first post for that site. Some things I wrote back then make me laugh, and some make me cringe—but I can’t say I regret much, since UTR made possible the strange but delightful career that I’ve enjoyed for the past two decades.

Twenty years ago, as a young assistant U.S. attorney, I had no idea I’d someday get to interview some of the most interesting and influential members of the legal profession. For the latest episode of Movers, Shakers & Rainmakers, Zach Sandberg and I spoke with Bridget McCormack, former chief justice of the Michigan Supreme Court and current CEO of the American Arbitration Association (AAA). Meanwhile, for the Original Jurisdiction podcast, I chatted with Bryan Garner about the just-released twelfth edition of Black’s Law Dictionary. I enjoy what I do so much—and I thank you, my readers, for making it possible.

Today’s testimonial for this publication comes from Matthew Hughes, a newly minted litigation associate in Upstate South Carolina: “Original Jurisdiction is my go-to source of information anytime I don’t have the time to chase a topic down personally. David Lat is fabulously objective in his analysis and hits the key points of the key stories. It’s what a busy lawyer needs to keep up with the entire field of law (including its business aspects) and to intelligently demur when friends and family ask about the latest legal thing that hit the news that you don’t want to actually get into.” Thanks to Matthew for this excellent endorsement.

Now, on to the news.

Lawyer of the Week: Jonathan Skrmetti.

In terms of state attorneys general worth watching, keep an eye on Tennessee’s Jonathan Skrmetti (which is pronounced pretty much how you’d expect, as if there’s an “i” between the “k” and “r”). I mentioned him in these pages last month because he’s investigating a (bizarre and unsuccessful) attempt to foreclose on Graceland—but now he’s in the news for something more significant.

Skrmetti is spearheading an effort by 21 state AGs to get the American Bar Association (ABA) to rethink Standard 206, which requires law schools, as a condition of ABA accreditation, to “demonstrate by concrete action a commitment to diversity and inclusion.” The Standard’s current wording requires schools to “provid[e] full opportunities” to “members of underrepresented groups, particularly racial and ethnic minorities,” and to have a student body that’s racially and ethnically diverse.

The ABA is currently considering revisions to Standard 206. But as Skrmetti and his fellow AGs argue in a letter to the ABA, “the proposed revisions reemphasize Standard 206’s problematic requirement that law schools engage in race-based admissions and hiring.” They contend that Standard 206’s references to race cannot be squared with the Supreme Court’s landmark decision in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College, which effectively outlawed racial preferences in higher education (aka “affirmative action”).

What is the scope of the SFFA decision? Can educational institutions and employers still take race and ethnicity into account in the wake of SFFA? Or does the Supreme Court’s ruling stand for the broad proposition that the Constitution and federal antidiscrimination statutes require so-called “colorblindness,” to use the term deployed by the first Justice Harlan in his dissent in Plessy v. Ferguson? This is already a recurring issue in American law—as you’ll see throughout this edition of Judicial Notice. (And later this month, I’ll be speaking on an ideologically diverse panel at the Federalist Society’s Third Circuit Chapters Conference, DEI in the Workplace and on Campus Post-SFFA.)

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‘That was overly harsh, Tai” (screenshot from Clueless).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This coming Monday, June 10, marks the first day when current law students can apply for federal judicial clerkships under the Law Clerk Hiring Plan. To everyone applying, good luck—and take care.

I had a wonderful experience clerking for Judge Diarmuid F. O’Scannlain (9th Cir.), and over the years, I’ve met numerous former clerks who also loved their clerkships. In addition to enhancing your résumé, a clerkship can be a great learning opportunity, and many judges become lifelong mentors to their clerks.

Unfortunately, not all law clerks have positive experiences. And those of us who extol the virtues of clerking—perhaps to the point of glamorizing, glorifying, or fetishizing clerkships—have a duty to report on situations when clerks have bad experiences. See, for example, my prior reporting on what it’s like to clerk for Judge Aileen Cannon (S.D. Fla.), including how two clerks quit on her (a relatively rare occurrence, although perhaps not as rare as some people think).

In July 2022, a clerk I’ll call “Isaac” started clerking for a district judge in Connecticut (“the Judge”)—and it did not go well. As Isaac would later tell people—including not just friends of his, but people who applied to clerk for the Judge—she was verbally abusive. According to Isaac, she would shame her clerks in front of other clerks for small errors and typos, leaving the door to her private office open so that everyone in chambers could hear her dressing down clerks. (I’m focusing for now on Isaac’s claims, as necessary background; later on in this post, I offer reasons to question them and a defense of the Judge, including testimonials from ex-clerks.)

On September 23, 2022, Isaac requested an Employment Dispute Resolution Plan from the Judge’s court. He alleged abusive and harassing behavior by the Judge toward her staff, and he announced that he would no longer work for her.

Before any investigation was made into his claims, Isaac was offered the opportunity to transfer to the chambers of a different judge, which he accepted. He was officially transferred on October 11, 2022—and on October 12, he filed a complaint against the Judge under the Judicial Conduct and Disability Act of 1980.

Chief Judge Debra Ann Livingston of the Second Circuit ordered an investigation, which consisted of the Circuit Executive and the Circuit Director of Workplace Relations interviewing current and former chambers staff, including Isaac. The investigation revealed that “the workplace conduct concerns raised in the complaint were shared by other law clerks who, while recounting that they had learned a lot from the Judge, agreed that the Judge’s management style could be overly harsh.”

Here’s what happened next, according to Chief Judge Livingston’s December 15 order that dismissed Isaac’s complaint:

The Judge shared on several occasions how deeply troubled and saddened the Judge was at hearing the concerns expressed by the Complainant and others, and wanted it to be clear that the Judge is committed to creating a better workplace environment for chambers staff.

As the Judge put it, the Complainant has been heard. Subsequent interviews appear to bear this out, indicating that current clerks’ experiences have generally improved since these concerns were brought to the Judge’s attention when the instant complaint was filed.

As a result of the complaint and investigation, the Judge committed to attend counseling about workplace conduct and management, watch videos and webinars about workplace conduct, and consent to check-ins by the Circuit Director of Workplace Relations with each term clerk, at or near the midpoint of the clerkship term. In light of these promises, Chief Judge Livingston dismissed the portion of Isaac’s complaint based on workplace conduct because “the subject judge”—i.e., the judge who was the subject of the complaint—“has taken appropriate voluntary corrective action.”

Who is the subject judge? Chief Judge Livingston’s order did not identify her, but I can report that it’s Judge Sarah A.L. Merriam. Isaac clerked for her during her final months as a trial judge in the District of Connecticut. On September 23, 2022—the very day that he filed his judicial misconduct complaint—Judge Merriam began her service on the Second Circuit, where she currently sits. (And Isaac, interestingly enough, is currently clerking on the Second Circuit, for a different judge.)

A few weeks ago, I reached out to Chief Judge Livingston and Judge Merriam for comment on Isaac’s complaint. Neither responded to me, but Michael D. Jordan, Circuit Executive for the Second Circuit, informed me by email that “judicial misconduct proceedings are confidential by statute and rule, so I am not able to comment on anything related to judicial misconduct proceedings or orders.”

But that’s not entirely accurate. As I pointed out to Jordan, 28 U.S.C. § 360 and Article VII of the Rules for Judicial-Conduct and Judicial-Disability Proceedings expressly permit a subject judge and chief judge to agree to disclose information about an investigation. In addition, the Rules specifically provide that “[n]othing in this Rule precludes the subject judge from acknowledging that he or she is the judge referred to in documents made public under” these Rules—such as the December 15 order at issue here, previously made public by the Second Circuit.

In addition, despite Jordan’s claim that “judicial misconduct proceedings are confidential,” another court official was perfectly happy to deny to me that a different judge was the subject of Isaac’s complaint.

Before I learned that the judge in question was Judge Merriam, a source pointed out to me an interesting fact: on October 11, 2022, the exact date that Isaac left his clerkship, a different judge posted an announcement soliciting clerkship applicants. I reached out to this judge to inquire whether he might be the judge who was the subject of Isaac’s complaint. The judge did not respond to me directly, but Edward Friedland, the District Court Executive for the Southern District of New York, wrote to me as follows: “While we do not comment on personnel matters, you are mistaken in your belief that this matter relates to Judge [X]. The date of his posting is a coincidence as the posting was for future clerks, not a current vacancy.”

So when I reached out to the Second Circuit about Judge Merriam, it would have been very easy for the court to respond similarly: “While we do not comment on personnel matters, you are mistaken in your belief that this matter relates to Judge Merriam.” Instead, I received an email citing the confidentiality of misconduct proceedings.

Since I had emailed the Second Circuit several weeks ago, I made a final effort to obtain comment earlier this week. After noting once again the provisions allowing a subject judge to confirm that they’re the subject of a complaint—i.e., to waive confidentiality—I wrote as follows:

I respectfully submit that this represents an opportunity for the Second Circuit to address, in a forthright manner, important workplace issues facing law clerks. An apology and statement of remedial measures taken—such as the ones already discussed in Chief Judge Livingston's order—would go a long way toward showing that the Second Circuit and the federal judiciary take these issues seriously.

I received no response. And this did not surprise Aliza Shatzman, president and founder of the Legal Accountability Project (LAP), which seeks “to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.” (For more about LAP, listen to my podcast interview of Shatzman.)

“The judiciary loves to invoke confidentiality to protect judges who mistreat clerks,” Shatzman told me. “They do not care a whit about protecting clerks. Take an order like this one, where the judge was anonymous. It’s useless to anyone who might want to use this information to avoid this judge’s chambers.”

“There’s rarely any real discipline for judges who mistreat clerks,” she continued. “The voluntary actions that the Judge agreed to here are meaningless and wholly inadequate. And even the one mechanism that I’ve advocated for, having the Circuit Director of Workplace Relations check in with clerks, will end in August 2025. This should be a routine mechanism—for all judges’ chambers.”

But what if a complaint by a clerk is frivolous? Why should a judge’s name be dragged through the mud?

Here’s the thing: the problem of false or exaggerated allegations is not limited to the judiciary. Every day, in courts around the country, civil and criminal cases are filed against defendants. Those defendants are named, in the filings and sometimes in news reports, whether or not the allegations have merit. It’s not clear why judges should enjoy a confidentiality protection that litigants—including defendants in cases alleging workplace harassment or abuse—do not.

And given how beneficial it is professionally to have a federal judge as your supporter (or at least neutral) as opposed to a critic, I would expect the incidence of clerks making false accusations against judges to be relatively low, at least compared to false accusations generally. In recent years, we have learned about egregious judicial misconduct that took place years earlier but was never reported at the time—suggesting that the problem of under-reporting is a bigger problem than false reports when it comes to judges.

And in the specific case of Isaac’s complaint, I’m not reporting anything that’s not already known to many. It’s an open secret at 40 Foley Square—aka the Thurgood Marshall United States Courthouse, the headquarters of the Second Circuit—that Judge Merriam is the judge in question. Numerous clerks and judges, on both the Second Circuit and the Southern District of New York (S.D.N.Y.), have known this fact, and have been buzzing about it, for months.

And why is that? Isaac graduated from a T14 law school, he spoke freely to many classmates and fellow clerks about his experience with Judge Merriam, and they in turn spoke to others—your classic game of telephone. Before long, it was common knowledge—among Second Circuit and S.D.N.Y. clerks, the judges they work for, and students and alumni of Isaac’s alma mater and similarly elite schools—that Judge Merriam was the judge in question.

But note the community of people with this knowledge: legal elites. This is how the so-called “whisper network” operates: you benefit from its knowledge only if you’re in the in-group. Even though many students and graduates of T14 schools knew about Isaac’s allegations against Judge Merriam—and could use that knowledge to avoid applying to her, if they so chose—students and graduates outside these circles would have no way of knowing any of this (well, until now).1

The real issue here is the need for “democratizing information about judges and increasing transparency in the clerkship application process,” in the words of LAP. Students and graduates of top schools already enjoy great advantages in terms of landing clerkships—and that’s unlikely to change anytime soon. But it strikes me as unfair that on top of those advantages, they also get the benefit of better information about judges—including which judges to apply to, and which judges to avoid—via the whisper network.

So the interpersonal difficulties between Isaac and Judge Merriam are not really the point. They simply illustrate—and provide an important occasion for discussing—some larger, systemic problems surrounding clerkship culture.

But for those of you appreciate judge-specific “inside baseball,” here’s some additional information and opinion. It’s largely in defense of Judge Merriam, offering caveats to Isaac’s complaints.2

To be clear, I don’t think Isaac made up his allegations about Judge Merriam out of whole cloth. As noted in the Livingston order, other Merriam clerks “agreed that the Judge’s management style could be overly harsh.” Given the power imbalance between a judge and her clerks, these are not comments that clerks would make lightly. For example, I would never have described the management style of my former boss, Judge O’Scannlain, as “overly harsh” (because it wasn’t). The fact that some clerks said this about Judge Merriam—to Second Circuit officials conducting a workplace investigation, knowing it would get back to her—is significant.

But grounds do exist for questioning Isaac’s accuracy as a complainant. For starters, in his complaint against Judge Merriam, he raised three other contentions, in addition to mistreatment of chambers staff, that in my opinion appear to lack merit—and weak allegations arguably raise doubts about his other claims. Let’s review them:

“Receipt of Gifts: The complaint alleges that the Judge committed ethical violations by accepting a gift from an outgoing law clerk of a framed newspaper cutting from the 1970s featuring one of the Judge’s favorite bands, as well as requesting and accepting a jar of grape jam from a member of chambers staff who was vacationing in New Hampshire.”

Chief Judge Livingston dismissed these gifts as “de minimis,” and I agree. Yesterday, Fix the Court reported that over the past two decades, Supreme Court justices accepted 344 gifts worth $2,993,036 (for an average of around $8,700 per gift). So excuse me for not getting my boxer briefs in a wad over a jar of jam.

“Communication with Attorney: The complaint also alleges that the Judge improperly engaged in text message communication with a defense attorney on a pending criminal case in the Judge’s court. A limited inquiry revealed that the text message exchange at issue involved an attorney sending the Judge a text message congratulating the Judge on a professional accomplishment, and was followed by a perfunctory back and forth of a few exchanges related to that accomplishment. The Judge was not assigned to the criminal case referenced in the complaint.”

Per Chief Judge Livingston, “A brief exchange between a judge and an attorney about a judge’s professional accomplishments does not give rise to concerns about ex parte communications or other misconduct.” (By the way, I suspect that the “professional accomplishment” was Judge Merriam’s confirmation to the Second Circuit, which took place during Isaac’s clerkship.)

“Research on Defendant’s Assets: The final allegation in the complaint is that the Judge conducted research on a criminal defendant’s assets after the defendant failed to appear for a status conference. A limited inquiry revealed that the Judge, in coordination with the court’s pre-trial and probation department, looked at public property records to confirm that the defendant owned certain property in order to determine whether the defendant’s bail should be secured.”

Chief Judge Livingston made short shrift of this: “in contemplating a change in bail conditions, the Judge properly considered the defendant’s assets, and appropriately coordinated with the probation department to conduct the relevant research into the defendant’s real property assets. The allegation is accordingly dismissed.”

Finally, I’ll leave you with testimonials from former Merriam clerks. I reached out to a half-dozen whose information I could find online, two responded, and they both raved about their experiences with her:

“I would not trade my time with Judge Merriam for anything. She consistently acted both as a mentor and a friend to me and others in chambers—taking an interest in our lives, approaching every day with humor and humility, and being incredibly generous with her time. I can speak only for myself, but I did not experience or witness anything remotely approaching ‘abusive and harassing conduct.’ To the contrary, I remember making a non-trivial error in a piece of work product, and she responded with nothing but patience and kindness. I continue to enthusiastically recommend that others clerk for her.”
“I had an absolutely fabulous clerkship with Judge Merriam. I have worked for other judges, as well as lawyers in private practice, and Judge Merriam was the best boss I’ve ever had. She was kind, compassionate, and thoughtful, and she took her role as a public servant incredibly seriously. If I could go back in time to any year in my professional life, it would be to the year I spent in Judge Merriam’s chambers.”

I pressed one of the clerks: if you had such a great clerkship, what do you think could have led Isaac to claim “abusive and harassing behavior”? And why would additional clerks have described an “overly harsh” management style? This clerk responded:

In giving feedback, she’s direct. I appreciate that as a managerial style, even though I know that not everyone does. That’s the only thing I can think of.

“Overly harsh” strikes me as unlike anything I ever experienced. She never raised her voice to me during the entire clerkship.

In fact, according to this clerk, only one thing from the Livingston order rang true:

The only thing that struck me as consistent with my clerkship experience is the statement that Judge Merriam took the complaint very seriously and took immediate steps to address it. During my clerkship, she was always open to receiving our thoughts. So her responsiveness to feedback, including critical feedback, struck me as very familiar.

This isn’t the first time that clerks to the same judge have reported very different experiences. As you’ll recall from my in-depth report on clerking for Judge Cannon, her early clerks adored her, even if her more recent clerks have not. So complaints (or praise) about a judge from a single clerk are no guarantee that you will have a similarly bad (or good) experience in chambers. Try to talk to multiple sources.

This leads me to my final point, a piece of advice for everyone applying for clerkships next week: know yourself, and try your best to know the judges. A judge might be a great boss for some clerks, but a poor boss for others.

Are you okay with candid if borderline harsh feedback? Or do you prefer a kinder, gentler approach?

Do you welcome lots of detailed direction? Or do you resist micromanaging?

Are you okay with a somewhat distant, strictly professional relationship—which is how some judges roll? Or are you looking for what I like to call a “buddy judge”?

In the abstract, one approach isn’t better than the other. But you need to figure out what works best for you, and whether a given judge’s work style meshes with yours.

To everyone applying for clerkships next week, I wish you the best of luck. Despite clerks who have bad experiences—which should be scrutinized, not swept under the rug—I continue to believe that most clerkships are positive, for both the clerks and the judges. But as with any relationship, both parties need to put in the work.

P.S. If the screenshot from Clueless that I’ve used to illustrate this post doesn’t make sense to you, watch this short clip to enlighten yourself.

1For folks who will be sending out clerkship applications on Monday but aren’t fortunate enough to attend law schools with knowledgeable clerkship advisors and large databases of clerkship evaluations, how can you educate yourselves about judges and make informed decisions about where to apply?

Consider signing up for the Legal Accountability Project’s Clerkships Database, which has been collecting post-clerkship surveys from ex-clerks since April 2023. There’s a $20 fee to cover the costs of setting up and maintaining the database, but considering the importance of picking the right clerkship, the $20 strikes me as a small price to pay.

2If you enjoy drama involving judges and law clerks, check out my novel, Supreme Ambitions, or the archives of my first blog, Underneath Their Robes—which I launched 20 years ago this month.

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(via Getty Images)A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers

“Once upon a time, the U.S. News & World Report law school rankings were critically important to law schools,” according to law professors Brian Frye of the University of Kentucky and Christopher “CJ” Ryan of Indiana University. “In fact, [the rankings] were existential. Law schools literally lived or died based on their U.S. News rankings.”

But now, as explained in their new paper, The Decline & Fall of the US News Rankings, the U.S. News scoring of schools is dramatically less important to prospective law students—maybe even to the point of becoming irrelevant.

Frye and Ryan analyzed a decade of U.S. News rankings and what they call “revealed preferences rankings,” which rank schools based on enrollment decisions of students with the strongest credentials (GPA and LSAT scores). They sought to determine whether a rise (or fall) in a law school’s U.S. News rank resulted in that law school matriculating a stronger (or weaker) class in the immediately following year. If prospective law students were paying attention to the rankings, one would expect to see strong correlation between rank changes and class quality.

But the authors instead found no real correlation between the two measures. This led them to conclude that U.S. News “is ranking law schools, but prospective law students don’t care about its rankings, and are making decisions about which law school to attend based on other factors.”

Their claim that the rankings are “entirely irrelevant” might be somewhat overstated. In an interview with Frye and Ryan earlier this week, I suggested that perhaps U.S. News rankings remain relevant to students, but rank changes take longer than a year to manifest in the credentials of incoming classes.

The authors didn’t disagree—and in fact acknowledge this possibility in their paper,1 which describes prestige rankings as “sticky” or slow to change. For example, many of us think reflexively of the top-14 or “T14” schools, which have been fairly consistent since the start of the rankings in 1987—even if, in a given year, a traditional T14 school might drop out of that elite group.

I also wondered whether law schools responded to changes in their rank by simply adjusting tuition discounts. Almost 80 percent of law students receive some kind of tuition discount, and these carefully calculated discounts often reflect a school’s rank, with lower-ranked schools offering larger discounts to compete with their higher-ranked peers. Again, Frye and Ryan didn’t disagree that cost plays an important role in students’ decisions about where to enroll (but added that this factor is difficult to track, since schools are opaque about their pricing practices).2

Despite such quibbles, my anecdotal sense is that Frye and Ryan are basically right: the U.S. News rankings aren’t as powerful as they once were. This is why Yale and Harvard Law felt comfortable declaring, in November 2022, that they would no longer provide U.S. News with certain data the publication needed to prepare what Yale dean Heather Gerken called its “profoundly flawed” ranking.3

After dozens of other schools followed suit, U.S. News announced major methodological changes to how it ranks schools—which could be viewed as an admission that its rankings were in danger of becoming obsolete.

I asked Frye and Ryan: what can U.S. News do to return its rankings to relevance? Or is that even possible, in an age where the idea of buying a hard-copy magazine would be laughable to many pre-law students?

“You have to think about who the rankings are for,” Ryan said. “They are for prospective and current law students—and I think U.S. News has lost touch with this fact. If you could survey pre-law and law students and ask them what matters to them, the results of that survey could be the genesis of a new ranking.”

The challenge, however—and the inherent problem with a “one size fits all” ranking system like that of U.S. News—is different students have different priorities when selecting schools.

“If you’re looking to go into Biglaw, for example, then you should prioritize prestige,” Frye said. “But if you’re interested in public service, you might want to focus more on cost—and pick a lower-ranked school in exchange for lower tuition.”

“Picking a law school involves a combination of many factors, including prestige, cost, and educational opportunity,” Ryan explained. “You need to choose the nexus that’s right for you.”

So here’s my suggestion to U.S. News for how to reclaim the relevance of its rankings: get rid of its universal ranking of the “best” law schools and replace it with a robust interactive tool that would let prospective law students state what matters most to them in a law school. Factors could include overall prestige, bar passage, debt upon graduation, geographical location, and placement success in different sectors, including Biglaw and clerkships. The tool would then provide students with a customized ranking of schools based on their individual criteria.4

The basis for this tool could be the “MyLaw Rankings” feature that’s already on the U.S. News website—but greatly improved. I took the tool for a spin, and to be blunt, it’s a joke. It asked, for example, about the size of the law school I wanted to attend—a factor that, in my experience, most students don’t care about at all—and it didn’t ask a single question about what I might want to do professionally after law school.5

In years past, producing an interactive ranking tool of any sophistication would have been a daunting task. But in this age of artificial intelligence, turning MyLaw Rankings into something that’s actually useful to prospective law students wouldn’t be difficult.

Of course, customized rankings produced by an online, interactive tool might not generate the same buzz (or revenue) as a traditional, seemingly authoritative, numerical ranking of almost 200 law schools. If U.S. News insists on putting out a numerical ranking, it should simply rank America’s most prestigious law schools (comparable to the Vault 100, a ranking of the most prestigious law firms).6

After all, the prestige data—obtained by U.S. News through an expensive, labor-intensive process of sending out, collecting, and analyzing reputational surveys—is the only component of the rankings that’s proprietary to the publication. After the 2023 methodology overhaul, everything else in the rankings is based on publicly available information that’s not unique to U.S. News, such as employment and bar-passage data.

“The prestige ranking, while maybe a bit gross, is the one really valuable thing that U.S. News still does,” Frye told me. “As a prospective law student, you need to know about a school’s prestige because that prestige will have long-lasting career effects.”7

1As stated in the paper, “it may well be the case that the disjunction between U.S. News rankings changes and revealed preferences rankings changes are observed in periods longer than immediately subsequent years.”

2Frye and Ryan stress in their paper, and again emphasized in our conversation, that while many people think granularly and anecdotally about law school choice, they wanted to focus on the macro-level question of what students are doing, as opposed to why. It’s a fair distinction, although sometimes the factors will converge. For example, if a student chooses to go to a top-25 school on a full ride as opposed to a T14 school for “sticker price,” it’s not that the schools’ U.S. News ranks were irrelevant; they were just outweighed by six figures in (nondischargeable) student loans. And the schools calculate “scholarships,” i.e., tuition discounts, with an acute awareness of where they stand in the U.S. News hierarchy.

Although it wasn’t the focus of their paper, Frye and Ryan are critical of what Ryan described to me as “the incentive structure U.S. News has created in which schools are incentivized to enroll, through discounting, the students that will raise their metrics—and rely on the students who don’t raise their metrics to fund the opportunity given to students at the higher end of the class.” Or as Frye put it, “Schools have a sticker price, but it’s only for the weakest students they admit. The strongest students pay nothing. So you have a law-school funding system where the weakest students pay the tuition of the strongest students.”

And there’s no easy solution to this problem—at least under current antitrust law, which would bar law schools from getting together and agreeing on a uniform approach to tuition discounting (or to abolishing tuition discounts entirely).

3I asked the authors whether they had a view on whether the boycott, which featured multiple deans of top law schools assailing the rankings, might have contributed to students caring less about the rankings. They said it was a possibility, but their data didn’t allow them to draw a conclusion one way or the other on this.

4Another noteworthy factor that might be worth including in customized rankings: ideological or religious affiliation. As Frye and Ryan wrote in their paper, “Our revealed-preferences ranking of law schools showed that at least some law students prefer law schools with a strong ideological brand. Law schools affiliated with religious organizations or ideological orientations tended to outperform their U.S. News rankings in our revealed-preferences ranking. That is, some prospective law students have a strong preference for a sympathetic ideological environment that can outweigh their preference for prestige.” (Schools that came to mind for me on this score: BYU, Notre Dame, and Scalia Law.)

5While many high school students decide to apply only to large national universities or only to small liberal arts colleges, which offer very different experiences, I have never met a pre-law or law student who decided to apply only to big law schools or only to small law schools. It’s far more common to find a pre-law student trying to decide between Harvard and Chicago (a large school and a small school) rather than Harvard and Georgetown (two large schools).

6Of course, from the perspective of U.S. News, a prestige ranking will be less profitable. As Frye explained in our interview, “U.S. News has a strong incentive to make their rankings more dynamic, to give students a reason to buy them each year. But one problem is that prestige rankings are super-sticky.” In other words, pure prestige rankings wouldn’t change that much from year to year, reducing the incentive for students to pay for them each cycle.

One suggestion that Frye made is that U.S. News should make its reputational surveys electronic, instead of sending them out by mail. This would make the process more efficient and less expensive—and if U.S. News can reduce the cost of producing the rankings, it won’t have to generate as much revenue from selling them. And if the argument of U.S. News is that it’s worried about survey integrity, I’d point out that numerous universities, including both my undergraduate and law-school alma maters, conduct elections for their leadership bodies using online or email-based processes (with various safeguards, of course).

7Whether prestige should have these effects, as a normative matter, is hotly debated. For the case against prestige, see, e.g., Bill Henderson and Rachel Zahorsky, The Pedigree Problem: Are Law School Ties Choking the Profession? But as even Henderson and Zahorsky acknowledge, it’s definitely true as a descriptive matter that prestige has an outsized impact on legal careers.

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What’s the most widely cited legal book in the world? If you guessed Black’s Law Dictionary, then congratulate yourself. Henry Campbell Black published the first edition in 1891, and today it’s a must-have for every lawyer and law student. I even make an appearance in Black’s as the coiner of the term “benchslap,” defined as “a judge’s sharp rebuke of counsel, a litigant, or perhaps another judge.”

Who decides whether a term has gained sufficient traction to make it into Black’s? That would be Bryan Garner, the prominent legal lexicographer, lawyer, and legal-writing expert. In the latest episode of the Original Jurisdiction podcast, he explains how he and his colleagues determine whether a neologism has made the cut.

This is actually a bonus episode of the podcast, since I posted an episode last week and I’ll have another episode next week. What’s the occasion? Today marks the publication of the twelfth edition of Black’s Law Dictionary. If you’re looking for a graduation or back-to-school gift for a law student, or maybe a Father’s Day gift for a #LawDad in your life, order your copy today.

Thanks to Bryan for joining me, and congratulations to him and his team on the latest edition of Black’s Law Dictionary.

Show Notes:

Bryan A. Garner bio, LawProse
Black’s Law Dictionary (12th ed.), Amazon
Black’s Law Dictionary: An Interview with Bryan A. Garner, by David Lat for Above the Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

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Cravath’s former headquarters at Worldwide Plaza (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

In my analysis of last year’s Am Law 100 rankings, which reflected how firms fared financially in 2022, I predicted that 2023 was “not going to be good” for Biglaw. I took that view because 2022 was a weak year for law firms—and going into 2023, the economy was uncertain, inflation was still running high, and deal flow was weak on the corporate side.

But based on The American Lawyer’s 2024 Am Law 100 rankings, I’m happy to report that I was wrong. As Patrick Smith noted in his rankings write-up, in 2023 “the industry rebounded from a difficult 2022 to post gains in virtually every measurable financial and operational metric.” Here are the top-line numbers:

Total gross revenue: $139.7 billion, up by 6.8 percent.
Revenue per lawyer (RPL): $1.21 million, up by 4.9 percent.
Profits per equity partner (PPEP): $2.80 million, up by 9.3 percent.

Note that these figures are not adjusted for inflation. But the average rate of inflation in 2023 was 4.1 percent (and inflation ended the year at 3.4 percent), so these metrics—especially PPEP—outpaced inflation.

For purposes of comparison, here are the past five years of Am Law 100 performance:

As you can see, 2023 was much better than 2022, in which RPL and PPEP both declined, but worse than 2021, a banner year for Biglaw in which all three major metrics posted double-digit increases.

As for headcount, total headcount for the Am Law 100 rose 1.8 percent to 115,043 attorneys. The firms ranked #101-#200, whom Am Law refers to as the “Second Hundred,” employ an additional 32,070 lawyers. So the Am Law 200 firms—one way of defining “Biglaw”—employ a total of almost 150,000 lawyers. There are an estimated 1.3 million active lawyers in America, so somewhere between 10 and 15 percent of attorneys work in Biglaw. (I’m guessing that the actual number of truly “active” lawyers is lower than 1.3 million; that figure might include people like me, lawyers with active licenses who no longer practice, as well as semi-retired and other minimally practicing attorneys.)

[UPDATE (10:50 p.m.): A reader pointed out that the Am Law headcount totals include non-U.S. attorneys, which would throw off the percentage of U.S. lawyers who work for Am Law 200 firms. My main purpose with this stat was trying to figure out what percentage of U.S. lawyers work in “Biglaw.” If you look at the Law360 400, the largest U.S. law firms ranked by U.S. headcount, and add up the lawyers employed by all firms with 250 or more lawyers, which is another way of defining “Biglaw,” you get 129,922 lawyers. So the figure is probably still around 10 percent, but the description should be “percentage of U.S. lawyers who work for firms of 250 attorneys or more,” not “percentage of U.S. lawyers who work for Am Law 100 firms.]

These are big-picture metrics. As Zach Sandberg and I discussed when we broke down the rankings on Movers, Shakers & Rainmakers, there’s a lot of firm-by-firm variability behind those numbers.

So let’s dig a little deeper into the three major metrics—gross revenue, revenue per lawyer, and profits per equity partner—and analyze how individual firms performed under each. As I typically do, I break out the top 20 firms in each category—but urge you to check out The American Lawyer, which does the heavy lifting of preparing these rankings, for more.

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Left to right: Joshua Steinglass, Susan Hoffinger, and Alvin Bragg (photo by Michael M. Santiago via Getty Images).This post is sponsored by

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Last week I focused on two of my favorite activities: writing and exercise. While I enjoy traveling, speaking, and attending conferences—like the litigation-finance-focused LITFINCON, coming up in September (discount code for Original Jurisdiction readers: LAT2024)—sometimes it’s nice to just stay home.

Speaking of home (or homes), I’d like to revive a feature from Above the Law: Lawyerly Lairs, a peek inside the fabulous homes of lawyers, judges, and other members of the legal profession. If you’d be willing to share your beautiful residence with OJ readers, perhaps because you completed a gorgeous renovation, please email me, subject line “Lawyerly Lairs.” You can remain anonymous if you like—e.g., “a Biglaw partner in Dallas”—but you must be willing to provide photos I can use without copyright concerns (because Lawyerly Lairs is pointless without pictures).

This week’s testimonial for OJ comes from Margaret Benson, Executive Director of Chicago Volunteer Legal Services (CVLS): “Although most of CVLS’s work happens in the Circuit Court of Cook County, we work with partners and associates in many of the large firms you cover. I love your writing—substantive, engaging, and informative, with enough attitude to keep me wanting more. It often provides insight into the world of Biglaw and some of what my board members, volunteers, and supporters face daily.” My thanks to Meg Benson—not just for her generous praise, but for the important work performed by CVLS and its thousands of volunteer lawyers.

Now, on to the news.

Lawyer of the Week: Alvin Bragg and the Trump trial team.

The big legal story of last week—and the biggest legal story in quite some time—was the conviction of Donald Trump in the hush-money case brought by Manhattan District Attorney Alvin Bragg. After a six-week trial and 10 hours of deliberation over two days, a jury of 12 New Yorkers convicted the ex-president of 34 felony counts of falsifying business records. So Bragg is the obvious pick for Lawyer of the Week, along with the team of trial lawyers that secured the convictions—including Joshua Steinglass, Christopher Conroy, Susan Hoffinger, Matthew Colangelo, Rebecca Mangold, and Katherine Ellis.

Bragg traveled a long road to reach this destination. Before he brought the hush-money case, he was attacked by critics on the left—including one of his own former colleagues, Mark Pomerantz—for not indicting Trump. Then after filing charges in the hush-money case, the DA was criticized by commentators on both the right and left, “who dismissed Bragg’s legal case against Trump as flimsy and tangled,” in the words of Colbert King of The Washington Post.

But now, according to King, Bragg has been vindicated. After noting Bragg’s two Harvard degrees and extensive experience prosecuting white-collar crime, King praised Bragg for having “the bona fides, wisdom, and top staff support to fashion a legal strategy and reasoning that could win the first prosecution of a former U.S. president in our nation’s history. An impartial jury affirmed. Will the commentariat?”

Not necessarily. Just because the trial team succeeded in securing convictions, demonstrating that the case could have been brought, does not mean that the case should have been brought, as a prudential matter. As former federal prosecutor Elie Honig wrote in Cafe, a win might be “the great deodorant, but a guilty verdict doesn’t make it all pure and right. Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place.” Honig identified the following problematic features of the case:

The presiding judge, New York Supreme Court Justice Juan Merchan, “donated money—a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind—to a pro-Biden, anti-Trump political operation, including funds that the Judge earmarked for ‘resisting the Republican Party and Donald Trump’s radical right-wing legacy.’”
Bragg “ran for office in an overwhelmingly Democratic county by touting his Trump-hunting prowess,” and his “charges against Trump push the outer boundaries of the law and due process…. [T]he charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor—in New York, or Wyoming, or anywhere—has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.”
“[T]o inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E)—and to electroshock them back to life within the longer felony statute of limitations—the DA alleged that the falsification of business records was committed ‘with intent to commit another crime.’ Here, according to prosecutors, the ‘another crime’ is a New York state election law violation, which in turn incorporates three separate ‘unlawful means’ (federal campaign law tax crimes, and falsification of still more documents). Inexcusably, the DA refused to specify what those unlawful means actually were—and the judge declined to force them to pony up—until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the charges against him in advance of trial.”

You might not agree—and I know, from your 230-plus comments on the Trump news, that many of you disagree. But Honig makes points that merit consideration, and his entire piece is well worth reading.

Alvin Bragg wasn’t the only high-profile Harvard Law alum in the news this week. How did the judge rule on that motion for sanctions against Alex Spiro of Quinn Emanuel?

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Former president Donald Trump, leaving New York Supreme Court after his conviction on 34 felony counts (photo by Justin Lane via Getty Images).This afternoon, former president Donald Trump was convicted of 34 counts of falsifying business records, to cover up an alleged affair with porn star Stormy Daniels that could have hurt his 2016 presidential campaign.

Thoughts? I never practiced state criminal law, so I’m especially interested in hearing from state prosecutors, current and former, and defense lawyers.

So here’s a Notice and Comment (N&C) post, in which comments are open to all readers, not just paid subscribers, for purposes of stimulating discussion. N&C posts are really more about hearing from you than from me. Y’all certainly had a lot to say about Justice Alito’s flags; that post garnered more than 150 comments (and counting).

So please, have at it—thanks!

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Continuing my M&A miniseries here at Original Jurisdiction, I wanted to welcome another dealmaker to the podcast. And as Asian American and Native Hawaiian/Pacific Islander Heritage Month draws to a close, I wanted to interview another AANHPI attorney, including some discussion of how that lawyer’s family background and Asian-American identity might hav…

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The Appeal to Heaven aka Pine Tree flag (public domain photo by Joseph Reed).As I briefly alluded to in my most recent Judicial Notice news roundup, there’s a sequel to Flag-gate, the controversy over the flying of an upside-down American flag above the Virginia home of Justice Samuel Alito and his wife, Martha-Ann Alito.1 Writing in The New York Times, Jodi Kantor, Aric Toler, and Julie Tate broke the news of the latest “vexing vexillology,” to use the words of the Wall Street Journal editorial board (“vexillology” is the study of flags).

In July and September 2023, two and a half years after the upside-down flag was flown at the Alito family’s primary residence, the “Appeal to Heaven” or “Pine Tree” flag was hoisted aloft at their vacation house in Long Beach Island, New Jersey. According to the Times, this flag “dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the ‘Stop the Steal’ campaign, and for a push to remake American government in Christian terms.”

A picture in the Times article shows that the Appeal to Heaven flag wasn’t flown by itself. Rather, it was one of three flags, flown alongside a Phillies flag and a Long Beach Island flag (which perhaps diminishes the significance of any individual flag, since flying one flag alone would send more of a message).

We also have new facts about the initial controversy involving the upside-down flag, from a fascinating Washington Post piece by Justin Jouvenal and Ann Marimow that paints a vivid scene:

On Jan. 20, 2021—the day of Biden’s inauguration, which the Alitos did not attend—[then-Supreme Court correspondent Robert] Barnes went to their home to follow up on [a news] tip about the flag. He encountered the couple coming out of the house. Martha-Ann Alito was visibly upset by his presence, demanding that he “get off my property.”

As he described the information he was seeking, she yelled, “It’s an international signal of distress!”

Alito intervened and directed his wife into a car parked in their driveway, where they had been headed on their way out of the neighborhood. The justice denied the flag was hung upside down as a political protest, saying it stemmed from a neighborhood dispute and indicating that his wife had raised it.

Martha-Ann Alito thengot out of the car and shoutedin apparent reference to the neighbors: “Ask them what they did!” She said yard signs about the couple had been placed in the neighborhood. After getting back in the car, she exited again and then brought out from their residence a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. “There! Is that better?” she yelled.

Later that week, Samuel Alito issued a statement to The Post in response to written questions about whether it was his decision to fly the flag and whether it was flown to protest the election results, reflect concern about the state of the country or something else.

“I had no involvement whatsoever in the flying of the flag,” he said, using wording almost identical to the statement provided to the Times last week. “It was placed by Mrs. Alito solely in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

In light of all this, The Post did not report on the incident at the time, “because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors.” This is a helpful fact for defenders of the Alitos because, as lawyer and legal blogger Henry Wray put it, “The Washington Post investigated this episode at the time and determined it to be a nothingburger.”

In the wake of the news about the Appeal to Heaven flag at the Alito beach house, two members of the Senate Judiciary Committee, Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), wrote a letter to Chief Justice John Roberts. They urged him “to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol.” But I agree with Dahlia Lithwick of Slate, who predicts that Justice Alito won’t recuse of his own accord, and Chief Justice Roberts won’t pressure him to do so.

Sitting on the sidelines, what should we make of this controversy? Judge Michael Ponsor (D. Mass.)—who has a new novel out, Point of Order, that I’m looking forward to reading—wrote a New York Times guest essay, “How Could Alito Have Been So Foolish?” Judge Ponsor argued that “any judge with reasonable ethical instincts would have realized immediately that flying the [upside-down] flag then and in that way was improper. And dumb.” He added that the same thing is true of the Appeal to Heaven flag, which “is viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the Court.”

I agree with Judge Ponsor on the sheer stupidity of a judge or justice flying flags to show support for Stop the Steal. But could this cut the other way? Consider this from Henry Wray:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation. Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol….

Given these assumptions, would you publicly display the two flags, thereby giving your critics a silver platter full of grist to use in their efforts to undermine you and your court?

Wray suggests it’s “far more plausible” to conclude that “neither Justice Alito nor his wife associated the inverted flag with Trump at the time.”

Here’s my personal view—which will probably tick off both liberal and conservative readers, but it wouldn’t be the first time. As Jonah Goldberg wrote at The Dispatch, in an essay titled “Flag-Gate and Other ‘Moral Panics,’” “I don’t think there are enough facts to support sweeping conclusions one way or another.”

Here are some things I’d like to know before concluding that Justice Alito violated ethics rules or that he must recuse from January 6-related cases.

1. What was Justice Alito’s precise involvement in—and knowledge about—the flying of these flags?

Justice Alito told The Times and The Post that he “had no involvement whatsoever in the flying of the [upside-down] flag.” As for the Pine Tree flag, he hasn’t commented at all on it. He also hasn’t made clear, as to either flag, whether and when he knew the flags would be flown—i.e., did he know before or after they went up—or whether he acquiesced in their flying—even if it was originally Martha-Ann Alito’s idea.

On Amarica’s Constitution, Professor Akhil Amar argued that in today’s society, we need to recognize that justices and their spouses (like all other couples) are independent people with independent views—in contrast to before, say, passage of the Nineteenth Amendment, when husband-and-wife was a single political entity. So according to Professor Amar, if Martha-Ann Alito flew these flags, that was her business. It shouldn’t be automatically imputed to Justice Alito, especially since he has publicly denied involvement in flying the upside-down flag.

Similarly, at The Federalist, Margot Cleveland observed that the Code of Judicial Ethics specifically provides that it “does not govern the conduct of a judge’s spouse.” And although a judge has a duty, “to the extent possible, [to] disassociate himself or herself from the spouse’s political involvement,” Justice Alito arguably did that here, declaring his lack of involvement in flying the upside-down flag (although he hasn’t commented on the Pine Tree flag).

Of course, many of Justice Alito’s critics would reject the notion that his denials of involvement to newspapers should be accepted at face value. They might want, at the very least, some kind of sworn statement or testimony—perhaps testimony before the Senate Judiciary Committee. But that’s clearly not happening.

2. What did Mrs. Alito and/or Justice Alito know about the meaning of these flags at the time that they flew them?

The Times articles strongly push the narrative that the upside-down and Pine Tree flags are symbols of Stop the Steal. But as critics of the Times coverage have argued over the past two weeks, both flags have multiple meanings.

As Mrs. Alito told Robert Barnes of the Post, the upside-down flag is “an international signal of distress.” As for the Appeal to Heaven or Pine Tree flag, Kimberley Strassel of the Wall Street Journal pointed out that it is a “longtime symbol of independence,” was designed by George Washington’s secretary, was flown on ships commissioned by Washington, has been flown over multiple state capitols, and is the official maritime flag of Massachusetts. She added, “Dozens of historic flags were toted to the Capitol on January 6, as were copies of the Constitution and pictures of the American eagle. Are they all now symbols of ‘insurrection’?” Indeed, as suggested by photos, the most common flag carried at January 6 was probably the American flag, right-side up—and few people in the United States, with the possible exception of certain professors, argue that it’s a symbol of evil (yet).

On Advisory Opinions last Thursday, David French argued that the Alito family flying not one but two flags with possible January 6 ties suggests that this was no coincidence. Similarly, Professor Stephen Gillers told the Washington Post that although he initially gave Alito the benefit of the doubt that the upside-down flag was not tied to Stop the Steal, the second flag “makes that theory no longer plausible.”

But I’m not so sure. Consider the timing: these flags were not flown simultaneously or even in close temporal proximity to each other. The upside-down flag was flown in January 2021, and the Appeal to Heaven flag was flown in July and September 2023, some two and a half years later. And only the upside-down flag was flown around the time of the January 6 attack on the Capitol. The fact that we learned about the flags in close temporal proximity could be tainting our evaluation of the situation.

So the question remains: at the time that they flew these flags, were the Alitos aware that some people associate them with January 6 or Stop the Steal? What exactly did they know about the meaning of these flags, and when did they know it?

3. Why did Mrs. Alito and/or Justice Alito fly these flags, i.e., what was the intended message?

Intent is a separate issue from knowledge. It’s possible that even if one or both of the Alitos knew the flags had some association with January 6 or Stop the Steal, they didn’t intend to express support for January 6 or Stop the Steal in flying them. For example, the Alitos’ intent might have been to respond to or troll the neighbors they were fighting with over politics.

As I previously wrote, imagining Martha-Ann Alito flying the flag as a sarcastic rejoinder to the neighbors blaming her for January 6:

To me, this whole incident sounds like… a Curb Your Enthusiasmepisode? I can imagine Martha-Ann Alito obsessing over the hostile neighbor and the shouting match, venting to her husband while he pretends to listen and occasionally nods—when all he wants to do is sit in his armchair and read briefs. And I can envision the moment when she hits upon the brilliant idea of flying an upside-down flag as a metaphorical middle finger to the neighbor.

“She blames me for the attack on the Capitol? Okay then, how about I ‘fess up’? What if I fly an upside-down flag in front of our house, like what I saw on the news when those guys stormed the Capitol? I bet she’ll love seeing that—every single morning, when she goes past our house. Sam, whaddya think?”

“Mmm-hmm, honey,” says Justice Alito, not bothering to look up from his reading. “Sounds good to me.”

It’s worth noting that unlike Justice Clarence Thomas’s wife, Ginni Thomas, Martha-Ann Alito is not known to have been involved in Donald Trump’s efforts to overturn the 2020 presidential election. In other words, we have no additional evidence—besides the flags, which are equivocal—to support claims that Mrs. Alito is an election denier.

To sum up, there are multiple off-ramps here: Justice Alito wasn’t personally involved, the Alitos didn’t know the flags had ties to January 6 or Stop the Steal, or the Alitos didn’t fly the flags with any improper intent. I therefore think it’s more likely than not that there’s no ethical violation here, and the justice shouldn’t recuse.

At the same time, I wish we had much more information than we currently do about the underlying facts. Unlike some of Justice Alito’s defenders, I can imagine a specific set of contextual facts that would give rise to an ethical violation and require recusal.

If the relevant facts are exculpatory for Justice Alito, I wouldn’t be shocked to see him share them with the public. Other justices might see that as unwise, simply giving more oxygen to this controversy. But the in-your-face Justice Alito—whom I previously dubbed “The Real Justice of New Jersey”—sometimes seems to relish the culture-war combat. Maybe he’ll write another Wall Street Journal op-ed or have another sit-down with the WSJ editorial page to push back against his critics.

Readers, what do you think? I’m designating this post a Notice and Comment—in which comments are open to all readers, not just paid subscribers—and I look forward to your thoughts.

1Another piece of fallout from Flag-gate #1: our six-year-old son Harlan, who eavesdrops on Zach and me in the car, is now demanding to know the meaning of the “C-word”—an epithet hurled at Martha-Ann Alito during an argument with a neighbor, which precipitated the upside-down-flag flying. We welcome suggestions for a suitable white lie we can tell him.

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(photo by Jakub Porzycki/NurPhoto via Getty Images)Greetings. I hope you’ve enjoyed your long Memorial Day weekend. And I hope you’ve taken time to reflect upon and honor the courageous Americans who gave their lives for our great nation.

Last week went well for me. I enjoyed speaking at Patterson Belknap Webb & Tyler for their AAPI Heritage Month celebration, and I had a fun time recording the latest episode of Movers, Shakers & Rainmakers. Zach Sandberg and I conducted a wide-ranging interview of Winston & Strawn M&A partner Kyle Gann—and I do mean wide-ranging, since the conversation was both deeply personal and borderline metaphysical at points.

Although most of my audience has been practicing for a decade or more, I do have younger readers, including law students (who follow features like Supreme Court Clerk Hiring Watch). One of them—Juliette Farmer, a rising 2L at NYU Law School—provided the latest testimonial for Original Jurisdiction: “I’ve been following Original Jurisdiction since I began preparing to apply to law school. I appreciate David’s unique perspective as well as his commitment to impartial and fair coverage. The column has been a great resource for me over the years, and all law students can benefit from his ‘on beat’ reporting. Reading OJ is a great way to stay informed about movements in the industry and to feel a part of the legal community at large.”

I thank Juliette for her kind words—and wish her good luck with the rest of law school. Now, on to the news.

Lawyer of the Week: Akiva Cohen.

You don’t ordinarily see a story about a lawyer at the top of the list of most-read articles at The New York Times. But Akiva Cohen is no ordinary lawyer:

Here’s one way to build a legal team: Interview graduates from the top law schools or firms, then hire the most qualified.

Akiva Cohen, a trial lawyer at a small New York firm, tried a different way: Spend way too much time on Twitter, talking trash about other lawyers’ cases, then hire the people who post the smartest, most biting comments.

Now, from his suburban family room on Long Island, Mr. Cohen, 45, is leading this small team of Twitter adepts against an almost comically outsized adversary in a $500 million lawsuit against Elon Musk [a class-action lawsuit seeking severance pay for ex-Twitter employees].

Check out the full story of the “Threadnought”—the epic thread of legal trash-talking that picked up thousands of comments, including the ones that helped Cohen make hires—in John Leland’s delightful profile:

Mr. Cohen, who before the Threadnought had barely enough cases to keep himself busy, soon expanded his team to six lawyers and three support staff members—all working virtually; all but one he had met through Twitter.

It was a ridiculous way to build a litigation team. But it made a kind of sense, said David Lat, who founded the legal website Above the Law and now writes the newsletter Original Jurisdiction.

“On the one hand, a lot of people would think you’re just hiring a bunch of randos you met online,” Mr. Lat said. “On the other hand, what he has been doing is weirdly meritocratic. Instead of hiring people based on where they went to law school, which is how a lot of legal hiring is done, he’s hiring based on seeing how people think and write in real time and under pressure. I think it’s gutsy, but it seems to be working for him.”

One thing I noticed during my two-year detour into legal recruiting: some employers are moving away from the “chitchat about your résumé” model of hiring and toward a more experiential approach, such as consulting-style case studies asking interviewees to analyze a litigation fact pattern on the spot. What Akiva Cohen is doing struck me as a version of this trend (albeit an unorthodox one).

Other lawyers in the news:

Baltimore’s former top prosecutor, Marilyn Mosby, was sentenced to 12 months of home confinement for her mortgage-fraud and perjury convictions—well below the 20 months in prison sought by prosecutors.
Two months ago, Hampton Dellinger took over as head of the U.S. Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act. And he isn’t wasting any time: he just announced enforcement reforms that will make it harder for senior White House personnel to mix partisan politics with the work of government.

In memoriam: did you know that Ivan Boesky—the poster boy for 1980s insider trading, for which he served almost two years in prison—was a lawyer by training? As noted in his Washington Post obituary, he graduated from the Detroit College of Law, now part of Michigan State, and clerked for a federal district judge (a job arranged for him by his well-connected father-in-law, real-estate developer Ben Silberstein).

Judge of the Week: Justice Clint Bolick.

For a second week, Justice Samuel Alito was the most-talked about judge in America, after Jodi Kantor, Aric Toler, and Julie Tate of The New York Times broke the news of another flag-related controversy—this time at the Alitos’ vacation home in Long Beach Island, New Jersey. But as regular readers know, I disfavor repeat “winners” in Judicial Notice, so I’ll discuss “Flag-gate: The Sequel” in a future post.

I do, however, want to examine an important issue raised by Flag-gate. In a world of increasing gender equality—marked by a growing recognition that in marriages, women and men are independent people, with their own careers, political opinions, and agency—how can society strike a balance between respecting this independence while holding public officials to high ethical standards?

For an interesting case study, consider Arizona Supreme Court Justice Clint Bolick and his wife, Arizona State Senator Shawnna Bolick. As highlighted in articles collected by Howard Bashman at How Appealing, the Bolicks are their state’s most powerful political couple—and recently found themselves on opposite sides of Arizona’s near-total abortion ban. (In case you were wondering, “Bolick” is pronounced with a long “o,” as in “bow and arrow.”)

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Should transgender athletes be allowed to compete in girls’ and women’s sports? Should transgender minors be able to access gender-affirming care? These highly contentious questions are the subject of litigation across the country—and will eventually make their way to the U.S. Supreme Court.1

The laws at issue—such as Title VII, for employment, and Title IX, for educational programs or activities receiving federal financial assistance—prohibit discrimination on the basis or because of “sex.” To resolve issues arising under these laws, lawyers and judges need to understand the meaning of “sex.”

In 2024, defining sex is controversial. Doriane Coleman, a professor at Duke Law School, tackles this topic in a thoughtful and fair-minded new book, On Sex and Gender: A Commonsense Approach, released this week.

Coleman focuses her interdisciplinary scholarship on gender and sex issues in medicine, sports, and law. In an interview last week, we began by talking about “sex” versus “gender.” According to Coleman, sex refers to “the biological concept—our physical bodies, as male or female”—and in U.S. law, sex generally refers to biological sex as well.

In contrast, in the U.S. today, gender—which originally started off as synonymous with sex, and remains that way in many parts of the world—focuses on the social rather than the biological. Coleman said that gender includes norms, roles, relationships, and other concepts that might be described as “socially constructed.” She added that some states have recently redefined sex in response to lobbying efforts by trans-rights organizations, “retiring the established focus on the male/female binary and the whole body or ‘organism’ in favor of gender.”

Coleman opposes efforts to eliminate the concept of biological sex or to replace it with gender. She instead argues that when developing laws and policies, legislators and policymakers need to acknowledge that sex is real; that an evidence-based sense of sex-based differences should control, not one based on misconceptions or stereotypes; and that the growing amount of research into sex differences must be applied in non-sexist ways.2

Not every acknowledgment of sex is sexist. Not every recognition of sex-based difference in the law constitutes invidious sex discrimination. And a desire to push back on these misconceptions is part of what led Coleman to write her book.

One of her central tenets in On Sex and Gender is that society, instead of being “sex-blind,” needs to be “sex-smart.” She draws many of her examples from the field of medicine. As Coleman told me, “We all know that sex matters when it comes to the way our bodies are, how they function and sometimes don’t function, and how they age.”

Failing to recognize sex-based medical differences—which for decades meant treating female patients using research derived from males—leads to worse outcomes, in terms of both medical outcomes for individual patients and public-health outcomes for society. What’s good for the goose isn’t always good for the gander.3

What does it mean to be sex-smart when it comes to transgender athletes in girls’ and women’s sports? The issue resonates strongly for Coleman, a champion runner who competed at the collegiate and national levels before going to law school.

And in the athletic context, according to Coleman, being sex-smart requires recognizing the undeniable advantages that post-puberty male physiology and hormones provide. So elite sports, where the focus is on competition and selectivity, should be classified by sex, full stop. If you have been through male puberty, you should not be allowed to participate as a woman in Division I college sports, national competitions, and the Olympics, in Coleman’s view.4

Outside the elite context, however, Coleman doesn’t have a bright-line rule. Developing a sensible policy requires looking at the specific sports program in question, figuring out its institutional goals, and evaluating how much sex matters to fulfilling those goals. For an after-school sports program focused mainly on advancing physical fitness and teaching teamwork, trans kids should be allowed to play with the groups that match their gender identity.

But the answer might be different when it comes to the statewide championship in a high-school varsity sport, where the focus is more on competition rather than health and well-being (and athletic scholarships, like the track scholarship that sent Coleman to college, might be on the line). As Coleman writes in her book, “a male-bodied kid shouldn’t be the girls’ state champion.”

What about gender-affirming care for minors? Coleman, who describes her own politics as liberal, again stakes out a moderate position, rejecting the extremes of left and right. She doesn’t support total bans on all gender-affirming care for minors, but she also doesn’t support automatically and immediately prescribing hormones or surgery for all potentially transgender kids.

Instead of proposing specific rules—e.g., no puberty blockers before age X, no surgery before age Y—Coleman offers a general framework for approaching the issue. She believes transgender pediatric care should be more like pediatric medical care generally: evidence-based, focused on the whole child, and respectful and compassionate.

Coleman contends that the voices currently dominating this debate, from both the right and the left, have caused transgender pediatric care to fall short by these metrics. As she told me, “What I have found bizarre and unsettling about pediatric trans care is the extent to which it has been politicized, by both trans advocates and the religious right.”5

And the political controversies surrounding transgender rights are unfortunately creating more heat than light, making it difficult to have reasoned and informed debate about the topic. Coleman herself has been branded an “anti-transgender activist” and accused of “preach[ing] hateful rhetoric that denies the existence of trans women”—which she strongly denies.

In her book, Coleman argues that transgender employees should be protected against workplace discrimination; she supports the right of transgender adults to access gender-affirming care; and she uses transgender people’s preferred pronouns. She simply doesn’t believe in eliminating biological sex as a concept and replacing it with gender—and this view, which polling suggests is held by 60 percent of Americans, is hardly radical.6

At the end of the day, transgender legal issues are complex and contentious—but not intractable. If we can dial down the politics, on both sides of the aisle, and focus on the evidence, progress can be made.

1As noted by commentators across the ideological spectrum, from Ed Whelan on the right to Ian Millhiser on the left, the Court appears to be avoiding transgender legal issues. But as conflicting rulings start to pile up in the lower courts, the justices will eventually have to step in. They have touched on transgender legal issues in their emergency aka shadow docket—most recently in Labrador v. Poe, in which they allowed Idaho’s ban on gender-transition care for minors to take effect—but there hasn’t been a major SCOTUS case on transgender rights since Bostock v. Clayton County in 2020.

2As Coleman told me in our interview, she was struck by the tension between (1) recent advances in scientific knowledge of the female body, which have contributed to an increased willingness to discuss women’s health openly and honestly, and (2) the growing movement to deny that biological sex is real. She said this jumped out at her as “an interesting and important collision of two significant developments.”

3Coleman drew my attention to an editorial in Nature, “Why it’s essential to study sex and gender, even as tensions rise,” which includes this fascinating discussion:

For as long as scientific inquiry has existed, people have mainly studied men or male animals. Even as recently as 2009, only 26 percent of studies using animals included both female and male individuals, according to a review of 10 fields in the biological sciences. This bias has had serious consequences. Between 1997 and 2000, for instance, eight prescription drugs were removed from the U.S. market, because clinical testing had not revealed women’s greater risk of developing health problems after taking the drugs.

For additional thoughts from Coleman on why sex still matters, see her guest posts this week on the Volokh Conspiracy, “What Is ‘Sex’?” and “The Crossroads Moment.”

4In other words, Coleman does not support any rules allowing transgender-women athletes to compete in women’s sports at the elite level, even if they have been taking hormones for a certain amount of time, have testosterone levels below a certain number, or have had certain gender-affirming surgeries. Based on her study of the scientific and medical evidence, she does not believe such measures can overcome the advantages conferred by having been through male puberty.

5Coleman shared with me her thoughts on what the right and the left get wrong about sex and gender. She criticized some on the right for “pathologizing gender diversity,” “denying individual liberty and human flourishing to groups of people based on sex or gender,” and “using trans kids as political footballs.” She criticized some on the left for “denying that sex is real”; “privileging gender over sex, when they both matter”; and “trying to take care of trans people by denying the existence of sex, which might not be the best way to accomplish that goal.”

6More specifically, polling from the Pew Research Center found the following:

60 percent of U.S. adults say a person’s gender is determined by their sex assigned at birth;
64 percent say they support laws that would protect transgender individuals from discrimination in jobs, housing, and public accommodations; and
58 percent favor proposals that would require transgender athletes to compete on teams that match the sex they were assigned at birth.

These positions align with what Coleman describes as her “commonsense approach” to sex and gender.

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A clerk walking the halls of the U.S. Supreme Court (photo by David Lat).On Monday, Notre Dame Law School announced that two of its graduates, Kari Lorentson and Elizabeth Totzke, will clerk for Justice Amy Coney Barrett during October Term 2024. It’s great news for Notre Dame Law, which now ranks #4 nationally for placing its graduates into prestigious federal clerkships. In the 2024 U.S. News law school rankings, ND Law was the biggest mover in the top 30, going from #27 to #20—and I suspect its clerkship-placement prowess contributed to that rise.

The news about Lorentson and Totzke was exciting not just for their alma mater, but for those of us who follow Supreme Court clerk hiring. It means we now have a complete roster of SCOTUS clerks for October Term 2024—and I can crunch the numbers about their demographics, as I do each year. So let’s get to it.

1. Gender. The OT 2024 class contains 38 clerks—four for each active justice, plus one each for retired Justices Anthony Kennedy and Stephen Breyer (who will work in the chambers of an active justice in addition to assisting their retired bosses with various projects). Of the 38 clerks, 22 are men and 16 are women, making for a class that’s 58 percent male and 42 percent female. This breakdown is very similar to the OT 2023 class, which was 61 percent male and 39 percent female, and it’s roughly in line with the recent historical average.

In conducting this analysis, I made assumptions about the gender identities of clerks based on the gender traditionally associated with a given name. For clerks with ambiguous names, I figured out their gender by looking up sources containing their pronouns. I’m guessing that in the future I’ll encounter a non-binary clerk—but as far as I know, these 38 clerks identify as either male or female. (Of course, if you have a correction for me on this, please email me at davidlat@substack.com.)

2. Feeder schools. Eleven law schools sent graduates into OT 2024 clerkships at the Court, which is in line with recent history (13 schools for OT 2023, 10 schools for OT 2022, 12 schools for OT 2021). Here’s the ranking, with the number of clerks noted parenthetically:

Yale (14)
Harvard (10)
UVA (3)
Duke (2)
Notre Dame (2)
Stanford (2)
Columbia (1)
Michigan (1)
Northwestern (1)
Penn (1)
Scalia (1)

Yale was the clear #1, with 14 clerks in OT 2024—up from 10 in OT 2023, when it tied with Harvard. Harvard again produced 10 clerks—but since its J.D. graduating class is almost four times larger than Yale’s (804 versus 210 for the latest classes), YLS produces far more SCOTUS clerks than HLS on a per-capita basis. Regardless of what lower-court judges might be up to, the justices are definitely not boycotting Yale Law when it comes to clerkship hiring.

In OT 2023, Stanford and Chicago were #3 and #4—with five and three clerks, respectively—but they dropped a bit in OT 2024. Stanford produced two clerks, good for a three-way tie for #4 (behind UVA), and Chicago got shut out entirely—which I found pretty surprising, especially since it’s the #1 law school for federal clerkship placement generally.

But note that there’s what I’d call “lumpiness” in SCOTUS clerk placement, in terms of both feeder schools and feeder judges. Because there’s a certain element of randomness in terms of when clerks make it to SCOTUS, sometimes a school or judge might have a weak Term followed by a strong one.

Take Chicago. If you look at the SCOTUS clerk hires listed for OT 2025, it already has four on the board—and OT 2025 is only around a third of the way done, with 13 out of 38 clerks hired. (As always, that’s just the hires I’ve learned about; I don’t learn about all hires in real time, and some hires I don’t find out about until months after the fact—holla, Crystal Clanton.)

3. Feeder judges. The 38 clerks for OT 2024 completed 71 prior clerkships with 47 different judges. That’s basically even with OT 2023 (48 different judges), but higher than the 43 in OT 2022, 46 in OT 2021, and 39 in OT 2020—which suggests to me that the trend of serving multiple clerkships before making it to SCOTUS is alive and well (for better or worse).

Here are the 16 feeder judges with more than one clerk at the Court for OT 2024, with the number of clerks noted parenthetically:

Katsas (5)
Oldham (4)
W. Pryor (3)
Srinivasan (3)
Friedrich (D.D.C.) (3)
Grant (2)
Millett (2)
Newsom (2)
Park (2)
Pillard (2)
Thapar (2)
J.R. Walker (2)
Watford (2)
Moss (D.D.C.) (2)
Oetken (S.D.N.Y.) (2)
AliKhan (D.D.C.) (2)

So for OT 2024, Judge Gregory Katsas (D.C. Cir.) took the #1 spot—up from #2 in OT 2023, when he was runner-up to Judge Amul Thapar. Judge Andrew Oldham (5th Cir.) also made a strong showing in OT 2024, taking second place to Judge Katsas after doubling his feeding from two clerks to four.

Of these 16 judges, eight previously appeared on the “two or more clerks” list for OT 2023 and/or 2022, while these eight judges are new:

Millett (2)
Newsom (2)
Park (2)
J.R. Walker (2)
Watford (2)
Moss (D.D.C.) (2)
Oetken (S.D.N.Y.) (2)
AliKhan (D.D.C.) (2)

But again, note the “two or more clerks” qualifier, as well as my earlier caveat about “lumpiness.” I’d consider four of these eight judges—Judges Patricia Millett (D.C. Cir.), Kevin Newsom (11th Cir.), Paul Watford (9th Cir.), and Paul Oetken (S.D.N.Y.)—to be established feeders. (But Judge Watford, who left the bench to join Wilson Sonsini, is no longer an option for law-school gunners aspiring to SCOTUS clerkship glory.)

I expect the remaining four judges—Judges Michael Park (2d Cir.), Justin Walker (D.C. Cir.), Randolph Moss (D.D.C.), and Loren AliKhan (D.D.C.)—will grow in stature as feeder judges in the years ahead. Also, note that Judge AliKhan placed two clerks at SCOTUS while still on the District of Columbia Court of Appeals, a non-Article III court that is D.C.’s version of a state supreme court. In December 2023, Judge AliKhan got elevated to the U.S. District Court for the District of Columbia (D.D.C.), which will only increase her feeding power.

Speaking of D.D.C., it’s interesting to see how it has gained the upper hand over the Southern District of New York (S.D.N.Y.) as the top district court when it comes to minting SCOTUS clerks. If you look at all the hires listed below—for all future Terms, not just OT 2024—you’ll see 11 D.D.C. clerks, almost double the six S.D.N.Y. clerks. Is D.D.C.’s domination here to stay? Time will tell.

Okay, that’s all for now. For paid subscribers to Original Jurisdiction who appreciate the “inside baseball” of actual clerk names, you can check out the lists below.

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Justice Samuel A. Alito and Mrs. Martha-Ann Alito, attending a September 2020 memorial service for Justice Ruth Bader Ginsburg (photo by Andrew Harnik via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

I had a good but uneventful week. I’m happy to report that I’m feeling much better compared to the prior week—and I thank you for all the recommendations on how to deal with eye strain from staring at screens all day.

So let’s go directly to the latest testimonial for Original Jurisdiction, which comes from Youngjin Choi: “I am a U.S.-trained lawyer working for the in-house legal department of a South Korean multinational company in a highly regulated industry. To excel in my role, I need to stay updated on the current developments of the U.S. legal industry. That is why I rely on Original Jurisdiction, the best legal publication for my needs.”

Thanks to Youngjin for the kind words. By the way, my well of testimonials is running low, so I’d welcome some new ones; please fill out this form if you can help.

Now, on to the news.

Lawyers of the Week: Boris Bershteyn and Brendan McShane.

In my recent conversation with Michele Johnson, Global Chair of the Litigation & Trial Department at Latham & Watkins, she highlighted for me a fascinating issue at the intersection of two super-hot practice areas, antitrust and artificial-intelligence law: “Companies are using AI to, among other things, develop algorithmically influenced pricing. Regulators are asking if it’s anticompetitive if the companies are using similar data. We are on the absolute cutting edge of those cases.”

And so it made sense to me when I saw Ross Todd’s latest honorees as Litigators of the Week, Boris Bershteyn of Skadden Arps and Brendan McShane of Latham. Representing Caesars Entertainment, the casino-hotel operator, and Cendyn Group, which makes pricing software used by the hospitality industry, the two just won a big victory in this area.

After hearing arguments from Bershteyn and McShane last month, Judge Miranda Du (D. Nev.) dismissed, with prejudice, a purported class action brought by private plaintiffs alleging that hotels’ use of AI-powered pricing software violates the Sherman Act. Judge Du ruled that “mere use of algorithmic pricing based on artificial intelligence by a commercial entity, without any allegations about any agreement between competitors—whether explicit or implicit—to accept the prices that the algorithm recommends, does not plausibly allege an illegal agreement.”

This was just a trial-court ruling, so the legal battles will continue—whether in this case or similar ones, including litigation currently pending in federal courts in New Jersey and Tennessee. Eventually we’ll start getting opinions from appellate courts—and maybe even the Supreme Court. So in carving out reputations for expertise in this emerging area of law, Skadden and Latham may have hit the jackpot.

In memoriam:

Christopher F. Edley Jr., a longtime Harvard law professor and former dean of Berkeley Law, passed away at 71, from surgical complications.
Jonathan Morris—a partner in the New York office of Morgan Lewis & Bockius, where he served as deputy leader of the firm’s global corporate and business transactions practice—passed away at 50, after battling pancreatic cancer.

May they rest in peace.

Judge of the Week: Justice Samuel Alito.

On Thursday, Justice Samuel Alito filed a dissent, joined by Justice Neil Gorsuch, in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd. (discussed below as Ruling of the Week). But that’s not why everyone was talking about Justice Alito this week.

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‘I am too sexy for F.3d.’Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Happy Friday! And welcome to the latest edition of Lat’s Legal Library (LLL), in which I highlight noteworthy new books about or related to the law.

By “new,” I mean “new since the last installment of LLL”—which came out last October, so some of these books aren’t exactly hot off the presses. But I thought this roundup might still be helpful to some of you, for two reasons.

First, some of you are looking for graduation gifts, whether for college graduates bound for law school or law-school graduates entering the workforce (and no, a canceled commencement doesn’t get you out of your gift-buying obligation). Second, Memorial Day and summer are just around the corner, so we all need books to take with us on vacation.

Here’s my list of featured titles. As usual for LLL, I selected these books based on media coverage, reader recommendations, and pitches by publicists and authors, as opposed to my personally having read all of them myself (unfortunately not possible, given my writing, podcasting, and parental duties).

Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret, by W. Bradley Wendel. Under what circumstances should lawyers be “canceled” for representing unpopular clients or causes? Many lawyers would answer “never”—but as Professor Brad Wendel argues in Canceling Lawyers, the reality is far more complicated. According to Professor Robert W. Gordon, Wendel’s argument is “forceful” and “made with exceptional clarity and style,” and even folks who disagree with him “will find their minds sharpened by this book.”
Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect, by John Inazu. Speaking of disagreeing, how can we do it better? As we get deeper into a highly contentious election season, the ability to disagree without being disagreeable is more crucial than ever. According to President Philip Ryken of Wheaton College, Learning to Disagree is a “wonderful, deeply personal, highly entertaining book,” which “takes readers inside the brilliant mind and loving heart of an outstanding legal scholar who wants us to grow genuine friendships, even when we have principled disagreements.”
Reading the Constitution: Why I Chose Pragmatism, Not Textualism, by Stephen Breyer. Who is a better role model for navigating differences respectfully than Justice Breyer? In his latest book, he sets forth his disagreements with textualism and originalism—and according to Washington Post reporter Bob Woodward, “You will not read a more important legal work this election year.”
Memory and Authority: The Uses of History in Constitutional Interpretation, by Jack M. Balkin. The role of history in constitutional interpretation is a hot topic right now, especially in originalist circles. “Lawyers and historians have long mistrusted each other,” as legal historian Laura Kalman points out—but “[i]n this remarkable book, one of our most brilliant constitutional theorists blazes a path towards a more satisfying coexistence by reframing the many ways history is deployed in the creation of constitutional claims. Bravo!”
Sedition Hunters: How January 6th Broke the Justice System, by Ryan J. Reilly. The January 6 attack on the Capitol was one of the biggest historical events of the past few years—and in Sedition Hunters, Reilly explores its implications for the American justice system. According to Chris Hayes of MSNBC, this book is “[t]he definitive account of the massive, open-source effort to bring January 6 perpetrators to justice, from the finest reporter on the beat.”
Attack from Within: How Disinformation is Sabatoging America, by Barbara McQuade. Disinformation played a major role in fueling the events of January 6—and according to Preet Bharara, McQuade—a former U.S. attorney and current NBC/MSNBC legal analyst—offers in this New York Times bestseller “a comprehensive and necessary account of the ways in which disinformation undermines American democracy.”
The Trump Indictments: The Historic Charging Documents with Commentary, by Melissa Murray and Andrew Weissmann. Like Attack from Within, The Trump Indictments is a Times bestseller written by MSNBC contributors—specifically, former federal prosecutor Andrew Weissmann and Professor Melissa Murray of NYU Law (and Strict Scrutiny fame).
Taking Down Trump: 12 Rules for Prosecuting Donald Trump by Someone Who Did It Successfully, by Tristan Snell. The government is about to rest in Donald Trump’s hush-money case. But with three prosecutions of Trump still pending, the insights of former New York State assistant attorney general Snell, who successfully handled the Trump University civil-fraud case, remain relevant.
The Witch of New York: The Trials of Polly Bodine and the Cursed Birth of Tabloid Justice, by Alex Hortis. The ex-president constantly complaints of “witch hunts” against him—but he’s got nothing on Polly Bodine, the defendant in an infamous 1843 murder case whom the tabloids caricatured as a witch. In a Washington Post review, Ilana Masad states that this “compulsively readable book… emphasize[s] the deep misogynist roots of witch trials, real and metaphorical.”
Get Off My Neck: Black Lives, White Justice, and a Former Prosecutor’s Quest for Reform, by Debbie Hines. In the annals of American legal history, misogyny can be found alongside deep racial inequities—the focus of Get Off My Neck, which Kirkus Reviews calls a “forceful plea to reform the toxic entanglement of prosecution, policing, and probation in the criminal justice system.”
Lawyer Nation: The Past, Present, and Future of the American Legal Profession, by Ray Brescia. Kirkus lauds Brescia’s book as a “powerful examination of the U.S. legal field,” in which the author “makes a convincing case that the legal profession must take massive strides toward reform now.” According to Professor Jennifer Taub, “This timely and engaging book is a must-read for practitioners and academics who are training the next generation of attorneys.”
The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights, by Joshua A. Douglas. Speaking of systems in need of reform, Professor Douglas argues that the Supreme Court’s voting-rights jurisprudence cries out for transformation. Per Dean Erwin Chemerinsky, “Saving our democracy requires taking the lessons of this book, and its recommendations, very seriously.”
Who Owns This Sentence?: A History of Copyrights and Wrongs, by David Bellos and Alexandre Montagu. The books discussed so far have kinda been… downers. For more cheerful fare, check out this work, in which Bellos (a literature professor) and Montagu (an IP lawyer) teamed up to produce what Alexandra Jacobs of the Times declares a “surprisingly sprightly history” of copyright.
Elegant Legal Writing, by Ryan McCarl. Legal-writing guru and BriefCatch CEO Ross Guberman praises McCarl’s book as “a terrific addition to the field. Bristling with sage advice and generous examples, this book will help you navigate nearly every legal-writing hurdle in your path.”
Resurrection Walk: A Lincoln Lawyer Novel, by Michael Connelly. If you’re looking for something that’s more of a “beach read,” consider Connelly’s latest, which Tom Nolan of the Wall Street Journal calls an “immensely satisfying book.” Per Becky Meloan of the Washington Post, Resurrection Walk “hits all the right notes for fans of the well-developed characters and intelligent plotlines in the Bosch universe” (referring to LAPD Detective Larry Bosch, the protagonist of many Connelly novels).
The #1 Lawyer: A Thriller, by James Patterson and Nancy Allen. No summer reading list would be complete without an offering from James Patterson. According to Red Carpet Crash, the “[c]ourtroom scenes are top-notch,” and “Patterson and Allen have once again hit a home run.” [UPDATE (2:38 p.m.): The last two bullets were edited to move Meloan’s testimonial to Resurrection Walk—it was originally listed as pertaining to The #1 Lawyer—and to add the testimonial for The #1 Lawyer.]

And there you have them: the 16 titles that made the cut for this edition of Lat’s Legal Library. Please consider supporting these hardworking authors by buying and reading some of their books.

There are actually several books coming out later this month and over the summer, so I might have another installment of LLL for you before Labor Day. As always, I welcome nominations, but please note the timeframe: the book should ideally have been published after this roundup but before the next one. I maintain this temporal limitation because the number of law-related books I could possibly recommend would be overwhelming otherwise. If there’s a law-related book outside this timeframe that you’d like to recommend, please drop it in the comments. Thanks, and happy reading!

Disclosures: First, I received review copies of some of these books. Second, if you click on the title of any book, it will take you to a Google Doc containing affiliate links, which you can click on to purchase your desired book from Amazon—thereby generating a small commission for me, good for the cost of maybe a single disposable diaper for my ten-month-old baby. (As for why I do it this way, the terms of the Amazon Associates program don’t allow me to send out affiliate links in emails, including Substack newsletters—so I apologize for the extra step of having to go into a Google Doc.)

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After my fascinating conversation with Rodge Cohen of Sullivan & Cromwell, I wanted to interview another transactional lawyer for the Original Jurisdiction podcast. But to mix things up, I wanted to speak with an up-and-coming dealmaker rather than a senior statesperson. And because May is Asian American and Native Hawaiian/Pacific Islander Heritage Month, I was hoping to feature a lawyer of AANHPI descent.

Meet Shanu Bajaj, a mergers and acquisitions partner at Davis Polk & Wardwell. Although she hasn’t been a partner for long, Shanu has already been recognized as a star of the M&A bar. In February, she took the #3 spot in the MergerLinks ranking of Top Female M&A lawyers in North America. In March, The American Lawyer named Shanu one of its 2024 Dealmakers of the Year, based on her representation of ExxonMobil in 2023’s largest transaction, the oil giant’s $59.5 billion purchase of Pioneer Natural Resources.

What drew Shanu to M&A as a practice area? What are two abilities that she views as especially important for transactional attorneys? How does she describe her personal style as a dealmaker? And what are her tips for making partner in Biglaw, during a time when the rewards are richer—but the odds are longer—than ever?

Thanks to Shanu for taking the time to tackle these and many other topics with me, and congratulations to her on the well-deserved recognition of her talents. And with decades of deals ahead of her, she’s just getting warmed up.

Show Notes:

Shanu Bajaj bio, Davis Polk & Wardwell
The 2024 Dealmakers of The Year, The American Lawyer
Which M&A Attorneys Drove the Most Business as Deal Leads?, by Patrick Smith for The American Lawyer

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Shanu Bajaj (courtesy photo via Davis Polk & Wardwell) Read more

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Michele Johnson (courtesy photo via Latham & Watkins).A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

In late 2019, I wrote a detailed profile of the litigation practice of Latham & Watkins, using it as a window into the evolution of both litigation and large law firms over the decades. One of the lawyers I spoke to was Michele Johnson, then in her first year as Global Chair of Latham’s Litigation & Trial Department.1

Almost five years later, I checked in with Johnson to get an update on litigation at Latham—and to see what trends it might reveal about the world of litigation more generally. We discussed the overall state of the litigation market, the booming practice areas of antitrust and artificial intelligence, whether AI is ready to handle high-level litigation tasks, and the increasing use of contingency fees.

The state of litigation is strong.Under Johnson, now entering her sixth year as chair, Latham’s litigation department has grown considerably. When we spoke in 2019, there were almost 800 lawyers in litigation, out of 2,800 at the entire firm. Today, the department boasts around 1,100 attorneys, out of Latham’s 3,700.2

And the firm’s litigators are extremely busy. Johnson is a good example: our call had to be rescheduled because she was in the middle of preparing for a trial that was scheduled to start this week—part of the long-running patent dispute between Latham’s client, Sarepta Therapeutics Inc., and a rival, Nippon Shinyaku Co. Ltd.3

As goes Latham, so goes Biglaw: last year, M&A work and IPOs declined, while litigation demand increased. In a January 2024 interview with Roy Strom, Brad Hildebrandt of Hildebrandt Consulting described litigation as “booming.” Lateral hiring in 2023 dropped by 23 percent—but it would have been worse if not for an uptick in litigation, according to recruiter Ru Bhatt of Major, Lindsey & Africa.

Historically Latham might have been more well-known for its transactional practice as opposed to litigation, and the firm’s corporate department remains larger in terms of headcount than litigation. But in Johnson’s view, today the departments are “equally strong—and absolutely world-class.”

Antitrust and AI: the next frontier.When we spoke in 2019, Johnson identified antitrust as an area that Latham was focusing on for strategic growth, and she was prescient. The Biden administration has set a new record for merger enforcement activity—and Latham has enjoyed what Johnson described as “spectacular success” in helping clients navigate these challenges.

Clients retain Latham for some of their most high-stakes and high-profile antitrust cases—such as the Federal Trade Commission’s bid to block Tapestry Inc.’s attempted takeover of rival Capri Holding Ltd., in which Latham represents Tapestry. And despite some significant antitrust hires over the past few years, Latham continues to seek additional talent in the area, simply to keep up with demand.4

So antitrust is a top current priority for Latham’s litigation department—as is artificial intelligence. It’s advising OpenAI, the company behind ChatGPT, in some of its most consequential and headline-making matters, including lawsuits filed by the New York Times and comedian Sarah Silverman.

Litigation at the intersection of antitrust and AI is “particularly interesting,” according to Johnson, “because companies are using AI to, among other things, develop algorithmically influenced pricing. Regulators are asking if it’s anticompetitive if the companies are using similar data. We are on the absolute cutting edge of those cases, involving one of the most interesting issues in antitrust.”

And once again, Latham’s experience reflects what’s going on in the broader litigation landscape. The Justice Department is intensely focused on preserving competition in the rapidly expanding AI industry—and has convened a May 30 workshop at Stanford University to focus on antitrust issues in AI. These cases aren’t going away—and instead, will be a boon to Biglaw litigators in the years to come.5

AI is not an essential tool for litigators (yet).Artificial intelligence is great for litigators as a source of cases—and revenue. But it’s not quite there yet as an essential tool for litigators to use as they go about their work.

As a law firm that represents OpenAI, Latham is optimistic about AI and its implications for legal practice. It has developed and continues to refine proprietary AI products, internal to Latham, that it uses for both firm management and work on client matters (consistent with the rules regarding protection of confidential client data).

But as a practical matter, AI isn’t yet playing a major role in the day-to-day work of Latham litigators. As Johnson told me, she doesn’t think the technology has reached a level where she could rely on it to apply a judicial decision to the particular facts of her case or to distinguish away a precedent.

This is consistent with how many other Biglaw firms are approaching use of AI. Some, like Carlton Fields, ban use of generative AI for writing briefs.

I’ve talked to other Biglaw litigators who are making cautious forays into using AI, trying it out for relatively simple tasks that a junior associate might do—like summarizing a deposition. But they always double-check the AI-generated work—and they are always mindful of cautionary tales like the Manhattan lawyers who got sanctioned last year for filing a ChatGPT-generated brief featuring non-existent cases.

Contingency fees are on the rise.Although AI isn’t yet a major part of Biglaw litigation practice, someday it will be. Comparing it to the development of the internet, Johnson told me we’re in the “dial-up modem phase” of AI—meaning that, for those of you too young to remember how we used to access the internet, we will someday look back on the AI of this period and laugh at its primitiveness.

The rise of AI will have major implications for law firms—and their revenue models. For starters, I predict the efficiency gains it will eventually create will make billing by the hour increasingly less lucrative, and ultimately less sustainable, for Biglaw.

On the litigation side, one possible way to address this problem is by relying more on contingency fees. This ties a law firm’s income on a matter not to the number of hours billed, but to the outcome—which is often something clients prefer.

And when a firm obtains a large verdict or settlement for a client in a contingency-fee case, the economic rewards to the firm can be outsized. The $787.5 million settlement that litigation powerhouse Susman Godfrey obtained for Dominion Voting Systems Inc., in its blockbuster lawsuit against Fox Corp., helped Susman more than double its profits per equity partner—and rank fourth among large law firms in profits per partner.

Mindful of this, Biglaw firms have been focusing more on contingency-fee arrangements in recent years—and Latham is one of them. Around four years ago, the firm established a litigation investment committee, tasked with evaluating whether a case might work as a contingency case.

Johnson worked on one contingency-fee case that went to trial last year, a trend she expects to only pick up steam in the years ahead. And in light of the Latham Litigation & Trial Department’s record over the past few years, it’s a development that Johnson and her colleagues welcome.

“We are eager to bet on ourselves and show confidence in our success.”

1Johnson leads Latham’s (very large) litigation practice and handles her own (extremely busy) set of cases as a trial lawyer—either of which could be a full-time job—and she’s a parent, too. As a working parent myself, I had to ask her for tips. Her top piece of advice: “Collect great people and keep them close.”

“To help me run the department, I have three vice chairs, ten practice group chairs, and an army of additional leaders. To help me with my cases, I have put together giant trial teams, consisting of people I know I can trust. To help me with my kids, I have my dear sister, who stays at home and takes care of them. In all areas, you need to find your people.”

Trial lawyers can be very control-oriented. Did Johsnon find it hard to delegate initially?

“Yes,” she said, “but once you’ve collected the right team, it becomes easier. And once you’ve been in the foxhole together, you develop a level of trust and teamwork. It’s absolutely a process.”

2Some additional data from Johnson: since she and I last spoke, Latham added just under 40 lateral partners to the Litigation & Trial Department, promoted 47 associates to partner, 34 counsel to partner, and 52 associates to counsel. (Note: there’s some overlap between those three groups—e.g., during this four-plus-year period, an associate could have been promoted to counsel and then subsequently promoted to partner.)

3I asked Johnson to talk about how she prepares for trial. She mentioned two things that she and her Latham colleagues do that maybe not everyone else does.

First, they take a big poster board and prepare a “Worry List”: all the things that might go wrong in the trial, from the titanic to the trivial. As they go through the trial, they get to cross out each item—perhaps because it never comes to pass, or perhaps because it does and they deal with it. It’s an excellent way of both staying on top of important tasks and managing the many anxieties associated with a trial.

Second, they have a “Red Team,” a few members of the trial team who are tasked with thinking like the other side. The Red Team tries to identify holes or weaknesses in the Latham team’s case—so the Latham team can plug the holes or address the weaknesses. To be a great trial lawyer, you need to know not just your case, but the other side’s case—inside and out, backward and forward. In the words of John Stuart Mill, “He who knows only his own side of the case knows little of that.”

4A second practice area that Johnson identified as a focus in 2019 was privacy. In our latest conversation, she said she’s very proud of the work that Latham has been doing in the space over the past few years.

“We are practically writing the CIPA defense playbook,” she said, referring to the California Invasion of Privacy Act (CIPA)—a decades-old statute that has recently spawned what has been described as a “tsunami” of litigation. “We were so at the forefront in California, crafting unique strategies to help defend those cases, and now we’re getting cases from other jurisdictions, involving other statutes—like Illinois, with BIPA [Biometric Information Privacy Act] and GIPA [Genetic Information Privacy Act].”

5Another priority for Latham in 2024 is cryptocurrency litigation. The firm is defending Tom Brady, Gisele Bündchen, Larry David, and Shaquille O’Neal in a nationwide class-action lawsuit arising out of their promotional work for FTX. As Johnson explained to Dan Packel of Law.com, this complex litigation requires media and entertainment, securities, corporate, bankruptcy, insurance, investigations, and trial lawyers—all of which Latham has in-house. “No one else in the world could do that,” Johnson said, “and have it be the top people in the world. And that’s why we’re handling the case.”

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Susan Necheles (photo by Michael M. Santiago via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

For my more youthful readers, the title of this post is a reference to adult-film icon Jenna Jameson’s bestselling memoir, How To Make Love Like A Porn Star (2004).

Happy Mother’s Day to all the moms out there! Especially my own mom (who’s traveling right now) and my husband Zach’s mom (with whom we just celebrated).

Last week started off well for me. I enjoyed speaking at the Practising Law Institute’s Ethics in Social Media program and the AAPI Heritage Month celebration of the Philadelphia office of the Securities and Exchange Commission (SEC). But over the past few days, I’ve been feeling fatigued and plagued by headaches. I’m also suffering from eye strain—not great, considering the nature of my work. I welcome suggestions for how to avoid eye strain if you stare at screens all day.

Despite my exhaustion, I did manage to connect with my co-host Zach Sandberg to record a new episode of Movers, Shakers & Rainmakers. We broke down the 2024 Am Law 100 ranking, which came out last month, and the 2024 Am Law 200 ranking, which was published last week (and I’ll be writing about both rankings for these pages soon).

The latest testimonial for Original Jurisdiction is quite timely, with Memorial Day and summer vacations fast approaching. It’s from Elizabeth Kelley, a criminal defense lawyer specializing in representing people with mental disabilities (a subject on which she literally wrote the book): “Original Jurisdiction is essential to your ability to take a vacation. When you return from your vacation and open Original Jurisdiction, it’s as if you were never gone. You’ll catch up on substantive legal news, receive insightful analysis and a bit of well-placed humor, plus links to relevant articles and podcasts. So go ahead, take your vacation, and capture that elusive work/life balance.”

Now, on to the news.

Lawyer of the Week: Susan Necheles.

Donald Trump’s lawyers run the gamut, from impressive to incompetent. Susan Necheles (pronounced “necklace”), who with Todd Blanche and Emil Bove is defending the ex-president in the Manhattan hush-money case, falls into the first camp. A graduate of Yale Law School and former assistant district attorney in Kings County (Brooklyn), she’s both cerebral and street smart—reflected in her “Band 1” ranking in Chambers for white-collar crime and government investigations, where clients praise her for “rabbit-out-of-the-hat results.”

Necheles was all over the news last week, thanks to her aggressive cross-examination of adult-film actress Stormy Daniels. And despite Necheles’s reputation as a strong cross-examiner, Daniels weathered it well, with a combination of defiance, disarming humor, and distracting TMI (apparently Trump wears boxer shorts). It didn’t help that Necheles flubbed some names and played the wrong recording of a conversation she wanted to question Daniels about.

And Necheles wound up taking flak from Justice Juan Merchan. After Trump moved for a mistrial, complaining that the jury was allowed to hear prejudicial and irrelevant testimony from Daniels about the underlying sexual counter, Justice Merchan denied the motion—and tossed in what the Washington Post described as “a biting review of Necheles’s performance.” If the jury heard prejudicial testimony about Trump, the judge said, Necheles was partly to blame, since there were “many times when Ms. Necheles could have objected but didn’t.” For example, Justice Merchan noted that Necheles could have objected to Daniels’s claim that Trump didn’t use a condom: “Why on earth she wouldn’t object to a mention of a condom, I don’t understand.”

But the trial is far from over, and it’s unlikely that any minor missteps by Necheles will make a difference in the end. As former Trump attorney Ty Cobb told Politico, while Trump’s lawyers “should have definitely objected more.… one or two sustained objections wouldn’t have changed the trajectory of this case.”

If Trump’s lawyers can secure an acquittal or even a hung jury, their reputations as trial lawyers will be greatly enhanced. And Necheles could use the boost, since Trump foes have taken over her online reviews. For example: “Awesome lawyer. I attempted a coup in my South American island nation, and she helped me avoid prison. She was savvy enough to get me an escape plane in which I could load in my gold bars so I could be safe in Miami. Would recommend to any would-be dictator.”

In memoriam:

Jack Quinn—who served as White House Counsel under President Bill Clinton, then subsequently helped fugitive financier Marc Rich obtain a highly controversial pardon from Clinton—passed away at 74.
Jeffrey Limmer, a litigation associate in the Houston office of Lewis Brisbois, was shot and killed outside a McDonald’s restaurant on May 4. Another customer was arguing with McDonald’s employees, demanding a refund, when Limmer intervened to try to de-escalate the situation—but instead, the customer turned on Limmer. A suspect has been arrested and charged in the case.

May they rest in peace.

Judges of the Week: Judges Elizabeth “Lisa” Branch, James Ho, and Matthew Solomson.

The most talked-about judicial activity of last week did not involve a judicial opinion—but it definitely involved judges with opinions. A group of 13 federal judges appointed by former president Trump, led by Judges Elizabeth “Lisa” Branch (11th Cir.), James Ho (5th Cir.), and Matthew Solomson (Fed. Cl.), announced a clerk-hiring boycott affecting Columbia University.

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A pro-Palestinian encampment in front of the George Washington University Law School complex (photo by Kent Nishimura / Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Yesterday, campus protests at Columbia University produced additional fallout (besides the newest Lawsuit of the Week, C.S. v. The Trustees of Columbia University).

First, the pro-Palestinian protests resulted in the cancellation of Columbia’s commencement. Second, in news that’s more relevant to readers of Original Jurisdiction, they gave rise to another clerkship hiring boycott.

In a letter to Minouche Shafik, president of Columbia University, and Gillian Lester, dean of Columbia Law School, thirteen federal judges wrote as follows:

Since the October 7 terrorist attacks by Hamas, Columbia University has become ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property.

As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country.

….

Considering recent events, and absent extraordinary change, we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024.

The lead signatories are Judges Elizabeth “Lisa” Branch (11th Cir.), James Ho (5th Cir.), and Matthew Solomson (Fed. Cl.). Judges Ho and Branch previously announced that they would not hire clerks from Yale Law School and Stanford Law School, in the wake of the disruptive protests of conservative litigator Kristen Waggoner, who spoke at YLS in March 2022, and Fifth Circuit Judge Kyle Duncan, who spoke (or attempted to speak) at SLS in March 2023.1

(By the way, I reached out yesterday to Judge Ho’s chambers, which confirmed that the YLS and SLS boycotts remain in effect—and his chambers has informed inquiring applicants accordingly. So if you’re a current student at either Yale or Stanford Law, I’ve saved you the trouble of an inquiry or application. You’re welcome.)

The new boycott is clearly aimed at getting Columbia to change its ways. The judges outlined three policies for Columbia to adopt, “at a minimum,” if it wants to “reclaim[] its once-distinguished reputation”:

“Serious consequences for students and faculty who have participated in campus disruptions”;
“Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct”; and
“Viewpoint diversity on the faculty and across the administration—including the admissions office.”

Spokespersons for Columbia University and Columbia Law School did not immediately respond to inquiries from the Washington Free Beacon and Reuters.

So what should we make of the boycott? John K. Wilson—a contributing author to Academe Blog, a publication of the American Association of University Professors (AAUP)—wrote as follows to me:

This is truly awful unprofessional behavior by federal judges who ought to know better. No one should ever be banned from a job because they attended a college you dislike.

That’s true if it’s a conservative college that discriminates against gay students, or a liberal college (like Columbia) where students have engaged in protests, or a conservative college (like Columbia) where the administration has violated student rights by punishing protesters without due process. Job candidates should always be judged as individuals, and we should condemn ideological boycotts aimed at punishing innocent individuals for the alleged misconduct of others.

To those of you who might view the AAUP as left-leaning or insufficiently strong in opposing antisemitism, I’d point out that some conservative scholars—who share some of Judge Ho’s concerns—have weighed in against the boycotts as well. See, e.g., Professor Orin Kerr (who confirmed, in a tweet yesterday, that his previously expressed opposition applies to the new Columbia boycott).

Or consider these arguments from Professor Jack Goldsmith (directed at the YLS boycott, but the reasoning applies to Columbia as well—just replace “conservative students” with “students opposed to antisemitism” in the excerpt below):

[I]f the boycott succeeded in driving conservative students from Yale, that would not make one of the nation's top law schools a better place for the values Ho cares about. It would have the opposite impact. It seems bizarre to discourage young conservatives who want to attend Yale from doing so, since Yale is so much better for their presence.

[And Judge] Ho’s boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively. The idea behind prospective application apparently is that students attending Yale starting next year will be on notice of the boycott. But the proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.

And note that the Columbia boycott includes graduates of Columbia College as well as Columbia Law School—a choice that Alison Somin of the libertarian-leaning Pacific Legal Foundation questioned in a tweet:

Wondering about the decision to include undergrads: I had no idea what a judicial clerkship was when I was 17 or 18, and my parents would probably have been horrified at the idea of taking low pay to be a judge’s secretary when Biglaw could be on the table.

So those are some arguments against the boycott. What about the case in favor?

Here are thoughts from Judge Lee Rudofsky (E.D. Ark.), who previously asked clerkship applicants to confirm that neither they nor any organizations they belong to had done anything that could be construed as “celebrating or condoning the 10/7 massacre perpetrated by Hamas in Israel.” Judge Rudofsky is still weighing whether to join the boycott, but he definitely sees some value to it:

Regardless of whether I join or not, I generally (and mournfully) agree that Columbia University has become an incubator of antisemitism and anti-Americanism. And I do think that, at some point, judges must step up to the plate as leaders of the bar to help stop the spread of the virulent Jew hatred that is being normalized on college campuses and elsewhere across the country.

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.

And here’s another argument in favor of the boycott: results. As noted by Aaron Sibarium of the Free Beacon, “While it’s hard to measure the success of past boycotts, Yale Law School made a number of reforms in the years following Ho and Branch’s pressure campaign.” For example, it strengthened its policy against disruptive protests, added discussion of free speech and civil discourse to the 1L orientation, and hired two right-of-center professors, Keith Whittington and Garrett West.

And while multiple factors contributed to the progress at YLS—perhaps most importantly, alumni and donor pressure on Dean Heather Gerken—it’s possible the boycott helped. It focused the attention of the public, including alumni and donors, on problems at Yale Law. But because it involved only two judges (at least publicly), it didn’t impose too heavy a cost upon non-disruptive students at YLS, who still had many judges willing to hire them.

So how can you focus public attention on a problem in a productive way, i.e., a way that leads to concrete change? This leads us to the broader issue of the pro-Palestine protests sweeping the nation’s universities. Based on their results so far, have the protesters succeeded? As I wondered in my UVA Law v. Berkeley Law post, are disruptive protests, including lawbreaking ones, the best way to bring about social change?

Are the protests producing tangible results—like raising awareness of the crisis in Gaza, or persuading Americans who are on the fence about the Israel-Palestine conflict to side with Palestine? Or are the achievements—which include, most notably, commitments by universities to consider or discuss divestment from Israel—outweighed by millions of dollars in property damage, terrified Jewish students, and canceled graduations?

Or maybe social change and tangible results are beside the point, and we shouldn’t look at the protests through a utilitarian lens. I previously suggested the protests might be less about persuasion and more about performance, but here’s a point that a reader raised with me:

Calling it “performance” is dismissive and trivializing. It’s about symbolic action and taking a stand.

Regardless of the practical fallout, let the record to reflect that we spoke out against injustice. And when—years in the future, but hopefully not too many years—Americans look at Israel the way we look back on apartheid-era South Africa, we’ll be proud to say we were on the right side of history.

Readers, I welcome your views—on the clerkship boycott specifically, or the campus protests generally—in the comments to this post. As usual for Notice and Comment posts, the comments are open to all readers, not just paid subscribers. Thank you, as always, for your thoughtful and civil engagement.

[3:13 p.m.: See also this Volokh Conspiracy post by Professor Eugene Volokh, who opposes the boycott because “we shouldn't threaten innocent neutrals as a means of influencing the culpable. The post is based on a piece he wrote in October 2022 about the Yale protest, but updated and customized to address the Columbia situation.]

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1In case you’re curious, the other signatories—all Trump appointees, like the three lead signatories—are Judges Alan Albright (W.D. Tex.), best known for at one point having 25 percent of the nation’s patent docket; David Counts (W.D. Tex.); James W. Hendrix (N.D. Tex.); Matthew J. Kacsmaryk (N.D. Tex.), best known for overseeing the mifepristone now before the Supreme Court; Jeremy D. Kernodle (E.D. Tex.); Tilman E. Self, III(M.D. Ga.); Brantley Starr (N.D. Tex.); Drew B. Tipton (S.D. Tex.); Daniel M. Traynor (D.N.D.); and Stephen Alexander Vaden (Ct. Intl. Trade), whom I interviewed on the Original Jurisdiction podcast.

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The Columbia University campus, during happier times (photo by David Lat).This week’s Judicial Notice is sponsored by

I had a pleasantly laid-back week, thank you very much, so I don’t have much to report on the personal side. My kids continue to be incredibly cute.

I didn’t have any speaking engagements last week, but I have two coming up this week. On Monday, I’ll be in New York for the Practising Law Institute’s Ethics in Social Media program—which offers coveted ethics CLE credits. On Wednesday, I’ll be at the Philadelphia Regional Office of the Securities and Exchange Commission, where I’m giving a lunch talk for AAPI Heritage Month.

This week’s testimonial for Original Jurisdiction comes from Aliza Shatzman, founder and president of The Legal Accountability Project: “Original Jurisdiction is a must-read for legal news. I always look forward to receiving the newsletter in my inbox! After doing a quick scan for my name (I imagine I’m not the only reader who does this), I always enjoy reading David’s unique and thoughtful takes on the week in law.”

Now, on to the news.

Lawyer of the Week: Sandra Doorley.

“I have been humbled by my own stupidity.” When a district attorney utters these words in a video apology, you know she really stepped in it.

The district attorney for Monroe County, New York, Sandra Doorley, was driving home—and driving 55 miles per hour, on a suburban road with a speed limit of 35. A police officer attempted to pull her over but she ignored his lights and sirens, instead driving the remaining half-mile to her house. The officer followed her home. When he approached Doorley (very politely) in her garage, she berated him, cursed at him (“fking ahole”), and repeatedly invoked her office.

“I’m the DA,” she said. “If you give me a traffic ticket, that’s fine. I’m the one who prosecutes it.”

Unfortunately for Doorley, the entire episode was recorded on cringe-inducing bodycam footage. After the video went viral, the incident garnered coverage in multiple national news outlets (helpfully collected by the ABA Journal, along with links to the bodycam footage and Doorley’s video apology).

Doorley pleaded guilty to speeding, paid the ticket, and issued a video apology. But she’s not yet out of the woods. All nine members of the Rochester City Council signed a letter to New York Attorney General Letitia “Tish” James, calling for Doorley to be investigated; Governor Kathy Hochul referred Doorley to New York State’s Commission for Prosecutorial Conduct; and she’s facing calls to resign.

Moral of the story: nobody is above the law. (Except for maybe the president, to a limited extent—we’ll see what the Supreme Court says.)

Other lawyers in the news:

Last week we learned that Kristen Clarke, assistant attorney general for the U.S. Justice Department’s Civil Rights Division, was arrested in July 2006 for allegedly attacking her ex-husband with a knife (and slicing his finger to the bone). The arrest was later expunged, and she didn’t disclose it during her confirmation process—even when asked, “Have you ever been arrested for or accused of committing a violent crime against any person?”

She told CNN that she was not obligated to disclose the arrest because it was expunged—and further claimed that she was the victim of “years-long abuse and domestic violence” by her ex-husband (which he denies). But some experts consulted by the Daily Signal, which broke the news of her arrest, argued that she should have disclosed—especially since at least one federal background-check form requests disclosure “regardless of whether the record in your case has been sealed, expunged, or otherwise stricken from the court record.” * Trial in the Donald Trump hush-money case continues—and it seems that Trump might be losing confidence in his lead lawyer, Todd Blanche. * New York City Mayor Eric Adams, who previously hired Alex Spiro of Quinn Emanuel to defend him in a lawsuit alleging sexual assault, might be adding another big name of Biglaw to his legal team: Randy Mastro, currently at King & Spalding, is Mayor Adams’s pick to serve as New York City’s corporation counsel. * And speaking of Spiro, Judge Maria Cantú Hexsel of Travis County, Texas—who’s currently considering a motion for sanctions against him, arising out of his defense of a deposition of Elon Musk—told some of Spiro’s Quinn Emanuel colleagues that it wouldn’t be “a bad idea for him to come” to a May 7 hearing. (The underlying suit involves defamation allegations against Musk.)

Judge of the Week: Judge Roger Benitez.

Some of you might recall allegations last year of egregious behavior by Judge Roger Benitez (S.D. Cal.). He was accused of ordering the 13-year-old daughter of a criminal defendant to enter the well of the court, where he then directed a U.S. Marshal to handcuff her—causing the poor girl, who was there simply to support her father, to start crying.

It appears Judge Benitez was going for a “scared straight” effect: after the handcuffs were removed, he warned the girl that if she didn’t stay away from drugs (which is how her father got in trouble), she would “wind up in cuffs” and “right back there where I put you a minute ago.” But public reaction to his conduct was universally negative, with pretty much everyone agreeing that his actions, even if well-intentioned, were wildly inappropriate.

At the time, Chief Judge Mary H. Murguia (9th Cir.) announced that Judge Benitez would be investigated for alleged misconduct. And now we have a decision from the Judicial Council of the Ninth Circuit—which unsurprisingly found that Judge Benitez committed misconduct.

In defending himself, Judge Benitez argued that he was trying to help the girl—fair enough. But Judge Benitez also complained that Puente’s lawyers from the Federal Defenders of San Diego “injected [Mr. Puente’s daughter] into Mr. Puente’s sentencing by telling [him] how much she loved her father,” which Judge Benitez felt constituted “[e]motional manipulation.”

It’s both routine and understandable for a defendant’s family members to write letters to a judge explaining how much they care about the defendant—which doesn’t make them fair game for handcuffing. As the Judicial Council wrote in its order, “the shackling of a spectator at a hearing who is not engaged in threatening or disorderly behavior exceeds the authority of a district judge,” and “creating a spectacle out of a minor child in the courtroom chills the desire of friends, family members, and members of the public to support loved ones at sentencing.”

As punishment, the Council publicly reprimanded Judge Benitez, and it also prohibited him from hearing any new criminal cases. But since he had already chosen not to get new criminal cases after taking senior status in 2017, this wasn’t much of a sanction. (Judge Benitez was sentencing Mario Puente for violating the terms of his supervised release; he was sentenced in his underlying drug case years ago.)

The punishment of Judge Benitez might strike some of you as pretty weak sauce—but by the standards of judicial-misconduct cases, it’s actually on the harsher side. For starters, Judge Benitez was named and shamed—“a rare public rebuke for a federal judge,” in the words of Nate Raymond of Reuters. Most resolutions of misconduct complaints keep the judge anonymous—e.g., the Second Circuit judge with an “overly harsh” approach to managing her law clerks.

If you think complaints of judicial misconduct aren’t taken seriously enough, check out the work of Gabe Roth of Fix the Court and Aliza Shatzman of The Legal Accountability Project (both prior guests on my podcast, here and here). Whether you agree or disagree with any of Roth’s or Shatzman’s specific views, it’s clear that federal judges, while often very admirable, are not infallible—with Judge Benitez’s treatment of Mario Puente’s daughter as Exhibit A.

Speaking of judicial misconduct, here’s my Ex-Judge of the Week: former bankruptcy judge David R. Jones (S.D. Tex.), who resigned after it came to light that he was in a years-long relationship with bankruptcy lawyer Elizabeth Freeman—during which he oversaw cases (and approved fees) involving her and the firm where she worked at the time, Jackson Walker. James Nani and Ronnie Greene of Bloomberg Law took a deep dive into the controversy, producing a two-part investigation: Sex, Secrets Trigger Downfall of Star Texas Bankruptcy Judge and How Four Judges Kept Romance Allegations Quiet for Two Years.

In nominations news, the Senate confirmed assistant U.S. attorney Georgia Alexakis (N.D. Ill.) to Chicago’s district court. Presidents Biden and Trump are now roughly tied in terms of the number of judicial appointees by this point in their term—194 for Biden, 193 for Trump—but Trump confirmed 51 circuit judges, while Biden is only at 41.

The controversy over Third Circuit judge Adeel Mangi isn’t helping matters for Biden. The White House and Senator Cory Booker (D.N.J.) continue to stand by the nominee—but at a certain point, they could run out of time to put up a replacement if Mangi can’t get through. (Thanks to Howard Bashman of How Appealing, who has been following the situation closely, for the links.)

Ruling of the Week: Kadel v. Folwell.

It seems that legal news these days boils down to two topics, both starting with “Tr”: Trump, and transgender issues.

Just two weeks ago, the Fourth Circuit took Ruling of the Week honors with B.P.J. v. West Virginia State Board of Education, in which it ruled that a West Virginia law barring transgender athletes from participating in girls’ or women’s sports violates Title IX. And last week the Fourth Circuit—sitting en banc, no less—issued Kadel v. Folwell, holding that “healthcare plans that cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients violate… the Equal Protection Clause.”

So as a practical matter, state healthcare plans must now pay for “gender-affirming” or “gender-reassignment” surgeries—to use the terms of the majority and the dissenters, respectively. According to the Washington Post, the ruling is “a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.”

More specifically, the Fourth Circuit held that North Carolina’s state healthcare plan and West Virginia’s Medicaid program discriminate on the basis of gender identity and sex, in violation of the Equal Protection Clause. The Kadel court also ruled that the West Virginia Medicaid program violates the Medicaid Act’s availability and comparability provisions and the Affordable Care Act’s anti-discrimination provision. It therefore affirmed summary-judgment rulings in favor of the plaintiffs by Judges Loretta Biggs (M.D.N.C.) and Robert Chambers (S.D.W. Va.)—appointed by Presidents Obama and Clinton, respectively, in case you were wondering.

And there’s reason to believe that the party of the appointing president matters, at least in this case, since the Fourth Circuit ruling broke along partisan lines. The eight judges in the majority were Democratic appointees,1 while the six dissenting judges were Republican appointees. Judge Roger Gregory wrote the 66-page majority opinion, while the 80 pages of dissents came from Judge Julius “Jay” Richardson, who wrote the lead dissent, as well as Judges J. Harvie Wilkinson and Marvin Quattlebaum Jr. (Judge Nicole Berner did not participate; the case was argued in September 2023, and she took office this past March.)

The majority argued that denying gender-affirming surgery to transgender patients amounted to “textbook sex discrimination”—citing the Supreme Court’s ruling in Bostock v. Clayton County, which held that discriminating against transgender employees constitutes discrimination “because of sex” under Title VII. Judge Gregory reasoned that gender dysphoria, which is what leads patients to seek gender-affirming surgery, “is so intimately related to transgender status as to be virtually indistinguishable from it.”

Judge Richardson—agreeing with the defendant states, which relied heavily on cost considerations—took the position that “[s]tates can reasonably decide that certain gender-dysphoria services are not cost-justified, in part because they question the services’ medical efficacy and necessity.” He also argued that “[t]he Equal Protection Clause does not license judges to strike down any policy we disagree with,” faulting the majority for “treat[ing] these cases as new fronts” in the culture wars.

The case is soon heading for One First Street, with West Virginia Attorney General Patrick Morrisey, currently running for governor, declaring that he would “take this up to the Supreme Court and win.” But will SCOTUS take the case? The justices haven’t been eager to wade into this area of law.

But if the Court grants certiorari, there’s a decent chance the states will prevail. Although Justice Neil Gorsuch wrote the majority opinion in Bostock and Chief Justice John Roberts joined, there’s a big difference between (1) whether transgender employees are entitled to protection from workplace discrimination under Title VII, and (2) whether transgender patients are entitled to gender-affirming surgery under the Equal Protection Clause. For more, see part II.A.3 of Judge Richardson’s dissent—which argues that while Bostock has “implications” for Equal Protection doctrine, it does not require ruling for the plaintiffs. (Judges Steven Agee and Allison Rushing opted out of this part of the dissent—if I had to guess, probably because they didn’t want to concede even this much about Bostock’s relevance.)

Other decisions and dispositions worth noting (with thanks to John Ross of Short Circuit for some of these):

There was lots of en banc activity last week. In In re Cognizant Technology Solutions Corporation Derivative Litigation, the en banc Third Circuit unanimously held that the decision to dismiss a derivative action for failure to plead demand futility should be reviewed de novo. Overruling its prior precedent applying an abuse of discretion standard, the court fell in line with the First, Second, Seventh, Eighth, and Tenth Circuits, as well as several state supreme courts.
I have to confess that I’m not super-interested in qualified immunity—at least not until the Supreme Court decides to revisit its precedents. But Judge Andrew Oldham’s opinion in Hughes v. Garcia, involving allegations of pretty outrageous police conduct, is worth a read. (Seriously.)
The Ninth Circuit issued not one, but two en banc rulings. In United States v. Lucas, it unanimously held that the preponderance of the evidence standard applies when making factual findings under the advisory Sentencing Guidelines. In United States v. Anderson, the court held, by a 6-5 vote, that “an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search” under the Fourth Amendment.
Judge Richard Jones (W.D. Wash.) sentenced Changpeng Zhao aka “CZ,” founder and former chief executive of the Binance cryptocurrency exchange, to only four months in prison—far short of the three years requested by prosecutors. Judge Jones said CZ’s conduct “does not warrant a 36-month sentence,” praised him as “a dedicated family man and a giving person,” and commended his “staggering accomplishment” in building Binance. Congratulations to William Burck of Quinn Emanuel on securing an excellent result for his client.
In BMC Software, Inc. v. IBM Corp., the Fifth Circuit reversed a district-court judgment awarding more than $1.6 billion (!) in contract and fraudulent-inducement damages to BMC. Kudos to IBM’s counsel: Paul Clement, Erin Murphy, and Andrew Lawrence of Clement & Murphy, and Paul Yetter, Connie Pfeiffer, and Reagan Simpson of Yetter Coleman.

Litigation of the Week: C.S. v. The Trustees of Columbia University.

One of last week’s biggest stories in non-legal (or perhaps I should say illegal) news was the occupation of Columbia University’s Hamilton Hall by pro-Palestinian protesters. On Tuesday night, after almost 24 hours of occupation, the building had to be cleared by the New York Police Department (NYPD)—specifically, officers clad in riot gear—who arrested dozens of demonstrators. At least 25 percent of the arrestees had no connection to Columbia, according to the NYPD.

The takeover of Hamilton Hall was the culmination of chaos at Columbia. But the situation on campus was out of control even before the occupation—at least according to the class-action complaint filed on Monday in C.S. v. The Trustees of Columbia University.

Lead plaintiff “C.S.” is a Jewish student in her second year at Columbia. The 22-page complaint describes “verbal threats, physical intimidation, and even assaults” that she and other Jewish students have endured on campus since April 18, when protesters established the so-called “Gaza Solidarity Encampment.” The suit has a single count for breach of contract, alleging that by “allowing the above described hateful, menacing, and violent behavior, and failing to enforce [campus safety and nondiscrimination] policies, Columbia has failed to provide a safe educational environment and therefore breached its contractual obligations.”

The complaint was filed by a team of lawyers from Edelson PC, one of the nation’s top firms for high-impact, plaintiff-side lawsuits—specifically, founder and CEO Jay Edelson and partners Ari Scharg, David Mindell, and Rafey Balabanian—joined by another prominent plaintiffs’ lawyer, Brooklyn-based Carrie Goldberg. I wasn’t surprised to see the lawsuit was filed by Edelson, which previously took a stand against antisemitism by withdrawing from on-campus interviewing at Harvard Law School (in the wake of former Harvard president Claudine Gay’s ill-fated congressional testimony on the topic).

And I wasn’t surprised to see that Columbia hired superlitigator Roberta Kaplan to defend itself in this matter (as well as an earlier lawsuit alleging the university fostered an “antisemitic hostile educational environment”). One of Columbia Law’s most celebrated graduates, Robbie Kaplan is a go-to lawyer for the university in its most high-profile cases. Her hiring suggests that the university sees these suits as serious; you don’t hire Kaplan Hecker & Fink to fight frivolous litigation.

Pro-Palestinian protesters, at Columbia and elsewhere, invoke the First Amendment in defense of their actions. But as noted by the Foundation for Individual Rights and Expression (FIRE), the nation’s foremost defender of free speech on campus, “Occupying a campus building, blocking students from attending classes, and vandalizing property is not protected by the First Amendment, full stop.” Or as former Yale Law School dean Robert Post, a free-speech expert, told Law.com, the First Amendment isn’t the most relevant analytical framework: “The subject is the maintenance of the university community and its educational mission, and I think First Amendment rights are subordinate to that.”

The students who protested a dinner at Berkeley Law Dean Erwin Chemerinsky’s home claimed it was their First Amendment right to protest at a private home. But they didn’t grapple with, say, the niceties of First Amendment forum analysis, as I did in this lengthy Twitter thread. Nor did they discuss time, place, and manner restrictions, which were helpfully reviewed by Sarah Isgur and David French on a recent episode of Advisory Opinions.

How do protesters respond to their critics? One longtime activist shared a few thoughts with me (and I’d love to hear from others—if you’re a pro-Palestinian demonstrator, please reach out). In light of the sheer scope and scale of the humanitarian crisis in Gaza, in which many of them have lost loved ones, focusing on protest tactics and First Amendment law is ridiculous, even offensive. As for my suggestion that activists take the long view and “rise up through the system,” so they can bring about social change from positions of power, they simply don’t have that luxury—as the death toll in Gaza increases by the day.

In other litigation news:

The biggest developments in the Trump hush-money trial were (1) Justice Juan Merchan holding Trump in contempt and fining him $9,000 for violations of the gag order, and (2) former Trump aide Hope Hicks appearing as a prosecution witness. Please allow me to enjoy a relatively Trump-free week in legal news by letting me leave it at that. (Okay, fine: if you’re hankering for more, especially on the gag-order ruling, I refer you to Josh Barro and Ken White of Serious Trouble or Jesse Wegman of the New York Times—who quipped of the $9,000 that “[y]ou could call it hush money, except it’s unlikely to shut Trump up.”)
Senator Bob Menendez (D-N.J.) and his wife Nadine have some company: Representative Henry Cuellar (D-Tex.) and his wife Imelda became the second U.S. lawmaker-spouse couple to be indicted on bribery charges within the last year. The indictment alleges that in exchange for promises by Representative Cuellar to advance the interests of foreign benefactors, an oil company controlled by the Azerbaijan government and a bank headquartered in Mexico paid the Cuellars $600,000. #GoldBarsOrItDidntHappen

Deal of the Week: Viking’s $1.5 billion IPO.

Cruises are very polarizing. My parents love them, and novelist Gary Shteyngart… does not. But there’s no disputing that cruises are big business. The industry is rebounding post-pandemic, and last year, some cruise lines enjoyed record-breaking revenues and a return to full-year profitability.

For another sign of the cruising industry’s return to health, consider the $1.5 billion initial public offering of Viking Holdings Ltd., the private-equity-backed operator of high-end river, ocean, and expedition cruises. The size of the IPO was increased several times before terms were finalized, and on its first day of trading, Viking stock climbed by almost 9 percent. Congrats to the law firms: Skadden Arps for Viking, and Latham & Watkins for the underwriters.

Meanwhile, on the M&A front:

UMB Financial Corp., advised by Davis Polk, agreed to pay $2 billion in all-stock deal for Heartland Financial USA Inc., advised by Wachtell Lipton.
L’Occitane International SA announced its receipt of a $6.4 billion take-private offer from a Skadden-advised investor group led by Austrian billionaire Reinold Geiger—L’Occitane’s chairman, executive director, and former CEO.
In what the Wall Street Journal describes as “the latest twist in one of the messiest deal dramas in recent memory,” Sony Pictures and Apollo Global Management teamed up to submit an all-cash, $26 billion offer for Paramount Global. The offer will be weighed by a special committee of Paramount’s independent directors, advised by Cravath Swaine & Moore (which just moved into new digs, joining seemingly every other Biglaw firm in Manhattan West/Hudson Yards).

Law Firm of the Week: A&O Shearman.

There’s been a lot of empirical research into whether mergers and acquisitions are good for businesses and shareholders. Are mergers good for law firms? (I’m referring here to law firms that go through mergers themselves; M&A in corporate America is definitely great for the Biglaw firms that bank billions from handling these deals.)

Some Biglaw mergers—including several transatlantic ones, like the deals that created DLA Piper and Hogan Lovells—have been successful (if we define “success” as giving rise to multibillion-dollar firms that have endured for years post-merger). But boy Dewey know of some clunkers!

Last week, the merger of London-founded Allen & Overy and New York-founded Shearman & Sterling took effect. Say hello to A&O Shearman—which boasts nearly 4,000 lawyers, 800 partners, and $3.5 billion in revenue, per Patrick Smith and Jack Womack of Law.com. It’s the first combination of major U.S. and U.K. firms in more than a decade, as noted by Mahira Dayal of Bloomberg Law. (In case you were curious, “Shearman” is pronounced like “Sherman”—not SHEER-min or SHEER-man.)

A&O Shearman will be led by Khalid Garousha and Adam Hakki, co-chairs of the executive committee and board, and managing partner Hervé Ekué. Garousha and Ekué come from the Allen & Overy side, reflecting A&O’s dominant position.

What does the future hold for A&O Shearman? As leading law firm consultant Bruce MacEwen told Law.com, the deal “looks very sensible and potentially powerful” on paper. “The challenge will be integrating the U.S. offices ASAP under a unified, one-firm firm brand. Any whiffs of ‘legacy’ Shearman or ‘legacy’ A&O will be a bad sign.”

From the perspective of Shearman & Sterling, though, I’d already consider this transaction a success. In the months leading up to the merger announcement, Shearman was hemorrhaging partners, including rainmakers and practice-group leaders, at a rapid clip. I’m not sure if it would still be around today if A&O hadn’t come to the rescue.

Shearman & Sterling was founded in 1873. In 1876, it was joined on the scene by Stroock & Stroock & Lavan—which dissolved in October 2023, the same month the A&O Shearman merger was announced. So congratulations to Adam Hakki for managing to save his firm via merger—a feat that’s far harder than it looks.2

Moves of the Week: Simpson Thacher and Blank Rome launching in Boston.

You know what’s also polarizing? Boston. Some people view it as one of America’s best smaller cities, while others (like my husband Zach) view it as an also-ran and has-been of a town (with the nation’s worst-behaved sports fans).

But you know who loves Boston? Biglaw firms.

On Wednesday, Philadelphia-founded Blank Rome announced the launch of a Boston office. It will be anchored by 25 lawyers lured over from Boston-based Burns & Levinson, including incoming office co-chairs Josef Volman, who focuses on middle-market M&A, and Frank Segall, an expert in cannabis law. Dope times.

On the same day, Simpson Thacher unveiled its plan to open in Beantown later this year. Anchoring the office will be Kenneth Burdon, a Chambers-ranked partner in registered funds who joins from Skadden Arps, and Nathan Somogie, who will move up from New York to return to his hometown.

Both moves come a week after Paul Hastings announced its Boston launch, fueled by the hiring of Alexander Temel, a Chambers-ranked partner in private-equity M&A, and William Schwab, who worked with Temel during their time at Sidley Austin. Temel will serve as global co-chair of private equity at Paul Hastings.

Other notable news on the talent front:

Also in Boston, Kirkland & Ellis hired James Donohue, Chambers-ranked in fund formation, as a share aka equity partner (ka-ching). Also joining Donohue in jumping from Goodwin to K&E are Mirela Hristova in D.C., Michelle Kim in New York, and Joseph Baron in Houston.
What’s going on at Goodwin? After spending only about a year there, asset-management partner Audra A. Cohen decamped for Fried Frank.
Paul, Weiss hired New York-based corporate partner Maria-Leticia Ossa Daza to lead its new Latin America group. She joins from Willkie Farr & Gallagher, where she founded and led the LatAm practice.
For its part, Willkie picked up private-equity partner Thomas McCaffrey from Akin Gump in Houston, where he focused on the energy sector.

Job of the Week: an opportunity for a transportation-law partner.

Lateral Link is handling the search for a transportation-law partner to take the helm of a national firm’s esteemed trucking-defense litigation practice in Southern California. A wealth of experience in navigating complex trucking-accident and personal-injury cases will be instrumental in managing a diverse caseload to ensure exceptional client outcomes. Beyond overseeing cases, the role involves guiding and mentoring a team of legal professionals to foster their growth and development. This highly respected firm offers robust support for partners, including a strong financial foundation, progressive alternative-fee arrangements, and a collaborative culture that values idea-sharing and mutual support. If you’re ready to make a lasting impact and propel your career forward, contact Lauren Smith at lsmith@laterallink.com for more.

We’ve reached the end of the road for this edition of Judicial Notice. Thanks to ShareFile for sponsoring, and thanks to all of you for reading. I wish everyone a great week ahead—and to those of you who are here with me on the East Coast, stay dry.

1I consider Judge Roger Gregory to be a Clinton appointee (as does the Washington Post). Judge Gregory was selected by President Clinton, who placed him on the Fourth Circuit as a recess appointment; President Bush later included Judge Gregory in his first batch of appeals court nominees, in what the New York Times described as “a gesture of conciliation.” In his votes and opinions, Judge Gregory is a liberal—after all, he wrote the majority opinion here—so he walks, swims, and quacks like a duck.

2This is especially true in the age of so-called “mass lateral hires.” When a firm starts running into trouble, shrewd leaders of rival shops, like Miguel Zaldivar of Hogan Lovells or Jami McKeon of Morgan Lewis, show up and start recruiting the productive partners of the troubled firm, en masse. This lets firms like Hogan Lovells and Morgan Lewis cherry-pick the most talented partners and their clients—often at a “discount,” because the partners are panicked—while leaving less-productive partners, plus all the liabilities (like leases), with the firm in the death spiral.

Why buy a cow suffering from bird flu when you can get the milk—apparently safe, after you pasteurize it—for free?

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It might seem odd to bestow the title of “titan” upon someone once described in the New York Times as standing five-foot-two and weighing 100 pounds wet. But if you know anything about banking M&A and regulatory work, you know that H. Rodgin Cohen, senior chair of Sullivan & Cromwell, is a true giant of the field.

For more than 50 years, Rodge Cohen has practiced at the pinnacle of financial-services law. He’s played a role in many historical events over the decades, including New York City’s fiscal crisis, where he helped rescue the city from the brink of bankruptcy in 1975; the Iran hostage crisis, where he counseled American banks that released frozen Iranian funds, part of the deal that led to the 1981 release of the hostages; the 2008 financial crisis, where he represented the buyer or the seller in seemingly every major bank deal; and efforts last year to save Silicon Valley Bank and First Republic Bank.

In my latest podcast episode, I interview Rodge about his remarkable career, including his involvement in the aforementioned, headline-making events. But we also cover his childhood in West Virginia, his advice for how to succeed as a deal lawyer, and even his theater and reading recommendations—because despite his demanding practice, Rodge somehow finds the time to see numerous shows and read tons of books. (One recent work we both recommend is Paula Vogel’s Mother Play, which yesterday snagged four Tony Award nominations, including Best New Play.)

For my first-ever interview of a corporate or transactional attorney (as opposed to a litigator), I wanted to get a big name—and Rodge Cohen is one of the biggest and best in the business. I guessed that he would be “too big to fail”—and if you listen to our enjoyable and wide-ranging conversation, you’ll see that I was right.

Show Notes:

H. Rodgin Cohen bio, Sullivan & Cromwell
H. Rodgin Cohen profile, Chambers and Partners
Trauma Surgeon of Wall Street, by Alan Feuer for the New York Times
The Banking Industry’s Go-to Crisis Adviser, by DealBook for the New York Times

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

H. Rodgin Cohen (courtesy photo) Read more

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Susman Godfrey throws great parties—which you can do when you earn $7 million a year in profits per partner (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This week involved no travel for me, which I welcomed. I enjoyed speaking at the 2024 Spring Institute of the Northern California Association of Law Libraries (NOCALL)—thanks to them for having me—but I appeared virtually.

I also used the wonders of technology to record an excellent new episode of Movers, Shakers & Rainmakers, in which Zach Sandberg and I interviewed Melissa (Lafsky) Saleh. Today she leads the marketing and communications team at FairPlay, which uses AI-powered tools to help financial institutions increase both fairness and profits, but we first crossed paths 20 years ago, as pseudonymous lawyer-bloggers—she at Opinionista, and I at Underneath Their Robes. It was a blast catching up and discussing Saleh’s fascinating and unusual career path from law to writing to startups.

The latest testimonial for Original Jurisdiction comes from Nancy Rapoport, a UNLV Distinguished Professor and the Garman Turner Gordon Professor of Law at the William S. Boyd School of Law: “David Lat’s analysis is always spot-on and nuanced, and his writing style is lyrical. If I want to go for snarky, I go to another author. If I want to learn something interesting, I read Original Jurisdiction.” (I used to do snarky—see Underneath Their Robes and Above the Law—but as someone turning 50 next year, I’ve ceded that territory to folks who don’t get Dysport injections twice a year.)

Now, on to the news.

Lawyer of the Week: Lisa Blatt.

Speaking of people who aren’t afraid to acknowledge aesthetic assistance—I wasn’t the only one who noted the reference to “my plastic surgeon” in her April 15 oral argument in Snyder v. United States—congratulations to Lisa Blatt, chair of the Supreme Court and appellate practice at Williams & Connolly. Last Tuesday—appearing before the Court in Starbucks Corp. v. McKinney, in which she’s likely to prevail—she became the first woman in history to argue 50 SCOTUS cases.

Not only that, but Blatt has an impressive win-loss record: 41-5 (with four cases pending), per Bloomberg Law. As I asked her on the Original Jurisdiction podcast, “Are you the ‘winningest’ Supreme Court advocate with a certain number of arguments below your belt, like 25 or 30 or 40?” Blatt politely demurred—but if any of you know of a more victorious repeat player at One First Street, I’m all ears.

What I appreciate most about Blatt is how she has succeeded by being so utterly, unapologetically herself. She’s bold, brash, blunt—and brilliant. You might not agree with all her choices at the podium—despite my great admiration for her, I think she occasionally crosses a line—but you can’t deny that she’s a true original.

As Blatt told Jimmy Hoover of the National Law Journal, she might be the first woman to hit 50 arguments, but she won’t be the last. In our podcast interview—vintage Lisa Blatt, frank and funny, one of my favorite episodes to record—she gave a shoutout to the “gloriously fantastic” Solicitor General Elizabeth Prelogar (not even 45 years old, with 30-plus arguments under her morning coat).

So yes, in the years to come, many other women will join the “More Than 50 SCOTUS Arguments Club.” But there won’t be another Lisa Blatt.

Other lawyers in the news:

Speaking of Supreme Court arguments, if you listened to the proceedings in the Trump immunity case (discussed below) and want to know more about the advocates, check out this Law360 profile of John Sauer and Michael Dreeben—who represented Donald Trump and Special Counsel Jack Smith, respectively. A 30-year veteran of the Solicitor General’s Office—before leaving government to join O’Melveny & Myers in 2020, then departing O’Melveny to join the Office of the Special Counsel in 2023—Dreeben has argued more than 100 cases before the Court, with a win-loss record of 60-42.
Riddle me this: how do you not file federal tax returns for four years, covering more than $54 million in income, and expect to get away with it? Maybe I should drive one town over to Chatham, New Jersey, and ask John Goggins, former general counsel of Moody’s—who pleaded guilty to tax offenses that make Hunter Biden look like a piker.

In memoriam:

Michael Gertzman, former co-chair of the litigation department at Paul, Weiss, passed away at 60.
Peter Schey, a leading advocate for migrants’ rights, passed away at 77.
Scott Kilburg, chief marketing officer at Sidley Austin, passed away at 51.

May they rest in peace.

Judge of the Week: Judge Nancy Mulder.

More than four years after Zoom, Teams, and similar video-conferencing tools become ubiquitous, we’re still making mute-button mistakes. I made one myself in my talk on Friday to NOCALL, forgetting to hit mute after finishing my remarks (and subjecting the attendees to the sounds of my furious typing—sorry about that). But my faux pas wasn’t as problematic as the error made by Judge Nancy Mulder of Dallas County, Texas—in a livestreamed murder trial.

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Will the Supreme Court pull back on universal injunctions? (via Getty Images)A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

And yes, I’m aware that the Supreme Court just finished up a pretty busy week of oral arguments—the capstone to another momentous Term. I’ll discuss the latest SCOTUS developments in the next edition of Judicial Notice.

Last week, in Labrador v. Poe, the U.S. Supreme Court allowed Idaho’s ban on gender-transition care for minors to take effect—but the justices said practically nothing about transgender rights. The word “transgender” appears only once throughout 34 pages of opinions.

Instead, the opinions—a concurrence by Justice Neil Gorsuch, a concurrence by Justice Brett Kavanaugh, and a dissent by Justice Ketanji Brown Jackson—focused on a fascinating issue that legal nerds have been buzzing about for years: so-called “universal” injunctions. There’s been a dramatic uptick of these in the courts, which started during the Trump administration and continued into the Biden administration.

Justice Gorsuch noted in Labrador that during the eight years of the Obama administration, lower courts issued only 19 or so universal injunctions against the federal government. But in the first three years of the Trump administration, according to Justice Gorsuch, lower courts issued 55 universal injunctions—“[a]nd if the last 12 months are any indication, it seems that trend has continued apace during the [Biden administration].”

The trend is hugely important. Imagine a law is passed or a regulation is issued that might be unconstitutional or otherwise contrary to federal law. A plaintiff sues to stop the law or regulation from taking effect. But lawsuits, especially complex cases involving complicated constitutional issues, can take years to resolve. While the legal battle plays out, can the law be enforced—potentially against millions of Americans?

It’s a critical question—and the answer increasingly turns on universal injunctions. In recent years, battles over these injunctions and other forms of nationwide relief have decided the fate of laws and regulations addressing such divisive subjects as abortion, immigration, transgender rights, vaccine mandates, and more.

Sometimes universal injunctions have blocked conservative policies, as they did during the Trump years. And sometimes they have blocked liberal or progressive policies, as they’re doing now under President Joe Biden.

Regardless of your politics, you should understand how nationwide injunctions work and why they’re so controversial. Hence this quick primer—which you can also think of as a preview, since this issue is definitely returning to the Supreme Court.

What is a universal injunction?An injunction is, according to Black’s Law Dictionary, “a writ or order requiring a person to refrain from a particular act.” Injunctions typically apply only to the specific parties to a case.

But here, as explained in Justice Gorsuch’s Labrador concurrence, “the district court went much further.” It prevented Idaho “from enforcing any aspect of its duly enacted law against anyone”—not just the two children who filed this case, but the entire universe of potentially affected minors. Hence the term “universal injunction.”1

Who can issue them?A single federal district judge can issue a universal injunction, blocking a policy from taking effect across an entire state or even the entire country. It gives individual judges a vast amount of power, which should trouble anyone concerned about judicial overreach. And it has unsurprisingly led to “judge shopping,” with plaintiffs intentionally filing lawsuits in specific federal district courts—or even subdivisions of courts called “divisions”—to increase their chances of getting a favorable judge.

Take Judge Matthew Kacsmaryk. As the only judge in the Amarillo Division of the Northern District of Texas, the conservative Trump appointee is pretty much guaranteed to get any case filed in his courthouse. Conservative plaintiffs have flocked to Judge Kacsmaryk’s courtroom, where he has ruled against the Biden administration in cases involving immigration, reproductive rights, LGBTQ rights, and the abortion drug mifepristone. (As a technical matter, Judge Kacsmaryk “set aside” the FDA’s action under the Administrative Procedure Act, rather than enjoining the FDA—but as a practical matter, his order had the effect of a universal injunction.)2

Can they be appealed?Yes—and they frequently are appealed in high-profile cases involving hot-button issues, like Labrador. They go first to the circuit courts and then to the Supreme Court, which reviews these injunctions as part of its “emergency docket,” also known as the “shadow docket.”3

Is there a legal problem with universal injunctions?They might be unconstitutional. According to Professor Samuel Bray, a leading scholar (and critic) of universal injunctions, “Article III [of the Constitution] offers a concept of the judicial power that is defined by the dispute—a judicial resolution of a case or controversy brought by parties.” So only the specific parties before a court are entitled to relief—not random people elsewhere in the state or country.

Or as Justice Gorsuch argued in Labrador, “a federal court may not issue an equitable remedy”—here, an injunction—that is “more burdensome to the defendant than necessary to [redress]’ the plaintiff’s injuries.” So in Labrador, according to Justice Gorsuch, the judge could have blocked Idaho from enforcing its law against the two children who brought suit, but nobody else.

What are the policy problems with universal injunctions?Professor Bray identifies at least four: they encourage forum- and judge-shopping, they preempt “percolation” of legal issues through the lower courts, they give rise to conflicting national injunctions, and they serve as an end-run around the class action.4

And what’s the case in favor of universal injunctions?In the words of Professor Noah Feldman, “in our era of polarized politics, sometimes the laws in question are unconstitutional.” And in such cases, “it seems unconscionable for that law to stay in force while the country waits for the courts to finish the process of overturning it.”5

What does the future hold for universal injunctions?“This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions,” Professor Bray wrote—which strikes me as significant.

At least five justices would probably be sympathetic to a challenge to universal injunctions: Justice Gorsuch, who wrote critically about them in Labrador; Justices Clarence Thomas and Samuel Alito, who joined the Gorsuch concurrence; Justice Brett Kavanaugh, who wrote a nuanced concurrence, but acknowledged that “prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law”; and Justice Amy Coney Barrett, who joined the Kavanaugh concurrence. (The three liberal justices dissented in Labrador—but even Justice Jackson, in a dissent joined by Justice Sonia Sotomayor, wrote that she “share[s] the concern that courts heed the limits of their power.”)

Congress has been wrestling with the issue since at least 2020. It’s now considering dueling bills that would tackle the issue either by curtailing judge-shopping, mirroring the Judicial Conference’s non-binding guidance released in March, or banning universal injunctions altogether. Neither is likely to garner enough support to withstand a filibuster.6

The issue will most likely be left to the courts to decide—and it appears the Supreme Court may be ready.

1Before the Supreme Court, Idaho challenged only the universal injunction, not the relief granted to the individual plaintiffs in this specific case. As noted by Justice Gorsuch, “the State does not challenge the preliminary injunction to the extent it ensures the two minor plaintiffs in this case continued access to their drug treatments,” but “asks us to stay the preliminary injunction only to the extent it bars Idaho from enforcing any aspect of its law against any person anywhere in the State.”

This was a shrewd strategic decision, in my view. I wasn’t surprised to see that Idaho’s attorney general, Raúl Labrador, and its solicitor general, Alan Hurst, had high-powered outside help: lawyers from the Alliance Defending Freedom and Cooper & Kirk (as reflected in the cover page of their stay application).

2Or perhaps I should say “would have had the effect,” since the Supreme Court stayed his order while the justices consider the case.

There’s been a lot of academic discussion about the difference between universal injunctions and so-called “vacatur” under the Administrative Procedure Act (APA). As noted in Justice Kavanaugh’s Labrador concurrence, “a rule prohibiting nationwide or statewide injunctions would not eliminate the need for this Court to assess the merits of some emergency applications involving new laws,” in part because “there is ongoing debate about whether any such rule would apply to Administrative Procedure Act cases involving new federal regulations, given the text of the APA.”

Specifically, 5 U.S.C. § 706 authorizes reviewing courts to “hold unlawful and set aside agency action.” Some claim that this power to “set aside agency action” includes the power to block agency action on a nationwide basis, and there’s a fair amount of lower-court precedent to this effect.

But the Supreme Court has never squarely addressed the issue—and there’s a strong case to the contrary. According to Professor Samuel Bray, the APA should not “be understood as authorizing, much less requiring, national injunctions. When the APA was enacted, national injunctions were not being given by federal courts. The language used—‘set aside’—was typical for reversal of judgments, which is consistent with Congress’s expectation that agencies would predominantly make policy through adjudication.”

3The shadow docket, while closely related to nationwide injunctions, is a giant topic unto itself, about which books could be written. And one already has been written: Professor Stephen Vladeck’s The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. The book was a New York Times bestseller, reflecting the importance of—and public interest in—this topic.

4Here’s more from Professor Bray, taken from an excellent point/counterpoint exchange between him and Professor Amanda Frost in Judicature:

The typical policy arguments against the national injunction are the following: First, it provides a very intense incentive to forum-shop, because so much rides on one judge. Second, it curtails the ‘percolation’ of a legal issue through the lower courts, a lack of percolation that might force the Supreme Court to decide a major constitutional question without a circuit split and in the posture of a motion to stay a preliminary injunction. (This almost happened with the Take Care Clause in Texas v. United States.) Third, it risks conflicting national injunctions, something that has been a distinct possibility at least three times in the last three years. Fourth, it is an end-run around the class action (giving its benefits without its requirements), and more generally is inconsistent with the doctrines and practices of the federal courts (e.g., no offensive nonmutual issue preclusion against the national government, no precedential weight for district court opinions).

5In Labrador, for example, the American Civil Liberties Union (ACLU) issued the following statement, condemning the stay of the nationwide injunction in this case:

While the Court’s ruling today importantly does not touch upon the constitutionality of this law, it is nonetheless an awful result for transgender youth and their families across the state. Today’s ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption.

For more in defense of nationwide injunctions, see Professor Amanda Frost’s Judicature discussion:

[T]here are at least three types of cases in which nationwide injunctions are a vital tool with which to protect the public from illegal policies.

First, nationwide injunctions can be the only means of providing complete relief to the plaintiffs. School desegregation cases are a paradigmatic example….

Second, nationwide injunctions are at times the only way to prevent irreparable injury to individuals who cannot easily or quickly join in litigation….

Third, nationwide injunctions are sometimes the only practicable method of providing relief, and they can avoid the cost and confusion of piecemeal injunctions.

6The bill focused on judge-shopping was introduced by Senate Majority Leader Chuck Schumer (D-N.Y.), and the bill focused on universal injunctions was introduced by Senate Minority Leader Mitch McConnell (R-Ky.). So universal injunctions are definitely on the radar of Senate power brokers—but it will be difficult to secure bipartisan support for a resolution of the issues they raise.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts for podcast episodes; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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A courtroom in New York Supreme Court (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Yesterday was the sixth day of Donald Trump’s criminal trial in New York Supreme Court. And it was a tough one for the former president and his lawyers, at least according to the New York Times and Washington Post. (Today isn’t a trial day because Wednesdays are off, to allow Justice Juan Merchan to deal with other cases.)

The prosecution’s first witness, David Pecker—ex-publisher of the National Enquirer and an erstwhile Trump ally—testified about the “catch and kill” tactics he used to buy and bury negative stories about Trump, to aid the then-candidate’s 2016 presidential campaign. And then outside the presence of the jury, during oral argument about whether some of Trump’s social-media postings violated the gag order previously imposed by Justice Merchan, the judge chastised one of Trump’s lawyers, Todd Blanche. After the attorney made one argument that Justice Merchan found particularly strained, the irritated jurist told Blanche, “You’re losing all credibility with the court”—words a trial lawyer never wants to hear.

At the end of the day, though, Trump’s fate will be decided by the twelve members of the jury—including, as previously discussed in these pages, two Biglaw attorneys. One is a transactional lawyer, while the other is a civil litigator. Is this positive for Trump? I thought so, as I wrote in last weekend’s Judicial Notice:

I agree with the experts who told Betsy Woodruff Swan of Politico that [the lawyers’] presence is probably positive for the former president. Given the political orientation of Manhattan, which gave Joe Biden 85 percent of the vote in 2020, the best the defense can hope for is jurors who will be fair and open-minded—as opposed to jurors who will convict Trump for the crime of being Trump. And lawyers, as both analytical thinkers and officers of the court, are likely to view the case objectively and take their duties as jurors seriously.

In the criminal case where I served on a jury, there were four lawyers on the panel—and I can understand why the defense lawyer wanted us there. It was a “buy and bust” drug case, the defendant was an unsavory character with a long rap sheet, and the defense was relying on a technical, legal defense called the “agency defense.” As lawyers, we understood the elements of the defense, as the judge explained it to us, and we found it applied—so we acquitted. In contrast, a jury with fewer lawyers might have viewed the agency defense as legal mumbo-jumbo, seen the defendant as a career criminal, and convicted.

We don’t yet know what kind of defense Todd Blanche and Susan Necheles will mount for Trump. But if it involves anything that might be described as “technical,” then lawyers on the jury could be a plus. To laypeople, “technicalities” are loopholes; to lawyers, “technicalities” are… a living.

But in the comments, I received interesting pushback from Bill Dyer (aka “Beldar”), a seasoned trial lawyer who has picked many a jury:

𝐈 𝐰𝐢𝐥𝐥 𝐧𝐞𝐯𝐞𝐫 𝐥𝐞𝐭 𝐚 𝐥𝐚𝐰𝐲𝐞𝐫 𝐛𝐞 𝐬𝐞𝐚𝐭𝐞𝐝 𝐨𝐧 𝐭𝐡𝐞 𝐩𝐚𝐧𝐞𝐥 𝐰𝐡𝐢𝐥𝐞 𝐈 𝐬𝐭𝐢𝐥𝐥 𝐡𝐚𝐯𝐞 𝐚 𝐩𝐞𝐫𝐞𝐦𝐩𝐭𝐨𝐫𝐲 𝐬𝐭𝐫𝐢𝐤𝐞 𝐮𝐧𝐬𝐩𝐞𝐧𝐭.

I never, ever—if I can possibly help it—want to have another lawyer, whom I don't know, arguing for or against my client’s case in the jury room—with no court reporter or other record being created; outside my, or my opponent’s, or the judge’s hearing; indeed after all of us (except to a limited extent, the judge) are finished with our work before them; and with no realistic appellate remedies for anything short of demonstrated “outside interference” from someone not on the jury. I don’t want another lawyer arguing the case with no one to make or rule upon objections, no one to correct or balance said lawyer, and the other jurors knowing full well that said lawyer is, indeed, carrying the same bar card as us lawyers in the courtroom (including the judge)….

I cannot conceive of any possible rationale for not striking them if I were representing Donald Trump. Sure, they already know concepts like burden of proof and reasonable doubt, which criminal defendants generally rely upon. But they’ll also know concepts like principal/agent law, “due diligence,” and “materiality,” which otherwise the prosecution would have to teach the jury as part of proving its case.

So, readers, what do you think? Trump’s lawyers still had peremptory challenges left that they could have used to strike the attorney jurors, but they decided to save them to deploy against others. Was that smart? What would you have done in their shoes?

More broadly, do you agree with the conventional wisdom that lawyers rarely get picked for juries? Based on my own experience and my (admittedly anecdotal) information about other lawyers (and even judges) making it onto juries, I believe it’s more common than people think. If you have your own tales from the jury-duty trenches, either about serving or getting rejected during voir dire, I’d love to hear them.

Please share your opinions and war stories in the comments to this post—open to all readers, not just paid subscribers, as I always do for Notice and Comment posts. Thanks!

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts for podcast episodes; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Outside Donald Trump’s criminal trial in Manhattan (photo by Erik McGregor/LightRocket via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This week started for me in Salt Lake City, to which I flew on Monday for a speaking engagement on Tuesday, and ended in the Berkshires, where we enjoyed a delightful weekend with friends visiting from out of town. Although I’ve enjoyed my travels, I’m looking forward to a few weeks of not going any farther than Philadelphia—and catching up on the work, correspondence, and administrivia that have piled up in my absence.

This week’s testimonial for Original Jurisdiction comes from Ryan Short, vice president at Proteus Discovery: “David’s story selection and evenhanded analysis are consistently excellent. In an era that views opponents as enemies, his integrity in handling difficult subjects is refreshing. For that, I am grateful.” And I am grateful to Ryan for his kind words.

Now, on to the news.

Lawyers of the Week: the two attorneys on the jury for the Donald Trump hush-money case.

God has a sense of humor. Donald Trump—after years of firing, stiffing, and otherwise mistreating lawyers—will now be judged by two of them. A pair of Biglaw attorneys made it onto the twelve-person jury in Trump’s first criminal trial, now unfolding in New York Supreme Court in Manhattan, on 34 charges that he falsified business records to cover up hush-money payments made to porn star Stormy Daniels.

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Would you want to be a law school dean in the year 2024? The once-coveted post seems less fun, given the tension and polarization on university campuses these days, as well as more challenging than ever. One misstep or missed goal—a free-speech controversy gone viral, a fundraising target unmet, a double-digit drop in your school’s U.S. News ranking—and you could be out of a job.

Surviving to the end of one’s term as dean is already an accomplishment. Concluding a deanship with multiple achievements unlocked is even more impressive.

It’s difficult, but not impossible—as reflected in the record of Dean Risa Goluboff (pronounced REE-suh GOL-u-buff, in case you’re wondering). When her eight-year term as dean of the University of Virginia School of Law ends on June 30, she can take pride in around three dozen new faculty hires, completion of a $400 million capital campaign (more than a year ahead of schedule), and a #4 ranking in U.S. News—the highest in the history of the school.

What are some of the secrets of Dean Goluboff’s success? What does she view as the two biggest challenges facing American law schools today? And what is her excellent advice… about how to respond to advice?

Learn all this and more by listening to our podcast conversation. Thanks to Dean Goluboff for joining me, and congratulations to her on such a successful deanship.

Show Notes:

Risa Goluboff bio, UVA Law School
Dean Risa Goluboff To Step Down in 2024, Concluding History-Making Tenure, by Mary Wood for UVA Law School
Common Law (hosted by Dean Risa Goluboff), Apple Podcasts

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Dean Risa Goluboff (courtesy photo by Jesús Pino for UVA Law School) Read more

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Is it time to remove the term “nonlawyer” from the legal lexicon?

Earlier this month, two lawyers—Olga Mack, a fellow at the Stanford Center for Legal Informatics, and Damien Riehl, a vice president at the legal-tech platform vLex—published an online petition for the American Bar Association “to cease using the term ‘nonlawyer.’”

Together with around 20 “early advocates,” Mack and Riehl call upon the ABA to “engage in the work and dialogue to determine a more appropriate term that more accurately respects and acknowledges the wide range of contributions and roles of all legal professionals.”

Mack and Riehl posted their petition on LinkedIn, where it has generated robust discussion—almost 300 comments and 40 reposts. As for the ABA, a spokesperson told me the organization is aware of the petition, “and ABA leadership will consider it.”

What’s the case against “nonlawyer”? According to the petition, “this term perpetuates negative stereotypes and hierarchical structures, undermining our profession’s fundamental principles of inclusivity and respect,” and “implies a binary division between lawyers and others, inadvertently (or purposefully) marginalizing the invaluable contributions of our legal support professionals, paralegals, and other professional colleagues (e.g., COOs, CFOs, CTOs).”

Last week, I interviewed Olga Mack and Damien Riehl about their initiative. Mack told me it’s an issue she’s been thinking about her entire legal career.

In her first few legal jobs, she worked with numerous non-attorney professionals who were “more senior, experienced, and indispensable” to their organizations than many lawyers,” but were referred to as “nonlawyers”—based not on what they are, but what they are not. She started asking herself, “Why are we using this term?”

Defenders of the term, who posted on the LinkedIn thread, said “nonlawyer” is accurate and efficient. Lawyer and legal commentator Carolyn Elefant, addressing the issue in a 2017 story on Above the Law, cited the heightened ethical duties of lawyers relative to others and said that speaking of lawyers versus nonlawyers is “not an insult, it’s a reality.”

And not everyone sees the term as particularly negative—like Bryan Garner, editor of Black’s Law Dictionary and a leading authority on legal language.

“As a lexicographer, I’m wholly agnostic on this political point,” Garner said. “If, over time, ‘nonlawyer’ takes on pejorative connotations or becomes something of a taboo, my writings will reflect that fact. But in many circles today, the term seems to have the opposite of pejorative connotations!”

But Garner is a lawyer himself. Based on many of the comments on the petition, a fair number of nonlawyers have issues with this term. One client-support professional said it “creates an ‘us versus them’ divide that we have enough of already.” According to a legal-operations executive, “Given the unprecedented, critical importance of roles from pricing to BizDev to technology,” abandoning the term “should be a no-brainer.”

My own views are nuanced. On the one hand, as a strong advocate of civility, I avoid using terms that might cause offense, regardless of my personal views on whether a certain word is offensive. And so, going forward, I will try my best to not use “nonlawyer.”

On the other hand, as a staunch supporter of free expression, I’m not a fan of policing people’s language. And I definitely don’t support punishing or shaming those who (often inadvertently) use language that powers that be view as verboten.

But here’s why I’m open to finding some new term or terms to replace “nonlawyer.” As both a lawyer and a writer, I’m a big believer in clear communication. And in our conversation, Damien Riehl persuaded me that “nonlawyer” is problematic—not so much because it’s offensive, but because it’s overbroad and imprecise.

“Our opposition to ‘nonlawyer’ is about being respectful, but it’s also about being accurate and precise,” Riehl said. “The ultimate goal of language is to get an idea from my brain into your brain, and ‘nonlawyer’ often obfuscates more than it elucidates.”

Think about all the people who play some role, large or small, in serving the clients of a law firm. The term “nonlawyer” includes everyone from chief operating officers with MBA degrees and patent agents with PhDs to messengers or janitors, he observed.

Given the many types of professionals other than lawyers who are involved in the delivery of legal services today, Riehl argued that lawyers “need a word to describe the contributions of our fellow professionals,” as opposed to those whose work, while still essential, “might not be valued in the same way.”

Noting that lawyers appreciate precedent, Riehl pointed out a linguistic shift in another field: medicine. The many health-care professionals who aren’t doctors, including nurse practitioners and physician’s assistants, are increasingly referred to as “allied medical professionals,” rather than “nonphysicians’ or “nondoctors.”

“As lawyers, we like to think we’re good at words,” Riehl said. “Why should we cede the linguistic high ground to doctors?”

Professor David Wilkins of Harvard Law School, a leading scholar of the legal profession, said it’s high time to stop using “nonlawyer.”

“I’ve been saying this for years,” he told me. “No one likes it; it sounds like ‘non-humans.’ And we need the expertise of people like data scientists, business development and marketing professionals—and, of course, our clients, regulators, and policymakers—more than ever, in the age of ESG and ChatGPT.”

Professor Bill Henderson of Indiana University Maurer School of Law, another well-known expert on the legal industry, similarly supports the petition.

“I applaud this effort,” Henderson said. “I am 100 percent certain that in the years to come, the term ‘legal professional’ will include many multidisciplinary roles, including data, process, technology, design, business operations, marketing, and much more. This issue is only going to get bigger.”

Indeed, the debate over “nonlawyer” parallels a larger debate over the extent that professionals other than attorneys should be involved in the legal industry. At least two states, Utah and California, are allowing investment into law firms by individuals who are not lawyers.

Mack and Riehl told me that some critics of their petition claim it’s a Trojan horse of sorts—part of an effort to elide the distinction between lawyers and nonlawyers, loosen the rules of legal ethics, and allow tech companies to overrun the profession.

But they denied this allegation to me, insisting they take no stance on issues like outside ownership of law firms or the unauthorized practice of law. They don’t want to change the substance of any of the ABA model rules; they simply want them reworded to remove reference to “nonlawyers.”

At the end of the day, the prevalence of the term “nonlawyer” is far from the most serious issue facing the legal profession. But it’s a problem that’s easily addressed—at both an individual level, through our own word choices, and a more systemic level, through organizations like the ABA.

So we might as well address it—not just to promote inclusivity and respect, but to provide a more accurate picture of the many different professionals who play critical roles in delivering legal services today. When it comes to providing top-notch legal work product, it takes a village.

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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‘Talk to the hand’: Malak Afaneh (left) and Professor Catherine Fisk, last Tuesday at Fisk’s home (screenshot via X fka Twitter).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Happy Monday—and Happy Tax Day. Don’t forget to file your tax returns on time—unlike this edition of Judicial Notice, which I’m sending out a day late.

Last week was a bit crazy for me. I was in Charlotte for a speaking engagement on Wednesday (and I’ll be in Salt Lake City on Tuesday, for any of you who might want to say hi). I recorded a new episode of Movers, Shakers & Rainmakers from the Tar Heel State: my co-host Zach Sandberg and I interviewed Katherine Allen, CEO and co-founder of Flo Recruit, an innovative platform that helps law firms in their recruiting and law schools in their placement efforts.

While I was away, we had a little flood in our basement, thanks to a leaky valve (ah, the joys of home ownership). So I had to deal with that situation upon returning—along with recording two new episodes of the Original Jurisdiction podcast, about which I’m very excited. One features the dean of a top-four law school, and the other features my first transactional lawyer—a leading figure in the field of M&A.

And then, on Saturday, my husband Zach and I took Harlan on a long-planned overnight trip to Legoland New York. We had a great time, but it did mean my weekend wasn’t very productive.

The latest testimonial for Original Jurisdiction comes from Tamara Lange, former ADR director for the U.S. District Court for the Northern District of California, who’s now a mediator and arbitrator with JAMS: “Original Jurisdiction condenses a tremendous amount of legal news, thoughtful analysis, and personal commentary into an enjoyable, well-balanced review. It’s like People magazine for lawyers: chock full of details about what’s happening in every corner of the law, yet compelling enough to feel like a guilty pleasure.” My thanks to Tamara for her generous testimonial.

Now, on to the news.

(Note: although I’m sending this out on Monday afternoon, it will not discuss any news from Monday morning—such as Justice Clarence Thomas missing this morning’s Supreme Court arguments. I’ll tackle that in the next Judicial Notice.)

Lawyers of the Week: Erwin Chemerinsky and Catherine Fisk.

Last Tuesday night, a dinner party for graduating law students at the private home of Berkeley Law Dean Erwin Chemerinsky and his wife, Professor Catherine Fisk, turned into the site of a disruptive pro-Palestine protest. In the subsequent days, Dean Chemerinsky and Professor Fisk were hailed by some observers, who appreciated how they dealt firmly with the protesters at the time and spoke out against them afterward, and criticized by others, who felt they overreacted.

For my detailed thoughts, please read A Tale Of Two Protests: UVA v. Berkeley Law. It’s one of the best things I’ve written in a while, and it’s now one of the most-read posts in the history of OJ (to use an abbreviation I’ll be more comfortable using going forward, as it becomes more associated with a delicious beverage and less associated with the notorious O.J. Simpson, who is now no longer with us).

I supplemented my initial story with follow-up thoughts in a lengthy thread on Twitter (to which I’ve returned, after a hiatus—and I’m also now on Threads). Here are a few additional thoughts:

The consensus that this protest did not constitute protected speech under the First Amendment—from an ideologically diverse group of experts in free speech specifically or constitutional law more generally—is remarkable. It’s not easy to find a proposition of con law that’s agreed upon by Jonathan Adler, Randy Barnett, David Bernstein, Erwin Chemerinsky, Jameel Jaffer, Alex Morey, Glenn Reynolds, Eric Segall, Jed Shugerman, Eugene Volokh, and Ed Whelan (links to their takes in my Twitter thread).
Even my former colleague Joe Patrice of Above the Law, who until now (it seems) hasn’t met a disruptive protest he didn’t like, concurred: “You don’t have a First Amendment right to go into someone else’s house and hold a protest just because they work for a public university.”
The smarter take from folks who are sympathetic to the pro-Palestine cause is to focus less on students’ actions, which were clearly unprotected, and more on the reactions of Dean Chemerinsky and Professor Fisk—just as how the smarter take on the raucous March 2023 protest of Judge Kyle Duncan was to focus less on the protesters, whose conduct was difficult to defend, and more on Judge Duncan, who admittedly (but understandably) lost his cool. Dean Chemerinsky did raise his voice in demanding that the protesters leave his property, and Professor Fisk did make physical contact with the lead protester, Malak Afaneh.
Afaneh opened her speech with a traditional Arabic greeting, “As-salamu alaykum.” So yes, it might have been nicer if the Chemerinskys had responded to Afaneh by saying, in honeyed tones, “Wa alaykumu s-salam! We would greatly appreciate it if you would kindly leave our home at this time. But please, take some food for breaking your fast on this final day of Ramadan. Ma’ssalaame!” But brilliant legal academics are people too, and given how surprised and shocked Chemerinsky and Fisk must have been by how a dozen students tried to turn a social, celebratory dinner for 3Ls into a political, pro-Palestine rally, I can’t judge them too harshly.
Malak Afaneh alleged that she was “assaulted” by Professor Fisk—and yes, Fisk did make contact with Afaneh while trying to take away her microphone. But I highly doubt any prosecutor would bring prosecute Fisk for battery (which is the applicable offense under California law, not assault).
I similarly don’t expect any civil jury—even in super-progressive, pro-Palestine Northern California—to find a sixty-something woman liable for briefly putting her hands on a robust young woman about half her age. Having watched the video numerous times, I think Fisk has a decent molliter manus imposuit defense, i.e., she used reasonable force. Fisk’s initial contact with Afaneh was putting her arm around Afaneh’s shoulder, in what struck me as almost materteral fashion—and Fisk’s subsequent actions seemed primarily focused on taking away Afaneh’s microphone, not inflicting harm. As Joe Patrice noted, “Folks, California still has a friggin’ Castle Doctrine, so I don’t think ‘homeowner tried to wrestle the microphone from me’ is going to get very far.” (The best-case scenario I could imagine for Afaneh is a civil jury finding that yes, Fisk overreacted a tad—so here’s a dollar in nominal damages.)

Other lawyers in the news:

This morning the first criminal trial of former president Donald Trump, in the hush-money case involving Stormy Daniels, got underway in New York Supreme Court (which is, counterintuitively, a trial court). So all eyes are on Manhattan District Attorney Alvin Bragg, the subject of many profiles—like this New York Times piece, “How a ‘Nerdy’ Prosecutor Became the First to Try Trump.”
Who’s representing crypto king turned convict Sam Bankman-Fried (SBF) in the appeal of his criminal case to the Second Circuit? SBF has made an excellent choice in hiring Alexandra Shapiro of Shapiro Arato Bach, one of the nation’s top criminal appellate attorneys (and author of a highly enjoyable novel, Presumed Guilty).
In an absolutely horrific turn of events, prominent Nevada trial lawyer Dennis Prince and his wife, Ashley Prince, were shot and killed by fellow lawyer Joe Houston, who then died by suicide. The shootings took place during a deposition that was part of a custody battle between Ashley Prince and her ex-husband, Dylan Houston (who was both the son and client of Joe Houston).

Judge of the Week: Chief Judge Alia Moses.

I have a weakness for courthouse drama—which can have real-world implications for the administration of justice, as we’ve seen in the handling of the Trump documents case by Judge Aileen Cannon (S.D. Fla.). So I was intrigued by the report that Chief Judge Alia Moses (W.D. Tex.) tried to exile a newly appointed colleague from her courthouse over a personal issue.

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Berkeley Law (photo by David Lat)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Last week, when I went down to speak at UVA Law, I arrived in time to attend a speech about textualism by Justice Jay Mitchell of the Alabama Supreme Court. I got to know Justice Mitchell last fall, when we participated in a debate about whether the U.S. Supreme Court should adopt an ethics code—I argued in favor, he argued against—and even though we disagreed, I appreciated his thoughtful perspective. So I was eager to attend his UVA talk.

But Justice Mitchell is now a controversial figure, ever since he wrote the Alabama Supreme Court’s opinion in LePage v. Center for Reproductive Medicine, P.C.—the big IVF case, in which the court held that the destruction of frozen embryos can give rise to a wrongful-death cause of action. Some UVA students decided to protest him.

As I approached the room where he would be speaking, I saw several protesters standing outside and holding signs. I wondered if they would yell at me or other people going into the talk, à la the Stanford law students who shouted “shame, shame” at attendees of Judge Kyle Duncan’s March 2023 talk—and who screamed at Judge Duncan things like, “We hope your daughters get raped!”

But these were the most polite protesters I’ve ever seen. They didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event—“a lunch to raise funds for SisterSong, a reproductive-justice coalition led by women of color.” That counter-event was accompanied by a flyer that criticized Justice Mitchell’s LePage opinion, replete with footnotes and case citations.

And that’s how protest should work. Upon learning that Justice Mitchell was coming to campus, protesters prepared a written critique of his opinion, circulated it within the law school, and invited people to attend a competing event. They responded to reasoned argument with reasoned argument. They didn’t prevent those of us who wanted to listen to Justice Mitchell from doing so. They didn’t disrupt.

Contrast the respectful response to Justice Mitchell with the disruptive protest at UC Berkeley School of Law on Tuesday night. Here’s a statement issued on Wednesday by Dean Erwin Chemerinsky, whose private residence was the site of the protest:

I write this with profound sadness. Since I became a dean, my wife [Professor Catherine Fisk] and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third-year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights—April 9, 10, 11—that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

The students responsible for the poster later issued a sanitized version, with the blood removed from the utensils. But you can see the original over at the Washington Free Beacon.

Why the focus on Dean Chemerinsky? According to his statement, a statement by UC President Michael Drake, and a statement by UC Board of Regents Chair Rich Leib, it appears the protesters attacked the dean for no apparent reason other than his Jewish identity.

As you can see from his faculty bio, Dean Chemerinsky focuses his scholarship and teaching on constitutional law, criminal procedure, and federal jurisdiction; he is not a scholar of the Israel-Palestine conflict. And although some students have shared with Dean Chemerinsky their view that the University of California should divest from Israel, he has explained to them that even though he’s a dean, he does not control the UC system’s investment policies. So one can’t help wondering why he was targeted—and whether a non-Jewish dean would have been targeted as well.

Back to Dean Chemerinsky’s statement:

The students responsible for this [poster] had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman [later identified as Berkeley Law student Malak Afaneh] stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

You don’t have to take Dean Chemerinsky’s word for it. The disruption was also captured in a video, posted by the Bay Area Palestinian Youth Movement, which went viral yesterday. A longer video, posted on Twitter this morning by Steve McGuire, provides more context—and shows how the students were asked to leave well before the culminating event captured in the shorter video.

Here’s the conclusion of the Chemerinsky statement:

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.

The speechifying by Malak Afaneh, head of Berkeley Law Students for Justice in Palestine, was actually the culmination of a broader disruption on Tuesday night, according to the Jewish News of Northern California. A Jewish 3L who attended the dinner told the publication that the protesters were speaking and disrupting for quite some time before it all culminated in the viral video—and they “did not leave when they were asked the first 20 or 30 times.” They departed only after Professor Fisk said that while she didn’t want to call the police, she would do so if necessary.

In the video, you can hear Malak Afaneh asserting that “this is our First Amendment right,” citing legal advice from the National Lawyers Guild. But you don’t need to be an authority on the First Amendment—like Dean Erwin Chemerinsky, who has literally written the book on free speech on campus—to know that a private home is not a public forum. He explained why to the Los Angeles Times:

The house is privately owned by my wife and me. The mortgage is our names. It is on a street in Oakland. It is not owned by the university, on university property, or in any way paid for by the university. It is private property, and the First Amendment simply does not apply there. No one has the right to come into my house, or yours, and disrupt a dinner. As a matter of constitutional law, this is absolutely clear.1

So at the end of the day, after the UVA and UC Berkeley protests, I’m left with this question: what’s the purpose of protest?

Is it about public persuasion, winning over the hearts and minds of the undecided people on any given issue? If so, then a UVA-style protest is the way to go. Most outside observers would read about what happened at the Chemerinsky home, identify with the Chemerinskys, and think less of both the protesters and any cause they’re pushing. This is especially true in the legal profession, which is culturally conservative, i.e., more focused on rules and decorum than many other fields.

I have similar concerns about the effectiveness of pro-Palestine protests that blocked the Holland Tunnel in New York and the Bay Bridge in San Francisco for hours, causing hours of traffic delays. If I’m a commuter—perhaps a working-class commuter, who might be docked pay or fired for being late to my job—will protests like that persuade me that the pro-Palestinian cause is just? Or are they just going to make me angry at the protesters?

But in the year 2024 on a university campus, maybe protest isn’t about public persuasion, but performance. And that performativity is for the benefit not of the public, but of the protesters—who get to congratulate themselves on how they took bold action to bring attention to serious injustice.

At Berkeley Law, Dean Chemerinsky declared that for any such events in the future, “any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.” But what about Malak Afaneh and the other students who have already engaged in disruption?

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

Perhaps one could argue that Afaneh and her fellow protesters weren’t on notice that their actions would trigger discipline. I don’t find this persuasive, since disrupting a university event and remaining on private property after being asked to leave—i.e., trespass—obviously violate UC Berkeley rules and local laws. But conceding the point for the sake of argument, it has now been made clear that students who engage in similar protests in the future will be disciplined. (Dean Chemerinsky informed me this morning that the dinner held last night “was without incident and was quite lovely”—and hopefully tonight’s will also go off without a hitch.)

Student protesters who violate university rules or local laws like trespass or assault statutes should accept their punishments willingly, without complaint. I spoke not long ago with one law school dean whose institution hasn’t suffered any Stanford- or Berkeley-style disruptions. I asked why. The dean gave a number of reasons, and one is that the administration has made clear to the students that any disruptions of university events will be met with university discipline. The dean pointed out to me that the United States has a long and noble tradition of civil disobedience, but civil disobedience involves accepting the consequences of your actions. As David French once quipped on Advisory Opinions, Dr. Martin Luther King Jr.’s famous essay is titled “Letter from Birmingham Jail,” not “Letter from Birmingham Coffeeshop.’”

Take the case of Jack Petocz, a 19-year-old student who recently complained on social media about getting expelled from Vanderbilt University for his involvement in a pro-Palestine protest. Video shows Petocz and his fellow protesters forcing their way into a closed university building and assaulting a security guard, in order to take over the premises for a sit-in.

If folks like Jack Petocz and Malak Afaneh believe their actions are justified in order to bring public attention to the plight of Palestine, that’s all well and good. But they don’t get to escape otherwise applicable punishment because their cause is just. The willingness to accept punishment is a feature, not a bug, of civil disobedience.2

I’ll conclude by urging law-student activists to ask themselves, before they get involved in a disruptive protest like the one at Berkeley Law: is this about the Palestinians, or is this about me? Am I acting in a way that’s selfless, or is it self-aggrandizing? Am I trying to make social change, or am I seeking the sugar high of a viral Instagram post?

And I’d also urge them to ask themselves: what’s the best way to bring about social change, at least for people with the talent and drive to make it to elite institutions like Berkeley Law? Is it to get expelled from law school or denied bar admission for breaking university rules or even criminal laws as part of a protest? Or is it to work hard, rise up through the system, and stand up against injustice once in a position of power?

When Ketanji Brown Jackson was a student at Harvard College, a fellow student hung a Confederate flag from the window of a dormitory. Jackson and other members of the Black Students Association, who took the flag as a statement that they didn’t belong at Harvard, spoke out against the flag and protested. But they also made sure to stay on the right side of the law—and to continue excelling on campus.

As one of Jackson’s classmates—Antoinette Coakley, now a law professor—recalled to the New York Times in 2022, “Ketanji said, ‘Wait a minute. As we’re doing this, we’re missing out on classes. As we’re fighting against this injustice, we’re actually doing them a service, because we’re going to be failing.’”

“So we protested, but we made sure we were in class,” Coakley said. “We were going to show them that by showing up the way that we did—excellently—that they were wrong.”

Progressive law students, be like Justice Jackson. Don’t get mad—get powerful. And then you’ll be able to make a real difference in the world.

1The comments section of an Instagram post is an even less reliable source for legal analysis than the National Lawyers Guild, but one IG commenter tried to argue that when the Chemerinskys “decided to host a UC event, paid by the UC, it becomes bounded to UC policies. ‘It’s his house’ sure but it’s a university sponsor event and the student has the right to exercise his student rights to protest & engage in academic/free speech.”

Let’s assume the Chemerinsky home was, for the night of this dinner, property controlled by the University of California and therefore the government. In that case, it would be what’s called a “nonpublic forum” in First Amendment doctrine. As the Supreme Court explained in Minnesota Voters Alliance v. Mansky, a nonpublic forum is a space that, while under government control and open for some presence by some members of the public, “is not by tradition or designation a forum for public communication.”

Instead, a nonpublic forum is designated for some purpose other than public speech—in this case, hosting a dinner. And the Court made clear in Adderley v. Florida that when it comes to a nonpublic forum, “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

For nonpublic forums, per Chief Justice John Roberts in Minnesota Voters Alliance, “the government has much more flexibility to craft rules limiting speech.” According to another First Amendment expert—Professor Eugene Volokh, who said he agrees with my bottom-line conclusion—in a nonpublic forum, “the government acting as proprietor may impose restrictions so long as they are reasonable and viewpoint-neutral.”

In this case, it was eminently reasonable for the Chemerinskys to ban political speeches at a celebratory dinner for 3Ls. Ask yourself: would you want to be subjected to political diatribes at a social occasion of this nature?

And there has been no claim that the Chemerinskys were engaged in viewpoint-based discrimination. To the contrary, per the L.A. Times, a separate video records Professor Fisk telling the protesters, “We agree with you about what’s going on in Palestine.”

Had a pro-Israel student started giving a speech attacking Hamas or had a pro-environment student started giving a speech about fracking, I’m sure the Chemerinskys would have asked those students to stop and to leave as well. Professor Volokh concurred with me: “I agree that people running this sort of dinner likely wouldn’t let anyone highjack it for their own political purposes, regardless of their viewpoint.”

[UPDATE (1:13 p.m.): Numerous experts on the First Amendment, from across the ideological spectrum, agree that this protest was not constitutionally protected. I collect their thoughts in this Twitter thread.]

2There’s a debate in political-theory circles over whether acceptance of consequences is a necessary part of civil disobedience. But it’s still the conventional or majority view that “[c]ivil disobedients are standardly expected to take responsibility for, and accept the legal consequences of, their lawbreaking.” In the words of Professor Rory Little, “the ‘non-evasion’ of consequences is a long-honored component of principled civil disobedience.”

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts for podcast episodes; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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UVA Law School (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Yesterday, U.S. News published its 2024 Best Law School rankings. For the 2023 rankings, the magazine radically overhauled its methodology, leading to a lot of movement. For the 2024 rankings, it largely adhered to last year’s approach, which explains why there was more stability this time around.

A school’s ranking is now based on the following components, weighted as follows (with a few minor adjustments from 2023, per Staci Zaretsky at Above the Law):

Employment: 33% (newly averaged between the two most recent graduating class years)
First-Time Bar Passage: 18% (newly averaged between the two most recent graduating class years)
Ultimate Bar Passage: 7% (newly averaged between the two most recent graduating class years)
Peer Assessment: 12.5% (slightly tweaked)
Lawyer/Judge Assessment: 12.5% (slightly tweaked)
LSAT/GRE: 5%
UGPA: 4%
Acceptance Rate: 1%
Student-Faculty Ratio: 5%
Library Resources: 2%

Averaging employment and bar-passage stats between the two most recent class years makes sense to me, as a way of reducing the influence of a single aberrant class. It will also tend to reduce variability over the years, which again probably offers a more accurate picture of how law schools fare in terms of finding jobs for their graduates and helping them pass the bar.

Now, on to the rankings. Here are the top 14 aka “T14” law schools—or actually the top 15, because of a two-way tie for #14—with changes from last year noted parenthetically:

(1) Stanford University (-)
(1) Yale University (-)
(3) University of Chicago (-)
(4) Duke University (+1)
(4) Harvard University (+1)
(4) University of Pennsylvania (Carey) (-)
(4) University of Virginia (+4)
(8) Columbia University (-)
(9) New York University (-4)
(9) Northwestern University (Pritzker) (+1)
(9) University of Michigan—Ann Arbor (+1)
(12) University of California, Berkeley (-2)
(13) University of California—Los Angeles (+1)
(14) Cornell University (-1)
(14) Georgetown University (+1)

Some observations:

Once again, Stanford and Yale tied for #1. I predict, however, that at some point in the next few years, Stanford will be an undisputed #1—in the U.S. News rankings, not free-speech debacles.1
And once again, Chicago rounded out the top three schools. Sorry, Harvard—but hey, at least you’re no longer #5.
Congratulations to UVA Law, which climbed four spots—the biggest increase in the T14 this year. I’m not surprised; I recently returned from speaking there, and I came away deeply impressed by the students, faculty, and overall environment. Folks there just seem… happy, which isn’t always the case at top law schools.
Kudos also to Georgetown Law, which rose a spot to reclaim its place among the T14. UCLA, which edged out Georgetown last year for #14, also rose a spot, to #13. But Georgetown managed to return to the T14 by tying with Cornell, which dropped a spot.
The Columbia v. NYU battle continues: last year NYU had the edge, but this year it fell by four spots to #9—landing it below Columbia, which held steady at #8.

Let’s now turn to the top 50 schools—or actually 51, again because of a tie (via Spivey Consulting):

(16) University of Minnesota (-)
(16) University of Texas—Austin (-)
(16) Washington University in St. Louis (+4)
(19) Vanderbilt University (-3)
(20) University of Georgia (-)
(20) University of North Carolina–Chapel Hill (+2)
(20) University of Notre Dame (+7)
(20) University of Southern California (-4)
(24) Boston University (+3)
(25) Wake Forest University (-3)
(26) Ohio State University (Moritz) (-4)
(26) Texas A&M University (+3)
(28) Boston College (+1)
(28) Brigham Young University (Clark) (-6)
(28) George Mason University (Scalia) (+4)
(28) University of Florida (Levin) (-6)
(28) University of Utah (Quinney) (+4)
(33) Fordham University (-4)
(33) University of Alabama (+2)
(33) Washington and Lee University (+7)
(36) Arizona State University (O'Connor) (-4)
(36) University of Illinois Urbana-Champaign (+7)
(36) University of Iowa (-1)
(36) University of Wisconsin-Madison (+4)
(36) William & Mary Law School (+9)
(41) George Washington University (-6)
(42) Emory University (-7)
(42) Indiana University—Bloomington (Maurer) (+3)
(42) Southern Methodist University (Dedman) (+3)
(42) University of California-Irvine (-7)
(46) Baylor University (+3)
(46) University of Kansas (-6)
(48) Florida State University (+8)
(48) University of Colorado-Boulder (+8)
(48) University of Washington (+1)
(48) Villanova University (Widger) (-5)

Some observations:

As usual, the farther down you go in the rankings, the bigger the moves in rank. Congratulations to the schools that moved up by 5 or more spots: Notre Dame (+7), Washington and Lee (+7), Illinois (+7), William & Mary (+9), Florida State (+8), and UC Boulder (+8). And condolences to the schools that moved down by 5 or more spots: BYU (-6), University of Florida (-6), GW (-6), Emory (-7), UC Irvine (-7), Kansas (-6), and Villanova (-5).
Although judicial clerkships as such aren’t part of the rankings—they help in terms of the employment score as full-time jobs requiring a law degree, but there’s no separate clerkships factor in the methodology—schools that punch above their weight in clerkship placement did well in this year’s rankings. See, e.g., UVA (+4), Notre Dame (+7), and George Mason/Scalia Law (+4). I suspect that these three schools, which are more conservative than their peer institutions, excel at producing clerks because the federal judiciary is to the right of the average student body or faculty of an elite law school.
In last year’s rankings, based on a new methodology that placed much greater weight on employment outcomes and bar passage, state schools made major gains—which made sense, since state schools usually have strong in-state employer networks and excel at preparing students for their state’s bar exam. But in this year’s rankings, it’s harder to see a pattern; some state schools went up, and some state schools went down.

As for the rest of the rankings, here are the biggest gainers (up 10 or more spots):

(55) University of Connecticut (+16)
(61) University of Missouri (+10)
(68) Pennsylvania State University—University Park (+12)
(68) University of San Diego (+10)
(75) Pennsylvania State University Dickinson Law (+14)
(78) University of Nevada—Las Vegas (Boyd) (+11)
(91) Belmont University (+14)
(94) The Catholic University of America (+28)
(103) Samford University (Cumberland) (+28)
(108) Regent University (+17)
(108) University at Buffalo—SUNY (+17)
(117) University of Missouri—Kansas City (+18)
(120) University of Maine School of Law (+26)
(130) Hofstra University (Deane) (+10)
(136) University of Akron (+14)
(145) Willamette University College of Law (+10)
(150) South Texas College of Law Houston (+12)
(161) Ave Maria School of Law (+19)
(165) Lincoln Memorial University (Duncan) (+10)
(168) University of North Dakota (+12)
(172) St. Thomas University (+13)

And here are the biggest decliners (down 10 or more spots):

(82) Texas Tech University (-11)
(82) UC Law, San Francisco (fka Hastings) (-22)
(82) University of Miami (-11)
(98) Stetson University (-14)
(117) Albany Law School (-12)
(120) Gonzaga University (-21)
(130) Loyola University New Orleans (-19)
(136) University of Louisville (Brandeis) (-37)
(140) University of Memphis (Humphreys) (-15)
(148) Elon University (-15)
(148) University of Toledo (-15)
(159) University of the Pacific (McGeorge) (-18)
(176) Faulkner University (Jones) (-17)

Some observations:

Since there was no major methodological change between the 2023 versus 2024 rankings, there was less movement in the rankings compared to the 2023 versus 2022 rankings:
- In the 2023 rankings, 10 schools moved up by 24 or more spots. But in the 2024 rankings, only three schools—Catholic (+28), Samford (+28), and Maine (+26)—moved by that much.
- And in the 2023 rankings, 10 schools moved down by 25 or more spots. In the 2024 rankings, only one school—Louisville (-37)—moved by that much.
- UC Law, San Francisco, formerly known as UC Hastings Law, dropped 22 spots in this year’s ranking to #82, after falling nine places in last year’s ranking. So since its board of directors voted to change its name in 2021 (because of Serranus Clinton Hastings’s involvement in the killing and dispossession of Native Americans), the school has dropped by 31 spots. Are respondents to U.S. News reputational surveys confusing UC Law, San Francisco, with the lower-ranked University of San Francisco School of Law (#165)?

For the complete rankings of all 196 law schools, check out U.S. News, Above the Law, or Spivey Consulting. What do you notice in the new rankings? Please feel free to share any thoughts in the comments.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts for podcast episodes; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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1Speaking of free-speech debacles at leading law schools, I was very sorry to hear about what Berkeley Law Dean Erwin Chemerinsky and his wife, Professor Catherine Fisk, just had to endure from protesters in their own home. Dean Chemerinsky is a champion of free speech—which is why he didn’t discipline any students for offensive posters, which he viewed as protected by the First Amendment—but as he correctly notes, a dinner at his home is not a public forum.

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Donald Trump addresses the press at Manhattan Criminal Court as his lawyer, Todd Blanche, looks on (photo by Timothy A. Clary/AFP via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

April will be a month of travel and talks for me. On Saturday I returned from a visit to Charlottesville, where I spoke at UVA Law School—one of my favorite schools and now, according to the 2024 U.S. News law school rankings, the #4 law school in the country. So I missed the earthquake that hit New Jersey on Friday (but I’m happy to report that our family and home were unaffected).1

I also made some media appearances last week. On Tuesday night, I appeared on MSNBC’s Alex Wagner Tonight, where Alex and I talked about the latest developments in the Trump documents case. Alas, even though we taped around 9:30 p.m., we did not yet have the parties’ responses to Judge Aileen Cannon’s request for jury instructions (but I discuss them in detail below).

On Wednesday, the essay that my husband Zach Shemtob and I wrote about the importance of civil litigation in regulating Donald Trump’s behavior appeared in the hard-copy version of the New York Times. You can read the piece using this gift link, whether or not you subscribe to the Times.

Law school is on people’s minds—not just because of the new rankings, but also upcoming deposit deadlines. So this week’s testimonial for OJ comes from a leading figure in legal education, former U. Chicago admissions dean Anna Ivey, now CEO of Ivey Consulting: “I tell law school applicants: If you want to be up to speed or just get a head start, Original Jurisdiction is absolutely worth a subscription for future lawyers.” (If you’re a pre-law student interested in a free trial of a paid subscription, email me at davidlat@substack.com, subject line “Comp Sup,” and I’ll set you up.)

Now, on to the news.

Lawyer of the Week: Todd Blanche.

Why would you leave behind a successful career as a Biglaw partner to represent Donald Trump? That’s the central question raised in this interesting Times profile of Todd Blanche, Trump’s lead counsel in the Manhattan criminal case over hush-money payments to Stormy Daniels, which will be going to trial in a few weeks.

I doubt taking on Trump as a client was just—or even mainly—about money. Blanche earned at least $2.3 million last year for his work defending the former president in the Manhattan hush-money case, D.C. election-subversion case, and Southern District of Florida documents case. But profits per equity partner at Blanche’s former firm, Cadwalader Wickersham & Taft, exceed $3 million a year—so he might even have taken a pay cut.

And he didn’t merely sign up to represent Trump. Blanche changed his party registration from Democrat to Republican, moved his residence from New York to Florida, and even took his family to a Trump campaign party for Super Tuesday. His transformation “has baffled Mr. Blanche’s former colleagues at the U.S. attorney’s office in the Southern District of New York,” the Times reports. But the authors of the profile—Maggie Haberman, Ben Protess, and Alan Feuer—noted that defending the Donald has its advantages:

No longer just another high-priced defense lawyer in a city full of them, Mr. Blanche is handling the country’s most significant criminal case, raising his profile and creating a question about whether a door would open for him in a second Trump administration.

He jokes about having his eye on an ambassadorship to Italy, friends say, although he often says he has no actual interest in a government job. Still, many assume he would welcome the chance to run his old office, the Southern District, a role that the agency’s alumni covet.

Blanche has been pushing the envelope a bit in his Trump work. As noted by Andrew Weissmann on Twitter, Blanche has been willing to sign certain Trump filings—such as a new (and doomed) motion to recuse Justice Juan Merchan from the Manhattan hush-money case, based on the political consulting work of his daughter—that his co-counsel, the well-respected Susan Necheles, has conspicuously not signed.

Many lawyers to the ex-president end up worse after the experience—like former U.S. Justice Department official Jeffrey Clark, one step closer to disbarment after a Thursday ruling from the D.C. Bar’s Office of Disciplinary Counsel. Will Todd Blanche join their ranks? Or will he wind up as U.S. attorney or ambassador? Time will tell.

Other lawyers in the news:

Speaking of the prospect of a second Trump administration, the conservative legal movement “faces an existential test,” as Gregg Nunziata of the Society for the Rule of Law argued in a thoughtful piece for The Dispatch. More specifically, according to Nunziata, “there are signs that the illiberalism of the Trump era has begun to infect how some legal conservatives think about their core commitments to the role of the courts.” (For respectful pushback on his thesis, listen to the latest episode of Advisory Opinions.)
Law360’s Jeff Overley conducted an in-depth interview of Jessica Ellsworth, a partnerat Hogan Lovells. In this Term—her first one arguing before the U.S. Supreme Court—Ellsworth had not one but two turns at the podium at One First Street. See also my latest podcast guest, former Sotomayor clerk Easha Anand, who went from zero to three SCOTUS arguments in a single Term.

Judge of the Week: Justice Sonia Sotomayor.

Speaking of Justice Sonia Sotomayor, she was all over the news last week—even though the Court released no new opinions. Why? There’s a push to get her off the bench—and it’s coming not from the right, but from the left.

In the past few weeks, as Howard Bashman has helpfully tracked at How Appealing, we’ve seen the emergence of a cottage industry of left-leaning legal commentators calling upon the Court’s first Latina justice to step aside. Their argument, in a nutshell: Justice Sotomayor is 69, she’s not in perfect health (a diabetic since childhood), and if she retires now, her successor can be selected by a Democratic president and Senate. But if she sticks around into a second Trump Administration and then departs the Court unexpectedly, her replacement might be picked by Donald Trump and a Republican Senate—and the Court, already 6-3 in favor of conservatives, would shift even farther to the right.

I understand why the left remains traumatized by how Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. That “switch in time” paved the way for overruling Roe v. Wade in Dobbs, plus a whole host of other right-wing rulings—comprehensively chronicled by my former colleague Elie Mystal in his latest column for The Nation, “No, Stephen Breyer, the Supreme Court Is Not Our Friend.”

But I agree with Dean Erwin Chemerinsky, a prominent proponent in 2014 of RBG retiring and therefore a credible voice on the topic: calls for Justice Sotomayor to step down now are unwarranted. As Chemerinsky told Sahil Kapur and Lawrence Hurley of NBC News, there’s “a significant difference” between the two cases. Most notably, Justice Ginsburg was 81 when Chemerinsky wrote his widely discussed Politico piece recommending her retirement, while Justice Sotomayor is only 69. Furthermore, as noted by Matt Ford in the New Republic, Justice Ginsburg struggled for years with various forms of cancer, her ultimate cause of death. In contrast, Justice Sotomayor’s type 1 diabetes is eminently treatable and apparently well-managed.

There’s always going to be someone younger and healthier out there, so I’m not sure what the limiting principle is here. Should we ask Justice Ketanji Brown Jackson, who turns 54 later this year, to step aside in favor of, say, Judge Brad Garcia (D.C. Cir.), who’s 15 years her junior? While I agree that Democrats should focus more on youth in their judicial nominees—which the Biden Administration, to its credit, has done—there’s a point at which it starts to seem a bit silly. So I share Matt Ford’s view that “[t]he best way to ensure that Sotomayor retires under a Democratic president and a Democratic Senate majority is to elect them.”

Other judges in the news:

Chief Judge David Godbey said in a letter to Senate Majority Leader Chuck Schumer (D-N.Y.) that the Northern District of Texas would not be following the new policy recommendation of the Judicial Conference for how to assign cases seeking universal injunctions or similar nationwide relief, after the judges of the district met and reached a “consensus” to maintain the status quo. But Judge Sam Lindsay (N.D. Tex.), who attended that meeting, told the Times that the judges simply agreed to “postpone discussion of the matter,” not to reject the policy on the merits.
Judge Ana Reyes (D.D.C.) delivered what Josh Gerstein and Kyle Cheney of Politico described as “a remarkable, frenetic thrashing” of Justice Department lawyers—or to use a technical legal term from Black’s Law Dictionary, a benchslapping—in proceedings about Hunter Biden-related subpoenas issued in the impeachment probe of President Joe Biden.
Retired Justice Stephen Breyer will start sitting by designation on the First Circuit—on which he served for more than a decade, including four years as chief judge, before his ascension to SCOTUS. And retired Justice Anthony Kennedy has a two-volume memoir, Life and Law: The Early Years and Life and Law: The Court Years, coming out this October.
Speaking of elderly jurists, happy birthday to Judge I. Leo Glasser (E.D.N.Y.), who turned 100 on April 6—and continues to hear cases. On my last visit to see Judge Fred Block in chambers, we popped in to visit Judge Glasser—and he seemed to me to be doing great, not unlike Judge Pauline Newman (Fed. Cir.), who turns 97 in June.
Speaking of Judge Newman, she continues to fight her battle to return to the bench—and in her latest court filing, she reiterates her argument that the Judicial Conduct and Disability Act violates the U.S. Constitution.
Speaking of judicial misconduct proceedings, Judge Reggie Walton (D.D.C.) is the subject of an ethics complaint filed by Mike Davis, founder of the Article III Project, based on what Davis described as “an unprecedented, inappropriate, and prejudicial [CNN] interview” that Judge Walton gave, in which he “criticiz[ed] President Trump for raising evidence of judicial bias” by Justice Juan Merchan.
And speaking of allegations of judicial misbehavior, I’m working on a follow-up story about last week’s Judge of the Week, the unnamed jurist with an “overly harsh” management style (whom I plan to name). If you’d like to contribute to my story, whether on the record or anonymously, please drop me a line.

In nominations news, Judge David Hurd (N.D.N.Y.) announced his plan to take senior status—which hopefully he won’t retract this time. And in non-Article III judgeship news, retired Weil Gotshal partner Alfredo Pérez will likely be joining the Southern District of Texas bankruptcy court—replacing former bankruptcy judge David Jones, who resigned after revelations that he was in a years-long romantic relationship with Elizabeth Freeman, a bankruptcy attorney for whom he had approved legal fees.

In memoriam: Judge Roger Hugh Lawson Jr. (M.D. Ga.) passed away at 82. And because he “despised obituaries written by funeral home hacks,” he wrote his own—which is witty and well-done. May he rest in peace.

Ruling of the Week: United States v. Trump (denial of motion to dismiss based on the Presidential Records Act).

Judge Aileen Cannon (S.D. Fla.) went off again. This time around, she trained her fire on both Team Trump and Special Counsel Jack Smith—but in a way that’s more dangerous for Smith, despite some media coverage to the contrary.

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How many Supreme Court advocates wind up with three or more arguments in the same Term? Some of my past podcast guests—like Lisa Blatt, Paul Clement, Neal Katyal, and Kannon Shanmugam—can claim this distinction. But it’s very, very rare (especially if you don’t work—or have never worked—in the Office of the Solicitor General).

What’s even more rare is having three oral arguments in your very first Term arguing before the Court. But Easha Anand, the 38-year-old co-director of Stanford Law School’s renowned Supreme Court Litigation Clinic, just pulled off this feat—which is why I was so eager to have her as a guest on the Original Jurisdiction podcast.

How did Easha wind up in law school, after a promising journalism career that included stints at the New Orleans Times-Picayune and the Wall Street Journal? How did she wind up with three Supreme Court arguments in the same Term? And what are her three pieces of advice for first-time SCOTUS advocates?

Listen to our podcast interview to find out. Congratulations to Easha on the unanimous win in her first argued case, thanks to her for joining me, and good luck to her in what I predict will be a long and successful career arguing at One First Street.

Show Notes:

Easha Anand bio, Stanford Law School
Stanford’s Anand Argues Whistleblower Case in High Court Debut, by Lydia Wheeler for Bloomberg Law
Supreme Court Bar’s Breakout Lawyer This Term Started Out in Journalism, by Jimmy Hoover for the National Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Easha Anand (courtesy photo via Stanford Law School) Read more

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Justices Sotomayor and Barrett had some thoughts for the Fifth Circuit in a major case out of Texas (photo by Jahi Chikwendiu via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

I hope you had a wonderful Easter holiday (if applicable). On Saturday, eight of us—my husband Zach and I, our sons Harlan and Chase, my parents, and Zach’s parents—returned from a few days in the Bahamas, where we spent Harlan’s spring break. We had a great time, a little sunburn notwithstanding. Then yesterday we all got together again for Easter brunch. It’s such a blessing to live near grandparents.

I took my trusty Shure MV7 microphone to the Bahamas so I could record some podcast episodes. First, I joined Sarah Isgur and David French on Advisory Opinions, to discuss my reporting about Judge Aileen Cannon (S.D. Fla.) and her recent losses of law clerks. Second, my co-host Zach Sandberg and I interviewed legal-technology guru Colin Levy, author of an invaluable new guide to the legal-tech ecosystem, for the latest episode of Movers, Shakers & Rainmakers. Third, turning to the world beyond law (because apparently there is one), I joined Adam Fishman of Startup Dad, in which Adam talks parenthood with entrepreneurs who are also fathers.

My hubby Zach and I also worked on a guest essay for the New York Times, which went online this morning. Titled Don’t Overlook the Power of the Civil Cases Against Donald Trump, it argues that regardless of what happens in the criminal cases against the ex-president, “civil justice has already shown itself to be a valuable tool for keeping him in check—and it may ultimately prove more successful [than criminal prosecution] in the long run at reining him in.”

Because of my vacation, this installment of Judicial Notice covers the past two weeks in legal news, since I skipped the weekend of March 23, and it arrives a little late, on Monday rather than Sunday (for which I apologize). It also might be less comprehensive than usual; if I missed some interesting piece of legal news you’d like to discuss, please mention it in the comments to this post.

Now, on to the news.

Lawyer of the Week: Adeel Mangi.

Adeel Mangi is an Oxford- and Harvard-educated lawyer who has been a litigation partner at Patterson Belknap for almost 25 years. President Biden nominated Mangi, who lives in New Jersey, to serve on the Third Circuit, and the American Bar Association (ABA) unanimously rated him “Well Qualified” (WQ). If confirmed, he would be the nation’s first Muslim American federal appellate judge.

It’s looking increasingly unlikely, however, that Mangi will win confirmation. Senator John Kennedy (R-La.) quipped that Mangi’s nomination is “as dead as Jimmy Hoffa,” after Senator Joe Manchin (D-W. Va.) joined two other Democrats, Senators Catherine Cortez Masto and Jacky Rosen (D-Nev.), in opposing Mangi.

Why? Republicans have attacked Mangi as antisemitic and anti-police based on his ties to two organizations, the Center for Security, Race and Rights at Rutgers Law School and the Alliance of Families for Justice. The Center, which appears to have a strong pro-Palestine tilt, has hosted some speakers with antisemitic views. The Alliance, which focuses on criminal-justice reform, counted as a founding board member the late Kathy Boudin, who served more than two decades in prison for her role in the 1981 armed robbery of a Brink’s armored truck. (In case you’re wondering, yes, Kathy Boudin was related to retired First Circuit judge Michael Boudin (sister) and former San Francisco district attorney Chesa Boudin (mother).)

The Biden Administration is standing by Mangi, condemning the “baseless” attacks against him as a “cruel, Islamophobic smear campaign.” And although more than a dozen law-enforcement organizations have opposed his nomination—which likely explains the opposition of some Democrats—he also enjoys the support of other law-enforcement groups, as well as more than a dozen Jewish organizations.

My own view—which I realize will be unpopular among some of my conservative readers, but I always try to give you my honest take—is that Mangi should be confirmed. I believe presidents deserve wide latitude in picking judicial nominees, as long as they’re qualified, and Mangi, a longtime litigator at a leading law firm, is definitely qualified (as reflected in his unanimous WQ rating from the ABA).

I also think that serving on advisory boards—a very limited role—of two controversial organizations is insufficient evidence that Mangi actually harbors antisemitic or anti-police views. He had no involvement in picking any problematic speakers. He was asked at his hearings for his thoughts on the October 7 attacks and Hamas, which he roundly condemned. And he thoroughly explained his views on law enforcement and (very limited) ties to the Alliance of Families for Justice in a letter to Senator Cory Booker (D-N.J.).

So in the end, the opposition to Mangi appears to rest on “guilt by association” logic—of which I’m not a fan, given my outspoken opposition to “cancel culture.” And I share the concerns expressed by former judge Rahat Babar, who wondered about “the long-term chilling effect of this distasteful episode” on the aspirations of young people interested in judicial or other public service. But I realize that others disagree, and as always, I welcome alternative views in the comments.

Other lawyers in the news:

Congratulations to Roberta Kaplan, John Quinn, and Matthew Craig of Kaplan Hecker & Fink, recognized by Ross Todd as Litigators of the Week for winning dismissal of a lawsuit filed by Elon Musk against the Center for Countering Digital Hate (CCDH). Musk claimed that X (fka Twitter) lost millions of dollars in revenue after CCDH reported that hate speech was proliferating on the platform.
And congrats to Jesse Panuccio, Matthew Schwartz,and Marc Ayala, also recognized by Ross Todd for winning partial summary judgment in favor of their client, Walmart, in a dispute with Capital One.
Michael Gottlieb of Willkie Farr, various lawyers at Susman Godfrey, and other attorneys were the subject of a lengthy (and largely laudatory) New York Times piece by Elizabeth Williamson, based on their use of defamation lawsuits to fight political disinformation.
Former Trump lawyer John Eastman is one step closer to disbarment, after Judge Yvette Roland issued a 128-page opinion recommending that he be disbarred. He can appeal, but it’s highly unlikely that he’ll prevail—

and his license is now “inactive,” so he can’t practice law in California for now. * Speaking of controversial conservative lawyers, Texas Attorney General Ken Paxton must pay around $300,000 in restitution to two victims, perform 100 hours of community service, and take courses in legal ethics—and in exchange, prosecutors will drop longstanding securities-fraud charges against him.

In memoriam:

Joe Lieberman—a four-term U.S. senator, Al Gore’s Democratic running mate in the 2000 presidential election, and Connecticut’s first full-time attorney general—passed away at 82.
Peter Angelos, the billionaire trial lawyer and longtime owner of the Baltimore Orioles, passed away at 94.

May they rest in peace.

Judge of the Week: the unnamed judge with an “overly harsh” management style.

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Hello from the Bahamas, where my husband Zach and I and our two boys are on a family vacation.1 My vacations always seem to coincide with busy times here at Original Jurisdiction. I wrote the most-read story of this newsletter, my account of the disruptive protest of Judge Kyle Duncan at Stanford Law School, from a cruise ship.

Actually, correction: the Judge Duncan story is now the #3 story in the three-plus years of this newsletter. The #2 story is my breaking the news of how two clerks to Judge Aileen Cannon (S.D. Fla.) quit mid-clerkship, and the #1 story is my deep dive into exactly why they left.

An important element of the Cannon clerk story is that it’s rare for clerks to quit on judges. It’s especially rare for them to quit based on how they were treated by their judge or conditions in chambers.

But how rare is “rare”? In the past few days, I’ve been inundated with opinions. Let’s begin with the conventional wisdom, nicely captured by this tweet from Professor Eric Segall:

Judge Cannon, who appears to be in Trump’s back pocket, has apparently had two law clerks quit, according to the always reliable @DavidLat.

Clerks never quit. That’s all.

Consistent with the “clerks don’t quit” conventional wisdom, I clerked for the Ninth Circuit, and I’m unaware of a clerk to any judge quitting during the year I was at the court. Nor am I aware of any clerk from any year who quit a clerkship with my own judge because of the judge’s behavior or environment in chambers—as opposed to a personal issue, like a medical or familial crisis.2 [Note the UPDATE added below (2:45 p.m.).]

The reasoning: assuming the clerk isn’t a permanent or career clerk, they’re there for only a year or two—so even if a clerkship experience is miserable, many or even most clerks just grit their teeth and bear it. The awful experience lasts for a year; the résumé boost lasts for a career.

In addition, because quitting a clerkship is at least unusual or not the norm (whether or not it’s “rare”), seeing a clerkship that lasts for less than the expected time is viewed by some potential employers as a red flag on a résumé. It’s at least an item requiring explanation by the candidate—which is why it was smart of “Mary,” one of the clerks who quit on Judge Cannon, to clear it with two future employers.

And now, here’s some pushback to the conventional wisdom, from a current clerk (originally added as an update to my earlier post):

I’m surprised by how surprised people are that the experience was bad enough for clerks to quit. Clerks do quit, half of all judges are below-median employers (by definition), and the median is not necessarily that high.

Regarding what Aliza Shatzman of the Legal Accountability Project is trying to do—”to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not”—I think it would gain even more traction if people really knew how widespread the problem was. Hopefully your reporting can contribute to that.

I am completely making this up, but I bet if you were to ask law professors what percentage of clerks quit a clerkship, they’d say less than 1 percent. I would put the actual number at 5 percent or more based on my peers, forums, word of mouth, etc.

See also this email I received from a clerk who quit:

Re: “clerks never quit,” I cannot begin to describe how frustrating and horrifying I find this sentiment. Clerks do quit, and they do it because a lot of judges are horrible bosses.

I know this because I was one of them. My judge was incredibly unpleasant to work for and then escalated into full-blown disability discrimination that caused my health to significantly worsen. I am still coping with the lasting physical effects of staying as long as I did, and my only regret is not leaving sooner. I didn’t leave sooner in part because statements like this made me (wrongly) terrified I would torpedo my career.

But here’s a response I got from a former clerk who does believe quitting is rare:

From my experience, clerks truly do not quit due to the work environment, even when it’s awful. Every situation I know of where recent clerks have quit has been due to personal/family circumstances—mostly someone unexpectedly falls ill, but I did hear of one situation where the clerk unexpectedly was offered their dream job and accepted it with the judge’s blessing.3

I know someone who’s been warned off of accepting a clerkship by a former clerk of the judge, and I know a clerk who had a horrible experience and who I really thought would quit, but didn’t. So I’m not denying that bad clerkship experiences exist, just that I don’t think people quit them. Maybe I just don’t know the supposed 5 percent of people who quit for bad experiences, but I’m inclined to think that the rate is much closer to zero, and most clerks who quit do so for reasons that are external to chambers.

What’s your opinion? Feel free to contribute to the comments section of this Notice and Comment post—open to all subscribers, not just paid ones. I look forward to a robust debate.

UPDATES:

I just learned that at least one clerk to another judge quit during my clerkship year (1999-2000); please let me know of others. I also believe at least one judge fired at least one clerk during my year, but that was firing—which might be a good subject for a future post, so please send me thoughts on that topic too. [2:45 p.m.]

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1Being on vacation is why I didn’t publish a (very labor-intensive) Judicial Notice news roundup this past weekend. But I thought it might be nice to put up a quick post to start a discussion about the hot topic of clerk quitting, to provide some (non-labor-intensive) content while I’m away. I also recorded two podcast episodes from the Bahamas, for Advisory Opinions and Movers Shakers & Rainmakers, so look out for those while I’m gone.

To all my new subscribers from the past week, thanks for joining the Original Jurisdiction community. Regular programming—which typically consists of two to four posts a week, one of them a Judicial Notice news roundup over the weekend—will resume on Monday, April 1. In the meantime, please check out other stories on the homepage or in the archives, including past episodes of the Original Jurisdiction podcast (which you can subscribe to on Apple Podcasts, Spotify, or your podcasting platform of choice).

For those of you who are fascinated by the federal judiciary, my past podcast guests include four sitting judges—Judges Pauline Newman (Fed. Cir.), Amul Thapar (6th Cir.), Stephen Vaden (Ct. Intl. Trade), and Frederic Block (E.D.N.Y.)—as well as one former judge, Gary Feinerman (N.D. Ill.). You might also be interested in this installment of my advice column, Asked And Answered: To Clerk, Or Not To Clerk?

2Of course, I acknowledge the possibility that some clerks did quit out of discontent and I never found out, as well as the possibility that clerks quit out of unhappiness but gave a personal reason as a pretext—as I’m guessing the Cannon clerk who withdrew for reputational concerns did, instead of saying, “I’m withdrawing because your name is mud.”

The judge for whom I clerked, Judge Diarmuid O’Scannlain—a wonderful boss, and a friend and mentor to this day—served as an active-status judge on the Ninth Circuit for more than 30 years, as well as a senior judge to this day. I believe that over this 38-year period, he had approximately three clerks depart before their scheduled end dates, two related to pregnancy/childbirth and one related to a serious illness in the clerk’s immediate family.

3This reminds me of my interview of Today Show co-host Savannah Guthrie, who told me about how she withdrew from a clerkship with Judge John D. Bates (D.D.C.) to pursue her dream of a career in television news.

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The Alto Lee Adams Sr. U.S. Courthouse in Fort Pierce, Florida, home to the chambers of Judge Aileen M. Cannon (photo by Joe Raedle via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

In spring 2020, Aileen Mercedes Cannon was nominated by President Donald Trump to serve as a district judge in the Southern District of Florida. She was relatively young, not even 40, as well as somewhat inexperienced to serve as a trial-court judge, with only four jury trials under her belt.

But she was well-regarded in the South Florida legal community. In the words of Jesse Panuccio, a prominent Florida litigator and current partner at Boies Schiller Flexner, “She had a sterling résumé and great reputation.”

When rating judicial nominees, the American Bar Association (ABA) generally wants 12 years of experience for district judges. Cannon just met that mark, and the ABA rated her “Qualified” (with a minority of the panel rating her “Well Qualified,” but the majority rating controls).

Confirmed by the Senate in November 2020—by a bipartisan vote of 56-21, with the support of 10 Democrats (23 senators were absent or otherwise didn’t vote in that post-election, lame-duck session)—Cannon began her judicial service that month. She was only 39 years old.

Her early years as a judge were uneventful. Based out of the satellite courthouse in Fort Pierce, around two hours north of Miami, she presided over only four jury trials, none lasting longer than five days. Based on interviews with lawyers who appeared before her, the New York Times described her as “generally competent and straightforward,” while the Washington Post reported that she was “polite and process-oriented… asking a lot of questions, while making sure litigants can fully air their views.”

Her judicial career was off to a perfectly fine start. And her early law clerks had positive experiences.

“How you enjoy your clerkship with Judge Cannon will be shaped by your priors,” one source told me. “If you get easily stressed or try to get through life with minimal work, you’ll find her overly demanding and domineering. But if you’re used to adversity, being in difficult situations, and making hard calls, you’ll do well. You’ll find her to be a tough boss, but one who gets your best work out of you.”

A former clerk I quoted in yesterday’s post about Judge Cannon (update #9) said basically the same thing: “I had a wonderful experience clerking for Judge Cannon. Through her mentorship and guidance, I developed in a way that I did not know I was capable of. My time in chambers with the Judge prepared me to overcome any professional challenge I might come across.”

“My clerkship with Judge Cannon was an invaluable learning experience,” said another early clerk. “On a professional level, she is thoughtful and hardworking. On a personal level, she has been a caring and supportive mentor to me. I am grateful that I had the opportunity to work for her.”

Everything was going fine for Judge Cannon. And then, in August 2022, she was assigned Trump v. United States—the civil case that former president Donald Trump filed against the federal government, challenging the seizure of documents from his Mar-a-Lago estate and seeking the appointment of a special master to review them.

In September 2022, Judge Cannon largely ruled in Trump’s favor, ordering the appointment of a special master. Her ruling was widely criticized, and in December 2022, she was unceremoniously reversed by the Eleventh Circuit. The opinion was issued per curiam (“by the court” and therefore unsigned), but the panel consisted of Chief Judge William Pryor—a leading conservative jurist and Trump Supreme Court shortlister—and two Trump appointees, Judges Britt Grant and Andrew Brasher.

What went wrong? Based on her academic credentials and what I’ve heard about her from mutual friends, I disagree with criticisms of her as unintelligent; to the contrary, I believe she’s quite smart. But there’s a difference between intelligence and good judgment, and her ruling in Trump v. United States lacked the latter.

Many outsider observers dismiss Judge Cannon as a pro-Trump political hack. But sources of mine who know her personally push back on this, describing her as fair-minded and not particularly political. So while she definitely leans too far in Trump’s direction, giving dubious arguments from his legal team more consideration than they deserve, I think it’s oversimplifying matters to dismiss all her rulings as purely the product of “MAGA judging.”

Instead, I’d suggest that in her handling of Trump v. United States, Judge Cannon thought like a pointy-headed appellate judge, not a commonsensical trial judge.1 A seasoned trial judge would have seen Trump’s request for a special master and quickly ruled, “Hell to the N-O.” Judge Cannon—a former appellate attorney, with limited trial experience—received Trump’s unorthodox request, identified novel legal issues, and thought to herself, “How interesting!”

Grossly overthinking the matter, Judge Cannon ultimately issued a weirdly clever, creative ruling, leading legal commentator Chris Geidner to dub her “Trump’s best lawyer in years.” But the opinion was too clever by half—and just plain wrong—which is why the Eleventh Circuit made short work of it.2

The Trump v. United States debacle seriously damaged Judge Cannon’s reputation—and it also created a clerk problem. An incoming clerk from a top-three school, worried about a Cannon clerkship being a drag on their résumé, withdrew from the clerkship shortly after the Eleventh Circuit smackdown.

This left Judge Cannon with a clerkship slot to fill for the 2023-2024 judicial year. So she asked one of her 2022-2023 clerks, whom I’ll call “Kari,” to extend her one-year clerkship into a two-year position.

Kari said yes, but on the condition that she work a fixed number of hours. She was going to be the mother of a very young child by the start of that second year, and she didn’t want to be working the longer hours of her first clerkship year. Not having much leverage, Judge Cannon agreed. Upon information and belief, Kari agreed to work a full-time schedule, say 40 hours a week, but no more than that.

Fast forward to June 2023. Judge Cannon gets United States v. Trump, Special Counsel Jack Smith’s prosecution of the ex-president for mishandling classified documents. It was a random assignment, meaning that the criminal case wasn’t given to her as a “related case” to Trump v. United States, the earlier civil case seeking the special master.

The documents case created immediate challenges for the Cannon chambers. It was a huge, high-profile prosecution, as well as a complex one, given the national-security issues. It generated a vast amount of additional work, and the chambers started to fall behind.

The documents case also required Judge Cannon’s three clerks to obtain security clearances, a consideration mentioned in yesterday’s post (update #13). One of the three clerks encountered delays in getting cleared, forcing the clerks who did have clearances to take on even more work—which they weren’t happy about. (A clerk without the requisite security clearance can’t work on the Trump case, but can work on other matters.)

In July 2023, a clerk whom I’ll call “Mary” started in chambers—and wasn’t thrilled to be there. Having accepted the clerkship before Judge Cannon became (in)famous for her handling of the first Trump case, Mary was unhappy about how the credential value of her clerkship had declined post-acceptance, along with Judge Cannon’s reputation. She was also annoyed by Judge Cannon’s approach to training, which requires clerks to come into chambers a few days early, on an unpaid basis, to learn her case management system. Suffice it to say that Mary’s clerkship started off on the wrong foot. [Note the UPDATE added below (3:25 p.m.).]

As the months passed, the stress and workload increased in chambers. Judge Cannon became afflicted with an unfortunate combination of anxiety, from handling a matter of national importance, and insecurity, from never having run a case of this complexity. Understandably affected by all the pressure, the judge—whom her early clerks described as a wonderful mentor—started to change.

And not for the better. Here’s a January 2024 posting from the Top Law Schools (TLS) message board,3 describing Judge Cannon as a boss in the second half of 2023:

[G]enerally, she treats clerks (and the entire chambers staff) very poorly and tends to get angry to the point of screaming at them and talking to them in condescending ways. I know her courtroom deputy quit less than two years into the job.4

Expectation is basically that you don’t have a personal life during the clerkship and that work takes priority over anything else to the point that she controls what you do 24/7. This results in her micromanaging everything, and setting rules regarding when clerks are allowed to work on certain assignments, including an arbitrary rule that clerks can’t work on the daily filing for their cases (like drafting scheduling orders, orders granting motions for extension of times, etc.) until outside of in-office hours.

She frequently requires that clerks come into the office on weekends and federal holidays (including some major ones), even though she herself is there less than 1/4 of those days. And when she does require weekend or holiday work, she won’t let you know until last minute so if you bought a plane ticket, you’re out of luck. Even if she doesn’t mandate weekend work in the office, the deadlines she sets are so unrealistic that 9 times out of 10 you’re going to be working on a weekend just to turn in a not-great draft by the deadline (which only contributes to more yelling and screaming for it not being polished enough).

Average hours worked in a week are between 80-100, with 100+ hours a week not being uncommon. It’s definitely not a clerkship to take if you have a family.

The Cannon clerkship experience wasn’t always like this. Take the comment about her “micromanaging.” It contrasts sharply with this testimonial from one of her early clerks: “Judge Cannon had a lot of confidence in our abilities, and she gave us a lot of responsibility in chambers, which prepared us to be effective lawyers in any substantive practice area.”

These sound like two different clerkships with two different judges, “Pre-Trump” Judge Cannon and “Post-Trump” Judge Cannon. Pre-Trump Judge Cannon was comfortable delegating to her clerks, which a busy trial judge must be able to do (appropriately, of course, with adequate supervision). Post-Trump Judge Cannon, increasingly worried about how her work product would fare under increased public scrutiny, thought she could ensure quality by getting more “into the weeds”—but micromanaging actually made things worse, not better.

As summer turned to fall, the holdover clerk from 2022-2023 who had agreed to stay on for a second year, Kari, was increasingly unhappy. Back from parental leave, with a baby at home, she was supposed to be working fixed hours, per her agreement with Judge Cannon. But because of the crushing amount of work—which Kari had to perform a disproportionate amount of, thanks to the aforementioned security-clearance issues of a co-clerk—she was working far more than 40 hours a week.

In October 2023, after a year and two months in chambers, Kari quit. She wasn’t getting the fixed hours she had bargained for, she wanted to spend more time with her baby, and the overall environment in chambers was increasingly unpleasant. (Her LinkedIn profile does not show any subsequent employment.)

A replacement clerk for Kari started later that month. But as I noted yesterday, such unanticipated, mid-year transitions can really throw off the work of a chambers. Successor clerks need to get up to speed, on both chambers procedures and the substance of cases—which is very time-consuming, especially in complex cases like the Trump prosecution.

As fall turned to winter, conditions in chambers continued to worsen. Mary, whose clerkship had gotten off to a bad start, was working 80-hour weeks and having interpersonal conflict with the judge, whom she described to friends as “mean.”

Mary began plotting her escape. She reached out to the D.C. law firm where she had been a summer associate and asked if they would take her on if she quit the clerkship; the firm said yes. She reached out to the prominent conservative circuit judge with whom she already had a future clerkship lined up, to see if she’d still have a place in that judge’s chambers if she quit on Judge Cannon; the circuit judge also agreed.

The responses of her firm and future judge gave Mary the reassurance she needed that her career could survive the damage from quitting a clerkship after six months—which, as previously discussed, can be considerable. As Professor Eric Segall put it after yesterday’s news broke, “Clerks never quit. That’s all.” [Note the UPDATE added below (1:38 p.m.).]

In December 2023, Mary quit. Per her LinkedIn profile, she started at the firm in February.

In January 2024, two new clerks arrived in chambers—a replacement for Mary, plus a temporary clerk. This took the number of clerks up to four, where it is today. As noted in yesterday’s story (update #12), judges who need extra help in chambers—such as judges with super-complex matters like the Trump case, or judges overseeing multidistrict litigations (MDLs)—can get extra clerk help on a temporary basis.

So now the Cannon chambers is fully staffed. But it’s premature to declare that everything is hunky-dory. Note these facts, against the backdrop of Judge Cannon having one of the most high-profile, politically charged, complex cases in the country:

Three out of her four clerks have been with Judge Cannon for six months or less.
Only one of the current clerks, the clerk who started in August 2023, is there according to plan.
None of these clerks was in chambers in June 2023, when the Trump documents case arrived, i.e., they’ve all had to play catchup.

All the unexpected departures and arrivals of the past six months have surely contributed to the backlog and delays in the case. I also wonder whether all four clerks have the security clearances they need to work on the Trump case. All in all, it’s not a great situation.

So where does this leave matters? Judge Cannon still has the Trump documents case. Numerous motions in the case remain pending. We still don’t have a trial date, even though both the prosecution and the defense have stated that they believe the trial can start this summer.

And there’s no clear path to any of this changing. I believe the prospects for getting Judge Cannon removed from the case are greatly exaggerated (especially since Jack Smith has given no indication that he plans to seek such relief).

Aileen Cannon enjoyed a remarkable rise through the legal profession. She became a federal judge before age 40. Her judicial career got off to a perfectly solid start. Her first law clerks liked and respected her.

And then came the Trump cases.

Remember the saying, “Everything Trump touches dies”? Add Judge Aileen M. Cannon to the long list of people who have come into contact with Donald J. Trump and whose reputations—and lives—will never be the same.5

Ed. note: As my regular readers know, I believe strongly in accuracy, so I frequently update posts with comments and corrections (and timestamps indicating when the update was added, because I also believe in transparency). So for my newsletter subscribers who read this post in email form, I urge you to go to the web version and refresh for the latest updates. Yesterday’s post about Judge Cannon, for example, has 14 updates—so if you read only the original version, you might want to go back and look at the updates.

UPDATES:

A current law clerk (not to Judge Cannon) made this point to me, which I found interesting (and view as a fair rejoinder to Professor Segall’s “clerks never quit” point):

”I’m surprised by how surprised people are that the experience was bad enough for clerks to quit. Clerks do quit, half of all judges are below-median employers (by definition), and the median is not necessarily that high. Regarding what Aliza Shatzman of the Legal Accountability Project is trying to do, I think it would gain even more traction if people really knew how widespread the problem was. Hopefully your reporting can contribute to that. I am completely making this up, but I bet if you were to ask law professors what percentage of clerks quit a clerkship, they’d say less than 1 percent. I would put the actual number at 5 percent or more based on my peers, forums, word of mouth, etc.” [1:38 p.m.] 2. Here’s a thoughtful comment I received from an appellate lawyer who was nominated for a district-court judgeship:

”Interesting post and investigation. To begin with, I relate a little bit in that when I was nominated to the district court, one of my great fears was that if confirmed I would have a tendency to think too much like an appellate lawyer and not enough like a practical trial judge. I like to think that by having more seasoning than Judge Cannon and much more experience actually consulting during trials, I would have handled things better than Judge Cannon, but I do empathize with her given our shared backgrounds. I don’t know her personally, but I know many people who do know her, and I don’t think she is biased. I think she is trying her best but is just being, as you suggest, a too-smart appellate lawyer not grounded by reality.” [3:06 p.m.] 3. At least two sources have informed me that Judge Cannon’s approach to training—having new law clerks come into chambers in advance, for a few days or even a week, unpaid—is the approach of many (and possibly all) judges in the Southern District of Florida. [3:25 p.m.] 4. I’d like to highlight something I wrote in my latest Judicial Notice legal news roundup:

”I’d like to take this opportunity to clarify something I mentioned on Advisory Opinions: as I have previously written on multiple occasions, I do think Judge Cannon has some level of bias in favor of Trump, conscious or unconscious. Her opinion appointing a special master in the original civil case was so far off the map that it’s hard to explain otherwise, and some of her rulings in the current criminal case have taken a scolding tone toward Special Counsel Jack Smith and his team.

But I would add—quoting from my prior post, emphases added—that ‘it’s oversimplifying matters to dismiss all her rulings as purely the product of MAGA judging.’ Rather, I think that there are additional factors contributing to some of the weird rulings and frustrating delays in the case, including her lack of experience managing complex trials, her thinking too much like an appellate rather than trial judge, and problems managing her chambers. So yes, she has a pro-Trump bias—but to what degree, and to what extent it’s affecting her handling of the Trump documents case, can be debated.” [4/4/2024, 3:30 p.m.]

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1Ed. note: The footnotes in this post will be interesting to legal nerds, but other readers can afford to skip them. Most of the chambers drama that many people are seeking is in the body of the post.

Recall that during her time as an assistant U.S. attorney (AUSA), Cannon spent most of her time on appellate work, i.e., defending convictions and sentences on appeal. This explains why she had only four jury trials as a federal prosecutor, a low number for a seven-year tenure. Even in an age of diminishing trials, most trial AUSAs have at least two or three trials a year—so after seven years, a trial-level AUSA probably would have had 15 or more trials, roughly four times as many as Cannon.

My last legal job before becoming a writer was also working as an appellate AUSA—in the District of New Jersey, under then-U.S. Attorney Chris Christie (my most recent podcast guest)—and I can’t emphasize enough the difference between trial and appellate work. Appellate work has its virtues. It’s intellectual and you get to write a lot, so it attracts smart lawyers like Aileen Cannon with excellent academic credentials. But being an appellate “nerd,” as I once was, is poor preparation for being a trial judge.

Reading the trial record to defend a verdict on appeal is a far cry from creating that record yourself as a trial lawyer, on your feet in a courtroom, arguing to a jury. And the pace of appellate work is much slower, almost leisurely; it doesn’t equip you to deal with the torrent of cases that flows through a trial court.

I like to think I was a good appellate AUSA, but I would have been a terrible trial judge—not because I’m unintelligent or lazy, but because working as an appellate AUSA just isn’t a good professional background for being a trial judge. And I think Judge Cannon is similarly struggling because her professional background, while distinguished, isn’t a good fit for her current role. (She probably would have been a fine appellate judge, although maybe prone to go off on the occasional frolic and detour—like a Judge Guido Calabresi (2d Cir.), but from the right.) [Note the UPDATE added above (3:06 p.m.).]

2I also blame Judge Cannon’s overthinking for the bizarre order she issued on Monday night about jury instructions. By treating these questions as a Borkean “intellectual feast,” instead of practical issues to be resolved quickly and decisively, she’s exhibiting an appellate judge’s tendency to overcomplicate things, when as a trial judge she needs to streamline and simplify. So again, she’s very smart; she’s just deploying her considerable intelligence in ways that defy common sense.

3I feel comfortable quoting this TLS posting because (a) my own sources confirm both its overall gist and several of its specific claims, such as the 80-hour weeks and the departure of the deputy, and (b) I offered both the Southern District of Florida Public Information Office (PIO) and the Cannon chambers the opportunity to comment on it, which they didn’t take. The S.D. Fla. PIO stated that the court “cannot comment on HR-related matters” (update #14 in yesterday’s post), while the Cannon chambers did not respond.

4I have confirmed the departure of Judge Cannon’s courtroom deputy with two other sources, both lawyers in South Florida. In addition, a commenter at David Oscar Markus’s SDFLA Blog claims that she lost her court reporter, but I have not independently verified this (as I have with the deputy).

The news about the deputy didn’t surprise me, since I had previously heard rumors about non-clerk employees also having issues with Judge Cannon. I hinted at this in yesterday’s post: “Additional information about other personnel issues in her chambers—possibly involving employees other than clerks, such as judicial assistants or courtroom deputies—could emerge.”

5I acknowledge that a significant amount of the fault for Judge Cannon’s plummeting reputation rests on… Judge Cannon. But as discussed above, I think the “she’s simply a partisan hack” narrative oversimplifies matters, even though I believe she has a bias in favor of Trump. (Or, maybe to put it more kindly, she gives frivolous arguments from his team far more consideration than they deserve—and perhaps her defenders would say that she tries to give all arguments, even weak ones, as much consideration as possible.)

I also think it’s fair to say that if she had never gotten the Trump cases, today she would probably be what she was before they came along: a well-respected, well-liked member of the South Florida legal community, with happy current and former clerks.

Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever

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Judge Aileen Cannon (public domain)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

On Tuesday, the New York Times published an article titled, “Judge in Trump Documents Case Draws Attention for Slow Pace.” Reporter Alan Feuer wrote that Judge Aileen M. Cannon “has done herself no favors by allowing a logjam of unresolved issues to build up on her docket, and “that pileup appears to have kept her from reaching a prompt decision on the timing of the case”—reflected in how she still hasn’t set a trial date, some three weeks after holding a hearing on the matter.

I have an idea of at least one factor behind the delays: Judge Cannon has had at least two law clerks quit on her, according to multiple sources—including individuals who serve in the U.S. District Court for the Southern District of Florida, where she sits.

Why is this significant? Readers of Original Jurisdiction are very familiar with the crucial role that law clerks play in the federal judicial system, which simply couldn’t function without them. But for folks who are new to this newsletter, here’s some brief background about what judicial clerks do and why they’re so important.

Contrary to the humble-sounding job title, a law clerk’s role is substantive, not clerical or administrative. Law clerks assist federal judges by researching and advising them on legal issues, helping them prepare for hearings and trials, and drafting opinions. Clerks are generally recent law school graduates with impeccable academic credentials, and federal clerkships are prestigious positions. Obtaining a clerkship is a highly competitive process; completing a clerkship, which usually lasts a year or two, is great for one’s résumé, helping to open many doors within the legal profession.

In addition to the sheer importance of the role played by clerks in the judicial process, here are additional facts underscoring the significance of Judge Aileen Cannon having two (or more) clerks quit on her:

A federal district judge usually hires only two to three law clerks each year, so for two clerks to quit is quite notable. It’s nothing like a few associates quitting a 1,000-lawyer firm. And Judge Cannon, who took the bench in November 2020, has been a judge for less than four years—so she’s probably had a total of only eight to twelve clerks over her entire tenure.
As followers of the clerkship world well know, it’s highly unusual for a clerk to quit on a judge. Because a federal judicial clerkship typically lasts one year and is an extremely valuable credential, most clerks will “ride it out” instead of quitting, even if they’re miserable or have issues with their judge. The clerkship lasts only a year; the résumé value lasts for a career. For a law clerk to quit before the year is up often involves an extremely unpleasant situation in chambers.1
As current and former judges and clerks can tell you, it’s highly disruptive to the work of a chambers when even one clerk quits, to say nothing of two. Judges in busy districts like the Southern District of Florida have heavy caseloads, but only two to three law clerks to help them handle all that work. To be short-staffed for even a brief period of time can generate a backlog very quickly.

And even if clerks who leave get replaced immediately—which doesn’t always happen, especially if clerks quit on short notice, or the judge is too busy to focus on hiring—successor clerks need to get up to speed, on both chambers procedures and the substance of cases. This is very time-consuming, especially in complex cases like the Trump classified-documents prosecution.

So if there has been any unexpected turnover in Judge Cannon’s chambers over the nine months that she’s had the Trump case, the fact that she’s struggling to keep up with all the work in it becomes less surprising. In fact, it would be surprising if a judge handling such a major case did not fall behind after losing two clerks.2

What does Judge Cannon have to say about clerks quitting on her? Over the past few days, I have sent multiple emails to the Public Information Office for the Southern District of Florida and to Judge Cannon’s chambers, requesting comment on reports that at least two of her clerks have departed before the scheduled end of their clerkships. I have received read receipts, but no responses (even though, in my experience, subjects are eager to warn me off bad information—for which I’m always grateful). If I do hear back, I will immediately update this post, of course.

I should be clear about what I don’t know. My sources have been circumspect so far, and despite my best efforts, I have been unable to determine precisely why these clerks quit, when they departed, and if they have already been replaced or the Cannon chambers is operating short-staffed.3

But based on my experience, I believe that once the fact of the clerks’ quitting becomes public, the floodgates will open. Details about the Cannon clerk departures will become more widely known, whether reported by me or others. Additional information about other personnel issues in her chambers—possibly involving employees other than clerks, such as judicial assistants or courtroom deputies—could emerge. So one reason I’ve decided to publish this post, despite lacking certain key details, is to prime the pump—to encourage sources to come forward with more information, and to encourage other journalists to follow up on my reporting.4

If you can provide additional information about what’s going on in the Cannon chambers, please contact me by email (davidlat@substack.com) or text message (917-397-2751). I’m eager to write a follow-up report with more details. And if any of my information is wrong, I will correct it promptly and prominently, as I always do.

To sum up, why does it matter that two or more clerks have quit on Judge Cannon? Under normal circumstances, turnover in a judicial staff is nothing more than fodder for water-cooler chitchat (or maybe a novel, if you add some drama).

In this case, however, personnel problems in Judge Cannon’s chambers appear to be impeding the progress of an incredibly important, high-profile criminal case. And when a judge’s difficulties in running her chambers start to affect the administration of justice, that transcends gossip and becomes a matter of legitimate public concern.

UPDATES: As predicted, the information is flooding in. Please watch this space for updates. For now, I can report the following (with timestamps indicating when I added the update):

One clerk who was slated to serve for two years left after one year, sometime in 2023, after having a child. I flagged this possibility in footnote 1: “Perhaps the clerks had personal issues; sometimes clerks quit because of medical or family issues that arise during their clerkships.” [10:38 a.m.]
Another clerk quit for reasons that are currently unclear—and this person’s law-school classmates have been buzzing about the news. [10:38 a.m.]
Upon information and belief, the clerk who left for personal reasons departed in October 2023, after serving for roughly one year and two months. [10:59 a.m.]
Actually, I’m still sorting out which clerk left for which reasons, but I believe that one clerk left in October 2023 and another clerk left in December 2023. [11:12 a.m.]
Judge Cannon’s chambers is fully staffed as of now, as reflected in an internal page available to anyone within the federal judiciary. [11:13 a.m.]
In fact, Judge Cannon is arguably “overstaffed” at the current time: she currently has three term clerks, i.e., clerks who are there for a set period of time (one to two years), and one temporary clerk. District judges typically have two to three clerks (depending on whether they convert their judicial-assistant or “JA” slot to a clerk slot); Judge Cannon has four clerks, counting the temporary one. [11:35 a.m.]
Judge Cannon received the Trump case in June 2023. Clerks traditionally change over during the summer. So in a chambers with normal turnover, she would have had one set of clerks from roughly the start of the case through the summer, when the trial is currently expected to get underway—a very logical setup or transition point. [1:27 p.m.]
But instead, of her four current clerks, one started in August 2023, one started in October 2023, and two started in January 2024 (per the Microsoft Teams page for her chambers that can be accessed by anyone in the federal judiciary). To have this many clerks change over in the middle of a term or judicial year, with a case like the Trump one in chambers, was surely very disruptive and delay-inducing. [1:27 p.m.]
Here are some thoughts from a former Judge Cannon clerk, who praised the judge and their clerkship experience:

”I had a wonderful experience clerking for Judge Cannon. Through her Honor’s mentorship and guidance, I developed in a way that I did not know I was capable of. My time in chambers with the Judge prepared me to overcome any professional challenge I might come across. I will always feel honored and privileged to have served as one of the Judge’s first law clerks.”

”I respect and admire the Judge as a boss/manager because of her work ethic and unwavering commitment to consistently producing excellent work. Judge Cannon demonstrated her devotion to the rule of law every single day. The Judge, for example, never went into a single motion hearing or entered an order without being adequately prepared. Judge Cannon feels a high sense of duty toward the public and she showed that everyday by, among other things, carefully considering every single matter that was pending before her. Judge Cannon had a lot of confidence in our abilities and she gave us a lot of responsibility in chambers, which prepared us to be effective lawyers in any substantive practice area.”

”I do not know anything about whether subsequent clerks have left chambers before their term concluded, so I prefer not to engage in conjecture on that score. Personally, I would be surprised if any law clerk left chambers early for [negative reasons]. In my case, the notion of leaving chambers prematurely never crossed my mind during my time with the Judge.” [1:35 p.m.] 10. Here’s another testimonial, from Jesse Panuccio—a prominent Florida litigator, former Acting Associate Attorney General (the #3 role at the U.S. Justice Department), and current partner at Boies Schiller Flexner:

“I’ve known Judge Cannon for more than 20 years, and throughout all that time I have been impressed with her intelligence, poise, and humility. She had a sterling résumé and great reputation before she took the bench. The attacks on her are obviously being made by partisan bad actors with political agendas, not by anyone closely familiar with her work, her life, or the judiciary in Florida.” [1:45 p.m.] 11. Of the four clerks—with start dates of August 2023, October 2023, and January 2024 (for two of them)—the clerk designated as “Law Clerk - Temporary” is one of the two January 2024 hires. Interestingly enough, the August 2023 clerk and the temp clerk from January 2024 went to the same T100 law school, which sends less than 1 percent of its graduates into federal clerkships (so I wouldn’t be surprised if the August 2023 clerk helped recruit the temp clerk). [4:32 p.m.] 12. What’s the deal with the “temp” clerk? Judges who need extra help in chambers—like judges with super-complex cases like the Trump case, or judges overseeing multidistrict litigations (MDLs)—can get extra clerk help on a temporary basis. This clerk could be funded by the Temporary Emergency Fund (TEF), which is a pool of money that each circuit’s judicial council distributes in response to applications from judges, or this clerk could be “borrowed” from a judge who has funding for more clerks than they need. [4:32 p.m.] 13. A federal district judge who has handled a number of sensitive cases over the years pointed out to me the possibility that some of Judge Cannon’s clerks might not be able to work on the case, if they don’t have the requisite security clearances. The process of getting a clearance can take several months, and two of her four clerks started only in January (but it is likely, this judge said, that the processing of clerk clearances for the Trump case would be expedited). [4:32 p.m.] 14. At this point, I’m planning to write an epic post for tomorrow about goings-on in the Cannon chambers, so keep an eye out for that. But for the record, I finally did hear back from the Southern District of Florida’s Public Information Office: “The Court cannot comment on HR-related matters.” 15. Here is the promised epic post, Clerking For Judge Aileen Cannon: A Behind-The-Scenes Look. It provides the detail—and drama—that this post lacks. [3/22/2024, 12:14 p.m.]

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1To be clear, as I note later in this post, I don’t have the details about why the Cannon clerks quit. So it would be premature to assume it’s the fault of Judge Cannon.

Perhaps the clerks had personal issues; sometimes clerks quit because of medical or family issues that arise during their clerkships. Perhaps the clerks couldn’t handle the stress or long hours that must surely be accompanying the Trump case (although one would think that getting to work on a history-making case would make up for some of this).

And in defense of Judge Cannon, who has been the subject of widespread public criticism, I have heard some positive reports about her from lawyers and judges who know her. For the record, I don’t agree with criticisms of her as unintelligent or evil; I believe she’s simply out of her depth (as discussed below).

2I don’t believe personnel issues in chambers are the only or even primary factor behind the delays and other problems with Judge Cannon’s handling of this case (reflected most recently in a bizarre order about jury instructions that experts quoted by the Washington Post and USA Today called “very troubling,” “baffling,” “insane,” “crazy,” and “nuts”).

I believe the biggest issue is her lack of experience with complex trials. She handled only four jury trials as a lawyer, and at the time of her assignment to the Trump documents case last June, she had overseen only four jury trials as a judge. None of the trials she presided over lasted longer than five days; the trial in the Trump case is expected to last four or five weeks.

In the words of Professor Samuel Buell, a former federal prosecutor, “Based on what we know about her professional biography, this judge is completely inexperienced with complex criminal litigation, and this is a case in which complexity is inherent because of the national-security aspects.”

Depending on the information I receive in response to this post, I might do a deeper dive into Judge Cannon and her handling of the Trump documents case. I believe the situation raises a number of interesting and important issues about the federal judiciary.

3There are no current clerkship openings for Judge Cannon listed in the OSCAR clerkships database. But it appears that she, like many Republican appointees, doesn’t use OSCAR; she hasn’t listed a position there since 2021.

There are also no clerkships with her listed on the S.D. Fla. jobs page. But given the scrutiny she’s under right now, I can see why she wouldn’t want to post a public “help wanted” ad. Also, much clerkship hiring is done through word of mouth, back channels, and personal recommendations, and I wouldn’t be surprised if Judge Cannon operates this way (as do many other judges with ties to the Federalist Society, a powerful networking resource).

4It is possible, however, that we might get fewer details about what’s going on inside the Cannon chambers than I’m expecting. First, recall that Judge Cannon is the only judge in her courthouse, the satellite courthouse in Fort Pierce, so she and her clerks are already somewhat isolated from their S.D. Fla. counterparts. Second, sources tell me that Judge Cannon and her clerks largely keep to themselves these days—which is understandable, given both their work on an extremely sensitive case and the apparent disarray in chambers.

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Chris Christie has had an interesting and eventful career in public life. He served as U.S. Attorney for the District of New Jersey from 2002 to 2008, then as Governor of the Garden State from 2010 to 2018. And he was a candidate for the 2024 Republican presidential nomination, until his January withdrawal from the race.

People tend to have strong opinions about Christie. Some respect his outspoken criticism of Donald Trump, which was the centerpiece of his presidential campaign. Others do not—perhaps because they support Trump, or perhaps because they can’t forgive Christie for having been for Trump before he was against him. (In some ways Christie is his own harshest critic for this, admitting in his speech withdrawing from the race that he endorsed Trump because he put personal ambition over what he knew was right.)

I’m not a neutral observer when it comes to Chris Christie. I worked for him as an assistant U.S. attorney from 2003 to 2006, and I like and respect him a great deal. As we discuss at the start of this podcast episode, I’m especially grateful for how he dealt with me in the wake of the scandal over my very first blog, Underneath Their Robes. But that didn’t stop me from asking him difficult questions on the podcast, including his biggest regrets—yes, he talks about Bridgegate—and whom he might vote for in the presidential election. We also review his legal career, including his advice for law students and his three biggest cases as U.S. Attorney.

Congratulations to Governor Christie on his latest book—What Would Reagan Do? Life Lessons from the Last Great President, which we discuss on the podcast—and thanks to him for both his past kindness and willingness to join me today.

Show Notes:

Chris Christie bio, Christie 55 Solutions
What Would Reagan Do? Life Lessons from the Last Great President, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Governor Chris Christie (courtesy photo) Read more

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Judge Scott McAfee: ‘Do I look like I was born yesterday?’ (photo by Brynn Anderson via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

The biggest event of my week was an annoying one: I injured my lower back while working out. This hadn’t happened to me in more than a year and a half, so I was saddened to learn that my back remains a problem. Sigh—try to avoid getting old if you can (although I guess it’s better than the alternative).

In happier news, Zach Sandberg and I recorded a great episode of Movers, Shakers & Rainmakers, featuring a stellar guest: Pierre Gentin, senior partner and chief legal officer at McKinsey & Company. Pierre is a true Renaissance man, and he shared both practical career advice and philosophical reflections. Definitely check it out.

Today’s testimonial for Original Jurisdiction comes from John Hellerman, president of Hellerman Communications: “By blending deep insights with authoritative sources, Original Jurisdiction is compelling and essential reading for everyone operating or interested in the legal profession.” John is a leading figure in crisis and litigation communications, so I’m especially grateful for his kind words.

Speaking of compelling content, are you looking to create some yourself, perhaps for business development? If so, please join me and Adam Stofsky, CEO of Briefly, for a free webinar on Thursday, “Creating Human Content in an AI-Driven World.”

Programming note: next weekend I’ll be leaving town for our son Harlan’s spring break. So I might be less prolific than usual between now and April 1.

Now, on to the news.

Lawyer of the Week: Robert Hur.

On Tuesday, former special counsel Robert Hur testified before the House Judiciary Committee about his investigation into President Joe Biden’s handling of classified documents. As I predicted, Hur took flak from both sides—from Republicans, who criticized his decision not to bring criminal charges against Biden, and from Democrats, who attacked his negative comments about Biden’s mental acuity.

In my observation, witnesses in Hur’s shoes have nothing to gain and plenty to lose—like public esteem, in the case of former special counsel Robert Mueller, or even their jobs, in the case of the university presidents who testified about antisemitism. But Hur, whose generally flat affect turned out to be a feature and not a bug of his testimony, emerged relatively unscathed. He didn’t stray from the content of his 345-page report, which he defended against attacks from both the right and the left, and he resisted attempts to weaponize the report and his testimony for partisan ends.

So kudos to Hur for leaving the hearing room in roughly the same shape as when he went in. He’ll still get hated on by the left and the right, but his testimony didn’t give his enemies much new fodder to work with.

And to folks on the left who claim that Hur’s going to be rewarded with some plum post in a second Trump Administration, I doubt it. As noted on Advisory Opinions by Sarah Isgur—who, for the record, played no role in prepping Hur (credit for that goes to Bill Burck of Quinn Emanuel)—Hur’s involvement in overseeing Bob Mueller’s Russia investigation pretty much guarantees that Hur won’t be welcomed by Trumpworld.

Other lawyers in the news:

The Association of Legal Aid Attorneys, a union representing 2,700 public-interest lawyers in the New York City area, allegedly fostered a hostile environment for Jewish members in the wake of Hamas’s October 7 attack on Israel—and now Congress is investigating.
Congratulations to the National LGBTQ+ Bar’s latest class of 40 Best LGBTQ+ Lawyers Under 40.

In memoriam:

Ira Millstein, a legendary figure in corporate governance and longtime senior partner at Weil Gotshal & Manges, passed away at 97.
Larry Parker, a Los Angeles personal injury lawyer who became famous through ubiquitous television and billboard ads, passed away at 75.
Paul Alexander—who spent 72 years living inside an iron lung, yet still managed to graduate from law school and practice law for three decades—passed away at 78.

May they rest in peace.

Judge of the Week: Judge Scott McAfee.

On Friday, Judge Scott McAfee of Fulton County Superior Court issued his eagerly awaited ruling on the motion to disqualify District Attorney Fani Willis and her office from prosecuting the Georgia election-interference case against Donald Trump. His decision, in the form of a 23-page opinion, wasn’t a clean win for either side.

As I predicted on Preet Bharara’s podcast, Judge McAfee concluded that the prosecution “is encumbered by an appearance of impropriety,” and he ordered the prosecution to pick one of two options: (1) Willis and the Fulton County DA’s Office leave the case, or (2) Willis’s ex-boyfriend Nathan Wade, whom she appointed as a special prosecutor, leaves the case. Not surprisingly, they went with the second option, and Wade resigned from the case a few hours after Judge McAfee’s ruling.

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The Alabama Supreme Court (photo by Rex Wholster via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece (which is subject to a length limit). You can think of the footnotes as a form of “bonus content” for Original Jurisdiction subscribers.

Last month, in LePage v. Center for Reproductive Medicine, the Alabama Supreme Court ruled that an unimplanted human embryo is a “child” for purposes of the state’s wrongful-death statute. The court held that intended parents with embryos created through in vitro fertilization (IVF) can sue their IVF clinic for wrongful death, rather than negligence, if their embryos are destroyed through the clinic’s fault.

The LePage ruling, believed to be the first time a court has held that IVF embryos can be “children,” generated widespread alarm among supporters of IVF treatment. It was described in media as a “devastating anti-IVF ruling” that could imperil IVF for the hundreds of thousands of patients who turn to it each year.

In the short term, the ruling led IVF clinics in Alabama to pause treatments, as they—and their lawyers—assessed their potential civil or criminal liability. Emory law professor Tonja Jacobi expressed the fear that IVF could become “legally fraught and practically threatened.” One reproductive-rights advocate suggested the ruling could lead to IVF “deserts”—states or regions where IVF, like abortion, is simply unavailable.

As the father of two sons who wouldn’t exist without IVF, I have a firsthand appreciation for the value and importance of this process. But I also thought some of the initial fear might have been overblown—especially in light of how quickly Alabama legislators started considering legislation to protect IVF after LePage.

Sure enough, on March 6—less than three weeks after the February 16 ruling—Governor Kay Ivey (R-Ala.) signed into law SB159. The statute provides IVF clinics with broad civil and criminal immunity. Clinics in Alabama have since resumed IVF procedures.

The new law, which went into immediate effect, has some problems—perhaps because of how quickly it was put together. SB159 provides that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Such expansive immunity could leave couples whose IVF embryos are damaged or destroyed, like the plaintiffs in LePage, without legal recourse.1

“The swift action by the Alabama legislature to get IVF clinics open again was a good thing,” said Ellen Trachman, a lawyer and commentator focused on the law of assisted reproductive technology. “But it may have gone too far.”2

“There are already problems with holding clinics legally accountable for damage to embryos,” Trachman told me. “With this blocking of liability, the Alabama law goes even further.”

In the wake of SB159, IVF clinics in Alabama may enjoy more protection than their counterparts in many other states, where they can be sued for negligence or gross negligence. Trachman cited a California case in which families who lost embryos and eggs in a cryopreservation-tank failure sued the tank manufacturer and IVF clinic—and won a $15 million verdict. That wouldn’t be possible in Alabama.

According to Ed Whelan of the Ethics and Public Policy Center, who wrote about LePage for the National Review, what was needed here was a “one-sentence bill that states that the word ‘child’ in [the wrongful-death] statute does not include IVF embryos.” But instead of this “simple fix,” the legislature bestowed sweeping immunity on IVF clinics.3

“I think the Alabama legislators here got played,” he told me.

It appears, however, that SB159 was intended as a stopgap, not a permanent fix. As Governor Ivey wrote in her signing statement, it was meant to be a “short-term measure” that would “provide the assurances our IVF clinics need… to resume services immediately.”

So despite its flaws, SB159 is good news. As Trachman put it, “I don’t want to take away from the win. The fact that the legislature acted swiftly and the clinics are open again is great.”

And there’s a broader lesson here: The democratic process worked.

The judiciary did its job by interpreting the law—here, Alabama’s Wrongful Death of a Minor Act—and by applying the law to the cases before it. The ruling led to a result—the cessation of IVF in the state—that Alabamians found objectionable. They shared their concerns about the ruling and its implications with elected officials. And then the legislature and executive branches sprang into action, passing and signing a law to address the situation.

What happened in Alabama reminds us of the limited power of the courts. The judiciary’s job is to say what the law is, not what it should be—and judges don’t have the last word.

If we the people don’t like the law as it is, we can call upon the legislative and executive branches to address it. Or in the case of rulings based on the U.S. Constitution, which are admittedly much harder to override, we can amend the Constitution (which should be much easier to amend, but that’s a topic for another day).

We shouldn’t be too quick to blame the judiciary for societal problems—or expect the judiciary to solve them. That’s arguably one lesson to take away from the U.S. Supreme Court’s recent ruling in Trump v. Anderson, holding that individual states lack the authority to keep Donald Trump off presidential ballots. Trump must be defeated at the ballot box, not in the courtroom.

Or as Harvard law professor Noah Feldman wrote—in the context of Trump v. Anderson, but his words have broad applicability—“it’s up to we the people to save our democracy.”

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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1The plaintiffs in LePage will be able to proceed with their litigation because the law “is intended to apply retroactively to any act, omission, or course of services which are not the subject of litigation on the effective date of this act” (emphasis added).

2In her Above the Law column about the new Alabama law, Trachman quoted Professor Dov Fox, who summed up the situation this way: “First the Alabama Supreme Court overdeterred fertility clinics to shut down or leave the state for fear that even slips of the hand or reasonable accidents, like an embryo sticking to the side of a pipette, could leave them legally accountable for a wrongful death and millions in damages. Now, the Alabama Legislature has codified a liability shield that would underdeter the harms that come from deficient quality controls and negligent misconduct, by immunizing IVF providers for even egregious misconduct. A better path would steer in between these extremes.”

For more on this topic, see Professor Fox’s new paper (co-authored with Professor Jill Wieber Lens), Valuing Reproductive Loss, published in the Georgetown Law Journal.

3Why didn’t the Alabama legislature simply amend the wrongful-death statute to exclude IVF embryos from the definition of “child”? Two possibilities occurred to me.

First, some Republicans might not have been on board with this possible fix. Alabama Democrats proposed legislation that would have provided that “an extrauterine embryo is not an ‘unborn life’ or ‘unborn child.’” But according to a Republican state senator, Tim Melson, “Some people feel that we don’t need to go down that road when we’re determining when life begins.”

Second, as noted by Trachman, the Alabama Supreme Court stated in LePage that “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection”—specifically, Section 36.06 of the Alabama Constitution, which declares that ‘it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.’”

So changing the definition of “child” in the wrongful-death statute to exclude IVF embryos might have been open to constitutional challenge, on the ground that it violates Section 36.06 of the Alabama Constitution. In contrast, immunizing IVF clinics doesn’t redefine “child”; it simply bars lawsuits against clinics based on the existing definition of the term.

As pointed out by Trachman, one could still try to mount a constitutional challenge by arguing that the broad immunity for IVF clinics effectively or functionally redefines the terms “life” and “child,” in violation of the Alabama Constitution. This might explain why the Democratic legislators’ proposal to exclude extrauterine embryos from the definition of “life” or “child” took the form of a proposed constitutional amendment to Section 36.06, which would have provided that an IVF embryo is not an unborn life or child “[f]or the purpose of this section.”

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Sidley Austin (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Move over, Oprah! This week, I was the Queen of All (Legal) Media:

I donned a massive amount of make-up to join Alex Wagner on MSNBC on Friday night to discuss the latest developments in the Mar-A-Lago classified documents case against Donald Trump.
Earlier in the week, I appeared on one of my favorite podcasts, Stay Tuned With Preet, where Preet Bharara and I reviewed the Supreme Court’s decision in the Colorado disqualification case, Trump v. Anderson, as well as legal news in Trumpworld more generally.
And my husband Zach Shemtob and I joined Professor Rodger Citron on the Touro Law Review Podcast to talk about an article we wrote last year for The Atlantic, Judicial Ethics in a Populist Age, as well as how concerns over the justices’ ethics relate to the current Supreme Court Term.

The latest testimonial for this newsletter comes from Ben Feuer, chairman of the Complex Appellate Litigation Group (CALG): “Original Jurisdiction is the Substack of record for the legal industry. If it happened, and it was important, it’s there. One of the few newsletters I read top to bottom each week.” Thanks to Ben for his generous praise, and congrats to him and his colleagues on the success of CALG—described by Chambers as “a distinguished appellate boutique which acts for an impressive client base in complex appeals.”

Now, on to the news.

Lawyers of the Week: Jonathan Bach, Scott Edelman, and Stacey Richman.

You don’t often see criminal charges get dismissed in the middle of trial. But this is no ordinary case, as explained by Daniel Wu of the Washington Post:

A criminal case against a trio of collectors and auctioneers that drew widespread attention for the bounty they were accused of conspiring to sell—pages of handwritten lyrics penned by the 1970s rock band the Eagles, including the words to their legendary single “Hotel California”—ended suddenly on Wednesday when New York prosecutors dropped all charges against the defendants in an unexpected collapse.

The Manhattan district attorney’s office in 2022 accused rock auctioneer Edward Kosinski, rare-book dealer Glenn Horowitz, andformer Rock & Roll Hall of Fame curator Craig Inciardi of acquiring pages of the Eagles’ manuscripts after they were stolen in the 1970s. Prosecutors accused Kosinski, Horowitz, and Inciardi of conspiring to auction off the manuscripts, valued at more than $1 million, in 2016.

But the trial was upended over the weekend when attorneys for Eagles frontman Don Henley released about 6,000 of pages of documents mid-trial that defense attorneys said established perjury by several witnesses they had already cross-examined and tore a hole in the state’s prosecution. On Wednesday, prosecutors conceded that the defense had not been given time to review the vast disclosure of new evidence and moved to dismiss the case.

The dismissal was the consequence of the prosecution’s failure to adequately investigate the case before bringing it, according to the lead defense lawyers: Jonathan Bach of Shapiro Arato Bach, Stacey Richman of Richman Hill, and Scott Edelman of Milbank (who took time away from his day job of raising associate salaries to try a case). The defense contended that had the prosecutors done their due diligence, they would have learned that the manuscripts… weren’t stolen. Oops.

In memoriam: Alan Stephenson, a longtime M&A partner at Cravath Swaine & Moore, passed away last month at 79. May he rest in peace.

Judge of the Week: Chief Justice John Roberts.

In our December podcast episode, 2023 Year In Review And 2024 Predictions, Sarah Isgur of Advisory Opinions said that this year would be a big one for Chief Justice John Roberts. She described him as “created in a Petri dish” to try to shepherd the Supreme Court through high-stakes, controversial cases like Trump v. Anderson, in which SCOTUS ruled unanimously in favor of keeping Trump on the Republican primary ballot in Colorado (discussed below as Ruling of the Week).

I reached out to ask Isgur: what letter grade would she give the Chief on Trump v. Anderson, where the justices were united on outcome but divided on reasoning? Here’s what she had to say:

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As I expected, I received a fair amount of criticism over my open letter to Crystal Clanton. But the content of the criticism surprised me.

I thought I would receive complaints from readers who wanted me to speak more harshly about Crystal, a future law clerk to Justice Clarence Thomas who allegedly sent racist text messages to a co-worker around nine years ago. Instead, I received complaints from readers who disagreed—strongly—with my advice that Crystal engage with her critics.

Their argument, in a nutshell: Crystal’s critics aren’t acting in good faith; they’re simply looking for ways to attack outspoken conservatives like her and Justice Thomas. Since the haters will never accept either (1) exculpatory evidence if she’s innocent or (2) an apology if she’s guilty, she should ignore them—and get on with her career and her life.

In my open letter, I mentioned that if someone accused me of sending racist texts, I’d hire a defamation lawyer. One of the lawyers I had in mind was Libby Locke, co-founder of Clare Locke, one of the nation’s top plaintiff-side defamation firms. I interviewed Libby and Tom Clare, her partner in both law and life, for my podcast—shortly after they helped secure a $787.5 million settlement for their client, Dominion Voting Systems, in Dominion v. Fox.

I heard from Libby after publishing my Crystal Clanton post. Libby respectfully disagreed with my advice, and I appreciated her perspective as a seasoned defamation and crisis-management lawyer.

Given my commitment to free speech and viewpoint diversity, I’m always happy to share opinions that differ from my own. So here’s what Libby had to say, which I’ve turned into the form of a Q&A.

David Lat: So, Libby, where did I go wrong in my advice to Crystal Clanton?

Libby Locke: I often agree with your analysis, David, but you’re totally wrong on this situation. Your advice is that of… a journalist!

DL: Fair enough, since that’s what I am. And I’ll confess that the conceit of an open letter to Crystal Clanton was partly my device for getting into this story as a journalist.

But what’s so problematic about advising Crystal from a journalist’s perspective?

LL: Your advice was given through the lens of putting the public’s perception and optics first and foremost, not necessarily Crystal’s best interests. Those things can be—and quite often are—very different.

DL: Say more. Isn’t it in Crystal’s interest to rehabilitate her reputation?

LL: Here’s the bottom line: she’s winning! She’s clerking on the U.S. Supreme Court for Justice Thomas, after a clerkship with Chief Judge Pryor. What more could a young conservative lawyer ask for? And no matter what she says, she will never appease or convince those who are out to get her.

DL: Well, let’s go through the two scenarios outlined in my letter.

First, let’s say she never sent any racist texts, but was instead framed by ex-colleagues out to get her. Why wouldn’t she want to clear her name?

LL: By making statements about those who framed her, she’s giving them a defamation lawsuit. She will draw into discovery those around her whom she loves and respects, who have mentored her over the years.

Can you imagine Chief Judge Pryor or Justice Thomas having to sit for depositions? And the years of additional media attention should such a claim be filed? And the significant risk that the lawsuit doesn’t actually result in an adjudication of the issue on the merits?

And let’s say that, after years of litigation, she somehow ultimately prevails. Do you really think the same press breathlessly reporting on the issue over the past few months will do vindication pieces for Crystal at the end of the case? Zero chance. “Editorial discretion” about what to cover and what’s “newsworthy” and all that nonsense will be the excuses invoked for not covering anything positive about her.

I’m usually in the camp of advising clients to give firm denials, but in this situation, given the facts as they now stand—including the statement she previously gave to Jane Mayer—Crystal is doing 100 percent the right thing by ignoring the noise, addressing the situation privately on an as-needed basis, and working hard and kicking butt in her clerkships.

DL: Fair points. You’re persuading me that this could turn out to be a giant mess—not just for her but also for Chief Judge Pryor and Justice and Mrs. Thomas, even if Crystal is innocent.

But let’s say she’s guilty. Let’s say she sent the racist texts. Why shouldn’t she confess and apologize?

LL: Even if she admits she sent the texts, she’ll never be forgiven by her detractors. It will only tarnish Pryor’s and Thomas’s reputations, as well as the reputations of Turning Point USA and Ginni Thomas—the very people and institutions who are making her a winner in this battle.

DL: Look, I’m the last person to minimize the importance of a SCOTUS clerkship. But it’s the starting point of a career, not the end.

As things currently stand, Crystal can have a great legal career, but only if she stays on the conservative side of the aisle. After her clerkship with Justice Thomas, I’m sure she could get a job at a right-of-center litigation boutique like Cooper & Kirk or Consovoy McCarthy. But as long as this cloud hangs over her, there will be some opportunities that will be forever off-limits to Crystal. She’ll never work in Biglaw. She’ll never be a federal judge.

Aren’t those factors worth considering?

LL: Crystal isn’t limited to Cooper & Kirk or Consovoy. We’d love to hire her here at Clare Locke! And why would she want to go to Biglaw when she has these other opportunities on the table? Why would she pick the JV squad when she can play in the NFL?

DL: Ha! Fair enough. Thank you for your time and insights, Libby; I appreciate your wisdom, and I suspect that Crystal will as well.

Readers, what do you think? As always, I welcome your views in the comments.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Would you leave a thriving law firm to strike out on your own? Many risk-averse lawyers would not, but David Elsberg has done so—twice.

In 2018, David left Quinn Emanuel to launch Selendy Gay, later Selendy Gay Elsberg—which today is one of the nation’s top litigation boutiques. Then last month, he made the news again with the launch of Elsberg Baker & Maruri, which he co-founded with former colleagues from both Quinn Emanuel and Selendy Gay.

David is one of the country’s leading commercial litigators—according to Chambers, Law360, Lawdragon, and Benchmark Litigation—and in this new episode of the Original Jurisdiction podcast, we discussed his career as a trial lawyer. But I was just as interested in getting his thoughts on two topics that have been on my mind a fair amount lately.

First, why are so many great lawyers, especially litigators, leaving Biglaw to launch boutiques? And second, if you could design a law firm from the ground up, how would you structure it? David and his new partners have put a lot of thought into institutional design—and their firm bucks Biglaw trends in several different ways, as he explained to me in our conversation.

Congratulations and good luck to David and his colleagues on the launch of their new firm. Based on his track record as both a litigator and a founder, I’m predicting great success for David and Elsberg Baker & Maruri.

Show Notes:

David Elsberg bio, Elsberg Baker & Maruri PLLC
Wall Street Litigation Firm Starts With Selendy Gay Recruits, by Tatyana Monnay for Bloomberg Law
Selendy Gay Founder, Quinn Emanuel Partners To Form New Law Firm, by Sara Merken for Reuters
Selendy Gay’s David Elsberg, Quinn Emanuel Partners To Launch New Litigation Boutique, by Dan Roe for the New York Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

David Elsberg (courtesy photo) Read more

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Judge Steve C. Jones (N.D. Ga.), delivering the 2020 Martin Luther King Jr. Freedom Breakfast lecture at the University of Georgia (screenshot via YouTube).Labor Day is supposed to mark the unofficial end of summer, but this year it didn’t mark the end of brutal heat. I spent most of the week indoors, in air conditioning. But Zach and I did venture into Manhattan on Saturday to attend a wonderful celebration marking the 25th judicial anniversary of Zach’s former boss, Judge Robert D. Sack of the Second Circuit. It was great to see Judge and Mrs. Sack, their family, and the “family” of former and current RDS clerks.

Speaking of family, congratulations to Sarah Isgur of Advisory Opinions (AO) on the latest addition to hers: Cavan (“Case”) Walter Keller. They’re both doing well, as are Cavan’s older brother Nate and “Husband of the Pod” Scott Keller. I continue to enjoy co-hosting AO with David French while Sarah is out on parental leave, as I did on Tuesday and Thursday, but fear not, loyal listeners—Sarah will be back soon.

Now, on to the news.

Lawyers of the Week: Paul Clement, Andrew Goldsmith, Mark Hansen, and Derek Ho.

In my recent podcast interview with Christopher Bogart, co-founder and CEO of Burford Capital, the world's largest litigation-finance firm, we discussed Burford’s investment in a multibillion-dollar litigation against Argentina, arising out of its expropriation of the national oil company, YPF. At the time of our conversation, the trial before Judge Loretta Preska (S.D.N.Y.) had been completed, but Burford was still waiting on a ruling. Bogart told me that Argentina could end up owing anywhere from $5 to $10 billion.

On Friday, Judge Preska issued her opinion, so we now have a damages number. And it’s significantly larger than $10 billion: according to Bloomberg Law, a whopping $16 billion, consisting of $8.4 billion in damages and $7.6 billion in interest. Speaking to the Wall Street Journal, Bogart hailed the ruling as an “extraordinary win” and “a major milestone for Burford.” His co-founder, chief investment officer Jonathan Molot, explained that it was hard-fought: “We have been pursuing this case since 2015, and it has involved substantial Burford management time along with the dedicated engagement of a team of some of the best lawyers on the planet from multiple law firms and world-class experts (going up against very good lawyers, and winning).”

As you’d expect given the billions on the line, Argentina retained excellent trial counsel: a Sullivan & Cromwell team led by Robert Giuffra, co-chair of S&C and a go-to lawyer for bet-the-company cases. But in the end, victory went to Burford’s team of Paul Clement, the legendary Supreme Court and appellate advocate (and also a past podcast guest), and his co-counsel at one of the nation’s finest litigation firms, Kellogg Hansen—specifically, name partner Mark Hansen and two of his longtime colleagues, Derek Ho and Andrew Goldsmith. Congratulations to them on an epic win, which according to Burford is the largest judgment in the history of the Southern District of New York—a leading venue for high-stakes cases.

Runner-up for Lawyer of the Week: Kerri Ruttenberg, former head of litigation at Walmart. She went viral after announcing her retirement, at the tender age of 47, in a LinkedIn post that has garnered almost 50,000 views. I was initially surprised by how much traction her announcement received; it struck me as just a classic Financial Independence Retire Early (FIRE) success story. But after skimming the 500-plus comments, and noticing kudos to Ruttenberg from seemingly every lawyer I know, I concluded that it’s because she’s such a well-liked and well-respected figure in the legal community. Kudos to Kerri Ruttenberg on achieving her goal. (But as someone who’s around her age, I have no desire to retire myself; I enjoy what I do, have good work-life balance, and am grateful to you, my subscribers, for making it possible.)

In memoriam:

Sarah Wunsch—a civil-rights champion, who served as deputy legal director of the ACLU of Massachusetts for almost 30 years—passed away at 75.
John “Mac” MacMurray—co-founder of Reboul MacMurray, then a partner at Ropes & Gray after the firms merged—passed away at 84.

May they rest in peace.

Judge of the Week: Justice Brett Kavanaugh.

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As a new academic year gets underway, many of us are wondering: what law-school scandals lie in store? To discuss current hot-button issues facing legal academia, including free speech, intellectual diversity, and affirmative action, I could think of no better podcast guest than Professor Amy Chua. As a longtime member of the Yale Law School faculty, she’s had a front-row seat to—and personal involvement in—several of YLS’s recent controversies.

Yale Law insanity aside, there was another reason I wanted to interview Amy, the author of two New York Times bestsellers—most notably, her 2011 memoir, Battle Hymn of the Tiger Mother (2011). This month, Minotaur Books, Macmillan’s mystery- and thriller-focused imprint, is publishing her first novel, The Golden Gate. I devoured it in two days, and I can attest that it’s a great read—a historically rich page-turner that will teach you about California history while keeping you on the edge of your seat.

One other thing: loyal listeners might notice this episode is going up on Thursday rather than its usual day of Wednesday. There’s a good reason for that: my sound engineer Tommy Harron and his wife just welcomed their second child to the world. Congratulations to them on this great news.

Show Notes:

Amy Chua bio, Yale Law School
The Golden Gate, Amazon
All About Amy (Chua), The Law Professor We Can't Stop Talking About, by David Lat for Original Jurisdiction

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Professor Amy Chua (courtesy photo by Joel Griffith). Read more

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Justices Amy Coney Barrett and Clarence Thomas (by Tasos Katopodis via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Happy Labor Day. I hope you’re enjoying a respite from your labors. I took the liberty of taking it easy this weekend, spending it barbecuing, baking, and boating with Harlan, which is why this edition of Judicial Notice is a bit late. But presumably you had better things to do this holiday weekend than wait for my roundup of legal news.

The highlight of last week for me was joining David French to co-host Advisory Opinions (AO) on Tuesday and Thursday, while Sarah Isgur is out on parental leave. Like the readers of Original Jurisdiction, the listeners of AO are a lovely group—smart, sophisticated, and civil. Who knew that such existed on the internet? I also published a new Supreme Court clerk hiring roundup, featuring an updated ranking of feeder judges and linking to an interesting list by Firm Prospects of the law firms that hire the most law clerks—not just SCOTUS clerks, but circuit, district, and state-court clerks.

Now, on to the news.

Lawyer of the Week: Elliot Berke.

On Thursday morning, Justices Clarence Thomas and Samuel Alito released their financial disclosures for 2022, for which they had requested extensions. Justice Alito’s disclosure wasn’t exciting, but Justice Thomas’s disclosure was. As I previously explained, Justice Thomas went back through years of past disclosures and either provided additional information or explained why it wasn’t required. He was aided in this effort by an accounting firm, Flynn Abell Nixon LLC, and a law firm, the D.C. boutique of Berke Farah LLP—specifically, founding partner Elliot Berke. A graduate of Emory Law, former partner at McGuireWoods, and former lawyer on Capitol Hill, Berke is Chambers-ranked in “Political Law.” His retention by Justice Thomas might reflect how the justice himself views the matter: as a political one.

As a member of the Supreme Court, Justice Thomas had to show restraint in responding to the ethics allegations against him, but his lawyer didn’t. On his website, Elliot Berke posted a lengthy statement that Jess Bravin of the Wall Street Journal described as “a blistering attack on the justice’s critics.” Berke laced into “left-wing ‘watchdog’ groups” for their “calumny,” condemning their attacks on Justice Thomas as “nothing less than ridiculous and dangerous,” which “set a terrible precedent for political blood sport through federal ethics filings.”

Justice Thomas’s financial disclosure and Berke’s statement came out around the same time as a letter signed by 112 former Thomas clerks—which I’m guessing Berke either orchestrated or was heavily involved with. Defending their former boss, the Thomas alumni declared that “[h]is integrity is unimpeachable,” “his independence is unshakable,” and the “malicious” attacks on him “are part of a larger attack on the Court and its legitimacy as an institution.” As noted by Fox News, the 112 signatories included three circuit judges—Judges James Ho (5th Cir.), David Stras (8th Cir.), and Allison Rushing (4th Cir.)—as well as current and former solicitors general, general counsel, law firm partners, and law professors.

Not surprisingly, Berke’s efforts didn’t win over his client’s critics. Virginia Canter of Citizens for Responsibility and Ethics in Washington (CREW) told Bloomberg Law that Justice Thomas “had to go out and hire somebody to defend the indefensible.” Over at Slate, Dahlia Lithwick and Mark Joseph Stern wrote, “Berke alleges that the new report ‘utterly refutes’ all criticism of Thomas’ ethics, when it actually validates them: If the justice had been following the law this whole time, there would be no need for pages and pages of major corrections!” But I’m guessing that Elliot Berke—a veteran of numerous Beltway battles, whose other controversial clients include House Speaker Kevin McCarthy (R-Cal..)—isn’t sweating it.

On the subject of SCOTUS ethics, here’s a perhaps surprising aside: if you’re assuming it’s Justices Thomas and Alito who oppose the Court’s adoption of a code of ethics, that’s not necessarily correct, at least as to Justice Alito. Per the WSJ, when Legal Counsel of the Supreme Court Ethan Torrey prepared a draft ethics code last year, Justice Alito offered proposed revisions, instead of trying to kill it altogether.

Another lawyer in the news: acclaimed Supreme Court advocate (and Original Jurisdiction podcast guest) Neal Katyal. He was one of thousands to have the misfortune of attending this year’s Burning Man festival, hit with epic rain and mud. Fortunately, he made it out safely (although his taste in shirts and footwear did not). If you haven’t already, check out his great new podcast, Courtside.

In memoriam:

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A clerk walking the halls of the U.S. Supreme Court (photo by David Lat).This morning, Justices Clarence Thomas and Samuel Alito released their financial disclosures for 2022, for which they had requested extensions. Justice Alito’s disclosure was unremarkable, but Justice Thomas’s disclosure was unusual and interesting—especially Section VIII (pp. 7-8), “Additional Information or Explanations.”

Justice Thomas followed my advice: “If and when Justice Thomas hires new and better lawyers and accountants, they should go back and audit all of his past disclosures, fixing any and all errors and omissions they notice.” From his new disclosure:

During the preparation and filing of this report, filer sought and received guidance from the Supreme Court’s Legal Office, the Counselor to the Chief Justice,
the staff of the Judicial Conference Financial Disclosure Committee (“Committee”), and personal counsel. Filer continues to work with Supreme Court officials and the Committee staff for guidance on whether he should further amend his reports from any prior years.

Based on those discussions, the information below addresses the new travel disclosure requirements which began coverage with calendar year 2022, personal bank accounts and his spouse’s life insurance that were inadvertently omitted from prior reports for the covered period 2017 thru 2021, mistaken name of spouse’s family real estate holding, and a real estate transaction that predated the covered period.

The disclosure then discusses three subjects in greater detail: “Travel”; “Bank Accounts, Spouse’s Life Insurance, & Family Real Estate Holding”; and “Savannah Real Estate Transaction.” Under each category, the disclosure provides detailed information or explains why more-detailed information is not required. This strikes me as a demonstration of good faith on the part of Justice Thomas. But some critics remain unsatisfied—see, e.g., Fix the Court (criticizing the new disclosures from both Justices Thomas and Alito).

Note that today’s new disclosures cover calendar year 2022. In light of the greater scrutiny their travels are getting these days, from media organizations like ProPublica and groups like Fix the Court, I wonder whether the justices changed their behavior in 2023—especially during the summer that’s now drawing to a close, which is when they typically take big trips. For example, did Justice Clarence Thomas stick to the Walmart parking lots, eschewing the private jets and yachts of wealthy friends like Harlan Crow? I guess we’ll see when their 2023 financial disclosures come out—disclosures that now explicitly require them to list private-jet travel, no longer considering it a form of “personal hospitality.”

While we wait for the justices to return to One First Street for the “long conference” on September 26, let’s turn our attention to the folks who are stuck in the building: the newest crop of Supreme Court clerks, who arrived in July. The Court’s Public Information Office kindly provided me with its official list of law clerks for October Term 2023 (OT 2023), which I compared to the list from my last SCOTUS clerk hiring roundup, and all my information checked out. I fixed a few minor errors regarding clerkship order—in the parentheticals after each clerk’s name, I try to list their clerkships in chronological order, and I messed a few of these up—but all my clerk names, law schools, and prior clerkships were correct. (The one thing the official list contained that I hadn’t previously reported was the identity of retired Justice Stephen Breyer’s clerk: Frank “Cody” Kahoe III (Stanford 2021 / Berzon / Cooper (D.D.C.)).)

Now that I have the information for all 38 clerks, officially confirmed by the Supreme Court itself, I can conduct the demographic analysis that I perform every year. Let’s get to it, shall we?

1. Gender. The OT 2023 class contains 38 clerks—four for each active justice, plus one each for retired Justices Anthony Kennedy and Stephen Breyer (who will work in the chambers of an active justice in addition to assisting their retired bosses with various projects). Of the 38 clerks, 23 are men and 15 are women, making for a class that’s 61 percent male and 39 percent female. This is more balanced than the OT 2022 class, which was 66 percent male and 34 percent female, but less balanced than the OT 2021 class, which was 51 percent male and 49 percent female. I’d say a 61-39 split is roughly in line with the recent historical average.

All nine of the active justices have at least one female clerk. Four justices—Justices Clarence Thomas, Sonia Sotomayor, Brett Kavanaugh, and Ketanji Brown Jackson—have two female clerks. One justice, Justice Elena Kagan, has three female clerks.

2. Feeder schools. The OT 2023 clerk class hailed from 13 law schools, which by SCOTUS standards is on the high side. It’s up from 10 law schools for OT 2022 and 12 schools for OT 2021. Here’s the ranking, with the number of clerks noted parenthetically:

Harvard (10)
Yale (10)
Stanford (5)
Chicago (3)
UVA (2)
Alabama (1)
BYU (1)
BU Law (1)
Cornell (1)
Georgetown (1)
Michigan (1)
Northwestern (1)
Texas (1)

Last Term, Yale was #1 with 12 clerks and Harvard was #2 with 8 clerks; this Term, the two schools tied, with ten apiece. With 20 clerks between them, Harvard and Yale accounted for more than half of OT 2023 clerks (53 percent). The clerks’ alma maters are at least more diverse than the justices—four Harvard grads, four Yale grads, and one Notre Dame grad (so 89 percent from Harvard or Yale).

3. Feeder judges. Some 48 different judges sent clerks to the Court this Term, which is on the high side—higher than the 43 in OT 2022, 46 in OT 2021, and 39 in OT 2020. Here are the 13 feeder judges with more than one clerk at the Court for OT 2023, with the number of clerks noted parenthetically:

Thapar (6)
Katsas (4)
W. Pryor (4)
Bibas (3)
Grant (3)
Friedrich (D.D.C.) (3)
Kovner (E.D.N.Y.) (3)
Berzon (2)
Newsom (2)
Oldham (2)
Pillard (2)
Srinivasan (2)
Wilkinson (2)

The ranking above, however, is just for a single Term. To get a more accurate sense of feeding power, you should look at feeder judges over multiple Terms. I tend to like five-year spans; five years is a long-enough period to capture significant feeders, but not so long that you’re getting outdated ones.

While you wait for me to update my last five-year ranking of feeder judges, feast your eyes on this ranking from a great National Law Journal article by Avalon Zoppo. The article was published last month and covers OT 2019 through OT 2024—but as explained in the footnote, the OT 2024 analysis is incomplete because we don’t have the Supreme Court’s official roster for that Term:

Zoppo’s ranking is based on the six most-recent Terms (including OT 2024, whose clerks won’t start for a year). Looking back over a longer period, she notes that “[p]rominent feeder judges over the past 20 years have included Fourth Circuit Judge J. Harvie Wilkinson III and Ninth Circuit Judge Diarmuid F. O’Scannlain” (my former boss—and I’d like to wish him and Maura, “Mrs. O” to the DFO clerk family, a happy 60th wedding anniversary). To that list I would also add current attorney general and former D.C. circuit judge Merrick Garland—a literal “feeder judge,” adept at scooping ice cream:

Attorney General Garland, serving ice cream at the Justice Department’s Employee Appreciation Day.4. Miscellaneous observations (which I encourage you to supplement with your own, in the comments):

I have previously praised the unique clerk hiring process of Justice Ketanji Brown Jackson, which is the most formal—and, I’d argue, the most transparent and fair—approach to hiring. She just issued the letter outlining her process for hiring her OT 2024 clerks, which was posted on the AALS Deans listserv by Dean Roger Fairfax of the American University Washington College of Law. So to my law-student readers, your law school career services office (CSO) should have a copy of this letter; but if your dean failed to pass it along to your school’s CSO, I have posted it below. Considering Justice Jackson’s commitment to a fair and transparent process, I’m guessing she doesn’t have a problem with her hiring process—which is, again, an excellent process—being made public.
The process outlined in her latest letter is substantially similar to her process for the last cycle. I prepared a redline (or blackline?) version against last year’s letter, and here’s what is different in the new letter:
- a requirement that applicants “have completed an appellate clerkship at the state or federal level” before their KBJ clerkship (before such a clerkship was optional);
- a clarification, now that she’s no longer in her first Term, that “[a]pplicants who previously submitted materials will be reconsidered if they resubmit a complete and updated application”;
- a statement that the applicant’s cover letter should explain their application “in narrative form” (which I’m guessing means not just bullets of résumé items, since she can see those on your résumé);
- an explanation that recommendation letters should be emailed “by the recommender” (as opposed to the applicant, presumably); and
- additional explanation of what she’d like to see in a recommendation, noting that “the most effective recommendation letters will speak directly to the [applicant’s] skills and characteristics… on the basis of the recommender’s firsthand experience. In particular, recommenders should highlight the applicant’s ability to orally communicate complex concepts.”
- The trend of doing multiple prior clerkships before a SCOTUS clerkship has gotten stronger over the years. This is something I’ve noted in these pages many times before, but now we have some hard data, courtesy of Professor Derek Muller at Excess of Democracy (via Karen Sloan of Reuters). He noted that for OT 2003, twenty years ago, 33 out of 35 clerks (to the active justices) had just one prior clerkship; for OT 2013, ten years ago, 25 clerks had one prior clerkship, while 11 had two; and for OT 2023, only 7 of 36 clerks had one prior clerkship—i.e., 29 clerks came to One First Street with multiple clerkships.
- Another trend among SCOTUS clerks revealed in Muller’s data: the increasing popularity of two federal-appellate aka circuit clerkships (as opposed to a circuit- and a district-court clerkship, or a federal clerkship and a state clerkship). Of the 29 clerks for OT 2023 with multiple prior clerkships, 11 had two prior circuit clerkships—which used to be unheard-of.
- Here’s another statistic that demonstrates the phenomenon: the 38 law clerks for OT 2023 completed a total of 73 clerkships, which works out to an average of 1.9 clerkships per clerk. That’s almost double the figure from OT 2003, when it was basically one clerk, one prior clerkship.
- In recent roundups, I have pointed out fun facts about SCOTUS clerks being related to prominent people in the legal profession, former SCOTUS clerks, and the like. I won’t repeat all those observations here, but I do have one to add that I missed: Nathaniel Sutton (UVA 2021 / Bress / W. Pryor), clerking for Justice Amy Coney Barrett in OT 2023, is the son of Chief Judge Jeffrey Sutton (to whom Nathaniel dedicated his student note for the Virginia Law Review).
- The October Term 2022 clerks have left the building, and in a few months—after lavish, Harlan Crow-esque vacations, funded by their eye-popping SCOTUS clerk signing bonuses (email me if you know the latest going rate, subject line “SCOTUS Clerk Bonuses”)—the former clerks will start at law firms. Which law firms have hired the most clerks—not just SCOTUS clerks, but also circuit-, district-, and state-high-court court clerks—over the past three years? Over at LinkedIn, Adam Oliver of Firm Prospects, a treasure trove of data about legal hiring, has the rankings.

Okay, that should suffice for now. As always, if you have hiring news that I have not yet reported or any updates or corrections, please reach out by email (davidlat@substack.com) or text (917-397-2751). Be sure to include the words “SCOTUS Clerk Hiring” in your email or text message.

Below please find two items: (1) the letter sent by the chambers of Justice Jackson to clerkship applicants, which outlines her process, and (2) updated SCOTUS clerk hiring lists, for paid subscribers to Original Jurisdiction. Enjoy!

LETTER FROM THE CHAMBERS OF JUSTICE KETANJI BROWN JACKSON TO CLERKSHIP APPLICANTS

Dear applicant:

Thank you for your interest in applying for a clerkship in Justice Jackson’s chambers. Justice Jackson seeks clerks with excellent legal research and writing skills, proficiency managing complex and competing workflows, and the ability to overcome challenges. She is also interested in clerks who are committed to pursuing equal justice under law, and who bring to chambers valuable professional and personal experience that is relevant to the work of the Supreme Court. For October Term 2024, Justice Jackson will only consider applicants who have completed an appellate clerkship at the state or federal level by January 1, 2024.

Justice Jackson will begin considering applicants for OT 2024 in October of 2023. All materials must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before October 1, 2023. Applicants who previously submitted materials will be reconsidered if they resubmit a complete and updated application. The subject line of the email and the name of the attached PDF file of materials should be in the following format: Last Name, First Name OT 2024 Clerkship Application. Materials must be combined into a single PDF file in the order listed below:

Cover letter of no more than 500 words. Successful applicants will use the cover letter to explain their interest in clerking for Justice Jackson and to highlight, in narrative form, the skills and characteristics identified in the first paragraph above. The most effective cover letters will provide different insight into an applicant’s experience from other application materials.
Resume of no more than two pages.
Official law school transcript.
Official transcripts from undergraduate and any other graduate institutions.
List of professional references. The list should include at least four, but no more than six, professional references. Please briefly explain how long and in what context you have worked with each reference. Please also indicate at least two, but no more than four, of the listed references who will provide a letter of recommendation.
- All recommendation letters must be emailed by the recommender to JusticeJackson_Clerkships@supremecourt.gov on or before October 1, 2023. The subject line of the email and the name of the attached PDF letter should be in the following format: Applicant Last Name, Applicant First Name OT 2024 Letter of Recommendation, Recommender Last Name, Recommender First Name.
- The most effective recommendation letters will speak directly to the skills and characteristics identified in the first paragraph above, on the basis of the recommender’s first-hand experience. In particular, recommenders should highlight the applicant’s ability to orally communicate complex concepts.

Justice Jackson may later ask some applicants to provide existing writing samples or to draft an original sample in response to a prompt.

No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.

Justice Jackson thanks you for your interest in clerking for her and looks forward to reviewing your application materials in due course.

Best regards,
The Chambers of Justice Ketanji Brown Jackson

For paid subscribers to Original Jurisdiction, I have provided below my lists of the October Term 2023 and October Term 2024 Supreme Court clerk classes.

Once again, if you have hiring news that I have not yet reported or any updates or corrections, please reach out by email (davidlat@substack.com) or text (917-397-2751). Gracias!

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Trump's latest celebrity lawyer, lawsuits against three top Biglaw firms, another Cravath partner departure, and other legal news from the week that was.

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Listen now (46 minutes) | A longtime advocate for SCOTUS reform analyzes—and offers numerical scores for—the justices' recent ethics controversies.

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Judge Eunice Lee (2d Cir.), testifying before the Senate Judiciary Committee (screenshot via YouTube).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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This episode of Judicial Notice is brought to you by… my husband Zach. He took our son Harlan on a Catksills camping trip, while I enjoyed a weekend of “me time.” Yesterday I went for a jog, attended a gym class, and took a nap in the middle of the afternoon. It was glorious. (And no way was I going camping, which I did for the first and last time in 1992; I consider camping a supposedly fun thing I’ll never do again.)

Since Monday was Memorial Day, it was a short week, which made for not much news—and I’m not complaining. I’m trying to make myself presentable for my birthday in a few weeks, so I’m on a diet and exercise regimen, and the relaxed news cycle allowed me to get in lots of walking and running, multiple visits to the gym, and decent sleep.

Now, on to the news.

Lawyers of the Week: John Barber and Jeff Ranen.

If you’re a lawyer, you generally don’t want to appear in the New York Post (unless it’s Page Six, and you’re Alex Spiro defending a new celebrity client). Alas, the Post is where John Barber and Jeff Ranen, who recently left Lewis Brisbois to launch their own employment-focused firm, Barber Ranen, now find themselves.

Yesterday the Post published what appear to be internal emails from the duo, sent while they were still working at Lewis Brisbois, that contain highly offensive language—including but not limited to slurs for women, African Americans, and gays, beginning with the letters “c,” “n,” and “f,” respectively. The Post said it obtained the emails from Lewis Brisbois, which claimed it uncovered them in the course of investigating a complaint made to management about Barber and Ranen after their departure. The firm told the Post it was “shocked to find dozens of emails between John Barber and Jeff Ranen containing highly inappropriate and offensive content,” including “slurs aimed at colleagues, clients, attorneys from other firms, and even judges,” and it is continuing to investigate its former partners. (Barber and Ranen did not respond to multiple requests for comment from the Post.)

If the Post’s reporting is accurate and the emails are authentic, the story is rather ironic. First, Barber and Ranen claimed they left Lewis Brisbois to build a firm “that’s reflective of our values and our beliefs,” such as “empathy, collaboration, and compassion.” Second, the two partners focus on defense-side employment litigation and counseling—i.e., defending employers in discrimination lawsuits, plus keeping them out of litigation in the first place. Physician, heal thyself.

This isn’t the first wave of bad publicity to come in the wake of Barber and Ranen leaving Lewis Brisbois. Last month, a 2019 whistleblower letter by former Lewis Brisbois COO Robert Kamins, alleging shady financial practices at the Lewis firm, somehow became public. Kamins is, interestingly enough, now the acting COO of Barber Ranen. So if the Barber Ranen folks want to accuse Lewis Brisbois of playing dirty by providing their old emails to the Post, they might have to answer for some actions of their own. Regardless of whose side you take, here’s one thing we can all agree on: this is the ugliest law firm split in a long, long time.

Runner-up for Lawyer of the Week: Anthony Orlich, who also showed up in the New York Post. While walking around Manhattan at night, he allegedly snatched a wig off the head of a young Black woman whom he did not know. She confronted him, asking him why he did what he did; he responded by smirking at her and refusing to apologize. Unfortunately for Orlich, the woman, Brooklyn singer Lizzy Ashleigh, recorded video of their confrontation and posted it to TikTok—where it quickly went viral, racking up more than 600,000 views.

Based on the video, Orlich was quickly identified as the apparent perpetrator, then fired. The litigation boutique that previously employed him, Leader Berkon Colao & Silverstein, posted the following on LinkedIn: “We have been made aware of a video of a non-work related incident involving one of our associates circulating on social media. We take seriously any inappropriate behavior by any employee, whether inside or outside the workplace. This associate is no longer with the Firm.”

In memoriam: Harvey Pitt—the youngest general counsel in the history of the Securities and Exchange Commission (SEC), who became GC at the age of 30, then later led the SEC as chair—passed away at 78. May he rest in peace.

Judge of the Week: Judge Brantley Starr.

Remember the debacle I discussed last week involving lawyers who filed a brief replete with multiple citations to fake cases, courtesy of ChatGPT? One judge is already taking action to prevent that from happening in his court.

A Supposedly Fun Thing I'll Never Do Again: Essays and Arguments

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Tomorrow is the first day of June, LGBTQ Pride Month. Happy Pride!

In honor of the occasion, I interviewed Alejandra Caraballo, one of the nation’s most prominent advocates for—and authorities on—transgender rights. She is a clinical instructor at Harvard Law School, where she and Anya Marino are the first transgender women of color to teach at HLS. Before entering academia, Alejandra worked as a litigator at the Transgender Legal Defense and Education Fund and the LGBTQ Law Project at the New York Legal Assistance Group.

In my “stump speech” about free speech and ideological diversity in the legal profession, I urge my listeners to seek out and engage with people they disagree with. Following my own advice, I reached out to Alejandra, with whom I have frequently sparred on Twitter. She was kind enough to join me for a discussion that covered controversial and sensitive subjects, including trans athletes participating in girls and women’s sports, the access of children and teens to gender-affirming care, and more.

My thanks to Alejandra for her willingness to engage in good-faith debate. You can listen to our candid conversation via the embed at the top of this post, or through Apple Podcasts, Spotify, or your podcasting platform of choice.

Show Notes:

Alejandra Caraballo bio, Harvard Law School
Meet the First Trans Women of Color to Teach at Harvard Law, by Orion Rummler for The 19th
Alejandra Caraballo (@Esqueer_), Twitter

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

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New SCOTUS besties? Justice Ketanji Brown Jackson and Justice Neil M. Gorsuch (via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Greetings from the Berkshires, where Zach and Harlan and I are spending the Memorial Day weekend with Zach’s family. The weather has been amazing, and it’s nice to decompress after a busy week.

On Monday, I joined Irene Liu of Berkeley Law on her Coffee Break webinar, discussing current trends in the legal industry. On Tuesday, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, interviewing Ed Wisneski of Rimon Law—listen and learn about the firm’s innovative business model, incredible growth, and how to pronounce “Rimon.” On Wednesday, I spoke at Boies Schiller Flexner for Asian American and Pacific Islander Heritage Month, engaging in a “fireside chat” with Virginia Su about the progress made by the AAPI community in the legal profession. May is pretty much done, but June is just around the corner; if you’re looking for a speaker for Pride Month, whether in-person or over Zoom, drop me a line.

In terms of media mentions, I received a shoutout in this great New York Times piece about Dominion v. Fox, for my March 2021 interview of Viet Dinh, chief legal and policy officer at Fox. If you’re curious about how that $787.5 million settlement came into being from the Fox side, the piece is well worth reading. For a view of the case from the Dominion side, check out my podcast interview with Tom Clare and Libby Locke of Clare Locke, one of the law firms that represented Dominion.

Now, on to the news.

Lawyers of the Week: Steven Schwartz and Peter LoDuca.

When it comes to artificial intelligence, my view can be summed up by screenwriter William Goldman’s famous quip about Hollywood: “Nobody knows anything.” It’s far too early to assess what effect AI will have on society, including but not limited to the legal profession.

Take ChatGPT, the wildly popular chatbot developed by OpenAI. It’s amazingly good—at coming up with martini recipes (or so my martini-loving friends tell me), writing blog posts in the voice of my former colleague Elie Mystal, and… getting lawyers into trouble with the court. From Benjamin Weiser of the New York Times:

The lawsuit began like so many others: A man named Roberto Mata sued the airline Avianca, saying he was injured when a metal serving cart struck his knee during a flight to Kennedy International Airport in New York.

When Avianca asked a Manhattan federal judge to toss out the case, Mr. Mata’s lawyers vehemently objected, submitting a 10-page brief that cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, of course, Varghese v. China Southern Airlines, with its learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.”

There was just one hitch: No one—not the airline’s lawyers, not even the judge himself—could find the decisions or the quotations cited and summarized in the brief.

That was because ChatGPT had invented everything.

Amazing. And now two lawyers representing Mata—Steven Schwartz of Levidow Levidow & Oberman, who “wrote” the brief, and his colleague Peter LoDuca, who put his name on it—are facing possible sanctions. Judge Kevin Castel (S.D.N.Y.) has scheduled a June 8 hearing to discuss how to proceed. (To read the underlying filings, check out this Volokh Conspiracy post by Professor Eugene Volokh.)

I’d urge Judge Castel to go relatively easy on Schwartz and LoDuca. I don’t think they intended to mislead the court or opposing counsel; they were just… boneheads. And their epic fail has actually provided a valuable lesson to lawyers across the country: when it comes to ChatGPT, trust (a little), then verify—a lot, using sources other than ChatGPT itself. (According to an appendix that Schwartz included with his affidavit, he asked ChatGPT questions like “is varghese a real case,” and ChatGPT responded, with its trademark confidence, “Yes, Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 (11th Cir. 2019), is a real case…. and can be found on legal research databases such as Westlaw and LexisNexis.”)

Some of my snobbier readers might be thinking, “These are amateurish mistakes by a bunch of personal-injury lawyers—this would never happen in Biglaw.” If that’s your reaction, think again—at least when it comes to work product from junior associates. According to Professor Dennis Crouch (also via Volokh), one Biglaw partner recently reported receiving memos with fake case cites from at least two different associates. When I speak at law schools, I’m sometimes asked for tips for summer associates, so here’s one: don’t cite fictional cases from ChatGPT. (For additional advice, see Alex Su, one of my favorite folks to read about law and technology; apparently the technical term for AI making s**t up is “hallucination.”)

Runner-up for Lawyer of the Week: Texas Attorney General Ken Paxton, who this weekend became the first statewide officeholder to be impeached in over a century. The vote to impeach him, based on a series of bribery and corruption allegations, was a bipartisan 121-23. I haven’t been following this story too closely, but here are two fun facts: (1) one of the allegations is that he used his office to help a political donor, who then gave Paxton’s mistress a job, and (2) Paxton now faces a trial in the State Senate, where one of the 31 members is… his wife, Senator Angela Paxton.

On a more personal level, I’d like to give a shoutout to my former colleague, V. Grady O’Malley, who after playing in the NBA went on to serve as a federal prosecutor in New Jersey for almost 50 years (1977-2023). Over his long and distinguished career as an assistant U.S. attorney, which was focused on fighting organized crime and labor racketeering, he completed more than 120 federal jury trials—with only three acquittals. This week was his retirement celebration—and it was quite an event, with congratulatory messages from two former U.S. Attorneys for New Jersey, Justice Samuel Alito and former governor Chris Christie; two former AUSAs turned judges, New Jersey Chief Justice Stuart Rabner and Third Circuit Judge Patty Shwartz; and U.S. Attorney General Merrick Garland. I add my kudos to Grady on his remarkable career, as well as my thanks for his many years of public service.

Speaking of legal legends, a leading figure in conservative legal circles, C. Boyden Gray—who served as White House counsel under President George H.W. Bush and ambassador to the European Union under President George W. Bush, among other important government posts—passed away at 80, from a heart ailment. In addition to his obituary in the Washington Post, you can read more personal reflections from Adam Gustafson, one of his former law partners. Boyden Gray, rest in peace.

Judges of the Week: Justices Neil Gorsuch and Ketanji Brown Jackson.

As I’ve made clear in my coverage of free speech and intellectual diversity, I’m a big proponent of finding common ground with people you generally disagree with. So I noticed—and was pleased to see—the interesting alliance that has emerged this Term between Justice Neil Gorsuch, of the conservative wing of the Supreme Court, and Justice Ketanji Brown Jackson, on the other side of the aisle.

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On the left: Lynn Goldsmith’s photo of Prince. On the right: Warhol’s ‘Orange Prince.’ (Images via the U.S. Supreme Court.)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Last week the Supreme Court decided Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, a fascinating case about the “fair use” doctrine in copyright law. I discussed it in last weekend’s Judicial Notice, naming it the Ruling of the Week, but it’s interesting and important enough to merit additional discussion.

And as a longtime blogger who uses images in my work, I’ve dealt on a professional, practical level with fair use—an issue that lawyers generally don’t confront in their day-to-day work (unless they happen to be copyright attorneys). So I have what I think is an unusual perspective on Warhol, which I’ll now share.

I’ll begin with brief background on Warhol. But if you’re familiar with the legal and factual issues in the case, you can skip ahead to the next section.

Here are the facts, as set forth in the opinions of the Supreme Court and Second Circuit. In 1984, Vanity Fair (VF) sought to illustrate a story about Prince, the late musical icon. It paid $400 to Lynn Goldsmith, a leading rock-and-roll photographer, for one-time use of a photo she took of Prince as an “artist reference.” It then hired the famous artist Andy Warhol, who produced one of his signature silkscreens based on Goldsmith’s photo, and that silkscreen was used to illustrate the VF article.

Unbeknownst to Goldsmith, Warhol used her Prince photo to make 15 additional works, 13 silkscreen prints and two pencil illustrations, which together with the VF image constitute the “Prince Series.” After Warhol died in 1987, the Andy Warhol Foundation (AWF) acquired title to and copyright in the Prince Series. AWF sold or otherwise transferred 12 of the physical artworks in the Series to third parties, such as collectors and galleries, and the remaining four went to The Andy Warhol Museum.

AWF retained copyright to the Prince Series images, which it licensed for editorial, commercial, and museum usage. After Prince died in 2016, Condé Nast, Vanity Fair’s parent company, licensed a different work from the Prince Series for the cover of a VF tribute issue to Prince. AWF received $10,000, as well as credit for the image; Lynn Goldsmith received no money or attribution.

Not surprisingly, this all spawned litigation. After Goldsmith wrote to AWF complaining of copyright infringement, AWF sued Goldsmith for a declaratory judgment of non-infringement or fair use, and Goldsmith counterclaimed for infringement. Judge John Koeltl (S.D.N.Y.) granted summary judgment to AWF on fair use, but the Second Circuit reversed. In an opinion by Judge Gerard Lynch, it held that all four factors of the fair-use statute, 17 U.S.C. § 107, favor Goldsmith. Those factors are as follows:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Supreme Court granted certiorari, but narrowed the issues. It agreed to decide only whether the first factor in the fair-use analysis, “the purpose and character of the use,” favors Goldsmith or AWF.

In an opinion by Justice Sonia Sotomayor for seven justices, the Court held that “[o]n that narrow issue” of factor #1, and “limited to the challenged use” (the 2016 commercial licensing to Condé Nast), the first factor favors Goldsmith. Justice Sotomayor stressed the fact that AWF’s challenged use was the same as Goldsmith’s—licensing photos to magazines, for the purpose of illustrating stories—and it was a commercial use, too. To rule against Goldsmith, Justice Sotomayor argued, “would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals.” That would be unfair to the original creators—here, Goldsmith—and it would discourage the creation of artwork in the first place, which the Copyright Act was intended to promote.

Justice Elena Kagan, joined by Chief Justice John Roberts, vigorously dissented. She stressed how greatly Warhol transformed Goldsmith’s photograph, turning it into an original and distinctive work of art with a meaning all its own. Citing numerous examples across different areas of creative endeavor, she explained how much artists rely and draw upon the work of earlier artists in creating new works—and how the law must provide “breathing space” for such borrowing. She warned that the majority’s decision “will impede new art and music and literature,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.”

It’s hard for me to believe, but I’ve been blogging about law and the legal profession for almost two decades—first at Underneath Their Robes (2004-2006), then at Above the Law (2006-2019), and now at Original Jurisdiction. To those of you who followed me back in the UTR days, you’ve been reading me for almost 20 years. We are officially… old. (And I remain, as ever, grateful for your readership and support.)

In the early days of blogging, it was challenging to find images to illustrate blog posts—at least in ways consistent with copyright law, which doesn’t allow you to just grab someone else’s photo and use it to accompany your writing. Stock photo services, which give paying subscribers access to a large number of licensed images that they can use, were not yet widely available and affordable to individual bloggers. And misconceptions about image use ran rampant within the blogging community. For example, many bloggers believed that if a picture appeared on Google Images, then it was fair game to use in a blog post—which is not true. (As for why Google itself isn’t engaged in copyright infringement with Google Images, see Perfect 10, Inc. v. Google Inc., in which the Ninth Circuit held that Google’s creation and display of thumbnail images in Google Images constituted “fair use.”)

As a lawyer, I was more cognizant of the copyright issues than most bloggers. My usual solution was to utilize (pretty amateurish and often ugly) public-domain images in my blogging. Many other bloggers, especially in the text-focused legal world, simply didn’t use images at all, and some well-known bloggers who were around back then still don’t use images today (e.g., Howard Bashman of How Appealing or Michael Dorf of Dorf on Law). To the extent that well-selected visual material can enhance the reading experience, this dearth of images made for a less enjoyable “blogosphere.”

Enter Mario Lavandeira aka Perez Hilton, the celebrity gossip blogger and a leading figure in the early days of blogging. I followed Hilton’s work and we had a shared sensibility, which is why some folks referred to Underneath Their Robes as “Perez Hilton for the federal judiciary” (although he was always more audacious than I was).1

Hilton had a more creative—and controversial—approach to image use. He took celebrity photographs from major photo agencies like X17, marked them up in a distinctively juvenile fashion using white pen—e.g., by adding a line of cocaine coming out of the nose of Lindsay Lohan, or by appending a snarky caption—and posted the altered images on his blog. These pictures were recognizably “Perez Hiltons,” since he always used that signature white pen and had something sassy to say—and this “transformation” laid the groundwork for his fair-use defense.

In November 2006, the photo agency X17 sued Hilton for copyright infringement, alleging unauthorized use of 51 images and seeking damages of $7.6 million. Hilton responded by claiming fair use, specifically, transformative use. As his lawyer Bryan Freedman told the Los Angeles Times, to rule against Hilton “would be to eliminate the ability to comment on and transform photographs under the fair-use exception to the Copyright Act.”2

Alas, no judge or jury ever ruled upon Hilton’s defense. X17’s case against Hilton was settled in August 2009, on confidential terms. That was arguably unfortunate—had it made it to trial, or even summary judgment, it might have provided some useful guidance to bloggers about fair use (and maybe today we’d be talking about the Perez Hilton case rather than the Andy Warhol case).

What would have happened if Perez Hilton had litigated his fair-use theory? A friend of mine, the late Julie Hilden—who practiced First Amendment law at Williams & Connolly before becoming a legal commentator and novelist—analyzed Perez Hilton’s position back in 2007 for FindLaw. In an excellent explainer, she explored fair use by comparing and contrasting two situations: politics blogger Michelle Malkin using excerpts from rap artist Akon’s music videos in order to criticize him and his work, and Perez Hilton using celebrity photos for his blog.

After assessing Malkin’s fair-use claim and finding it strong, Hilden shifted to evaluate Hilton’s, going through the four factors:

First, there's the factor of the purpose and character of Hilton's use of photograph agency X17's works. Hilton's site accepts advertising; indeed, its right column is all ads, and it solicits more ads. Clearly, Hilton is making commercial use of the photos.

Is the use transformative, however? Yes. But a court would doubtless find, say, Malkin's use more transformative than Hilton's. That's because whereas Malkin is folding her excerpts of Akon's work into a work of criticism with a larger point, Hilton is simply reprinting photographs and scrawling a few words—often slurs or obscenities—on them, or putting white dots on celebrities' mouths to represent cocaine, or on their crotches to represent semen.

But even though she didn’t think he had a great argument under factor #1 of the fair-use test, Hilden ultimately concluded that “[t]he first factor probably slightly favors Hilton.” Why? Citing Campbell v. Acuff-Rose Music, Inc., in which the Supreme Court upheld 2 Live Crew’s raunchy parody of Roy Orbison’s “Oh Pretty Woman” as fair use, Hilden wrote that “[c]rude as it may be, I believe Hilton's work ought to qualify [as fair use]; it tries to bring the high and mighty down to size, and to topple pedestals.”

Returning to the present, Hilden’s conclusion back in 2007 that factor #1 favored Hilton supports Justice Kagan’s claim today that the Court’s Warhol decision represents a “doctrinal shift” and a “remaking” of the law on the first factor. Prior to last week, the law was fairly generous towards secondary creators, requiring relatively little from them in terms of the “transformation” required for transformative use under factor #1—in order to provide artists with the “breathing room” needed to create new works that reflect or draw upon the work of earlier artists.

But remember, of course, that factor #1 is just a single factor of a four-factor test, and not even the most important one. Reviewing the remaining factors, Hilden concluded that they favor X17—especially the critical factor #4, “the effect of the use upon the potential market for or value of the copyrighted work”:

Fourth—and again, most importantly—there's the factor of the market substitution effect. Here's, it's powerful. You might go to X17online.com and see a given photo—but at PerezHilton.com, you can see it with a caption, too. Some viewers will doubtless bookmark PerezHilton, rather than X17online.com. That's a problem, as both are ad-supported.

Similarly in Warhol, the other three factors favor Goldsmith, particularly factor #4 (as explained by Judge Lynch in the Second Circuit opinion, which helpfully walks through all four factors). Indeed, Justice Kagan accuses the majority of “transplant[ing] factor 4 into factor 1,” by focusing excessively on how both Goldsmith and AWF license work to magazines.

And in explaining why Warhol came out the way it did, I’d submit that the majority might have been led astray in its analysis of factor #1, the only factor before the Court, because of the gravitational pull of the other three factors, which heavily favor Goldsmith. Put another way, Goldsmith was a highly sympathetic plaintiff: a pathbreaking female photographer who makes a living by selling her work to magazines—and who might have lost out on a sale to Vanity Fair, a prestigious magazine to which she had sold work in the past, because VF decided to instead license the work of a far more famous, male artist.

How should Warhol have come out, in my view? The Supreme Court should have held, for the reasons given by Justice Kagan in her spirited and persuasive dissent, that factor #1 of the fair-use factors narrowly favors the Andy Warhol Foundation. But on remand, Lynn Goldsmith should have prevailed on the bottom-line issue of liability, based on how she trounces AWF on the other three factors—especially factor #4, which addresses the problem of “market substitution” (i.e., a secondary creator ripping off a primary creator, then going to market and taking revenue that should have gone to the primary creator).3

So what can we learn about fair use from Warhol versus Goldsmith, X17 versus Perez Hilton, and my own experiences as a blogger and creator? Here are four observations.

First, when properly conducted as a holistic, four-factor analysis, fair-use doctrine accords with most people’s idea of rough justice and common sense. For the reasons I’ve given, I believe that AWF and Justice Kagan were right on the law, but Goldsmith and Justice Sotomayor were right on the equities, i.e., “what’s fair.” If a fair-minded layperson, someone who’s neither a lawyer nor an artist, were to look at this situation, they would probably conclude that Goldsmith got a raw deal. Similarly, going back to Perez Hilton, a fair-minded layperson evaluating that situation would probably conclude that Hilton was ripping off X17 and its photographers—and that if he wanted to use their images, he should have paid them.

Second, in the wake of Warhol, the so-called “transformative use” doctrine under factor #1 is considerably weaker, and going forward it will be much more about “use” than about “transformation.” Again, I think Justice Kagan’s assessment of the pre-Warhol state of the law is accurate (citations omitted):

Before today, we assessed “the purpose and character” of a copier’s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message”? When it did so to a significant degree, we called the work “transformative” and held that the fair-use test’s first factor favored the copier (though other factors could outweigh that one).

But today’s decision—all the majority’s protestations notwithstanding—leaves our first-factor inquiry in shambles. The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him.

Applying the Warhol version of fair use to X17 v. Perez Hilton, Hilton would lose. His “transformation” of celebrity photos, turning them from glamour shots into sardonic commentary on Hollywood culture, would be deemed vastly less important than what he was using the pictures for. He was using the X17 photos to attract readers and make money from ads—a commercial use, and the exact same use as X17.

Third, even though I think that Justice Kagan had the better of the technical legal argument on factor #1, the majority’s position does have an advantage in terms of the institutional competence of the judiciary. Judges are much better equipped to evaluate “uses”—for example, to quote from the preamble paragraph of § 107, “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”—than they are to assess the nature, scope, or significance of artistic “transformation.” Here’s what Justice Neil Gorsuch’s wrote in his Warhol concurrence (emphases supplied by Justice Gorsuch):

Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

Put another way, one could try to distinguish Andy Warhol from Perez Hilton by arguing that the former was a great artist and the latter is… not. But as Judge Lynch put it in the Second Circuit opinion, “the district judge should not assume the role of art critic,” a conclusion that the Warhol Court endorsed “in part.” While judges must examine “the meaning of a second work… to the extent necessary to determine whether the purpose of the use is distinct from the original,” Justice Sotomayor wrote, they “should not attempt to evaluate the artistic significance of a particular work.”

Fourth and finally, on whether the Warhol case will end up chilling artistic expression, I’m more sanguine than Justice Kagan. It’s a narrow decision, addressing only a single factor of a four-factor test, in the very specific context of licensing—something that relatively few artists are successful enough to have to worry about. The ruling also doesn’t touch the physical works of art in the Prince Series, now in private collections or museums (as Judge Dennis Jacobs noted in his Second Circuit concurrence).

And creators will adapt to this new legal regime—just as Perez Hilton changed his ways after getting sued. Even though a court never ruled against him, the litigation was expensive. As he told the L.A. Times, “It was costing me so much money to fight that lawsuit. I became a big boy without ever meaning to, or planning to, and I had to play by the big-boy rules. I pay for every single image on my website now.” And all these years later, his site still is still up and running, presumably now copyright-complaint (even if it doesn’t loom as large culturally as it did in the mid-aughts).

Perez Hilton wasn’t the only one who “grew up.” As the blogosphere matured after 2006, the year that X17 sued Hilton, many of us also learned more about fair use. In the early days of Above the Law, some of our contributors were not, shall we say, as cognizant of copyright as they should have been. We received some letters claiming copyright infringement—and they caused us to clean up our act. We purchased subscriptions to multiple stock-photo services at ATL, and we also started taking pictures of our own. This continues to be my practice here at Original Jurisdiction: I generally use photos that are (1) courtesy photos used with permission, (2) photos from Getty Images (to which I have a subscription), (3) photos in the public domain, or (4) photos I take myself. (So if you ever see me standing outside your law firm or law school and taking lots of pictures—which annoys my husband whenever we’re out and about—I’m making my own stock photos.)

So my prediction is that creators will adapt to the post-Warhol world, and they will still find ways to create. I’ll give Justice Sotomayor the last word: “If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity.”

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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1In a New Yorker interview, Judge Richard Posner said that Underneath Their Robes was “occasionally a little vulgar, but this is America in 2005.” Perez Hilton, I would submit, was frequently vulgar, and more than just “a little.”

2If Freedman’s name rings a bell, it’s because he’s a leading entertainment litigator who’s now representing Tucker Carlson and Don Lemon in their disputes with their former employers, Fox and CNN, respectively.

3If Lynn Goldsmith wins in the end no matter what, based on holistic analysis of all four fair-use factors, the almost 90 pages of Supreme Court analysis might be dismissed here as “academic.” But I agree with Justice Kagan: “the overall balance [of the four factors] cannot come out right unless each factor is assessed correctly,” and Warhol “is about (and only about) the first.”

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Justices Sonia Sotomayor and Elena Kagan, in happier times—with President Barack Obama at the 2013 State of the Union (photo by Melina Mara/The Washington Post via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I’m feeling much better, thank you very much—not 100 percent, but definitely better than last week (yay antibiotics). I was able to exercise, complete many errands, and most importantly, serve as a guest host for the Advisory Opinions podcast on Tuesday and Thursday. As a longtime fan of AO, I was delighted to join Sarah Isgur to fill in for David French for the week; I felt like an amateur guitarist being invited onstage to jam with my favorite band.

Now, on to the news.

Lawyer of the Week: Rachael Rollins.

So-called “progressive prosecutors” are having a rough time of it. Chesa Boudin got booted in San Francisco. Larry Krasner got impeached (but not removed from office) in Philadelphia. And now Rachael Rollins has resigned as U.S. Attorney for Massachusetts under a cloud of scandal, after the issuance of scathing reports about her from the U.S. Department of Justice’s Office of the Inspector General (OIG) and the independent U.S. Office of Special Counsel (OSC).

The most serious allegation from Inspector General Michael Horowitz’s 161-page report is that Rollins “knowingly and willfully made a false statement of material fact during her OIG interview, in violation of 18 U.S.C. § 1001.” Specifically, when asked if she was the anonymous federal law enforcement source for a Boston Herald article that contained damaging information about the political rival of an ally of hers, Rollins denied it emphatically, under oath: “No, no, no.” But nine days later, after OIG investigators obtained text messages showing that she was the source, she fessed up. Given how bald-faced her lying was, Horowitz referred the false-statement allegation to the Justice Department for possible criminal prosecution—but luckily for Rollins, the DOJ declined to do so.

Lying under oath, while the most serious accusation leveled against Rollins, was not the only one. As noted by Law360, she also allegedly attended a Democratic National Committee fundraiser, which she was not allowed to do under the Hatch Act; leaked other confidential DOJ letters, in addition to the ones she lied about; accepted free Boston Celtics tickets for herself and a subordinate; spoke on live radio about a case she had been recused from; and accepted donations to her Suffolk District Attorney campaign account after she was sworn in as U.S. Attorney. Rollins didn’t become U.S. Attorney until January 2022, so it’s actually impressive that she managed to rack up this much alleged misconduct in such a short time. She should consider herself lucky to have escaped indictment.

Other lawyers in the news this week:

In my opinion, the false-statement allegation against Rachael Rollins was more serious than some of the offenses charged by special counsel John Durham, who released his 306-page report about the origins of the Justice Department’s investigation into alleged ties between the Trump campaign and Russia. Reactions to the report varied greatly depending on one’s political priors, so I’ll just link to the report, and you can reach your own conclusions.
Congratulations to the lawyers from Boies Schiller Flexner and Edwards Pottinger who obtained a $75 million settlement from Deutsche Bank, resolving a lawsuit alleging that the bank enabled sex trafficking by the late Jeffrey Epstein. Said David Boies, Epstein’s abuses “could not have happened without the collaboration and support of many powerful individuals and institutions,” and “we appreciate Deutsche Bank’s willingness to take responsibility for its role.”
We learned that one of the key sources for the New York Times reporting that took down former CBS chief Les Moonves in a #MeToo scandal was a lawyer: Allison Diercks, a former document-review lawyer for Covington & Burling (who wound up losing her law license after Covington filed a bar complaint).

Judges of the Week: Justices Sonia Sotomayor and Elena Kagan.

Call it the footnote heard around the world—or at least #appellatetwitter. From Justice Elena Kagan’s vigorous dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (on behalf of herself and Chief Justice John Roberts):

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

Ouch! And who was on the receiving end of Justice Kagan’s benchslap? One of her familiar antagonists, like Justices Samuel Alito or Brett Kavanaugh?

Interestingly enough, no. It was actually her fellow liberal, Justice Sonia Sotomayor—who gave almost as good as she got. From footnote 10 of Justice Sotomayor’s opinion for seven justices (cleaned up):

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Many readers of Original Jurisdiction, who subscribed to this newsletter because of my coverage of free-speech controversies at law schools, are deeply interested in—and firmly committed—to the First Amendment and free speech. If you’re one of these readers, then you’ll enjoy my latest podcast episode: a conversation with Professor Nadine Strossen, one of our country’s leading scholars—and staunchest defenders—of civil liberties, including but not limited to free speech.

From 1991 to 2008, Nadine served as President of the American Civil Liberties Union (ACLU). She taught constitutional law for many years at New York Law School, where she was the John Marshall Harlan II Professor of Law, and she is the author of Hate: Why We Should Resist It with Free Speech, Not Censorship (2018). Her latest book, Free Speech: What Everyone Needs to Know, will be published this fall.

In our conversation, Nadine and I discussed her fascinating family background, including the fact that her father was a Holocaust survivor; her early legal career, which included time at Sullivan & Cromwell; and her assessment of the state of free speech in the United States today, which faces threats from both the right and the left. We also engaged in a debate in which I played the role of devil’s advocate, presenting what I think are the strongest arguments for speech restrictions—and Nadine eloquently defended free expression and open discourse, as she has done for decades.

I’m so grateful to Nadine—for joining me on the podcast, and for all her work over the years in defense of free speech and other core civil liberties. You can listen to the podcast via the embed at the top of this post or your podcasting platform of choice.

Show Notes:

Nadine Strossen bio, New York Law School
Nadine Strossen profile and recent writings, Foundation for Individual Rights and Expression (FIRE)
The First Amendment Is the Greatest Defense for the Powerless and Marginalized, by Jacob Mchangama and Nadine Strossen for the Daily Beast
Make Freedom of Speech Liberal Again, by Tunku Varadarajan for the Wall Street Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

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The Kaplan Hecker & Fink team with their victorious client, E. Jean Carroll (courtesy photo via Kaplan Hecker & Fink).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I didn’t have the greatest of weeks, since I’ve been feeling under the weather. But after seeing the doctor and receiving some antibiotics, I think I’m on the mend. And Harlan is fully recovered from the recent injury that sent him to the emergency room; thanks to everyone who asked after him over the past week.

Despite my lack of energy, I did manage to record two podcasts. I joined Patrick Smith of the American Lawyer’s Legal Speak podcast to discuss a controversial Paul Hastings slide deck that went viral last month. Then on Movers, Shakers & Rainmakers, Zach Sandberg and I interviewed Allie Fennell of Lateral Link about the vibrant Southeast legal market, which seems to be weathering recent storms better than the East and West Coasts.

Speaking of podcasts, I’m excited to be guest-hosting my favorite legal podcast, Advisory Opinions, this coming week. Host Sarah Isgur and I will record tomorrow and Wednesday for episodes airing on Tuesday and Thursday, so please tune in.

Now, on to the news—of which there was a ridiculous amount. (The torrent of news and my illness explain why this edition of Judicial Notice is late, for which I apologize.)

Lawyers of the Week: Robbie Kaplan, Shawn Crowley, Mike Ferrara, and Joshua Matz.

The week’s biggest legal news story was the victory of writer E. Jean Carroll in her battery and defamation case against former president Donald Trump. After deliberating for less than three hours, a jury in the Southern District of New York found Trump liable for sexual assault and defamation—and issued a $5 million verdict in Carroll’s favor.

Congratulations to Roberta Kaplan, Shawn Crowley, Michael Ferrara, and Joshua Matz, the partners who led the large team at Kaplan Hecker & Fink responsible for Carroll’s historic win. For a behind-the-scenes look at their effort, check out this Q&A with Am Law’s Ross Todd, who named them Litigators of the Week.

Crowley delivered the opening statement, Kaplan delivered the closing argument, and Ferrara delivered the rebuttal. Kaplan also took Trump’s deposition, a key piece of evidence in the case (and I interviewed her on my podcast shortly after she deposed Trump, although she wasn’t at liberty to discuss it at the time). I concur with Lara Bazelon’s post-mortem of the trial in the Free Press: “In that deposition, [Kaplan] savvily offered up bait she knew Trump lacked the willpower to refuse: chance after chance to treat Carroll, and Kaplan herself, like garbage. Then she made him eat it.”

Although Kaplan, Crowley, and Ferrara had the most prominent speaking roles at the trial, it was also wise to involve an appellate expert like Joshua Matz. Carroll’s lawyers and Judge Lewis Kaplan made a solid record, and I agree with David French of Advisory Opinions that Trump could face an uphill battle with his appeal to the Second Circuit. As noted by French, Trump’s best appellate argument would have been challenging the admission of evidence that he committed sexual assault in the past. But under Federal Rule of Evidence 415, Judge Kaplan enjoyed broad discretion to “admit evidence that the party committed any other sexual assault,” which he exercised in a detailed, thorough ruling. I don’t think any member of the Second Circuit will give serious consideration to Trump’s appeal (with the possible exception of Judge Steven Menashi, the “Trumpiest” member of that court).

Judge of the Week: Judge Pauline Newman.

Is the best defense a good offense? Embattled Federal Circuit Judge Pauline Newman, the 95-year-old judge that her colleagues are trying to oust from the bench for alleged incapacity, seems to think so.

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Harvard Law School (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Yesterday U.S. News published its eagerly anticipated—and highly controversial—law school rankings, aka the 2023-2024 Best Law Schools. As previously mentioned, these rankings were supposed to have been published on April 18, but… well, it’s complicated. Here’s a quick refresher.

Last November, Yale Law School made a noisy withdrawal from the U.S. News rankings, declaring that it would no longer provide U.S. News with certain proprietary data that the magazine needed at the time to prepare its rankings. Dean Heather Gerken decried the rankings as “profoundly flawed,” arguing that their methodology “disincentivize[d] programs that support public-interest careers, champion need-based aid, and welcome working-class students into the profession.”

In the weeks that followed, more than 60 law schools joined the boycott. In response, U.S. News adopted my recommendation that it “change the rankings methodology so it relies entirely on public data, such as data required by [the American Bar Association], or data U.S. News can generate itself, such as reputation scores.”

U.S. News also made other methodological changes, both specific and general, responding to critiques by Dean Gerken and others. For examples of the specific, it changed how it counts school-funded fellowships like those offered by Yale Law to support graduates doing public-interest work, as well as how it counts law graduates who pursue additional graduate study. On a general level, it adjusted the weights of various factors—and even eliminated certain factors, like expenditures per student—to make the rankings focus more on “outputs,” like employment outcomes and bar passage, and less on “inputs,” like the LSAT scores and GPAs of incoming students.

Here’s a summary of the new methodology (by Staci Zaretsky of Above the Law):

Employment: 33% (up from 14%)
First-Time Bar Passage: 18% (up from 3%)
Ultimate Bar Passage: 7% (new)
Peer Assessment: 12.5% (down from 25%)
Lawyer/Judge Assessment: 12.5% (down from 15%)
LSAT/GRE: 5% (down from 11.25%)
UGPA: 4% (down from 8.75%)
Acceptance Rate: 1%
Faculty & Library Resources: 7%

As noted by the New York Times, “fully 58 percent of a school’s ranking is now based on outcomes—how many graduating students pass the bar and get jobs—a substantial increase from prior years.” So what U.S. News basically did is it made its rankings more like… the Above the Law Top 50 law school rankings, which focused on student outcomes from their inception more than 10 years ago.

Moving to a system relying only on public data and data it can generate itself should have made putting together the rankings extremely easy. Alas, according to rankings expert Mike Spivey of Spivey Consulting, U.S. News botched the job:

In theory, [moving to a system basic on public data and its own data] should have made creating the rankings quite simple. Everything that U.S. News needed was here, here, and in their voter responses.

However, being the mess they are, U.S. News managed to screw up what should have been a simple, straightforward exercise. For one, defying all rational explanation, they decided that for some metrics they would use the data submitted by law schools who still participated in their survey; for non-participants, they would input the results from ABA data.

There’s no justification at all for a mixed system. First, you are inviting possible errors from law schools submitting their data to U.S. News. Second, you are giving law schools an opportunity to submit data which is better than what is reported by the ABA—when the data should be the exact same. Third, now you're manually combining data from two different sources, which is just asking for transcription or arithmetic errors.

Which is exactly what happened. There were substantial discrepancies between the data U.S. News had, and the data available through the ABA.

These discrepancies partly explain why U.S. News had to push back the rankings release date by weeks, from April 18 to yesterday. And it appears they also contributed to why the “preview” of the rankings, a listing of the top 14 aka “T14” schools that U.S. News released on April 11, turned out to be wrong. Here’s the corrected list of the T14 schools, with how the schools changed since April 11 indicated parenthetically (again courtesy of Spivey Consulting):

(1) Stanford University (0)
(1) Yale University (0)
(3) University of Chicago (0)
(4) University of Pennsylvania (Carey) (0)
(5) Harvard University (-1)
(5) New York University (+1)
(5) Duke University (+1)
(8) Columbia University (0)
(8) University of Virginia (0)
(10) University of California, Berkeley (0)
(10) Northwestern University (Pritzker) (0)
(10) University of Michigan—Ann Arbor (0)
(13) Cornell University (0)
(14) University of California—Los Angeles (0)

Yes, that’s right: the tie with Penn that had Harvard grads up in arms has been broken—in Penn’s favor. No longer a “T3” school, Harvard is #5—and tied in that spot with NYU and Duke. The horror, the horror!

Here’s the final—or at least final until U.S. News discovers other errors—list of the top 50 schools, with their change from last year noted parenthetically (once again via Spivey Consulting):

Okay, that’s actually the top 53 schools, with a three-way tie for #51. Some observations:

Go Duke! Rising six spots, it was the biggest gainer in the T14—no small feat, given the “stickiness” at the the top of the rankings.
As it has done on a handful of occasions over the years, Georgetown fell out of the T14, replaced by UCLA. Can the Hoyas claw their way back into that illustrious group? Tune in next year.
In terms of the NYU v. Columbia rivalry, NYU gained the upper hand over its uptown rival: NYU rose from #7 to #5, while Columbia fell from #4 to #8. As for the rivalry between Boston University and Boston College, they’re converging: BU dropped 10 spots and BC rose 8, so now they’re #27 and #29, respectively.
The new methodology, by placing much greater weight on employment outcomes and bar passage, seemed to favor state schools—which makes sense, since state schools usually have strong in-state employer networks and excel at preparing students for their state’s bar exam. Eight state schools in the top 53 climbed by five or more spots: Minnesota (+5), Georgia (+9), Ohio State (+8), Texas A&M (+17), Utah (+5), Kansas (+27), Oklahoma (+37), and UT Knoxville (+5). Only three state schools in this group dropped by five or more spots: Alabama (-10), Iowa (-7), and Illinois (-8).

The overhaul of the U.S. News methodology led to huge moves for several schools, especially beyond the top 50. Here are the 10 biggest gainers, all schools that moved up by at least 24 spots:

(40) University of Kansas (+27)
(51) University of Oklahoma (+37)
(60) St. John's University (+24)
(60) University of South Carolina (+24)
(60) Florida International University (+38)
(71) Texas Tech University (+34)
(71) Marquette University (+34)
(84) Stetson University (+27)
(89) Duquesne University (Kline) (+40)
(105) Belmont University (+28)

And here are the 10 biggest losers, which moved down by at least 25 spots:

(89) Pennsylvania State University Dickinson Law (-31)
(96) University of St. Thomas (-31)
(122) The Catholic University of America (-28)
(125) Howard University (-27)
(125) University at Buffalo—SUNY (-31)
(135) University of Hawaii—Manoa (Richardson) (-44)
(135) DePaul University (-30)
(146) University of Maine School of Law (-32)
(155) Willamette University College of Law (-26)
(158) Santa Clara University (-25)

Finally, here’s the complete list of all 196 law schools on the U.S. News list, with each school’s rank change compared to last year in parentheses (and with thanks once again to Mike Spivey and his team). What do you notice in the new rankings? Please share your observations in the comments.

(1) Stanford University (+1)
(1) Yale University (0)
(3) University of Chicago (0)
(4) University of Pennsylvania (Carey) (+2)
(5) Harvard University (-1)
(5) New York University (+2)
(5) Duke University (+6)
(8) Columbia University (-4)
(8) University of Virginia (0)
(10) University of California, Berkeley (-1)
(10) Northwestern University (Pritzker) (+3)
(10) University of Michigan—Ann Arbor (0)
(13) Cornell University (-1)
(14) University of California—Los Angeles (+1)
(15) Georgetown University (-1)
(16) University of Southern California (Gould) (+4)
(16) University of Minnesota (+5)
(16) Vanderbilt University (+1)
(16) University of Texas—Austin (+1)
(20) University of Georgia (+9)
(20) Washington University in St. Louis (-4)
(22) University of Florida (Levin) (-1)
(22) University of North Carolina—Chapel Hill (+1)
(22) Wake Forest University (+15)
(22) Ohio State University (Moritz) (+8)
(22) Brigham Young University (Clark) (+1)
(27) University of Notre Dame (-2)
(27) Boston University (-10)
(29) Boston College (+8)
(29) Fordham University (+8)
(29) Texas A&M University (+17)
(32) Arizona State University (O'Connor) (-2)
(32) University of Utah (Quinney) (+5)
(32) George Mason University (Scalia) (-2)
(35) University of Alabama (-10)
(35) George Washington University (-10)
(35) Emory University (-5)
(35) University of Iowa (-7)
(35) University of California—Irvine (+2)
(40) University of Kansas (+27)
(40) Washington and Lee University (-5)
(40) University of Wisconsin—Madison (+3)
(43) University of Illinois Urbana-Champaign (-8)
(43) Villanova University (Widger) (+13)
(45) Pepperdine University (Caruso) (+7)
(45) Indiana University—Bloomington (Maurer) (-2)
(45) SMU (Dedman) (+13)
(45) William & Mary Law School (-15)
(49) Baylor University (+9)
(49) University of Washington (0)
(51) University of Maryland (Carey) (-4)
(51) University of Oklahoma (+37)
(51) University of Tennessee—Knoxville (+5)
(54) University of Arizona (Rogers) (-9)
(54) Temple University (Beasley) (+9)
(56) University of Colorado—Boulder (-7)
(56) Florida State University (-9)
(56) Wayne State University (+2)
(56) Seton Hall University (+17)
(60) Loyola Marymount University (+7)
(60) University of California College of the Law, San Francisco (formerly known as University of California—Hastings) (-9)
(60) University of California—Davis (-23)
(60) University of Kentucky (Rosenburg) (+7)
(60) St. John's University (+24)
(60) University of South Carolina (+24)
(60) University of Houston Law Center (-2)
(60) University of Richmond (-8)
(60) Florida International University (+38)
(69) Georgia State University (+9)
(69) Yeshiva University (Cardozo) (-17)
(71) University of Connecticut (-7)
(71) University of Miami (+2)
(71) Tulane University (-16)
(71) Northeastern University (+2)
(71) University of Missouri (-4)
(71) Texas Tech University (+34)
(71) Marquette University (+34)
(78) University of San Diego (-14)
(78) University of Oregon (-11)
(80) University of Denver (Sturm) (-2)
(80) Case Western Reserve University (-2)
(80) Drexel University (Kline) (-2)
(80) Pennsylvania State University—University Park (-16)
(84) Stetson University (+27)
(84) Loyola University Chicago (-11)
(84) University of Cincinnati (+4)
(84) Lewis & Clark College (Northwestern) (+4)
(88) Drake University (+23)
(89) American University (Washington) (-16)
(89) Saint Louis University (+9)
(89) University of Nebraska—Lincoln (-11)
(89) Duquesne University (Kline) (+40)
(89) University of Pittsburgh (-11)
(89) University of Nevada—Las Vegas (Boyd) (-22)
(89) Pennsylvania State University Dickinson Law (-31)
(96) University of Montana (Blewett) (+7)
(96) University of New Mexico (-5)
(96) University of St. Thomas (-31)
(99) Mercer University (George) (+23)
(99) Illinois Institute of Technology Chicago-Kent (-5)
(99) Indiana University—Indianapolis (McKinney) (-1)
(99) University of Louisville (Brandeis) (-5)
(99) Louisiana State University—Baton Rouge (Hebert) (+6)
(99) Gonzaga University (+17)
(105) University of Arkansas—Fayetteville (-19)
(105) University of New Hampshire (Pierce) (0)
(105) Albany Law School (+17)
(105) Belmont University (+28)
(109) Chapman University (Fowler) (-9)
(109) Rutgers University (-23)
(111) Washburn University (-6)
(111) Loyola University New Orleans (+22)
(111) Michigan State University (-20)
(111) University of Mississippi (0)
(111) Brooklyn Law School (-13)
(111) Cleveland State University (Cleveland-Marshall) (+16)
(111) University of Dayton (+11)
(111) University of Tulsa (+7)
(111) Seattle University (+5)
(111) West Virginia University (+7)
(111) University of Wyoming (+18)
(122) The Catholic University of America (-28)
(122) Syracuse University (-19)
(122) University of South Dakota (Knudson) (+11)
(125) Howard University (-27)
(125) New York Law School (+4)
(125) University at Buffalo—SUNY (-31)
(125) Campbell University (Wiggins) (+≥22) (previously ranked 147-192)
(125) University of Memphis (Humphreys) (+17)
(125) Regent University (+17)
(131) Samford University (Cumberland) (+8)
(131) Pace University (Haub) (+11)
(133) Suffolk University (-11)
(133) Elon University (+≥14) (previously ranked 147-192)
(135) University of Hawaii—Manoa (Richardson) (-44)
(135) DePaul University (-30)
(135) University of Baltimore (-13)
(135) University of Missouri—Kansas City (-21)
(135) Liberty University (+≥12) (previously ranked 147-192)
(140) Hofstra University (Deane) (-22)
(141) University of the Pacific (McGeorge) (-8)
(141) Southwestern Law School (+≥6) (previously ranked 147-192)
(141) University of Idaho (+1)
(141) University of Detroit Mercy (-2)
(141) University of Toledo (+≥6) (previously ranked 147-192)
(146) Quinnipiac University (+≥1) (previously ranked 147-192)
(146) University of Maine School of Law (-32)
(146) Ohio Northern University (Pettit) (+≥1) (previously ranked 147-192)
(149) Northern Kentucky University (Chase) (0) (previously ranked 147-192)
(150) University of Arkansas—Little Rock (Bowen) (previously ranked 147-192)
(150) University of Akron (previously ranked 147-192)
(150) Oklahoma City University (previously ranked 147-192)
(153) St. Mary's University (previously ranked 147-192)
(154) CUNY School of Law (-21)
(155) New England Law Boston (previously ranked 147-192)
(155) Creighton University (-16)
(155) Willamette University College of Law (-26)
(158) Santa Clara University (-25)
(159) Faulkner University (Jones) (previously ranked 147-192)
(159) Widener University—Pennsylvania (Commonwealth) (previously ranked 147-192)
(159) University of Illinois—Chicago (previously ranked 147-192)
(162) Northern Illinois University (previously ranked 147-192)
(162) South Texas College of Law Houston (previously ranked 147-192)
(164) Vermont Law School (-22)
(165) University of San Francisco (previously ranked 147-192)
(165) Mississippi College (previously ranked 147-192)
(167) Touro College (Fuchsberg) (previously unranked)
(167) University of Massachusetts—Dartmouth (previously ranked 147-192)
(167) Mitchell Hamline School of Law (previously ranked 147-192)
(167) University of North Texas—Dallas (previously ranked 147-192)
(171) Nova Southeastern University (Broad) (previously ranked 147-192)
(171) Roger Williams University (previously ranked 147-192)
(171) Atlanta's John Marshall Law School (previously ranked 147-192)
(174) Southern Illinois University—Carbondale (previously ranked 147-192)
(175) California Western School of Law (previously ranked 147-192)
(175) North Carolina Central University (previously ranked 147-192)
(175) Capital University (previously ranked 147-192)
(175) Lincoln Memorial University (Duncan) (previously ranked 147-192)
(175) Widener University—Delaware (previously ranked 147-192)
(180-196) Appalachian School of Law (previously ranked 147-192)
(180-196) Ave Maria School of Law (previously ranked 147-192)
(180-196) Barry University (previously ranked 147-192)
(180-196) Charleston School of Law (previously ranked 147-192)
(180-196) Florida A&M University (previously ranked 147-192)
(180-196) Golden Gate University (previously ranked 147-192)
(180-196) Inter-American University (previously unranked)
(180-196) Pontifical Catholic University of Puerto Rico (previously unranked)
(180-196) Southern University Law Center (previously ranked 147-192)
(180-196) St. Thomas University (previously ranked 147-192)
(180-196) Texas Southern University (Marshall) (previously ranked 147-192)
(180-196) University of North Dakota (previously ranked 147-192)
(180-196) University of Puerto Rico (previously unranked)
(180-196) University of the District of Columbia (Clarke) (previously ranked 147-192)
(180-196) Western Michigan University (Cooley) (previously ranked 147-192)
(180-196) Western New England University (previously ranked 147-192)
(180-196) Western State College of Law at Westcliff University (previously ranked 147-192)

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Singer-songwriter Ed Sheeran, speaking outside the S.D.N.Y. courthouse after prevailing in copyright litigation (photo by Alexi J. Rosenfeld via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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The most exciting event of my week was unfortunately not good: Zach and I had to take Harlan to the local emergency room. While bouncing around on the couch, as he is wont to do, Harlan lost his footing and banged his mouth on the coffee table, cutting the inside of his gum rather badly. He started screaming his head off and there was lots of blood, so we took him to the ER, just to be on the safe side. Fortunately he didn’t need stitches, just antibiotics, but hospital visits are never fun.

Now, on to the news.

Lawyers of the Week: David Markus and Margot Moss.

Former Tallahassee mayor Andrew Gillum went from being a rising star in the Democratic Party, who lost the Florida governorship to Ron DeSantis by only 32,000 votes, to a criminal defendant. But on Thursday, in what the Tallahassee Democrat called “a stunning defeat for the government,” a federal jury acquitted Gillum of lying to the FBI about various gifts he accepted from undercover FBI agents—including, most (in)famously, Hamilton tickets—and deadlocked on charges of conspiracy and wire fraud, related to alleged misuse of campaign funds. This left federal prosecutors with zero convictions to show for themselves, after two weeks of trial and another week or so of deliberations.

Congratulations to Gillum’s lawyers, prominent South Florida defense lawyers David Markus and Margot Moss, whom the Tallahassee Democrat praised as “capable and charismatic.” If their names sound familiar, it might be because Markus previously represented Charlie Adelson, the Miami-area dentist who will go to trial this October on charges that he murdered his former brother-in-law, the late law professor Dan Markel. Last year, however, Markus and Adelson parted ways. (It would have been interesting to see what Markus, an incredibly talented trial lawyer, would have done when faced with the mountain of evidence against Adelson.)

Runner-up for Lawyer of the Week: Kannon Shanmugam, who set #appellatetwitter aflame with a brief that dismissed an opposing brief filed by U.S. Solicitor General Elizabeth Prelogar as a “hot mess.” Shanmugam’s critics condemned his brief as disrespectful, even sexist; I’m not sure I’d go that far (although I should mention that Shanmugam is a friend, as well as an early interviewee here at Original Jurisdiction). But there’s an argument to be made—if you’ll forgive another colloquialism, especially since this is a chatty newsletter, not a fancy SCOTUS brief—that Shanmugam might have stepped in it this time around. He’s a very polite and respectful person, so I doubt he would have used the phrase “hot mess” had he known it would have generated such blowback.

Lawyer of the Week honors go to folks for their work as lawyers. But at the request of one reader, I’d like to give a shout-out to Alan Barinholtz, a litigator for decades who always wanted to act. For years he had to live vicariously through his sons, actors Ike and Jon Barinholtz—until this year, when he landed the role of Judge Alan Rosen on Jury Duty, a popular new Amazon mockumentary about a fake jury trial. So congrats to Alan Barinholtz, who shows that it’s never too late to pursue your dreams.

In memoriam: Newton Minow. After graduating first in his class from Northwestern Law, serving as editor-in-chief of the law review, and clerking for Chief Justice Fred Vinson, Minow became famous for condemning American television as “a vast wasteland” during his tenure as FCC chairman. Last Saturday, he passed away at 97, according to his daughter Nell Minow, a Chicago Law grad and leading figure in the worlds of corporate governance and film criticism. His two other daughters are also lawyers: Martha Minow, a Yale Law grad who served as dean of Harvard Law School, and Mary Minow, a Stanford Law grad and distinguished librarian who served on the National Museum and Library Services Board. May he rest in peace.

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Davis Polk & Wardwell had a rough year in 2022, earning “only” $5.5 million in profits per partner (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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If I had to pick a word to describe 2022 for Biglaw, I’d go with “transitional.” Think of last year as a bridge connecting the boom times of 2021 with… whatever 2023 ends up being, but it’s probably not going to be good.

To get an idea of what the future might hold, let’s look back at the past—specifically, how the year 2022 went for Biglaw, as reflected in the 2023 Am Law 100 rankings. Collectively, the nation’s 100 largest law firms by revenue turned in a mixed performance:

Total gross revenue: $130.8 billion, up by 2.7 percent.
Average revenue per lawyer: $1.16 million, down by 1.9 percent.
Profits per equity partner: $2.56 million, down by 3.7 percent.

As I discussed with my co-host Zach Sandberg when we recently dissected the new Am Law 100 rankings on Movers, Shakers & Rainmakers, it’s unusual to see these three key indicators pointing in different directions. In recent years, they’ve all gone in the same direction, and that direction was up:

As noted in Lateral Link’s write-up of the rankings, an increase in gross revenue coupled with a decrease in revenue per lawyer meant that total headcount increased in 2022. The total number of lawyers working in the Am Law 100 increased by 4.7 percent, to 112,962. The number of equity partners grew by 1 percent, while the number of nonequity partners grew at a much faster clip, by 6.4 percent.

The dips in revenue per lawyer and profits per equity partner might make 2022 something of a disappointment, at least compared to the past few years—but it’s hard to be too disappointed. As noted by Patrick Smith in his analysis of the Am Law 100 for the American Lawyer, for many firms it was their second-best year ever, falling short only compared to 2021—which was itself an insanely busy, aberrational year for the transactional work that drives Biglaw profitability. Some firms might have thought the glory days were going to last longer than they did—and many of these firms are now in the process of retrenching, having overhired in 2021 and early 2022—but it was not realistic to have expected the party to go on forever.

That should suffice in terms of macro-level observations about Biglaw’s financial performance in 2022. For paid subscribers, I’ll now dig into the crucial metrics—gross revenue, revenue per lawyer, profits per equity partner—and show you the top 20 firms in each category.

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Who is the leading public intellectual of the Supreme Court bar? Neal Katyal—Hogan Lovells partner, Georgetown Law professor, and former Acting Solicitor General—would have a very strong claim to the title.

Many SCOTUS advocates focus on winning high-court cases for their clients, but Neal aspires to more: he contributes to our national discourse. His scholarship has been published in top law reviews, including the Harvard Law Review and Yale Law Journal. He writes op-eds for leading newspapers, including the New York Times and Washington Post. He authored a Times bestseller, Impeach: The Case Against Donald Trump. He makes frequent appearances on television and radio as a legal-affairs commentator. He comments on the news of the day to his more than 800,000 Twitter followers. And later this year, he’s coming to Substack—exciting news that he shared in my recent podcast interview of him.

I’ve known Neal for a long time, and I’d been wanting to have him on the show for a while. Now turned out to be a great time, for two reasons. First, just last week, he made his 50th oral argument before the Supreme Court—a major milestone that few SCOTUS advocates can claim. Second, May is Asian American and Pacific Islander (AAPI) Heritage Month, and Neal has argued more Supreme Court cases than any other AAPI lawyer—or, for that matter, any other lawyer of color. Congratulations to Neal on his 50th SCOTUS argument, and thanks to him for taking the time to join me.

Show Notes:

Neal Katyal bio, Hogan Lovells US LLP
Neal K. Katyal bio, Georgetown Law
Neal Kumar Katyal, Oyez
Neal K. Katyal, Chambers and Partners
Hogan Lovells Partner Neal Katyal Celebrates 50th Supreme Court Oral Argument, National Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

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‘C’mon, people, cut us some slack!’ (Photo of Justice Neil Gorsuch and Chief Justice John Roberts by Win McNamee via Getty Images.)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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My week was busy, but not crazy. On Tuesday, I spoke at the Travelers Legal Services Forum, a one-day retreat for the company’s lawyers. On Wednesday, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, in which we broke down the new Am Law 100 rankings. Since the week was fairly relaxed, I made it to the gym a few times, and together with Zach—husband Zach, not podcast partner Zach—I caught up on Succession and Yellowjackets. I like weeks like this.

Now, on to the news.

Lawyer of the Week: Joseph Tacopina.

New York trial lawyer Joe Tacopina was recently retained by Donald Trump to defend him in Manhattan District Attorney Alvin Bragg’s criminal prosecution. That case is quiet right now, since the next hearing isn’t until December. But we’re getting a sense of Tacopina’s likely approach in handling it, based on his current representation of Trump in a civil case brought by author E. Jean Carroll. She accuses the former president of battery and defamation, alleging that he raped her when they ran into each other at Bergdorf Goodman in the mid-1990s, then falsely accused her of lying about it. The matter is now being tried to a Manhattan jury.

Tacopina cross-examined Carroll aggressively—perhaps too aggressively, at least in the eyes of Judge Lewis Kaplan (S.D.N.Y.). As reported by the New York Times, Judge Kaplan admonished Tacopina several times, telling him at one point, “You get to make a closing argument in this case, counselor, and this isn’t the time for it.” For a deeper dive into Tacopina’s questioning of Carroll, see this Daily Beast piece by former federal prosecutor Mitchell Epner, who describes Tacopina’s cross as “shameful” and “likely ineffective.”

I’m not a fan of Tacopina’s in-your-face style. I have a higher opinion of the law firm representing Carroll, Kaplan Hecker & Fink, and its iconic leader, Roberta Kaplan (whom I interviewed last year for my podcast). But at the end of the day, the case will be decided not by me or Mitch Epner or any other outside observer, but by the jury—and juries can be unpredictable. So we shall see.

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Jonathan F. Cohn (courtesy photo).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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After fourteen years as a partner at Sidley Austin, where he handled complex commercial and appellate litigation, Jonathan Cohn is leaving Biglaw. Where is he heading? Like so many other top litigators, he’s joining a boutique—Lehotsky Keller, which will become Lehotsky Keller Cohn (LKC) after Cohn joins on Monday, May 1.

“I couldn’t pass up the chance to work with my close friends and poker buddies on building a litigation powerhouse,” Cohn told me when I spoke yesterday with him and his new partners, Steven Lehotsky and Scott Keller. The three explored the possibility of Cohn joining when the firm launched two years ago, and Cohn was interested—but he was living in Arkansas back then, so the timing wasn’t right.1

Now that he’s back in D.C., Cohn jumped at the opportunity—and Lehotsky and Keller couldn’t pass on the chance to bring Cohn aboard. “It made perfect sense to add Jon’s tremendous talent to what we’ve already built,” Keller said.

Founded in February 2021, Lehotsky Keller has grown rapidly over the past two years. Cohn is the firm’s twentieth lawyer, and he fits in perfectly with his colleagues. All of the firm’s attorneys clerked—six of them for the Supreme Court, including Cohn (a former Thomas clerk). Many LKC lawyers completed high-level government service—as did Cohn, who served as the Deputy Assistant Attorney General for Civil Appellate at the U.S. Department of Justice (DOJ). Many LKC lawyers, including its three former state solicitors general, have serious appellate chops—as does Cohn, who has personally argued cases before the U.S. Supreme Court and almost all the federal circuit courts, including six en banc appeals in the Second, Sixth, Ninth and D.C. Circuits (winning all six of them).

But Cohn is not just an appellate lawyer. He has extensive trial-court experience, including work on complex, high-stakes matters like class actions and multidistrict litigation, which will stand him in good stead at his new firm. Given the pedigrees of its founders—Lehotsky, a former Scalia clerk, and Scott Keller, a former Kennedy clerk—I assumed when it launched that their firm was aiming to be a top-flight appellate and Supreme Court boutique. But that actually wasn’t quite the vision of the founders, and it’s not what the firm is today.

“Our goal for the firm was to combine Steve’s experience in the boardroom with my experience in the courtroom,” Keller said. They hoped to land major clients, by leveraging the relationships Lehotsky developed with chief legal officers and general counsel as head of litigation at the Chamber of Commerce, and to deliver superb results for those clients, by drawing upon the litigation talent and expertise of Keller, a former Texas Solicitor General, and his colleagues.

And that vision has been realized, Lehotsky told me—as reflected in, for example, the firm’s big win in NFIB v. Ohio. Keller argued that case in the Supreme Court, which stayed the Covid-19 vaccine mandate for large employers issued by the Occupational Safety & Health Administration (OSHA). “The OSHA case was proof of concept for the firm,” Lehotsky said. “It showed we could handle important cases for the American business community and get great results for our clients.”

And although the OSHA case culminated in a Supreme Court victory, the firm’s portfolio is much broader, with appellate litigation constituting only about a third of the firm’s work. Trial work accounts for another third—and even though it’s a small firm that’s just two years old, LKC has already handled 18 bench trial and eight jury trials. Strategic advising—sometimes in anticipation of filing litigation, sometimes in anticipation of avoiding it—makes up the last third.

“We want sophisticated clients with big problems to look to us as problem solvers,” Keller explained. “We’re not lawyers who just swoop in at the end to do a one-off appeal. Our clients are looking for top-notch litigators who can apply our talents throughout all stages of the problems our clients face, whether that’s advising in the background, interfacing with state AGs, mapping out litigation strategy, trying cases, or arguing appeals.”

“I’ve been pleasantly surprised by how we’ve been able to come into large, sophisticated cases at earlier stages,” he added. “As an appellate lawyer, it’s great to set up your own record. It’s kind of like in the NBA, where you have power forwards expected to shoot the three now. Whether it’s trial or appellate work, the new normal is that clients want full-service litigators to advise them throughout the entire case.”

As a 20-lawyer boutique, Lehotsky Keller Cohn can’t do certain things, like throw 20 lawyers into document review. But the firm frequently partners with other firms, and these firms can handle massive discovery projects while LKC focuses on critical motions and settlement strategy. Said Lehotsky, “We know our limits, and we pride ourselves on playing well in the sandbox with other firms.”

Is the firm’s diverse docket a sign that the long-term trend of appellate specialization might be reversing? “I don’t think the trend toward specialization is diminishing,” Lehotsky said. “Instead, we are specializing in a particular part of the marketplace: we want to be known as a nationwide, business-focused litigation boutique, rather than a purely trial or purely appellate boutique.”

“Our goal is not to take on as many cert petitions as possible, mine for circuit splits, or maximize the number of cases we have in the U.S. Supreme Court,” said Keller. But in the course of representing its clients, LKC will handle landmark cases in the Court—such as the challenge to Texas’s social-media law (H.B. 20), which SCOTUS will almost certainly hear—“and when it comes to these cases, we absolutely have the experience and expertise to knock them out of the park.”

Like many boutiques, the firm enjoys greater flexibility on fee arrangements compared to most of Biglaw, and it regularly employs fixed, flat, and success fees. It still has a sizable docket of billable-hour work, and its hourly rates are below those of many large firms. But that’s not the main draw of LKC, Keller explained: “It’s not that our fees are incredibly lower; it’s about offering an excellent product.”

That said, clients appreciate the firm’s flexibility on fees—which might explain why almost all of Cohn’s clients are following him to Lehotsky Keller Cohn. As a smaller firm with less infrastructure and only two offices, in D.C. and Austin, the firm has lower overhead than a Biglaw shop. And as a litigation-focused firm, LKC doesn’t face pressure to keep hourly rates in sync with the steep rates of transactional practices.

So although he had a wonderful experience at Sidley, one of Biglaw’s best firms, Jonathan Cohn is excited about going “all in” on the boutique model—which raised one last question I posed to the three name partners of Lehotsky Keller Cohn.

Who’s the best poker player? Said Cohn, “I think it’s safe to say that we’re all better lawyers than poker players.”

1Cohn is married to Rachel Brand, Chief Legal Officer of Walmart, and they were based out of Bentonville, Arkansas, at the time. Scott Keller is also part of a legal power couple: he’s married to lawyer turned legal commentator Sarah Isgur, a senior editor of The Dispatch and host of the Advisory Opinions podcast (so if you’ve been wondering about who the “husband of the pod” might be, it’s Keller).

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Tom Clare and Libby Locke (courtesy photo).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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If you’ve been defamed, and it don’t look good, who you gonna call?

Clare Locke (if you can afford them). Founded in 2014 by Tom Clare and Libby Locke, who left the partnership of Kirkland & Ellis to build a plaintiff-side defamation practice free from the constraints of Biglaw, Clare Locke has become the go-to firm for major corporations and high-net-worth individuals who have suffered reputational attacks.

I’ve known Tom and Libby for years, and I’ve been meaning to invite them on the podcast for a long time. After they secured what’s believed to be the largest defamation settlement in history—$787.5 million for their client, Dominion Voting Systems, in the landmark litigation of Dominion v. Fox—I couldn’t wait any longer.

So this is actually a bonus episode. I usually post episodes every other Wednesday, I posted an episode last week, and my next episode—which also has an amazing guest—will go live next Wednesday, May 3. But in light of last week’s Dominion settlement, I didn’t want to delay, so I’m slipping in this episode now.

It’s also a double episode, which is why it’s longer than usual—but worth it. I interview Libby and Tom about their interesting personal and professional backgrounds; their decision to leave Kirkland to launch a boutique firm, including why it would be impossible to have a practice like theirs in Biglaw; what it’s like to practice alongside your spouse; how they got involved in the Dominion case, including why the settlement was so darn large; and the future of New York Times v. Sullivan.

In the interest of getting this out in timely fashion, I have not included in a transcript. It’s surprisingly laborious to clean up the auto-generated transcript, since the voice-recognition technology has a long way to go. So if you’d like to get the substance of our fascinating conversation, please listen to our dulcet tones, via the embed at the top of this post or in your podcast player of choice. Enjoy!

Show Notes:

Thomas A. Clare bio, Clare Locke LLP
Elizabeth M. Locke bio, Clare Locke LLP
‘Brilliant and Lucky’: Clare Locke Makes Headlines by Keeping Clients Out of Them, American Lawyer
Winning Litigators: Tom Clare & Libby Locke, Clare Locke, National Law Journal
Clare Locke LLP, Chambers and Partners

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Rupert Murdoch in 2019 (photo by PG/Bauer-Griffin/GC Images via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I spent the week bouncing around the New York tristate area. On Monday, I drove up to New Haven for a meeting of the YLSA Executive Committee. On Tuesday, I attended the 2023 Gala of the Foundation for Individual Rights and Expression (FIRE) in Manhattan, a festive and fun occasion. On Wednesday, I headed out to Long Island for a speaking engagement. I finished up the enjoyable but exhausting week at home in New Jersey (where my and Harlan’s allergies continue to be brutal).

Enough about me—there’s a ridiculous amount of news to cover.

Lawyers of the Week: the lawyers representing Dominion in Dominion Voting Systems, Inc. v. Fox News Network, LLC.

Congratulations to the legal team representing Dominion Voting Systems in its epic, $1.6 billion lawsuit against Fox News—which resulted in an epic, $787.5 million settlement. Many of us were shocked by the outcome—not because we thought the suit lacked merit, but because we didn’t know it had almost $800 million of merit.

How did Dominion secure such a gigantic settlement? It took a village—of leading lawyers and law firms. Litigation powerhouse Susman Godfrey, on anyone’s shortlist of the nation’s best trial firms, played the most prominent role; at least sixteen different SG attorneys worked on the case, with Stephen Shackelford, Davida Brook, and Justin Nelson heading up the effort. The trial prowess of Susman was complemented by the defamation-law expertise of Thomas Clare and his colleagues at Clare Locke, the most-feared defamation firm representing plaintiffs, and Rodney Smolla, the eminent First Amendment scholar and president of Vermont Law School. Finally, since the case was being litigated in Delaware Superior Court, brothers Brian and Michael Farnan of Farnan LLP supplied their insights into the courts of the First State.

Judge Eric Davis praised the performances of the attorneys, declaring that he had not seen such excellent lawyering in 13 years on the bench. He included in this praise the impressive lawyers for the defendants, who included such litigation luminaries as Dan Webb, co-executive chairman of Winston & Strawn and trial lawyer extraordinaire, and a trio of amazing appellate advocates: Paul Clement and Erin Murphy, co-founders of Clement & Murphy, and Scott Keller, co-founder of Lehotsky Keller. A nice farewell gift from Judge Davis to the Fox lawyers: he vacated the order appointing a special master, Delaware litigator John Elzufon, to investigate whether Team Fox complied with its discovery obligations.

Now, on to the question that inquiring minds want to know: how much did Dominion’s lawyers get paid?

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In the last episode of this podcast, I wondered: are boutiques the future of litigation? If you’re looking to make that case, today’s guest would be a star witness.

Last week, leading litigator Christopher Clark left Latham & Watkins, one of Biglaw’s biggest and best names, to launch his own boutique. Together with Patrick Smith, a former colleague of his from the U.S. Attorney’s Office, and Rodney Villazor, another former federal prosecutor, Clark is a founding partner of Clark Smith Villazor.

For this new podcast episode, Clark and I discussed his time at the U.S. Attorney’s Office for the Southern District of New York, which he joined right after clerking; his time in Biglaw, including Dewey & LeBoeuf during its downfall; why he admires his most controversial client, Hunter Biden; helpful advice for representing billionaires; and, finally, a key skill for success as a lawyer—which, sadly, many lawyers overlook.

Thanks to Chris Clark for joining me, and good luck to him, Patrick, and Rodney, as they launch and grow their new firm.

Show Notes:

Christopher J. Clark bio, Clark Smith Villazor LLP
Lawyer for Hunter Biden, Musk leaves Latham to launch new law firm, Reuters
Latham Partner Advising Hunter Biden Leaves for NY Litigation Boutique, American Lawyer
Former Latham Securities Chair Joins NY Litigation Boutique, Law360

Prefer reading to listening? A transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Christopher J. Clark (courtesy photo).Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the sixteenth episode of this podcast, recorded on Thursday, April 13. I post episodes every other Wednesday.

A big thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

My guest today is Christopher Clark, a preeminent litigator who has successfully handled the highest-stakes and highest-profile matters in nearly every type of major dispute. Some of his past and current clients including billionaires Elon Musk and Mark Cuban, whom he represented in their cases with the Securities and Exchange Commission, and Hunter Biden, whom he represents in an ongoing federal criminal investigation.

You may have seen Chris in the news last week. After a decade as a litigation partner at Latham & Watkins, one of the world’s leading large law firms, he left to join forces with two other top trial lawyers, Patrick Smith and Rodney Villazor, to launch Clark Smith Villazor. As reflected in some of my past podcast guests—including Paul Clement of Clement & Murphy, Robbie Kaplan of Kaplan Hecker & Fink, and Steve Molo of MoloLamken—boutiques seem to be where it’s at right now in the world of litigation, and Chris’s move is just the latest demonstration of this trend.

In our conversation, Chris and I discussed his early career, including his service in the legendary U.S. Attorney’s Office for the Southern District of New York; his journey through Biglaw, including his time at a certain firm called Dewey & LeBoeuf; why he left Latham to launch Clark Smith Villazor, as well as the vision for the firm; a little bit about his client Hunter Biden, whom he will continue to represent going forward; and the unique challenges of representing billionaires like Mark Cuban and Elon Musk.

Without further ado, here’s my interview of Chris Clark.

DL: Chris, thanks so much for joining me!

Chris Clark: Absolute pleasure, David. Thanks so much for having me,

DL: And congratulations on your big move! That's very exciting news.

CC: Yeah, I couldn't be happier, and it's just so exciting to be working with Pat and Rodney. I think we're an amazing, really strong team, and we're all ready to roll.

DL: Absolutely. And we'll get into that in a little bit.

To start at the beginning, what was your childhood or your upbringing like, and did you know from an early age that you were going to become a lawyer?

CC: I didn't know, but everybody told me I was, so I think that's probably a good indication.

I grew up sort of lower middle class in Northern California, in Fremont, where now my former client, Elon, has his car factory. And it was really one of those towns where you could be in the middle class. Most people's parents hadn’t gone to college. There was a big GM factory there. There was a lot of construction. And so you really had the last of the suburban California areas where you could be working class, kind of like what Joan Didion wrote about a lot. It was a great place to grow up.

I went to college at Berkeley, right there, public school, right near where I grew up. And then I came to New York to go to law school, having decided I was way too type-A and way too combative to get into academia. So everybody's prediction of my youth was right that lawyer was the job for me.

DL: And did you go straight through from Berkeley to Columbia?

CC: I did. And unlike a lot of people, I went straight through from law school to a clerkship to the U.S. Attorney's Office, which wasn't really incredibly common. And I think it's less common now that they made the mistake and hired me right out of a clerkship.

DL: Ha!

CC: So I never really had a real job until I was an assistant U.S. attorney in the Southern District of New York.

DL: And that’s quite a first job to have. Where did you clerk, actually?

CC: I clerked for Judge [Lewis] Kaplan in the Southern District, who now has the FTX case, and then I clerked for Judge [Joseph] McLaughlin on the Second Circuit before I went into the U.S. Attorney's office.

DL: Fantastic. And did you go through the [Justice Department] Honors Program, or did the S.D.N.Y. hire directly out of clerkships back then?

CC: They did. They hired not that many people, but definitely a few people straight out of clerkships. If you did the district court and the circuit, it was like you had enough work experience—which wasn't true, but at least it was the theory. And so I got hired right out of Judge McLaughlin’s chambers.

DL: Tell me a little bit about your time in the Office. I understand you had quite a number of trials, for example, and you also argued a lot of appeals.

CC: Yeah, I was relatively busy. What happened actually was pretty quickly after I started in General Crimes, which is kind of the postal-theft, general-crimes area, Pat Smith and David Esseks had a very, very big securities fraud wire[tap], and they needed essentially scut workers to do all the really tedious work that a wire takes.

So I started working for them right after I started in the Office. And we all collectively ended up charging so many cases that I actually got to try some securities fraud cases within my first year at the U.S. Attorney's Office. For my first security fraud case, Pat was my trial partner, and it exposed me to a lot of what we'd call white-collar practice, right off the bat. I never really was too heavily involved in any of the guns-and-drugs cases. I did some, but through Pat’s good offices, I really got involved in white collar very early.

DL: That's interesting. People sometimes say in the S.D.N.Y. that you cut your teeth on the guns-and-drug stuff, and then when you're starting to get ready to move to the private sector, you get to do the securities and commodities fraud stuff because that's the most marketable. But it sounds like you focused on securities fairly early.

CC: Yeah, I always wanted to do it, and yeah, literally within six months of being in the Office, I had indicted a securities case because it turned out there were so many targets on this wire that we didn't have enough people to indict them with the experienced white-collar lawyers, and so they just kind of said, go ahead. So it was a great experience and I really got to get up there a bit earlier. The path that you described is a little bit more traditional.

DL: That's great. And how many years were you in the Office, and do you recall how many cases you tried or how many appeals you argued during that time?

CC: I was there around seven years, and I did, in that time, I think nine or 10 trials. And I did a lot of appeals. I was one of the people who would volunteer to help edit people's briefs and, for various reasons, there were times people couldn't show up to argue their case, or there'd be cases that for lack of a better term got “orphaned,” where the assistant who tried the case or did the case had left the Office, and so I was always eager to volunteer to do those. So I got a lot of arguments, which was great and really fun. I always really loved being in Second Circuit. Nothing's on submission, everything's live, and it's just a great court.

DL: Absolutely. And then where did you go after your seven years in the U.S. Attorney's Office?

CC: I went to the long-lamented firm of Dewey & LeBoeuf, which was then LeBoeuf Lamb. I worked there through the merger, through the bankruptcy, and it's actually a funny story. One of the depositions I took in the Cuban insider trading case, I had to give my appearance as my house, because I didn't have a law firm that I worked at because my law firm had declared bankruptcy that day, and I hadn't yet started at Latham. So I literally said to Mark, “You have to promise not to sue me for malpractice, because I have no insurance for this deposition.” But actually the case worked out well, so we never had to worry about malpractice.

So I was there through the whole blowup and then, very luckily, Richard Owens, who's also from the Office, suggested I came over to Latham, and it was a great 10 years there.

DL: Oh great. So was that how you decided to go to Latham from Dewey?

CC: It was really Richard. Honestly, almost every time I've made a decision to go work at a law firm, which has been three times in my life, it's been about working with friends and people I know really well. And so Richard was my chief in the securities unit. I tried the Adelphia case with him for six months, and as we said then, and we still say now, we either would've been absolute enemies or best friends after doing that case together.

It turned out we were lifelong friends. And as Dewey was sort of melting down, Richard called and said, “Hey, are you thinking about what you're going to do?” And I said, “I'd love to come work with you.” So it really was just that kind of personal connection and personal trust that I had with Richard that gave me the push to go to Latham, and it worked out great.

DL: And you had a very good run there. How many years were you there in total?

CC: Ten years.

DL: Wow.

CC: It's hard to imagine it was that long. But I have checked the dates.

DL: Yes. And in this day and age of increased movement, 10 years is a good long time. And you also had some leadership positions too during your time there, right?

CC: Yeah. I helped run the global securities litigation department, helped run the global financial institutions department, and then most recently I helped run the New York office, all of which were great, amazing experiences. In a big global firm like that, to be involved in management was quite an experience.

DL: I have such huge respect for Latham as a firm. I actually profiled their litigation practice a number of years ago when I was at Above the Law. It really is a world-class firm. I spoke earlier on this podcast with Gary Feinerman, who left the bench to join Latham. So I guess the natural question is, why would you leave?

CC: It is a great firm, a great, big, global firm, and I think if you talk to people who litigate for the kinds of clients I do, who are individuals like Mark and Elon, big hedge funds, people who founded big hedge funds—big law firms like that have a lot of conflicts, particularly with financial institutions, and they don't usually run to the side of the big money managers, they run to the other side, of the big financial institutions, what we call the sell side, as opposed to the buy side.

And look, it's not the easiest thing to be super nimble, proactive, and aggressive at the second-largest law firm in the world. It's just not. There are lots of checks and balances and lots of layers, for good reason.

But at this point in my career, I like to think I'm wise enough that I don't need too many checks and balances. I like to think that my clients’ desires need to be foremost in my mind to execute. And being at a shop that you run with one of your lifelong friends allows you complete decision-making authority for how to litigate for your clients. I don't have to worry about pissing off an investment bank, and there have been times [in the past] when I have. And these people have huge disputes with those kinds of institutions. They want world-class lawyers who can go a hundred percent to bat for them, and they've got that now in our firm.

DL: That makes perfect sense. I'm curious, though—Clark Smith Villazor is a boutique. Is there anything about being a boutique or not being at a several-thousand-lawyer firm that you feel limits you or constrains you or could be a detriment in any way?

CC: I think there's perception and reality. On the perception standpoint, I could imagine people thinking that there's not enough staffing at a smaller firm. I actually think that's just perception, it's not true.

It wasn't like I was using 30-lawyer teams in any of my cases [at Latham], no matter how big. Even for the Argentine debt litigation, which was a huge, sprawling, multi-year thing, we had a core team of five people. And that's better for the client because those five people know the case. It's not a junior person who's been brought in, feeling the elephant but not knowing what it is, right? It's people with mastery. We can easily put a team together like that right now.

The issue that will come up, and we're dealing with it on a day-to-day basis in real time, is that at Latham you could pick up the phone to a great bankruptcy lawyer who's going to have amazing answers for you about the bankruptcy questions you're facing, in real time. We don't have that right now. I don't know that we'll ever have it, and the more, I don't want to say esoteric, but the more specialized the issue—really, really deep broker-dealer regulation, really, really deep futures regulation—those are things that you don't have at your fingertips.

Now the good news is in New York, there are firms that are amazing at that, that aren't big firms. And so now we're partnering with these incredible lawyers. I don't want to say I'm shocked by how good they are, but I'm super-pleased by how good they are, and we can access them almost as fast. It's not picking up the phone, it's definitely you make one or two phone calls, but they're there.

That’s a real issue, and it needs to be managed, but it's pleasant because you actually are making all these new contacts that you never had before. So part of it’s perception, part of it’s reality. The reality part, I think—it's kind of neat so far to be able to team up with these people who are incredibly gifted in their own particular areas.

DL: Would you like to follow in Chris Clark’s footsteps and leave Biglaw to launch your own boutique? This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the next best step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.

I also understand that perhaps you might still work alongside large firms. When I interviewed Steve Molo of MoloLamken recently, he mentioned that in a significant majority of their cases, they're working alongside a larger firm. And I believe you said in some interviews that some of your matters from Latham might still have Latham's involvement as well?

CC: Yeah, for sure. For instance, in the Hunter Biden case, our team is still intact, and we're going to stay a team. I'm the senior lawyer on that team, but a bunch of my former partners and counsels and associates are going to be involved. They've done an amazing job for Hunter so far, and they're going to be involved until we win it for him.

So absolutely, teaming with Latham or teaming with other firms is something we're happy to do at my firm. And by the way, we did it at Latham all the time. The Argentine debt case is a great example. I think every firm in New York was involved in some capacity, right? But many on our team. So it happens all the time. And again, it's actually neat to get to work with people, see their own perspective, and see what their strengths and weaknesses are, and we'll be doing a lot of that for sure.

DL: So the Hunter Biden case—obviously it's hugely in the news, and it's very sensitive and ongoing, so there's probably not much you can say. But is there anything that you can say publicly about that matter or its status or anything interesting about it that is capable of being disclosed?

CC: Not much, frankly—it's an ongoing criminal representation. I can say Hunter is a great person. I can say I'm really proud to be representing Hunter, and I can say you're right, it's in the news all the time, and what's not in the news is that Hunter, after all these struggles, has maintained his sobriety for years now. Nobody reports on the fact that after all this difficulty he had and after all these tragic circumstances in his life, and after struggling with addiction in the way he did, he's sober. He's taking care of his son right now, in L.A. with his wife, and he's living a really principled, great life. And so it's wonderful to work on behalf of somebody who's turned things around like that, not just temporarily or as a flash in the pan, but really with their whole life. It’s amazing.

I didn't know him obviously before these things came up for him, but he's someone who strikes me as being at peace. I've had friends and family members who’ve struggled with addiction, and he just seems like he's in a great place, and it's wonderful to be able to help somebody like that.

DL: I'm very glad to hear that. Regardless of one's politics, I think we all know about the scourge of addiction, and so when somebody manages to break free of it and remain sober and stable, we should all be happy about that. So I'm very glad to hear about that.

Turning to your new firm, you mentioned, of course, that you might work with larger firms, but I also understand that you are looking to grow your firm as well, [beyond] what Pat and Rodney already have, it sounds like.

CC: They've built a great firm. As you know, it started as more of a criminal boutique. They've definitely been expanding into what you'd call complex commercial civil litigation and securities litigation in the last few years. We either have the blessing or the curse of having most of my matters and clients from Latham come over, and in order to service those clients, we're going to need to bring on a lot more talent.

So I think in the next six months, you'll look at the firm being around 15 to 20 lawyers, and in the next year, I would imagine more than that. We've already signed up some people that we're going to bring on in the next couple weeks. We're not going to hire people just to hire people—these are people that we know really well, whom we're really excited to work with, but we'll be bringing on a whole bunch more talent in the next few months.

DL: Excellent—glad to hear. It makes sense. The white-collar space seems very, very busy right now, and also commercial litigation. What areas are jumping out at you right now as very busy? What are the areas that are keeping you most active right now?

CC: I don't know if it's a macro thing or not, but we have a lot of what I'd call board representation/corporate crises—a lot of companies, public and private, coming to us to help us sort out disputes between directors, disputes between stakeholders, issues with management acting in a way that's troubling to the board. We have a lot of those active right now. They're great matters because they're fast. Most of our litigations take years to resolve; these take weeks, and so it's been a focus of mine for the last five years maybe, and the firm is very busy with those.

I think the other thing that we're going to see a lot more of, which has been, I don't want to say dormant, but it's been quiet over the last five years, is distressed and distressed-adjacent litigation. A lot of sins were able to be taken care of because of cheap money and cheap refinancing. And that kind of easy access to cash, it’s just not going to be available to companies anymore, and they're really going to have to deal with fundamental business problems, deterioration of their markets, sometimes overpromising stakeholders. Those just got refinanced in the last five years, they are going to end up in court and in bankruptcy court a lot more. And again, we've done a lot of that over the years and couldn't be better positioned now because we just don't have any conflicts. So whoever wants to bring us to bear, we can go against anybody, which is just terrific.

Those were always at a big firm very tricky, right? Because somewhere in the capital stack, somewhere in the list of stakeholders, was a big client of the firm. And now it's unlikely. So it makes for a lot more opportunity.

DL: Are you also going to be taking on plaintiff-side work? There may be plaintiff-side cases where you represent a company or a wealthy individual who's suing some other company or wealthy individual. Do you think you'll be on both sides of the v?

CC: For sure, absolutely, and we have some that are about to be filed right now, where we will be in that position of being just the classic plaintiff. We'll also have a lot of cases where we're a plaintiff in a creditor's enforcement action, we're a plaintiff in a restructuring, which is more like what you do at a big firm, but again, devilishly hard to get through. We're going to be really busy in that space for the next few years.

DL: Absolutely. And I feel with the economy probably going to turn south, it is good that you have that expertise.

On the other side of the ledger—less on the side of economic challenge, but actually economic success—you have represented a number of billionaires over the years, like Mark Cuban and Elon Musk. Do you have any thoughts or advice in general about representing super-wealthy, high-net-worth individuals? And again, I'm not speaking about any particular client, past or present, but just generally about really rich people. Are they just like us?

CC: Often, yes, but I would say this—rightly or wrongly, I sometimes have a reputation for being kind of a willful person. I think that's good and bad when you're dealing with a really, really high-net-worth client. Because on the one hand, they usually get what they want, and they usually get the advice they want, and that's not a real service to them, right? And so it's kind of hard to say to one of the richest guys in the world, or one of the most famous guys in the world, “No, you're actually wrong, what you want to do is not good for you, and here's why.”

That can be really uncomfortable and difficult. But that's really the value you're giving them. There’s a lot of people who can give them an analysis of the statute or an analysis of the legal standard, but sometimes a lot of people don't want to say those people, “you're screwed, this is not really looking great for you,” and you have to have the willfulness but also the honesty to say, “Look, I want to give you my best take on this, and it may make you mad at me, and it may make you not want to listen to me, but you really should.” And so having the courage of your convictions and the lack of fear to express them is really important to do a good job for somebody who basically in every other aspect of their life is getting a lot of yeses.

DL: I can see that being a challenge, and sometimes maybe they're experts at doing whatever it is that made them a huge amount of money, but you're the expert on the law and so maybe sometimes you do have to tell them no or something like that, and maybe it's not what they want to hear and what they're not used to hearing.

CC: Yeah, if I had a nickel for every time, I've said to a pretty wealthy, successful person, would you argue like this with your brain surgeon about a brain tumor—they kind of look at me like, well, that's actually a decent point.

We're a unique profession in the sense that any reasonably smart person ought to be able to understand our advice. But they often don't have the context or experience to understand how things land, and that's our job to explain that. I don't know, I don't argue that much with my doctor, and I don't think these guys do either, but they sure argue with me.

DL: No, that makes sense. I see your point about how law is somewhat more accessible than say, maybe, brain surgery, and so maybe people do fancy themselves armchair lawyers.

I do think that being at a boutique probably has some advantages in representing folks like that because you do have fewer conflicts, as you said earlier. What about on fee arrangements? Do you think that at your firm you are going to be able to try different things, or try more different things, than you did when you were at Latham?

CC: Yes. The answer is an emphatic yes. It actually is going to go sort of both ways in the sense that we have a lot more flexibility to do things that are what you would term alternative fee arrangements—not just contingency, but discounts, blended fees, hybrid fees, where we can do an hourly rate and a contingency.

But actually more interesting to me is on things like crises management, we can do value billing. One of the frustrations of the practice of kind of running in in a crisis and managing it for a big company is that on the billable-hour model, you actually really don't get paid for the result you deliver, right? If you have to solve something in two days, you just can't bill that much time, you just can't do it. And so one of the things we've introduced to clients is, in our engagement letters, if we have a non-leverable, time-constrained matter, and we deliver an unbelievable result for you, we want to be paid based on value, not hours.

And it really makes sense for this kind of practice. It's been embraced by clients, we have not gotten a lot of pushback on it, and I think it's the future for firms like ours because it doesn't help people to have five associates on a call get the problem done, but it helps the firm be compensated. But we just don't have the associates, and I don't want to burden the client like that.

So that's something we're incorporating. Clients have been okay with it, and I think it's a really important aspect of what we're going to.

DL: I think clients would welcome it because, as you say, they're paying for value, they're paying for results, they're not paying for hours for the sake of hours, and I think if you deliver a great result, they should be happy to pay for it.

When I've spoken to general counsel and chief legal officers, what they seem unhappy about is paying huge rates and fees for results that are subpar or disappointing, whereas if you get a great, great result, they're often very happy to pay your fee because you just saved them even more money, or you helped them avoid prison, or what have you. And so I can understand why clients are embracing your model.

CC: Yeah, and that's the feedback that we've traditionally gotten—your rate seems fine, and your hours are fine, but explain to me the value of the three first-year associates on the case. And so this would allow us not to do that and just deliver results and deliver client service. And so that's what we're trying to do.

DL: Well, I think you are well on your way to doing that, and again, I wish you the best of luck.

Turning to my final four questions, which are standardized for all guests, my first question is, what do you like the least about the law? And this can either be the practice of law or it can be law as a more abstract system.

CC: Wow, that's a really good question. There's a lot I like about the law. What I don't like about it, and this is going to sound weird, is the subjectivity of the ultimate judgments in law, right? You can know you're right. You can know you have the right facts. You can know that it should come out your way. And there are lots of times in all of our careers where the result was determined by a subjective actor, and it's the wrong result.

And it's the art of our job to get that subjective factfinder to agree with us. But it's hard and it's really frustrating because we've all been there when the decision isn't based on the—even when it comes out our way, the decision isn't based on the factors it should be based on. It's based on some weird idiosyncratic thing, and I really don't like that. It's part of my job to try to manage it, but I don't like it.

DL: That's a really profound comment, and I totally agree with it. I think whether you have a judge who just has a certain view on a case, or you have a jury that is a little bit idiosyncratic, you're right—there's not really much you can do about that.

My second question is, what would you be if you were not a lawyer?

CC: Nowadays, I would be a mechanic. I love working on cars and boats, and I'm lucky enough to be financially secure, and so if I had my druthers now, that's what I'd do all day.

When I was younger and sort of starting on a career, I probably would've been an academic if I wasn't a lawyer.

DL: Oh yes, you mentioned that. What did you study undergrad?

CC: I ended up studying rhetoric at Berkeley, which was a great major, but I started as a philosophy major, and had I gone into academics, I would've done that. But it was a little too abstract as a training to be a lawyer, and rhetoric was literally the best training you could get to be a lawyer. So I switched at one point, but I liked that a lot.

But nowadays, if I could do it, I'd just have a little garage where I fix stuff.

DL: That sounds—well, I guess it's not really fun for me, but it sounds like fun for you, so excellent.

CC: Yeah, and you know, we were talking about Richard Owens earlier, that's essentially—he has retired to his farm to work on motors. That's what he does now.

DL: I really admire people like you guys with multiple talents. I am not at all handy.

My third question is, how much sleep do you get each night?

CC: A good night, maybe five and a half hours. A bad night, considerably less.

DL: Oh my gosh. And you're just like that, and you function well on five and a half or less? Wow.

CC: “Well” is a relative term. I function, pretty crabbily, but I do function. It’s great in the sense that when professional matters require me not to sleep, it's very handleable and usual, but yeah, it's not great for you.

DL: Well, I have to say, I'm actually kind of jealous.

My last question is, any final words of wisdom, whether career advice or life advice, for the listeners and readers out there?

CC: Yeah. You’re listening to something right now, and at least for lawyers, young lawyers are always asking, what's a skill that a young lawyer needs? How can I be successful in this enterprise? And it’s listening. It’s really just incredibly important.

You get to work with really wise people who spent their whole careers trying to figure out this profession. And it's remarkable the number of young lawyers and other lawyers who never listen or don't listen well or don't listen hard, and it's really just the most important thing. You're getting a priceless education and training, and you're not listening.

And so that's my advice: listen to the people that you're working with. Listen to the people that you're working against. Listen to the people who are making these rulings. It's just incredibly important and incredibly educational.

DL: I could not agree more. I think that is an excellent note to end on. I've certainly enjoyed listening to your wisdom and thoughts today, Chris. Thank you so much for joining me!

CC: Thanks for having me. It was a real pleasure. Questions were amazingly insightful, and I really enjoyed it.

DL: Thanks again, and best of luck with the new firm.

CC: Thanks David.

DL: Thanks so much to Chris for joining me. Congratulations to him and Pat Smith and Rodney Villazor on the launch of their new firm, which I predict will be a force to be reckoned with in the world of high-stakes litigation.

Would you like to launch the next Clark Smith Villazor? Reach out to NexFirm, the sponsor of this podcast. They have helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

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Matthew Kacsmaryk, during his December 2017 confirmation hearing (screenshot via YouTube).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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What the heck is going on with the federal judiciary these days? Who is guarding the guardians?

The past few weeks have been pretty terrible for the reputations of federal courts and federal judges—which should concern everyone who cares about their critical role in our system of democratic self-governance. As noted by the Administrative Office of the U.S. Courts, “The ability of courts to fulfill their mission and perform their functions is based on the public’s trust and confidence in the judiciary,” which “earns that trust and confidence by faithfully performing its duties; adhering to ethical standards; and effectively carrying out internal oversight, review, and governance responsibilities.”

Recent events have raised serious questions about the judiciary’s continued ability to maintain the public’s trust. I’ll discuss controversies swirling around three judges: Justice Clarence Thomas, Judge Matthew Kacsmaryk (N.D. Tex.), and Judge Pauline Newman (Fed. Cir.).

Justice Clarence Thomas

Justice Clarence Thomas is under fire for omissions from his financial disclosures that allegedly violated the law, judicial ethics, or both. ProPublica broke two major stories, both involving Justice Thomas’s relationship with real-estate magnate and Republican megadonor Harlan Crow. The first story covered undisclosed luxury trips that Crow has bestowed upon Justice and Mrs. Thomas over the years, and the second story addressed Crow’s purchases (through corporate entities) of properties owned in part by Justice Thomas. The justice disclosed neither the trips nor the transactions.1

Justice Thomas and his defenders argue that he wasn’t required to report the trips under the disclosure rules in effect at the time (which have since been tightened, and which the justice said he will comply with going forward). But on the real estate deals, which put $133,363 into the pockets of Justice Thomas and his family, there appears to be no justification for the non-disclosure—as even Justice Thomas recognizes. Here’s what Ariane de Vogue reported last night for CNN:

Justice Clarence Thomas intends to amend his financial disclosure forms to reflect a 2014 real estate deal he made with a GOP megadonor—an acknowledgment that the transaction should have been disclosed almost a decade ago, a source close to Thomas tells CNN.

The deal between Thomas and Harlan Crow, a Dallas real estate magnate and long-time friend of Thomas, involves the sale of three Georgia properties, including the home where Thomas’s mother, Leola Williams, 94, currently lives.

The source said Thomas has always filled out his forms with the help of aides, and that it was an oversight not to report the real estate transaction. Thomas believed he didn’t have to disclose because he lost money on the deal, according to the source.

For additional context and a partial defense of Justice Thomas, see James Taranto’s Wall Street Journal piece. But even Taranto’s essay acknowledges that the text of the financial-disclosure statute required reporting the deals with Crow.

This is far from the first time that Justice Thomas has had to revise his disclosures after the fact. In 2011, he amended several years of filings for failing to disclose almost $700,000 of income earned by his wife, Ginni Thomas—which he said was “inadvertently omitted due to a misunderstanding of the filing instructions.” He later had to amend his 2017 and 2018 filings to report reimbursements for travel expenses associated with teaching at three universities, after Fix the Court—a nonpartisan, nonprofit organization that has been doing important work on court reform for years—called him out.

This is pretty embarrassing stuff, especially given who Justice Thomas is and the role he occupies. As comedian Jordan Klepper quipped (because late-night hosts and comedians have been having a field day with L’Affaire Thomas), “In [Thomas’s] defense, the law is complicated—and he is only a Supreme Court justice.”

Justice Thomas also has an unfortunate habit of blaming others for his lapses. On the Crow-funded travel, he said that unidentified “colleagues” and “others” told him it wasn’t reportable. And now on the real estate deal, a source close to the justice told CNN that he has “always filled out his forms with the help of aides.”

Who exactly are these “aides,” and might it be time for him to hire new ones? I’m sure there are any number of superb lawyers and accountants who would be happy to help the justice file accurate and complete disclosures in the future. And Justice Thomas is clearly capable of hiring impressive people, as reflected in many of his former law clerks. (But see John Eastman.)

If and when Justice Thomas hires new and better lawyers and accountants, they should go back and audit all of his past disclosures, fixing any and all errors and omissions they notice. Democrats on the Senate Judiciary Committee have called for Chief Justice John Roberts to order an investigation of Justice Thomas. If there is going to be an investigation—which I would support, if for no other reason than repairing public confidence in the Court—Justice Thomas could make a show of good faith by conducting his own “self-investigation” in advance. Whatever his team unearths could then be turned over to the investigators from the Court, giving them a head start. It would be analogous to a company conducting its own internal investigation into allegations of possible misconduct, which the DOJ looks upon favorably if it shows up on the scene later.

In a speech delivered this afternoon to the Dallas Lawyers Chapter of the Federalist Society, Judge James Ho (5th Cir.), a former Thomas clerk, offered a less technical, more big-picture defense of Justice Thomas. In addition to extolling Justice Thomas’s virtues as a jurist and a person, as the justice’s defenders have done repeatedly over the past few weeks, Judge Ho argued that the ethics allegations against Justice Thomas have been weaponized for political ends. (I’ve reprinted the entire speech, which is not long and worth reading, at the end of this post.)

I disagree with Judge Ho on any number of topics, including but not limited to his boycotts of Yale and Stanford when it comes to law clerk hiring, but I do agree with some points in his latest remarks:

It’s fair to say that some of Justice Thomas’s critics on the left are motivated less by a deep commitment to ethics and more by a desire to score political points. (Of course, I have no doubt that the right would lose its mind if we learned that Justice Sonia Sotomayor was livin’ la vida loca with George Soros.)
When it comes to judges, “we should apply the highest ethical standards, not hypocritical double standards, and it “disserves the cause when we allow ethics to be weaponized to punish disfavored viewpoints.” (Thomas critics would argue that there is a double standard, but it benefits conservatives; Justice Thomas will surely keep his seat on the Court, even though Justice Abe Fortas, a Democratic appointee, was forced off the Court for arguably less.)
The issues at hand transcend Justice Thomas, since “[m]any Supreme Court Justices have enjoyed many trips hosted by individuals and organizations that may not have a direct interest in a pending case, but no doubt care deeply about certain cases.” And a “good-faith discussion about how to strengthen ethics in government” would be more productive than continuing to pillory Thomas.

Judge Ho’s source for that last point is this excellent New York Times staff editorial, “The Ethics of Nine of the Most Powerful People in America,” which represents a fine starting point for that good-faith discussion of how to improve SCOTUS ethics. After describing how other justices, from Justice Scalia on the right to Justices Ginsburg and Breyer on the left, accepted hundreds of free or subsidized junkets from wealthy benefactors, the editorial makes this point (emphasis added):

The problem with these kinds of favors and gifts—regardless of whether they are disclosed—is that they badly damage the court’s reputation as the ultimate fair arbiter of the law…. [W]hen the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.

Amen. Whether or not there was any technical impropriety with Harlan Crow funding travel for the Thomases—since Crow didn’t have any cases before the Court himself, and it’s probably true that none of Crow’s largesse changed a single vote of the archconservative Justice Thomas—that’s not the end of the analysis. The appearance of impropriety, what Sarah Isgur of Advisory Opinions refers to as the “ick factor,” can also seriously harm the credibility of the courts. And I think Judge Ho underemphasizes or elides much of this as applied to Justice Thomas (although I realize you can’t expect an ex-clerk to criticize their former boss that harshly).

The Times editorial identifies possible reforms. It cites a bill introduced by Senator Sheldon Whitehouse (D-R.I.), chairman of the Senate Judiciary courts subcommittee, which would require the Court to adopt disclosure rules as robust as those that apply to Congress, as well as greater transparency surrounding recusals, which would be welcome. But it also argues that disclosure isn’t enough by itself (and I’m tentatively inclined to agree, although I’m open to arguments to the contrary):

Justices have to stop accepting expensive gifts in the first place. The Supreme Court could eliminate any impression that it can be seduced by oligarchical wealth by adopting the kinds of gift limits that apply to members of Congress and other federal employees. Senators cannot accept gifts (including hospitality) worth more than $50, or more than $100 from a single source in a year. They need advance permission from an ethics committee before accepting gifts from personal friends worth more than $250. Free lodging can be accepted in someone’s personal residence if the owner is not a lobbyist. House rules are similar.

Would these rules make it less fun to serve on SCOTUS? Absolutely; who doesn’t like flying private? And I suppose one could argue that they would make service on the Court less appealing. But even if all these strictures were imposed, plus all the “fixes” advocated by Fix the Court, there would still be no shortage of brilliant lawyers willing to serve on the Court. And if junkets play a significant role in drawing someone to One First Street, that’s probably not someone we’d want on the bench.

Judge Matthew Kacsmaryk

Last week, the Washington Post published an article reporting that back when he worked for the conservative First Liberty Institute, Matthew Kacsmaryk—now in the headlines for his abortion-pill ruling—pulled his name off a draft law-review article discussing controversial issues like transgender rights and abortion. He acted prior to the article’s publication, so he didn’t list the article on his Senate Judiciary Committee questionnaire, which required him to list all “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited.” Per the Post, “the circumstances surrounding the article’s authorship raise questions about whether a judicial nominee was seeking to duck scrutiny from a process designed to ensure that judges are prepared to interpret the law without personal bias.”

I find this to be an easier case than the Clarence Thomas controversies. Nominees are required to list their published work; until the article was published with Kacsmaryk’s byline, it wasn’t subject to disclosure. Almost any freelance journalist can tell you a story about how they were hired to write some piece, they were well into (or even done with) the editing process, and then the piece got spiked by the editor. The journalist might have been paid a “kill fee,” but they didn’t get a “publication” out of it.

See also Judge Ho’s discussion of L’Affaire Kacsmaryk in his Dallas FedSoc speech, reprinted below. On this issue, I think he’s completely correct.

Judge Pauline Newman

(Actually, maybe the heading of this section should be “Chief Judge Kimberly Moore” rather than “Judge Pauline Newman,” because it focuses more on problematic conduct by Chief Judge Moore rather than by Judge Newman.)

In last weekend’s Judicial Notice, I wrote about the disability/misconduct complaint that Chief Judge Moore of the Federal Circuit filed against Judge Newman. The gist of the complaint is that Judge Newman, who is 95 and still an active-status judge, “may suffer from impairment of cognitive abilities (i.e., attention, focus, confusion and memory) that render [her] unable to function effectively in discharging case-related and administrative duties.”

The Judicial Council of the Federal Circuit, which is tasked with handling the complaint in the first instance, posted a public statement about the investigation into Judge Newman, after it was disclosed by news reports. The statement links to two orders related to the investigation, a March 24 order, which contains the allegations against Judge Newman, and an April 13 order, which outlines the process for handling the complaint. The April 13 order reveals that the complaint against Judge Newman will be investigated by “a special committee composed of Chief Judge Moore, Judge [and former chief judge Sharon] Prost, and Judge [Richard] Taranto.”

Hold on a sec… wasn’t the complaint against Judge Newman filed by Chief Judge Moore? Is Chief Judge Moore going to be in charge of reviewing her own complaint? And as someone involved in the events at issue—based on the statement of facts in the March 24 order, Chief Judge Moore is a colleague who has observed and been affected by Judge Newman’s alleged slowness, as well as one of multiple judges who talked to Judge Newman about her problems—isn’t Chief Judge Moore a fact witness too? This doesn’t look so hot. Cf. Justice Neil Gorsuch’s dissent from the denial of certiorari in Donziger v. United States (noting the obvious due-process problem with the accuser serving as the decisionmaker).

I’m not the first to notice this… incongruity. Professor Arthur Hellman brought it up to Bloomberg Law, raising the possibility of the complaint against Judge Newman being transferred to the judicial council of a different circuit:

There continues to be uncertainty among practitioners and academics on what to expect next, given the uncharted territory that the complaint ventures into.

Hellman said a transfer of the case to another federal appeals court is still possible. Typically, though, a chief judge would request a transfer before an investigative committee is formed.

“If there’s a feeling among Newman’s supporters that there is bad blood between Moore and Newman, that could be a reason to ask for a transfer,” he said.

The purpose of the complaint process, he continued, “is to get a result more likely to be accepted by all sides, so internal tensions would be a good reason to request a transfer.”

So did Fix the Court (FTC), even though it actually supports Chief Judge Moore’s call for Judge Newman to step down:

[A] chief judge, both when they do and do not identify a complaint against a fellow judge under the Judicial Conduct and Disability Act, should not then be placed on the special committee that’s investigating the conduct of the judge. (Yes, it’s in the statute and regulations, so it’s not on Chief Judge Moore here; it’s simply a poorly thought out rule.)

This would be akin to a judge hearing a case on the district court level and then hearing the same case on appeal after said judge is elevated to the circuit court. It shouldn’t happen, and there should be a fix to allow for a different judge—say, the next in line, like an “acting chief judge”—to sit on the special committee.

But the Rules for Judicial-Conduct and Judicial-Disability Proceedings, linked to by FTC, do provide a possible solution:

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

The complaint against Judge Newman was filed under Rule 5, and no reference to the Judicial Conference of the United States, which is charged with “review[ing] circuit council judicial conduct and disability orders,” has yet been made. So asking Chief Justice John Roberts to transfer the proceeding to the judicial council of another circuit is still possible. And if anything rises to the level of “exceptional circumstances,” this bizarre standoff between Chief Judge Moore and Judge Newman would qualify.

Some of you might recall how when a complaint was made against Chief Judge Bill Pryor (11th Cir.) related to his hiring of a law clerk, an acting chief judge stepped into Chief Judge Pryor’s robes for purposes of handling the complaint. This judge then requested that the proceeding be transferred—and it was transferred, to the Second Circuit Judicial Council. If that situation constituted “exceptional circumstances” simply because it involved the chief judge, this seems like an even stronger case.

I find it hard to imagine how Chief Judge Moore could conduct a fair and impartial investigation of her own complaint against a colleague. But even if she somehow could, a transfer would still be warranted, to give the public confidence in the fairness of the outcome. If there’s a lesson to be learned from the recent controversies surrounding Justice Thomas, it’s this: when it comes to the administration of justice, appearances matter.

REMARKS BY JUDGE JAMES HO TO THE FEDERALIST SOCIETY, DALLAS LAWYERS CHAPTER, APRIL 18, 2023

Thanks so much to the Federalist Society for the opportunity to speak with you all today. I’m here to briefly respond to recent events concerning the issue of ethics in the judiciary. But I’ll begin by admitting my personal bias in these matters.

I had the profound honor of clerking for Justice Thomas from 2005 to 2006. But well before that, I had long concluded that Justice Thomas is one of the most principled and fearless individuals to have ever served in the judiciary. He is a role model—and one of the most inspiring and fascinating Americans alive.

Harlan Crow is a respected business leader, a devoted patriot, and a generous philanthropist. He regularly opens his properties to civic organizations, scholars, and public officials. In fact, he opened his home to me and my family, so that Justice Thomas could swear me in on my first day on the bench. For that, I am eternally grateful. I’m deeply honored to know them both.

Public service is a public trust. Citizens deserve a government they can believe in. So I warmly welcome any good-faith discussion about how to strengthen ethics in government.

But we should apply the highest ethical standards, not hypocritical double standards. It disserves the cause when we allow ethics to be weaponized to punish disfavored viewpoints. No one respects a rigged game.

Unfortunately, I’ve seen how ethical principles can be contorted and misused—not to serve the public good, but to further a political objective. I’ll begin with a personal example.

Last year, I was accused of being unethical for publicly stating my concerns with selecting judges based on race. Four other federal judges testified at the very same hearing where I first spoke. Yet none of them were criticized for being unethical. I can only presume that’s because the ethics police agreed with them and disagreed with me.

Had I simply parroted the views favored by cultural elites, I have no doubt that these folks would not have accused me of being unethical. But that’s not ethics—that’s politics.

In 2021, The Wall Street Journal alleged that over a hundred federal judges had violated the law by failing to recuse in cases in which they had a financial interest.

Notably, the Journal did not accuse all of those judges of actual corruption—of actually deciding cases to further their own interests. That’s an important distinction to draw. Because there’s a big difference between actual corruption and the appearance of corruption.

That’s not to say that appearances aren’t important, too. It’s vital that citizens have confidence in their judiciary. As judges, we don’t have the purse or the sword. All we have is our credibility with the American people.

But we should recognize what the Journal did and did not conclude. It showed that judges are imperfect human beings, like everyone else. But I don’t recall anyone calling for all of these judges to be impeached or punished.

Many Supreme Court Justices have enjoyed many trips hosted by individuals and organizations that may not have a direct interest in a pending case, but no doubt care deeply about certain cases, as surely every American does. Yet no one has said that that’s enough to trigger recusal, as was the case in the Wall Street Journal article.

If we want to strengthen disclosure requirements, we can certainly do that. And if we want to categorically prohibit judges from accepting trips from others, we can do that as well.

But whatever we do, I think it would be inaccurate to automatically presume some sort of illicit motive. Many people genuinely enjoy spending time with—and learning from—interesting people who do interesting work. Judges aren’t the only ones invited on trips. Scholars and journalists are, too. I was recently invited to Florida to speak to a respected nonpartisan organization—along with a number of distinguished law professors and journalists. Was everyone there to gain corrupt influence with members of the academy and the media? Surely not. And for the same reason, we shouldn’t assume illicit motive with every Justice who accepts a trip.

And we certainly shouldn’t assume illicit motive just because we happen to disfavor one’s views. Again, that’s not ethics—that’s politics. And it’s part of the same problem we’re seeing in law schools across America. We’re increasingly teaching people to presume bad faith and malicious intention from anyone we disagree with.

People are doing the same thing to my friend Judge Matt Kacsmaryk.

To understand, you have to remember this: The Justice Department instructs every potential judicial nominee to stop making any public statements of any kind.

When my own nomination was imminent, a reporter wanted to talk to me about a big case that I had just won for a client. He wanted to give me some “Litigator of the Week” recognition, but needed a quote from me before he could do it. The Justice Department instructed me not to talk to the reporter. So I dutifully obeyed. I have no doubt Judge Kacsmaryk was doing exactly the same thing—following instructions.

And there’s nothing wrong with those instructions. Consider this analogy: Imagine that someone was thinking about becoming general counsel of a controversial political group. But they never did it, because they were nominated for a judgeship. Nominees aren’t required to disclose future jobs that they don’t end up taking. Nor are they required to disclose future articles that they don’t end up authoring.

I presume that Judge Kacsmaryk would not be required to disclose the article if he had simply withdrawn it altogether. After all, a document isn’t final until it’s final. And if it had been a solo effort, I imagine that he would’ve withdrawn it.

But this was a joint effort. And given that it was a joint effort, I see no reason why Judge Kacsmaryk couldn’t just let his co-authors proceed without him. I don’t see why all their efforts had to go to waste. I can imagine Judge Kacsmaryk just felt bad for his colleagues.

There’s nothing wrong or unusual about lawyers who work together on a document, knowing full well that some of them may not end up signing and getting public credit for the product. That’s what law clerks do for judges. How many law firm associates have ever contributed to a document that they didn’t end up signing—such as a motion or brief or article or speech or client alert? My guess: All of them.

This is such a common phenomenon that there’s a name for it. It’s called ghostwriting. Now, if the Senate wants to amend its forms to require disclosure of all ghostwritten material, it certainly can do so. But that would be new. Former Senate lawyer Stephen Breyer was not required to disclose everything he ghostwrote for Senator Ted Kennedy.

I’m all for discussing ways to strengthen ethics in government. But we should do it in good faith. And our discussions should be proportionate to the facts.

During the 2016 Presidential election, Justice Ginsburg made a series of highly disparaging remarks about Donald Trump. She called him a “faker.” She criticized the media for not looking into his tax returns. And she said that “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.”

A few years earlier, she told the New York Times that, “at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

Suffice it to say that these are highly unusual statements for a sitting Supreme Court justice. Yet she did not recuse herself in countless cases involving either abortion or President Trump.

Even so, President Trump later described Justice Ginsburg this way: She led an amazing life and was an amazing woman, whether you agreed with her or not.

Well, here’s what I would say about Justice Thomas: He is an amazing man, and his life exemplifies the American Dream, whether you agree with him or not.

By all means, let’s talk about what we can do as a country to strengthen ethics in our government. But we can do it without the double standards. We can do it consistently, not selectively. And we can do it without tearing down an honorable man like Justice Thomas. Thank you.

1The Washington Post tried to join in the fun with its own story about another apparent error in the Thomas disclosures: he reported income from an LLC under its former name as a partnership, quelle horreur. The Post itself admitted that this “might be dismissed as a paperwork error”—because, well, it probably was—and the story struck me as the Post feeling bad about ProPublica eating its lunch and trying to play catch-up.

Yes, it shows that Justice Thomas is pretty sloppy when it comes to his financial disclosures—but we’ve known that for years. As usual, I agree with David French and Sarah Isgur of Advisory Opinions, who call this a “non-story.” They further argue that it actually gives partisan defenders of Justice Thomas fodder for discrediting the real stories—including the failure to disclose the real-estate deals with Crow, which most fair-minded observers would agree is serious and troubling.

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Can you believe this weather? This week, we turned on our air conditioning for the first time this year—only a week or two after we stopped using the heat. It feels like we’ve gone straight from winter into summer, skipping over spring—except when it comes to seasonal allergies, which have been brutal for me and our poor son Harlan. He has been sniffling and rubbing his eyes constantly, refusing to blow his nose or take eyedrops. But at least he’ll take children’s Zyrtec; if you have other suggestions for helping a kid with bad allergies, I welcome them.

When not busy dying from allergies, I recorded a new episode of Movers, Shakers & Rainmakers. Zach Sandberg and I interviewed Darren Heitner, a prominent figure in the world of sports law. If you’re one of the many lawyers interested in breaking into that hard-to-enter field, or if you’re just generally interested in sports and entertainment law, definitely give it a listen.

Now, on to the news.

Lawyer of the Week: Ted Boutrous.

Is there a double standard when it comes to Biglaw firms’ willingness to handle controversial cases and clients? As Aaron Sibarium points out in this piece for the Washington Free Beacon (in which I’m quoted), lawyers who want to represent Donald Trump often end up resigning from their firms (unless they work at Jones Day)—even though Biglaw firms have represented a number of Democrats in sensitive matters over the years, including Bill Clinton and John Edwards.

There is, however, a strong argument that Trump is uniquely toxic. This might explain not only why lawyers must leave Biglaw to take him on as a client, but also why lawyers can remain happily ensconced in Biglaw while publicly declaring their desire to take him down in court.

In 2016, that’s exactly what longtime Gibson Dunn partner Ted Boutrous did. The noted First Amendment lawyer publicly offered to provide free legal representation to any news organization sued by Trump for reporting sexual misconduct allegations against him. And now Boutrous, famous for his perfectly coiffed silver mane as well as his courtroom skills, is taking on Trump in a different way.

Boutrous represents Manhattan District Attorney Alvin Bragg in the lawsuit Bragg filed on Tuesday in the Southern District of New York against Representative Jim Jordan (R-Ohio), the Trump ally who as chairman of the House Judiciary Committee is trying to investigate Bragg’s prosecution of Trump on 34 felony counts of falsifying business records. Specifically, Bragg’s 50-page complaint seeks injunctive and declaratory relief to prevent Jordan from enforcing a subpoena seeking “highly sensitive and confidential local prosecutorial information that belongs to the Office of the District Attorney and the People of New York.”

I agree with the Advisory Opinions crew, who described the complaint as not just a “speaking” complaint but a “screaming” one, “grandstanding about grandstanding.” But I also agree with them that despite reading like a press release, it’s right on the law, and the subpoena is probably not enforceable. And I agree with Andrew Strickler of Law360, who opines that the lawsuit “further cements Boutrous’s unusual position in the A-list appellate and constitutional community: a Biglaw leader steeped in a conservative legal tradition who morphed in the Trump era into an outspoken ally of progressives and free-speech advocates.”

Speaking of Trump-related publicity stunts that might also have legal merit, the former president has sued his former lawyer, Michael Cohen. While Trump’s $500 million demand seems ridiculous, his claims that Cohen violated their attorney-client relationship and a nondisclosure agreement are not facially frivolous—which can’t be said of everything Trump files in a court of law. When contacted by phone by the American Lawyer about the complaint, Cohen briefly answered, uttered an expletive, and hung up. Sounds about right.

In memoriam:

Nancy Lieberman, an M&A powerhouse and longtime partner at Skadden Arps, passed away at 66.
Richard Levick—a lawyer turned leading crisis-communications consultant, who often worked with law firms or on law-related issues—passed away at 65.

May they rest in peace.

Judge of the Week: Judge Pauline Newman.

For many years, the way the federal bench dealt with “problem judges” was… it didn’t. See, e.g., C. Ryan Barber and Camila DeChalus’s detailed examination of the issue for Insider, or Ken White’s disturbing account of how, decades ago, he and other staffers to a judge with a substance-abuse problem tried to get that judge’s colleagues (including the chief judge) to address the situation—without much success.

My anecdotal sense, based on a number of situations of which I’ve become aware, is that the situation has improved significantly in recent years. To their credit, judges, especially chief judges, are more willing to get involved when a colleague is no longer able to discharge the judicial role effectively. This is usually handled discreetly—e.g., a chief judge meets privately with a struggling judge to express concerns, and then that judge quietly retires.

But what happens when a judge refuses to accede to such pleas? That brings us to the current controversy surrounding Judge Pauline Newman—who is, at age 95, still an active-status judge on the Federal Circuit, adamantly opposed to retiring or even taking senior status.

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The J. Reuben Clark Law School at Brigham Young University (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Controversies over free speech are apparently not limited to secular law schools on the coasts like Yale and Stanford.1 They take place even at schools like the J. Reuben Clark Law School at Brigham Young University, aka BYU Law. Located in Provo, Utah, BYU Law describes itself as “a religiously affiliated law school,” since it “receives support from and is affiliated with The Church of Jesus Christ of Latter-day Saints.”

Back in February, I spoke at BYU Law, as part of its Law & Leadership Colloquium course, and I received a warm welcome. I came away very impressed by the law school and its sense of community; everyone there, from students to faculty to administrators, seemed to know and genuinely care for everyone else. It seemed hard to imagine ugly protests like those at YLS and SLS taking place at BYU.2

Given the conservative teachings of the Church of Jesus Christ of Latter-day Saints on issues like abortion and same-sex marriage, you wouldn’t expect BYU Law to be a hotbed of progressivism or a place where conservative speakers get “canceled.” But that’s the claim that surfaced in the news earlier this week.

On Tuesday, Garrett Hostetter, a 3L at BYU Law, wrote an opinion piece for the Cougar Chronicle, a conservative student publication at BYU. He claimed that a debate the BYU Federalist Society hoped to host about Dobbs v. Jackson Women's Health Organization, the Supreme Court’s landmark abortion case, got canceled during the fall semester—because it was deemed “too controversial”:

During Fall semester, the Federalist Society planned to host an event to discuss the merits of the Dobbs v. Jackson decision and the legal implications of Roe v. Wade’s reversal. We invited two professors, one liberal (BYU Law) and one conservative (Nebraska Law), to share their views on this issue. These longtime professors and friends would challenge our views, educate our minds, and persuade us to see the law through their eyes. Discussions like this are one of the few holdovers from the forgotten era of a truly liberal education.

And then I was texted that word: Canceled….

Two days later, I sat in the Dean of Students’ office. Despite our agreement [to refrain from trying to cancel each other’s events], a student from ACS [the progressive American Constitution Society] had complained. The Dean explained that our event was just too controversial. Why? Because last year when the Nebraska professor spoke at the BYU Federalist Society, some students got “offended.”

What caused these students to get upset? Here’s what Hostetter claimed:

The speech this 71-year-old law professor gave the previous year was titled, “True Diversity Means Inclusion, Not Exclusion.” During that Federalist Society debate, he explained that true diversity comes from our beliefs, backgrounds, and viewpoints. Therefore, we should never silence someone, whether liberal or conservative (or in-between). Equally dangerous as silencing is compelled speech, which is simply enslavement of the tongue. One example he gave was forcing someone to use your gender pronouns when they have elected not to.

In a National Review piece, Ed Whelan confirmed Hostetter’s account and provided additional information. Hostetter didn’t name the professors, but Whelan reported that the debate would have featured Professor Rick Duncan of Nebraska Law (no relation to Judge Duncan), for the pro-Dobbs side, and Professor Fred Gedicks of BYU Law, for the anti-Dobbs side. Wondered Whelan, “When such apparent cowardice exists even at a private religious law school sponsored by the Church of Jesus Christ of Latter-day Saints, is it any wonder that law-school deans elsewhere kowtow to the grievance-mongers?”

Yesterday BYU Law issued the following statement on the controversy. Here‘s the key language (and the full statement appears at the end of this post):

Last fall, we became aware that a Federalist Society officer was organizing an event and had invited a speaker without applying for approval under the Speakers and Events Policy. The student planned to stage a debate regarding the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. This topic is of great interest to our students, and we are eager to engage on this subject.

The assistant dean of students, who administers the policy, informed the organizers that the event would need to go through appropriate channels but expressed concern about the anticipated timing of the event and suggested that they explore hosting the event the following semester. The Federalist Society officers did not apply for the required approval for this academic year.

This statement left some questions unanswered for me:

Did a meeting along the lines described by Garrett Hostetter—or any meeting, for that matter—take place in the dean of students’ office? It doesn't seem that an entire meeting would be needed to remind FedSoc of the requirement to get approval for its event—an administrative oversight that would be easy to rectify (unless it was being cited for pretextual reasons to cancel an event).
Is BYU Law denying Hostetter’s claim that the the dean of students told him FedSoc’s Dobbs debate would have been “too controversial” (or something along these lines)?
Is the statement’s reference to “concern about the anticipated timing of the event” simply a euphemistic way of saying that certain topics—e.g., abortion—are too upsetting or divisive to be discussed?

I personally think such a view is inconsistent with a university's educational mission, which includes tackling the most difficult and challenging issues that society faces, regardless of whether some people might get distressed. It strikes me as nothing more than a paraphrase of Stanford DEI Dean Tirien Steinbach’s infamous “is the juice worth the squeeze” argument.

And if the objection was that the event would have been “too soon” after Dobbs, I’d respectfully disagree. Dobbs came down in June 2022, and it was endlessly debated and dissected from the moment of its issuance—in newspaper opinion pages, over social media, and on cable news. In light of all this discussion of Dobbs, why would a fall 2022 debate at a law school between two law professors—who would presumably offer more informed and thoughtful views than cable-news talking heads, in civil fashion (the professors are old friends)—be regarded as inflammatory or inappropriate?

Please don’t get me wrong. Compared to the events at Stanford and Yale Law, I’m not terribly troubled by what happened—or what didn’t happen—at BYU Law. But I think it illustrates three points worth keeping in mind when it comes to free speech and intellectual diversity at American law schools.

First, the problem is more widespread than one might think. It affects not just super-lefty, secular institutions like Stanford and Yale, but more moderate, religiously affiliated institutions like BYU Law.

Second, the problem manifests itself not only in terms of things that happen, but things that don’t happen. How many worthwhile events never even take place because either the organizers or the administration fear blowback? It’s analogous to how many students—not just conservatives, but also moderates and even progressives—engage in self-censorship, in class discussions and social situations.

Finally, when it comes to law school administrations and student events and speech, sometimes “less is more.” I have no doubt that the BYU administrators, like administrators at so many other schools grappling with these issues, had good intentions—just as the administrators involved in the Stanford and Yale controversies would claim that they had only good intentions. But we all know the old saying about good intentions.

So law school deans, chillax. Don’t get involved in student controversies. Let students make their own mistakes—if they are in fact mistakes—and learn from them.3

STATEMENT OF BYU LAW SCHOOL ABOUT THE PROPOSED DOBBS EVENT

BYU Law School has one of the most active student chapters of the Federalist Society. With Law School approval, the Federalist Society hosts numerous speakers each year, including this year.

We also have a speakers and events policy, which every student club must follow. We use the approval process to help students stage well-organized events, facilitate hosting visitors, coordinate among the many events at the Law School, and assist clubs in marketing the event to our students. Numerous Federalist Society events have been approved under this policy. To our knowledge, no Federalist Society event has ever been denied.

Last fall, we became aware that a Federalist Society officer was organizing an event and had invited a speaker without applying for approval under the Speakers and Events Policy. The student planned to stage a debate regarding the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. This topic is of great interest to our students, and we are eager to engage on this subject.

The assistant dean of students, who administers the policy, informed the organizers that the event would need to go through appropriate channels but expressed concern about the anticipated timing of the event and suggested that they explore hosting the event the following semester. The Federalist Society officers did not apply for the required approval for this academic year.

BYU Law is committed to maintaining a vibrant intellectual community. We welcome a diversity of voices and beliefs, including those of the Federalist Society, in an environment of intellectual honesty, academic freedom, and abiding faith.

1One quick update on the fallout from the disruptive protest of Judge Kyle Duncan (5th Cir.) at Stanford Law School: in response to the SLS incident, the Texas board of bar examiners has added a question to its bar application that asks candidates whether they have engaged in “incivility and violations of school policies.”

2Disclosure: I received a modest honorarium from BYU Law for my February talk, which was lower than my usual speaking fee, plus coverage of travel expenses. (This newsletter’s About page explains my disclosure policy.)

3Yes, Original Jurisdiction has been heavy on law-school content lately, but this should change very soon. The academic year is coming to an end, which should give us a temporary respite from these controversies, and the Supreme Court will start issuing its biggest decisions, which will give us other things to talk about.

Also, you can always opt out of the law-school controversy content if you like. Just go into your account settings and uncheck the box for emails about “General News,” the category where I file these stories. You can also stop getting email notifications for other categories as well—or all categories, if you prefer to just follow Original Jurisdiction by checking the website from time to time or by reading stories using the Substack app. Thanks!

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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The University of Michigan Law Library (photo by David Lat).Next week, on April 18, U.S. News will publish its 2023-2024 law school rankings—the first set of rankings compiled using a brand-new methodology. After a slew of schools defected from the rankings, declaring that they would no longer provide U.S. News with certain proprietary data that the magazine needed to prepare its rankings under its then-existing methodology, U.S. News adopted a new methodology that no longer requires this data. Instead, the rankings now rely upon (1) information that the schools are required to disclose to the American Bar Association for accreditation, and (2) the reputation surveys compiled by U.S. News itself.

As a bit of a teaser, yesterday U.S. News offered us a preview of the new rankings—the top 14 aka “T14” schools. In case you’re wondering why T14 is a thing—as opposed to the top 10 schools, or the top 25—it’s because, as explained by Wikipedia, “[w]hile these schools have seen their position within the top fourteen spots shift frequently, they have generally not placed outside of the top fourteen since the inception of the rankings”—with only “rare exceptions” over the years.

Behold the T14 schools in the 2023-2024 Best Law Schools rankings of U.S. News, with their change from last year’s rankings noted parenthetically:

Stanford University (tie) (+1)
Yale University (tie) (0)
University of Chicago (0)
Harvard University (tie) (0)
University of Pennsylvania (Carey) (tie) (+2)
Duke University (tie) (+5)
New York University (tie) (+1)
Columbia University (tie) (-4)
University of Virginia (tie) (0)
Northwestern University (Pritzker) (tie) (+3)
University of California, Berkeley (tie) (-1)
University of Michigan—Ann Arbor (tie) (0)
Cornell University (-1)
University of California—Los Angeles (+1)

Some observations:

When we discussed the U.S. News rankings drama on my podcast, former Northwestern Law dean Daniel Rodriguez and I predicted that the new rankings would look a lot like the old rankings, since dramatic change would call into question the legitimacy of past rankings. Our prediction has come to pass, at least as to the T14: these are the same 14 schools as the traditional T14, with one exception—UCLA edging out Georgetown for #14.
Stanford Law has caught up with Yale Law—not just in disruptive protests, but in U.S. News. For what I believe to be the first time in the rankings, Yale is tied for #1 rather than alone at #1. Is this a sign that SLS is gaining on YLS, such that Stanford might be the undisputed #1 in some future year? Stay tuned.
As was the case in last year’s rankings, the “Holy Trinity” of “HYS”—Harvard, Yale, Stanford—was disrupted. Once again, Chicago took the #3 spot, ahead of Harvard, and Harvard had to share the #4 spot—last year with Columbia, this year with Penn. (Sniffed a friend of mine who’s an HLS alum, “HLS tied with UPenn shows these rankings are meaningless.”)
Some observers wondered whether law schools boycotting U.S. News might be punished in the rankings, while law schools staying in might be rewarded. The way U.S. News imposed this kind of penalty in the past was by using artificially low figures for the “placeholder” or estimated values for the data the boycotting schools refused to provide. But because of the methodology change, which now relies only on either public data or data developed by U.S. News, nobody got penalized or promoted. (The boycott leaders, Harvard and Yale, stayed the same, as did Chicago, which didn’t join the boycott; the other school that declined to join the boycott, Cornell, actually dropped a spot.)
As you can see, there are a ton of ties in the rankings—and I think this actually makes the rankings look more legitimate. Instead of offering exaggerated precision, the new rankings reflect the reality that schools exist in bands or tiers.
Overall, there wasn’t much movement within the T14—and I’m guessing this was by design, with U.S. News and rankings guru Bob Morse experimenting with different weightings of factors until they got a result that looked “right.” Of the 14 schools, only four moved by more than a single spot. The schools that moved up by more than one spot were Duke (+5), Northwestern (+3), and Penn (+2), and only one school moved down by more than one spot, Columbia (-4).
For a long time, Columbia and NYU were seen as “T6” schools (along with HYS plus Chicago). But now NYU is back in the T6, after falling to #7 last year, while Columbia has been relegated to #8. Recruiting for CLS just got harder—and I suspect this U.S. News drop will have far more of an impact than the recruiting boycott of various affinity groups in the wake of the Columbia Law Instagram controversy. (By the way, the Instagram post in question is still up—and I’m guessing that it will be staying up, boycott or not.)

These are a few things that I noticed about the new T14. What jumped out at you? Please share your thoughts in the comments.

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‘Smell ya later, we have a private jet to catch.’ (Photo of Justice and Mrs. Thomas by Chip Somodevilla via Getty Images.)To everyone who celebrated Passover, I hope you had a happy one. My husband Zach and I attended two Seders, one with family and one with family friends, and our son Harlan read the Four Questions beautifully at both.

One month after the raucous protest of Judge Kyle Duncan at Stanford Law School, articles continue to be written about the controversy (including one in today’s New York Times by Vimal Patel, although it doesn’t really say much). I was quoted in at least three such articles this week, in the ABA Journal (Stuart Brotman), Daily Caller (Gretchen Clayson), and Stanford Daily (Greta Reich).

It was a very busy week in legal news, so let’s dive in.

Lawyer of the Week: Todd Blanche.

Would you walk away from a multimillion-dollar Biglaw partnership to defend Donald Trump? I wouldn’t. But I don’t think Todd Blanche is crazy for making that choice.

On Monday, we learned that Blanche resigned from Cadwalader, Wickersham & Taft, where he had been a partner since 2017, to join Susan Necheles and Joseph Tacopina in defending Trump in People of the State of New York v. Donald J. Trump. In an email obtained by Politico, which first broke the news of Blanche’s hiring, he explained that “I have been asked to represent Trump in the recently charged DA case, and after much thought/consideration, I have decided it is the best thing for me to do and an opportunity I should not pass up.”

Again, it’s not a decision that I would have made, but I can understand why Blanche made it. First, Manhattan District Attorney Alvin Bragg’s prosecution of Trump is the first-ever criminal case filed against a former president, so defending Trump is a chance to participate in the making of history. Second, the case has its infirmities, which means that (a) even someone who doesn’t love Trump can justify defending him from an arguably overreaching prosecution, and (b) there’s a higher chance of victory—and the fame that would come from winning a historic, headline-making case. Third, I wouldn’t be surprised if Blanche got paid upfront—and hope for his sake that he did, given Trump’s history of trying to get out of paying legal bills. (Chris Kise reportedly received an upfront payment of $3 million when he similarly resigned from Foley & Lardner to represent Trump in the Mar-a-Lago documents case).

Some of Trump’s lawyers over the years have been less than impressive, but like his new colleagues Susan Necheles and Joe Tacopina, Blanche is a seasoned, well-regarded former prosecutor with experience handling high-profile cases. As you can see from his LinkedIn profile, he completed two federal clerkships, for Judges Denny Chin and Joseph Bianco (when they were on the Southern and Eastern Districts of New York, respectively); worked as an associate at Davis Polk; served as an assistant U.S. Attorney in the S.D.N.Y. for more than eight years, where he led the violent crimes unit and the White Plains Division; and practiced post-S.D.N.Y. at WilmerHale followed by Cadwalader.

As for prominent past representations, Blanche won dismissal of the indictment that the Manhattan DA’s office brought against former Trump campaign manager Paul Manafort, based on double-jeopardy grounds. He also represented Igor Fruman, the former Rudy Giuliani associate who pleaded guilty in a campaign-finance case and received a sentence of just a year and a day (and ultimately served only two months before being released to home confinement).

Runner-up for Lawyer of the Week: Alex Spiro. In the retrial of a racial discrimination case against Tesla with terrible facts for the electric vehicle maker, Spiro managed to get the damages award slashed by 98 percent. This still left Tesla owing the plaintiff, Owen Diaz, some $3.2 million—but that was orders of magnitude better than the $137 million award that Diaz won two years ago. Saving Tesla more than $130 million is an excellent result, and I might have named Spiro my Lawyer of the Week if he hadn’t already won this honor twice in the past six months. (I try to spread the wealth and avoid repeat winners in this category.)

In memoriam: Benjamin Ferencz, the last surviving prosecutor of the Nuremberg trials, passed away at 103. May he rest in peace.

Judge of the Week: Justice Clarence Thomas.

Pop quiz, hotshot: who or what is Harlan Crow?

(a) A James Bond villain.
(b) A William Faulkner character.
(c) A boutique financial-advisory firm.
(d) A real estate magnate and Republican megadonor.

Answer: (d). And although some publications call him a billionaire, he’s not—at least not according to Forbes and Bloomberg, the authoritative sources on billionaire status.

Why isn’t Crow a billionaire? Maybe because he’s been dropping so many ducats over the years on Justice Clarence Thomas and his wife Ginni….

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Left to right: Todd Blanche, Susan Necheles, Donald Trump, Joseph Tacopina, and Boris Epshteyn (photo by Steven Hirsch/Pool via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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The yuge legal story of the week is the criminal case that Manhattan District Attorney Alvin Bragg just brought against a certain Donald J. Trump, 45th president of the United States. News of the indictment broke last week, but we didn’t see the charging document itself until Tuesday, when Trump was arraigned and pleaded not guilty to 34 counts of falsifying business degrees in the first degree.

As I’ve said before, I don’t love writing about Trump-related legal news—and I don’t feel particularly bad about that. The world doesn’t suffer from a dearth of Trump coverage, and I don’t have any comparative advantage in covering Trump’s travails. I don’t think my knowledge of Trump is any greater than that of most people who follow current events, and I’m not particularly well-sourced in Trumpworld. As for the current case, People of the State of New York v. Donald J. Trump, again I have no special insight; I worked as a federal but not a state prosecutor, and I don’t have a lot of sources in the Manhattan DA’s Office either. (Of course, I’d welcome more sources in either Trumpworld or Braggworld; please contact me if you can help.)

What I do have, though, is a sizable, smart, and well-informed readership of lawyers, some of whom have impressive knowledge of New York State criminal law, campaign-finance law, the intersection of law and politics, and other subjects implicated by People v. Trump. And so I’d like to tap into your knowledge via this Notice and Comment post, in which I select a hot topic related to law and the legal profession and invite you, my readers, to offer your thoughts on it in the comments.

To kick off the discussion, here are some materials you can read or listen to for the purpose of informing your opinions:

Annotated versions of the indictment and statement of facts (via the New York Times).
A New York Times staff editorial, Even Donald Trump Should Be Held Accountable.
A Washington Post staff editorial, The Trump indictment is a poor test case for prosecuting a former president.
A New York Times guest essay, We Finally Know the Case Against Trump, and It Is Strong, by Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Norman Eisen, a senior fellow at the Brookings Institution and special counsel to the House Judiciary Committee for Trump’s first impeachment.
A New York Times guest essay, The Trump Indictment Is a Legal Embarrassment, by Jed Handelsman Shugerman, a law professor at Fordham and Boston University.
The latest episode of the Advisory Opinions podcast, A Mumbling Indictment, featuring Sarah Isgur and David French.
The latest episode of the Serious Trouble podcast, The Indictment, featuring Josh Barro and Ken White.
The latest episode of the Strict Scrutiny podcast, The Arrest Is History, featuring Leah Litman, Kate Shaw, Jon Favreau, Jon Lovett, and Tommy Vietor.

This is just a small sampling of the ocean of commentary out there. In the comments, please feel free to post links to analyses that you found particularly useful.

So have at it: please share your views on the Trump indictment in the comments to this post. If you prefer, you can also email me; if you do, I will treat your comments as okay to post in the comments on your behalf, keeping you anonymous, unless you explicitly designate them as completely off the record and for my eyes only.

As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Are boutique firms the future of litigation? Compared to many of their Biglaw counterparts, they’re often more nimble, innovative, and willing to take risks. Unattached to giant transactional practices, they have fewer conflicts and other client-related concerns, allowing them to take on interesting, cutting-edge cases that Biglaw firms might decline to avoid controversy.

Founded and staffed by lawyers who left top Biglaw firms, elite boutiques can offer the same if not better lawyering and client service, frequently under more favorable or flexible fee arrangements. And from the perspective of the talent, boutiques often boast enhanced collegiality among partners and partnership prospects for associates.

How do former Biglaw partners build a world-class boutique? I recently spoke with Steven Molo, one of the top courtroom advocates in the country, about how he and Jeffrey Lamken, a leading Supreme Court lawyer, launched MoloLamken in 2009—and turned it into one of the finest litigation firms in the United States, if not the world. We discussed their vision for the firm at its founding, their approach to hiring and retaining talent, how they’ve managed to cultivate diversity in their firm’s ranks, and several current issues in the news, including law school culture wars and the pandemic’s effect on the legal profession. Thanks to Steve for his time, insight, and friendship over the years.

Show Notes:

Steven F. Molo bio, MoloLamken LLP
Legends of the Lawdragon 500: Steven Molo, by John Ryan and Katrina Dewey for Lawdragon
Litigation Leaders: The Founders of MoloLamken on the Firm’s ‘Brains and Brass Knuckles’ Litigation Approach, by Ross Todd for the American Lawyer

Prefer reading to listening? A transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Steven Molo (courtesy photo by Michael Paras).Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

You’re listening to the fifteenth episode of this podcast, recorded on Friday, March 31. I post episodes every other Wednesday.

My guest today is Steven Molo, one of the nation’s leading courtroom advocates. He represents corporations, boards, funds, and individuals in complex business litigation, white-collar criminal matters, and IP litigation. Chambers and Partners calls him “fantastic in the courtroom,” a “fabulous courtroom litigator who lights up the room with his presence.” Benchmark Litigation, which named Steve one of the top 100 Trial Lawyers in America, calls him “revered,” “an outstanding advocate and fearless in court,” who “delivers the goods.”

But Steve isn’t just a great litigator; he’s also an innovator in the law-firm space. In 2009, he and Jeffrey Lamken founded MoloLamken, today one of the top litigation boutiques in the country. As I’ve said and written many times in the past, I believe that boutiques are in many ways the future of the legal profession, especially in litigation—and I say this based on firms like MoloLamken.

In our conversation, Steve and I discussed his impressive legal career, going from prosecutor to Biglaw partner to boutique founder; the vision for MoloLamken that he and Jeff Lamken had when they launched the firm during the Great Recession, and whether it has lived up to that vision; their incredibly successful approach to hiring and training lawyers; and, finally, a number of issues in the news, including diversity and inclusion, free-speech controversies at law school, and how the pandemic has transformed the legal profession.

Without further ado, here’s my interview of Steve Molo.

DL: Steve, thank you much for joining me!

Steven Molo: Well, thank you for having me on the podcast.

DL: It's such a pleasure to catch up with an old friend, and of course I know some of the stuff that we will discuss, but for the benefit of my listeners, let's dive right in.

Tell me a little bit about your childhood, your upbringing. Did you have any lawyers in the family? What led you to go to law school?

SM: Well, I grew up in Chicago, on the south side of Chicago in a neighborhood called Roseland. I came from a working-class family. Neither of my parents had gone to college. I had three sisters. I went straight to college from high school and straight to law school from college and plowed through and was a lawyer at the age of 25 and have been practicing law since.

The reasons for going to law school? For me, it was certainly a world with which I was not familiar. There were no lawyers in my family. There were no lawyers in my neighborhood. It was not something that I grew up understanding, except that it seemed to me to be a great way for a smart person to have a career, have professional advancement, have social advancement, and so that's what really drew me to it.

DL: I think that's absolutely true. It's an amazing, wonderful profession, a great engine of upward mobility. So tell me, when you were in law school, did you have a sense of what you wanted to do afterwards?

SM: I pretty much wanted to be a trial lawyer from the time I was in law school, and I wasn't quite sure exactly what that was going to look like, but I was fortunate to start my career as a prosecutor. I did that for three and a half years, almost four years. I tried a lot of cases, and I also got to argue a lot of appeals.

I was surprised recently, looking back through an old file and finding a résumé that I had when I left to go to Winston & Strawn and seeing just how many cases I had tried and appeals argued. It's very hard for young lawyers to get that experience today.

I was literally right before this call on the phone with some people running a moot-court competition, and we were talking about how getting students to get that opportunity to get on their feet, which is available now through moot court, wasn't really so much then to the same degree. It’s critically important.

But there's a lot of very successful trial lawyers and litigators who started out as prosecutors, and for me it worked out really well. And then when I went to Winston & Strawn, I had the opportunity to also get into court quite a bit because I came with so much experience. I had a mentor there who let me go to court and try cases, and I built a client following of my own over the time there, and I took off from there.

DL: You mentioned that document you saw about your earlier career. Do you recall how many trials or appeals you did while a prosecutor?

SM: I think I had 24 trials, bench and jury trials, but they could be anything from, certainly nothing less than about two days to about two weeks or two and a half weeks, that kind of thing. And I probably argued about 10 or 12 appeals, then authored some briefs on some appeals that I didn't argue.

But it's amazing now too, I see résumés from young lawyers coming from government, and sometimes people are there for seven or eight years and they really don't have that much experience. And one of the keys to becoming a successful trial lawyer is to be trying cases. It sounds almost trite, but I call it mileage, getting up on your feet, making mistakes, developing a style of your own, learning from those mistakes, and developing judgment. Because the only way you develop judgment is by having to make a decision and live with it. And that's something that isn't easily done once you're in a large law firm working on matters there under a very hierarchical structure. But it is a little surprising.

Fewer cases go to trial, that's true. But nonetheless, it is a little surprising when you see someone who's been in a prosecutor's office for six years, seven years, and they've had five trials, seven trials, something like that. But yeah, so I was very, very lucky, and that set the course for me to go out and do much more in private practice, both at Winston & Strawn and eventually at Shearman & Sterling before starting MoloLamken.

DL: Tell me about how you made that jump from being a prosecutor to your first job at a large firm at Winston.

SM: I went to Winston & Strawn, and I joined the firm at a time when it was still just a few hundred lawyers, and the firm grew tremendously. By the time I left, we were 950 lawyers, and I got to be part of that growth. And it was a firm that tried cases, had a history of people who were strong trial lawyers, dating far back before my joining the firm. And so, again, I took the opportunity to try anything I could, to get on my feet in court any way I could, whether it was a trial, whether it was an appeal, whether it was an argument of a motion, those sorts of things.

It really is in the last 10, 15 years, we've seen much more specialization with appellate practice than we used to. I’ve argued many, many appeals, as well as tried many cases, and the market defines me more as a trial lawyer. And that was the philosophy there as well, at that time.

The experience you get—I've always felt I was a better trial lawyer for the appellate work I did, I was a better appellate lawyer for the trial work I did, I was a better civil lawyer for the criminal work I did, I was a better criminal lawyer for the civil work I did. That kind of breadth enables you to develop creativity and foster the creativity that you may have so that you might look at a problem that is in a specific area of the law and pull from a completely different area of the law to solve that problem, because you can see more broadly, you've got peripheral vision, you've got some experience, and you understand also then how that may play out with a judge or with a court.

DL: Absolutely true, and sadly in terms of, for example, the decline in trials, I think the rise of specialization also makes it harder to be a generalist. One of the great things you have going at MoloLamken is you have a pretty diverse practice, and your lawyers get to do different things, and a lot of other similarly sized firms are very, very focused on one thing.

And so, actually, let's shift to that.

SM: Sure.

DL: You launched MoloLamken almost 15 years ago, in 2009. We know what was going on in the world in 2009. What were you thinking? Why would you launch a new venture during a time of incredible economic turmoil? Why would you leave the safety of Biglaw at that point?

SM: You and many others, I think, asked that same question—you would shake our hands and congratulate us and turn and walk away and say, these people are absolutely nuts!

It was actually a great time to start a law firm because disruption is a litigator's friend, right? When there's disruption, there's disputes. When there's disputes, there's opportunities for lawyers who represent parties in those disputes.

So yeah, that was the nadir of the financial crisis. I guess that would be the nadir of the crisis or the height of the crisis, however you measure the worst part of a crisis, but it was a challenging time. One of the things that we clearly wanted to be able to do when we started the firm was to be able to sue banks. And so we just thought that New York and the rest of the country didn't need another firm to represent banks. And so that worked out really well for us because we had something like 13 of these residential mortgage-backed securities litigations, we helped make the law in those cases, recovered well over a billion dollars for clients in those cases. And it was sophisticated litigation, primarily New York-based, that allowed us to develop and train some of the juniors. That wasn't the only thing that we were doing, but that was one thing where we were being adverse to banks, and we're adverse to banks all the time now too.

Jeff Lamken and I had met in, I think it was 2006, Ron Perelman had sued Morgan Stanley in this case in Palm Beach County, Florida. It was kind of a crazy fraud theory that involved firms getting sanctioned and the general counsel, then-general counsel of Morgan Stanley called me up and said, how quickly can you come to Florida, and how many people can you bring with you? We’ve got to bring in a new firm. And the judge has entered a directed verdict on four of the five elements of fraud.

And there were a couple of other firms that were involved—Jeff had actually worked with one of them at one point in time. At that point in time, he was the head of the appellate practice at Baker Botts in Washington, D.C., after having clerked for Justice O'Connor and been in the Solicitor General's office. And there was a $1.6 billion judgment against Morgan Stanley, which we ended up getting reversed, and judgment entered against Ron Perelman.

When we tell the story of the firm, we say we met on the deck of a sunken submarine. It was so bad we weren't even inside the sunken submarine, we were on the deck of it. So we sent some work back and forth to each other after that a little bit, and worked together on a few things, and then set out to do this because really we saw it as an opportunity to do our own thing where we would have control over the quality of the lawyers that we hired.

The last year that I was at Shearman & Sterling, I think we had 150 summer associates, and Shearman was a great firm then, Baker & Botts was a great firm, but it's very hard to maintain the control, especially when you're doing specialized work like we were doing. And so that was a big motivator, the ability to control our fate more directly in terms of the quality of the cases, how we handled those cases. We had both come from significant, successful careers up to that point in time, where we'd won many more cases than we'd lost, so why not be able to bet on yourself—which we did then, and we have done. We started the firm with five lawyers in two offices, in New York and Washington, and we now have, I think, 43 or 44 lawyers in New York, Washington, and Chicago.

DL: When you and Jeff were thinking about launching the firm, did you prepare any kind of document or business plan or outline for your vision of the firm? And if so, how does that compare to what the firm is today?

SM: We did, we absolutely did. We had an 85-page strategic plan. First of all, we were very mindful of our fiduciary duties to our then-existing partners, and we fulfilled those. But we had an 85-page strategic plan that did not have a number at it. Then we had 50 iterations of the numbers in pro formas that we did. So we really spent a lot of time thinking through what we wanted to do—and it's a great testament to the power of intention and having a clear vision for what it is that you want to do. I’d be lying if I told you that we didn't have problems from time to time with execution, but I think from the beginning it very much was what we wanted to do, and if you read that document today and you saw what we are today, you'd say this lines up pretty well.

And that's basically doing three things: business disputes, broadly defined; intellectual property disputes; and white-collar defense. We do that from the trial courts or arbitral forums all the way to the Supreme Court of the United States—Jeff had an argument just this Monday in the Amgen case in the Supreme Court. It includes being able to bet on ourselves, being able to take risk alongside clients, and having a worldwide presence, which we actually do, notwithstanding the absences of offices, but through our relationships with some really fine lawyers outside the United States and key markets.

So all of those things were things that we wanted to do, and gratefully we've been able to achieve that. But you’ve got to get up every morning and do it again.

DL: Would you like to become the next Steve Molo, a Biglaw partner turned founder of a thriving boutique? This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the next best step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.

There are a range of different models for boutiques. You have some firms like Cooper & Kirk that have stayed at their size for the whole time. You have some firms that start out small and then become gigantic, like Quinn Emanuel. You have some firms that land in between, like Susman Godfrey, the firm founded by your late mentor, Steve Susman.

When you and Jeff started the firm, did you have an idea of whether you wanted to be at the size you are now, 40 something lawyers? Did you want to become the next sort of Quinn Emanuel or Boies Schiller? Did you want to stay small? Did you have a thought on that?

SM: We thought we would be 40 to 50 lawyers in five years. In reality, it took us about 10 years to get to that size, but it didn't matter because we made money, we were profitable, we continued to attract great talent, and we continued to attract great cases and clients.

Our focus has always really been about culture and quality. And there can be an inverse relationship between size and quality. There isn't always, but there can be. And we were never interested in doing what Quinn has done—and look, it's worked for them and I'm not in any way critical, but it's different for us. And we think we will continue to grow, we hope we will continue to grow, but in a purposeful way, an intentional way that isn't about just adding revenue or adding lawyers for lawyers’ sake. We're really focused on the culture.

DL: I'm guessing that maybe one of the reasons why you didn't hit your headcount goal sooner is your firm is known for having extremely high hiring standards because you want lawyers who are both amazing lawyers, but you also need lawyers who fit into your culture. Tell us about your hiring process, and is that a fair statement to say that maybe you haven't grown as quickly because you really are very, very selective on your talent?

SM: We're clearly selective, but we you say “as quickly,” we’ve grown just fine at the pace that we've grown. It's not like we've missed some goal there, in a real sense. There's no question that we are highly selective in whom we hire and how we hire. Typically all of our associates have clerked for at least one, but more often now two, federal judges, although sometimes there's someone who clerked on a state court, and they've all gone to great schools and done well in great schools and all of the usual stuff that's there.

We like to hire people who have clerked because by that point in time, they've certainly demonstrated an interest in litigation, and in their own minds they should have a pretty good sense of what they want to do. A lot of people coming out of law school, frankly, especially if you're in a situation like I was, where you didn't really have lawyers in the family or know what lawyers did, those people have a large amount of money dangled in front of them at a large law firm and they think, hey, this is something to do. Or you have student loans that you have to pay off, which is so common. So a lot of times they maybe think they want to do litigation, but maybe that isn't really what they want to do once they realize what it is, or what it is in a large law firm. So by the time they're coming to us, they've had a little time to think about those things. They may have spent a year at a large law firm. It's not uncommon for us to have somebody that's spent a year at a great large law firm and then, somehow with the clerkships, as you know, nowadays it's not so linear where people go to clerk right out of school and they go to another clerkship right out of school.

And then they interview with, now, probably, 25 lawyers over the course of three days maybe. Jeff and I certainly interview everybody that we hire, but it used to be when we were smaller that you'd interview with everybody in the firm. And we really go about it in a thoughtful way, where we have worked with some consultants on the kinds of questions that we ask people.

It's a tricky balance. You want people who are smart, who are competent, and who are willing to take calculated risks and work on their own. People who tend to have the kinds of credentials of the people that we hire tend to be by nature conservative, right? They've gone to the best high school so they could go to the best college so they go to the best law school, get the best grades so they can get the best clerkship. And so often those are not people that are willing to take appropriate risk. So we're looking for that, people who are self-starters. Everybody in the firm is client-facing to a degree, some more than others, but people who can sit down with a client and have the client come away thinking, boy, this is not just a smart person, but a person in whom I have confidence.

And people who are also willing to stick around for a bit. We are not really interested in hiring somebody who's going to be there for a year and want to go off to the U.S. Attorney's Office or the SEC or something like that. The social contract is you get this great mentoring, great experience, but we'd like you to stay around for at least three years or so, so that you get the benefit of what we're doing and we get the benefit of what you're doing. It's demanding, but you know, last year we made eight offers, seven people accepted.

DL: Wow.

SM: And the year before that, I think we made six offers, and five people accepted. These are of the associates coming off of clerkships. And I can't remember where the statistic was the year before, but I think that says something about the process.

DL: So in terms of the strengths of the firm, I think they're obvious. You have amazing talent, you have a really thorough hiring process, you work on some of the most interesting areas of law—trials, appeals, white-collar work, IP—those are four things that young lawyers and law students are very, very interested in.

Tell me about what you think are the limitations of the firm, or things that maybe you don't feel well-equipped as a firm to handle. Are there certain things where you might make a referral rather than take it yourself?

SM: Absolutely. The beauty of what we do—we do what we do extremely well, and that's what we do. So if someone has a tax-related problem, or it could even be tax litigation, or it's sort of what I'll call run-of-the-mill employment-type issues—we're often involved in cases where you'll have a founder or portfolio manager at a fund or senior executive that's in a dispute, and we get brought into those situations—but if it's a situation where it's just a more of a standard harassment situation or whatever, we're not the right firm for that kind of thing.

But what's interesting, David, is that we often do partner with other firms where people have a problem in a substantive area and they want our advocacy expertise. That ranges from very routine matters to bet-the-company matters, where there are great law firms already involved in the matter and the client will, and sometimes the law firm will, come to us and say, we want to add you to the team. That's a significant percentage of our work. I would bet 80 percent of our cases have another law firm involved in some capacity, maybe a co-counsel thing.

I tried a jury trial late last year, and it was a Rule 10b-5 class action for the plaintiff class. The plaintiffs had been prosecuting the case, plaintiffs’ lawyers had been prosecuting the case for five years, and they got a trial setting and they reached out four months before the case was going to go to trial. And we dove in and got ready. I have another case that'll go to trial in the fall in Kansas City, a major antitrust case, where a great, great law firm has been handling the case for the first four years, much more antitrust expertise, case gets set for trial, client reached out and said, well, we're going to keep this other law firm, they're going to stay involved, but we want you to come in because we need trial expertise.

And it's not just me, it’s the firm, because I can't do what I do, Jeff can't do what he does, Justin Shur can't, without the full team available.

DL: It seems like a great model in a way because you get to work on these high stakes, bet-the-company, complex matters, but you don't need to have two dozen associates reviewing documents. You partner with somebody, and maybe they have the two dozen associates reviewing the documents, but you get to do the strategic stuff and the high-level stuff and the trial advocacy.

So it seems that your size doesn't constrain you in that way. Does your size constrain you in other ways, given this ability to partner with other firms?

SM: We really don't feel that it does. And one of the things that we look for when we're hiring people, and one of our main philosophies is that, look, law is a collaborative process. Practicing law is a collaborative exercise, and people should have to be able to do that.

Here’s a great example. We have been involved in the Revlon bankruptcy and Paul, Weiss, a phenomenal law firm, has been debtor's counsel in the matter. And actually while I was on trial in the case that I just mentioned, I was contacted by Paul Basta, who's a phenomenal lawyer there, who reached out and said, will you guys come in? We have a conflict and a claim that's going to be there with Citi, and we can't be adverse to them. So from the very beginning we were involved in that case and in some very, very interesting legal issues, and work shoulder to shoulder with Paul Weiss, and if you're going to do that sort of thing, and if you expect people to come and ask you to do that, right, and be part of a team, you've got to be people who are team players. And I know that's an overused term, but you really do need to be part of a team, be willing to subject your ego to the greater good, not worrying about always being there for the glory on everything, and yet you'll still get your share of it.

DL: Given the challenges of how a lot of things settle, which we talked about earlier, how does one become a successful trial lawyer today, so that you are brought in by the Paul Weisses of the world or by the plaintiff's firms when the thing is about to go to trial? How do you get those reps?

SM: The reps, the mileage, it comes by really trying to get on your feet in any way that you can—and also in our case, being at a firm where we encourage it and we enable it. So that case that I tried before Judge Rakoff, there were five MoloLamken lawyers who got on their feet during the course of that trial, and by on your feet, I mean in front of the jury. So it wasn't just arguing motions, although there was that too, but it was being in front of the jury. We really encourage it. We certainly take on pro bono work that allows people to do it. And sometimes we take cases that are maybe not as economically profitable, or if we were to apply a strict analysis to our time and say “only work on the thing that is the most likely to yield the biggest financial recovery for the firm,” might not be a matter that we take, but it gets people on their feet and ultimately it makes the firm more profitable.

DL: That makes perfect sense. I can totally see that. Do you ever have situations, though, where a client who has come to MoloLamken because of you or Jeff says, oh, Steve, I want you, or I want Jeff, or I want Justin, or I want one of the more-senior lawyers to handle this, rather than an associate or a younger partner?

SM: It happens, but not that often. It may happen, especially at the outset, but usually after they've worked with people for a while they understand that these are people that are really good and that they can trust our judgment if we say we want them to lead a matter or to actually do something in a courtroom.

There are plenty of other lawyers in the firm that try cases besides me. We mentioned Justin Shur, Megan Church, Justin Ellis has a case that's going to go to trial in a few months, Ben Quarmby. There are people that are excellent, excellent trial lawyers. Same thing with the appeals. Robert Kry is good, Mike Pattillo, he just argued a case in the Supreme Court. So there are plenty of very fine lawyers, it's not just about us.

DL: The other thing I'm really struck by in terms of your talent is not only do you have these amazing lawyers who came from these great firms, former Supreme Court clerks, etc., but there's also a fair amount of diversity in your ranks, which is definitely something that firms are paying more attention to in this age.

How do you achieve that? Do you have thoughts on how to build a diverse law firm? People often say, how do I achieve a diverse workforce, especially given the pipeline issue of how sometimes the institutions from which you're hiring are not necessarily that diverse?

SM: That's a great question. We started the firm, as we say, with five white guys. That's the way we describe it. Five white guys, and now, David, 40 percent of our lawyers are from backgrounds that are historically underrepresented in the profession, and we take tremendous pride in that, because as we're talking about now, first-generation lawyer is a thing—I guess I was a first-generation lawyer—but I'm not talking about that. I'm talking about people from backgrounds either through their gender, race, sexual orientation, whatever it may be, that they're from backgrounds that are underrepresented.

You have to work at it. That may seem obvious, but the “work at it” part isn't just the recruiting them, because there's a historic significant failure rate in large law firms of people hiring diverse candidates who come in and they spend a year or two and then they leave, so it's really about creating an environment where people feel they can come and do their best work and be recognized for it and grow as a professional. And frankly we're busy, if we're hiring you we're hiring you because we think that you can contribute. We're not looking to meet some hiring quota that we have during the course of the year.

We really are, for all the reasons that we talked about, committed to the things that are important to lawyers who come to the firm, and we live by our promises. We're very conscious of when we tell somebody something, and we check in on that. We say, hey, are you getting what you expected? Is there something else that you feel like you could be getting? So it really amounts to that. And maybe sometimes in large law firms, people don't realize what that work is going to be. When they get there and they find that they're frustrated because they're not doing as much, given as much responsibility as they feel maybe they would like. So I think that intentionality has been a big part of it.

We're also involved in some of the diversity programs that are important out there today. The Leadership Council for Legal Diversity is one that we're part of. We've had a number of people go through their various levels of programs, and we support that. The one that I think is closest to our heart, our collective heart, is the American Bar Association’s Judicial Intern Opportunity Program, the JIOP program, I don't know if you're familiar with it?

DL: No, actually.

SM: It's a program that hasn't gotten enough recognition, and it basically places students who are from traditionally underrepresented backgrounds with a judge, could be a state judge, could be a federal judge, for six or seven weeks during the summer, and they're paid the princely sum of about $2,700 or $2,800 for that period of time, and then there's a few hundred bucks that go to administrative costs. But it's really transformative for a lot of people to be in an environment like that where it's not like a summer associate situation where you’re trying out for a job—yes, most summer associates are offered jobs—but this is a situation where it's an internship, you're going to do it, you're going to go on, you're not there trying out to be a clerk necessarily, although some of them do go on to become clerks. And the program's very competitive, and it's been very successful.

One of the things that we are doing is leading the effort—and we support it in all three cities in which we have offices, New York, Washington, Chicago—we're leading an effort in New York to create what will be 20 Katzmann Fellows, named after Bob Katzmamn, the late chief judge [of the Second Circuit], who was great and a supporter of the program, and it will be endowed. So we have committed a substantial amount of money ourselves. Sullivan & Cromwell stepped up to the plate. We're in the process of talking to a number of other leading firms to support this.

And it is a pipeline issue, as you say. You can't just throw someone into a fast-paced organization, a high-performing organization, and expect that they're necessarily going to be able to perform at a high level right away. But we think that this is a great, great program, and it matches well with who we are, in terms of how we ultimately hire only clerks as associates. Looking for those sorts of things and being focused and intentional is really key.

DL: That's a great program, and I hope that firms that are interested in joining will reach out to you.

Turning to the pipeline, namely, the nation's top law schools, one thing that I've been covering a lot on Original Jurisdiction are these culture wars, these free-speech controversies that are playing out in many law schools today. Do you have any thoughts on that from where you sit, as somebody who hires these young lawyers and trains these young lawyers?

SM: I certainly do. You'd be blind or a fool as a lawyer not to be paying attention to this because it affects the profession ultimately, and this plays out right now at law school, but ultimately those are the people who are being trained to take the jobs that are going to be representing clients or representing the government and whatever it may be in some way.

My view is pretty simple on this, which is that I believe that law schools are supposed to be the ultimate citadels of protecting free speech and free exchange of ideas, and I'm not talking about hate speech, but speech that may be something that you don't agree with, and in fact you may vehemently disagree with it. But one of the old adages we sometimes say is, we can disagree without being disagreeable. And I think that treating someone who espouses a point of view different from yours—that again is not hate speech, but maybe radically different—in a rude way, in a demeaning way, in an intimidating way, that's a real problem, and it's a particular problem for lawyers in law schools because we often are in situations—not every lawyer, some lawyers have the luxury of representing only people whose views that they are 100% in alignment with—but that's not what lawyers are supposed to do. Lawyers are supposed to be able to represent people, even if we don't agree with the conduct or the position our clients are taking on issues.

It's important that lawyers maintain that balance and even more importantly, that law schools take the steps to protect that balance, in making sure that that's available. Just like I said, at MoloLamken we want to have an environment where people feel like they can come and do their best work. It's a responsibility of a law school to make people feel that whatever someone's political views are, they can come there and they can study and learn and become the best law student and lawyer they can be, without fear of retribution or ostracization, whatever it may be. And it seems like there's a lot of really aggressive activity going on these days, and I think that's unfortunate.

DL: In terms of boutiques, which in many ways the future of the legal profession if you ask me, a lot of them do tend to have an ideological valence in terms of your talking about representing clients where your views may align with theirs. You have great progressive ones, like Kaplan Hecker and Gupta Wessler. You have great conservative ones, like Consovoy McCarthy and Cooper & Kirk.

Does MoloLamken have an ideological valence to it? How would you describe yourselves? If somebody said I'm a progressive, or I'm a conservative, or I'm a libertarian, or I'm a liberal, how do I fit in at your firm?

SM: I would say that if you are a great lawyer, interested in doing great work, and can be collaborative and put the client's interest first, then this is the place for you. If you're coming here to make a political statement, we really don't do that. That's not to say that we're not involved in cases that may be controversial or cases that people may disagree with, or clients that they may not necessarily think are clients that they would necessarily endorse what they've done. But we've really been agnostic about people's political beliefs, and it's consistent with the idea of a diverse law firm. That's not to say that somebody else who wants to do something else should not do that, but that's not who we are.

DL: That's totally fair. That makes perfect sense. And in the talent market, people can self-select into firms, and if they want to go be an ideological warrior, there are great firms to do that.

Before we shift to our final questions, which I've standardized for my guests, let me ask you just one last thing in terms of just what's going on in the world right now. We are emerging from this pandemic after three long years. March, really, I think marks for many people the third anniversary of this, it's certainly when I got very sick with it. What effect has the pandemic had on the legal profession? Feel free to talk about either what you saw at MoloLamken, or what you observed at other firms or the profession more broadly.

SM: Well, first, you scared the hell out of us, anyone who knew you, my God. Just to be thinking that we're sitting here talking today, thinking about the photographs that you were circulating, and the thing that is amazing—because this came up in a case that I was dealing with recently too—how quickly we’ve forgotten how intense that time was. You were a very public part of that at the time, there was no cure, there was no meaningful insight as to how it was transmitted, we had no idea how long we were going to be in the situation we were in with lockdowns and social distancing and everything that was there. Some of the misinformation—we were all washing down our groceries and things like that when they came home, and it's great that we can laugh at it now, especially you, today, but none of us knew any of that back then. And yet we saw people dying. I knew several people that died, and your illness, which was so significant at the time, was really, really frightening. So it's hard to say that you can go through something like that and not have it have an impact on us, right?

I think that the obvious flexibility in the work situation is one that is here for good. Our own practice is we have Tuesdays and Wednesdays that we call anchor days, and people are expected to be in the office those days. People are in the office other days, and obviously if you have something that's going to trial, if you've got a big argument, you're doing moot courts and things like that, people are going to tend to be in more than otherwise. That's what's working for us. I know other firms are being more exacting and requiring attendance and such, but that's a big change.

The other thing that people forget and, and it's always said, and it is true, that there is something to be said for the in-person mentoring. It happens all the time, when we're in the office now and I'm walking by someone's office and we strike up a conversation about this or that. I had no intention of having that conversation with that person, but that person's there, she or I, or he and I, have the conversation, and it advances whatever it is that we're doing.

But there's a harder part to it, which is this: so you don't get that when you're not in the office, but you also don't get—we're talking about political beliefs and culture wars—it's a lot easier to be a culture warrior against someone that you don't really sit across the table from and have a cocktail or a lunch or whatever it may be. And I do think the hardening that we've seen in society, there's many, many, many reasons for it, but it's not helped, and in fact is worsened by, the lack of face-to-face interaction.

DL: That's absolutely true. Some people have wondered whether tensions we've seen at the Supreme Court might be because the justices weren't having their regular conferences and lunches. Certainly at Yale Law School, which had some problems last year, I heard from a lot of students there that they think had a lot to do with the pandemic and things have really gotten better now that people are breaking bread with each other and going to drinks with each other or sharing pizza.

Turning to my final four questions, the first one is, what do you like the least about the law? And this can either be the practice of law or law as a more abstract system.

SM: I think the time that it sometimes can take to get to a resolution for a client. You might have a matter that has a motion that's important to the case that might sit under advisement for a year or more, and that can be very frustrating. And it's very hard for a lawyer to explain that to a client and to explain that there's very little that can be done. So those sorts of things, and then the other delays that sometimes come along, that's a frustration about being a lawyer.

And the other is, I would say lawyers who fail to put their clients' interest first. And for one reason or another, their ego, their own financial motivations, whatever it might be, they're not looking to reach a resolution, or at least a means for a resolution. In other words, if a case is going to go to trial, then let's let it go to trial, let's not draw things out. If it's going to get resolved short of a trial, let's get that done, whatever it may be. And I think we have a lot more, as I say, cases rather than clients. For many people who come to us, it's the only time that will represent them, for a company or for an individual, and it's easier when you don't have institutional relationships that sometimes are harder, where people are balancing the overall relationship. But I do think that those are two frustrations with the practice that I wish we could do something about.

DL: That's very interesting, I hadn't thought about that angle, in terms of how maybe you're better able to represent the client if you just have that representation for a discrete matter.

My second question is, what would you be if you were not a lawyer?

SM: My golf game would not hit me on the PGA Tour or even the LIV Tour. So I think it would probably be something in finance. A lot of the litigation that I handle, a lot of the cases that I handle, are things that have litigation as part of a trade or whether there's a strategic business issue that's there. I was in court in Delaware yesterday with a whole group of great lawyers—Miguel Estrada, Don Verrilli, Ray Schrock, Amy Wolf from Wachtell—involving the sovereign debt of Venezuela. And fighting over our clients and my own client’s several hundred million dollars of Venezuelan debt and things like that.

So that’s an example where the litigation's part of the trade, but it could be in an M&A transaction, it could be all sorts of things. Yeah, I think, something related to finance would probably be a logical thing to have done. And it also allows for creativity, which in my area of the practice of law is something that I get to be creative in what I do all the time. So I think that finance would probably be something that I would've done.

DL: That makes sense, especially given what clients say about how they want lawyers who understand their business, and one of the reasons a lot of funds and other financial companies come to your firm is because you understand their business.

My third question, is how much sleep do you get each night?

SM: Okay, so I have always been someone who's functioned well on relatively little sleep, especially in crunch periods and things like that. But on average—which tends to be very busy—my routine is usually no more than six hours a night.

DL: Wow, I'm jealous.

SM: That’s not to say that there isn't a weekend where I want to just crash. But it's usually about six hours. And I'm an early riser. I like to get up early in the morning and I work out and I have my quiet time to sort through things. I do a lot of reading. But that's what works for me. And I understand that there's a benefit to that, I guess. There was always talk that Mary Jo White functioned on four hour sleep a night. I could not do that, but usually if I get six hours of sleep or so, that's a pretty good night for me.

DL: That puts you ahead of the game, and there has been research suggesting that there is some percentage of people out there who actually can get by and function very effectively with less than average sleep.

My last question: any final words of either career or life advice for my listeners?

SM: When we started MoloLamken, a good friend of mine, Jamie Sprayregen at Kirkland, sent me a note, and the only words in the note were, “Dare to be great.”

DL: Huh!

SM: And that really does say a lot, because the other extreme is Henry David Thoreau's “the mass of men lead lives of quiet desperation.” That can be true in law, but in law there are so many opportunities to do so many great things that are fulfilling, and some of it is that some people just don't want to take a chance, they don't want to take a risk, and lawyers are pretty risk-averse by nature.

But usually the worst thing that's going to happen is that thing isn't going to work out. It doesn't take away all that you've accomplished before then. And we've seen people that bounce around from this place, that place, whatever, but taking the risks—we were talking earlier in this conversation about when we started MoloLamken, walking away from pretty substantial incomes as partners in the firms that we were partners in, and a somewhat predictable course to our careers going forward, that was a risk. And I'm not patting myself on the back in saying that, but I'm just saying it's an example where had it not worked out, we could have presumably gone back and done something similar, if not necessarily at the same firms. And I think that too many lawyers feel trapped and don't want to take that risk or dare to be great, as Jamie would say.

And some people too—for me, if I didn't do this, I would feel like I was really unfulfilled as a person. I had to do this. And not everyone has that driving compulsion if you will, but take the time to think about it. Think about really what is the worst thing that could happen, and don't be so shy about going forward. You’re an example of that on several levels as well too, both from the practice of law to doing Above the Law and then leaving Above the Law to doing what you're doing now, or first doing Lateral Link and then doing what you're doing now. So it's worked out. Follow your hope, your dream, your spirit, whatever it may be.

DL: Well, those are really excellent words to end on. You have dared to be great, Steve, and I believe you have succeeded. Thank you so much for joining me, and thank you again for your insight and wisdom and your friendship over the years.

SM: Thank you, David. Great to be here. Take care.

DL: Thanks so much to Steve for joining me. He’s one of the most deeply thoughtful people I know, whether it’s about litigating a case or launching a law firm, which explains both his success as a lawyer and why he’s such a fun person to interview.

In our interview, Steve talked about the huge amount of planning that he and Jeff Lamken put into the launch of MoloLamken. If you’re thinking about following in their footsteps, reach out to NexFirm, the sponsor of this podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, April 19. Until then, may your thinking be original and your jurisdiction free of defects.

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Stanford University (by David Madison via Getty Images).The fallout from the disruptive protest of Judge Kyle Duncan (5th Cir.) at Stanford Law School continues. The latest bad news for SLS: two federal appellate judges, Judges James Ho (5th Cir.) and Elizabeth Branch (11th Cir.), announced over the weekend that they are adding Stanford Law to their clerk hiring boycott. As you might recall, the two judges are already boycotting Yale Law School, which was the poster child for protest problems before Stanford nabbed the crown.

Judge Ho announced his latest move on Saturday night in a speech to the Texas Review of Law and Politics (TROLP), which describes itself as a conservative and libertarian law review that publishes “thoughtful and intellectually rigorous conservative articles—articles that traditional law reviews often fail to publish.” Judge Ho delivered his remarks at TROLP’s annual banquet, where he accepted its award as Jurist of the Year. He was introduced at the dinner by Judge Branch, his longtime friend and the one other judge to publicly join his YLS boycott.

Aaron Sibarium of the Washington Free Beacon, who broke the news of the SLS boycott, posted a transcript of Judge Ho’s remarks. The themes are ones the judge has sounded before, in his announcement of the YLS boycott last October and the interview that he and Judge Branch did with me last December. Here are highlights.

First, Judge Ho criticized the ten-page memo that Stanford Law Dean Jenny Martinez issued in the wake of the fiasco:

I know that letter has been praised by some people for standing up for free speech. I don’t share that view. I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.

Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.” So at best, this is a dramatic change of heart. Should we believe it?

Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.

In fairness to Dean Martinez, she did say in her memo that SLS would be issuing “a more detailed and explicit policy with clear protocols for dealing with disruptions,” which would offer “greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.” This sounds to me like an implied promise of discipline for future disruptors, but perhaps Judge Ho was looking for something more explicit. [UPDATE (2:29 p.m.): By the way, for fans of the Martinez Memo, you can send messages of gratitude and support to her via the New Tolerance Campaign.]

Second, Judge Ho defended his boycott of Yale Law as a source of law clerks:

I’m pleased to report that a number of Yale students and scholars have gone out of their way to inform Lisa and [me] that they support what we’re doing. In fact, some have admitted to us that they disagreed with us at first—but now that they’ve seen how the administration is reacting, they get it. And now they’re the ones urging us to keep it up—and not to pull back.

Why are folks at Yale urging us not to let up? After all, events at Yale have gone much more smoothly this year. Speakers haven’t been disrupted. Yet these students and scholars don’t want us to relent.

It’s true that Yale Law instituted several reforms after Judge Ho announced his boycott, including a beefed-up disciplinary policy and redesigned orientation program that includes “discussions of free expression and the importance of respectful engagement” (but note that these reforms were in the works before the boycott was announced—see footnote 2 in this story). And it’s true that since the boycott, there have been no major disruptions of events at YLS—including the return engagement of Kristen Waggoner of the Alliance Defending Freedom, who triggered the rowdy protest in March 2022 that caused Judges Ho and Branch to implement their boycott.

Third, Judge Ho argued that the speaker disruptions are merely the symptom of a deeper difficulty:

The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.

Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.

Judge Ho is correct to state that the views of religious conservatives are disfavored in law schools (and law firms too). The folks doing the disfavoring would argue that the academy also “disfavors” views like “the earth is flat” and “evolution is not a thing,” but that’s a bit of a straw person. The views of religious conservatives that are disfavored these days are, at least in my opinion, more open to debate—e.g., “Dobbs was rightly decided,” or “transgender athletes shouldn’t be allowed to participate in girls’ sports.”

Fourth and finally, Judge Ho unveiled his Stanford Law boycott:

So what do we do about [the viewpoint discrimination]? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit.

Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?

So [Judge] Lisa [Branch] and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.

Note the important prepositional phrase at the end—“in the future.” As I explained in reporting on Judge Ho’s Yale Law boycott, he and Judge Branch are “applying this policy prospectively, i.e., only on a going-forward basis, starting with students who decide to matriculate at YLS after today.” So students who are currently at Stanford Law, as well as alumni of SLS, are not subject to the boycott; they chose to attend Stanford before the events that led Judge Ho to impose the boycott.

What are my thoughts? On the merits of the boycott itself, I actually don’t have a strong view (although I feel like I’m the only one). In writing about the YLS boycott, I acknowledged both the arguments in favor and the arguments against a boycott. I believe the case against disruptive protests at law schools is clear, but reasonable minds can disagree on the best way to address both the disruptions and the underlying problem of a lack of intellectual and ideological diversity. If forced to choose, I’m probably narrowly opposed to the boycott, but I’m willing to let this play out and see what happens. (Maybe I’ll turn these boycotts into the subject of a Notice and Comment post, so you can discuss amongst yourselves.)

I might feel differently if more judges were participating in the boycott. As of now, the boycotting judges are Judges Ho and Branch, plus another dozen or so judges who have not identified themselves—so at the current time, YLS and SLS students still have plenty of judges they can clerk for. If you look at my latest Supreme Court clerk hiring report, none of the judges who fed YLS and SLS students to the Court are in on the boycott, at least publicly. And it’s also not clear how many YLS and SLS students would have been hired by Judges Ho and Branch anyway, i.e., without a boycott.

[UPDATE (2:38 p.m.): I’m advised that Judge Ho has hired a total of at least five clerks from Yale and Stanford since his appointment in 2018. There are only two schools he hires more clerks from, Chicago and Harvard—neither of which has had any SLS- or YLS-style problems in recent years.]

Here are two thoughts. First, if you’re a federal judge who is boycotting Yale Law, then you should a fortiori boycott Stanford Law (as I argued in a Twitter thread last month). The SLS incident involved a fellow federal judge, not just a lawyer; it featured a member of the law school administration, Dean Tirien Steinbach, who arguably came in on the side of the protestors (“I look out and I say, ‘I'm glad this is going on here.’”); it was disrupted to a greater degree, ending more than half an hour early (compared to the YLS event, which managed to limp to a conclusion); and it was followed by a second protest of Dean Martinez, after she had the gall to apologize to Judge Duncan.

Second, I do think it would be a good thing if Judges Ho and Branch provided specific benchmarks that YLS and SLS can work toward, which would cause the judges to end the boycott if the benchmarks are reached. In my first story about the YLS boycott, I identified three steps YLS could take to improve its intellectual climate:

Get rid of the administrators involved in the Trap House-gate scandal.
Add an orientation module about free speech and civil discourse.
Invite back Kristen Waggoner—and have her event go off without a hitch.

As of now, all of these measures have been implemented:

Former dean of students Ellen Cosgrove retired, and former DEI director Yaseen Eldik, after initially being moved to a non-student-facing position, has reportedly left the university.
As Yale Law Dean Heather Gerken announced to YLS alumni, the school “developed an online resource outlining our free speech policies and redesigned Orientation to center around discussions of free expression and the importance of respectful engagement,” with “[v]irtually every member of the faculty sp[eaking] to their students about these values on the first day of class.”
The Queen of Darkness returned to YLS, and instead of disrupting her, students opposed to her views hosted a counter-event, a panel about the rise in right-wing violence against trans and queer people. And Judges Ho and Branch recently spoke at Yale Law, also without incident.

One can certainly debate the wisdom of these measures or add to them. For example, to address the ideological imbalance on the YLS and SLS faculties, Judges Ho and Branch could ask the schools to hire at least one conservative professor who focuses on public law (since right now Yale has zero, and Stanford has just one—Professor Michael McConnell). But as a matter of due process, I think the law schools should be given some goals or benchmarks to achieve.

So those are my thoughts on the Stanford Law boycott announced by Judges Ho and Branch. Here are miscellaneous updates and additional items you can read or listen to about L’Affaire Duncan at SLS (since the appetite for reporting and commentary on this controversy seems insatiable):

House Republicans called upon the American Bar Association (ABA) to investigate Stanford Law over the incident, with Representatives Virginia Foxx (R-N.C.) and Burgess Owens (R-Utah) sending a four-page letter to Joseph K. West, the current chair of the ABA’s Section of Legal Education and Admissions to the Bar, in which they argued that SLS is out of compliance with Standard 405(b), which concerns academic freedom.
Senator Ted Cruz (R-Tex.) sent his own letter to Stanford’s president and law school dean, complaining that the protestors’ “disgraceful behavior is antithetical to the principles of free speech and open discourse that are essential to the mission of any credible academic institution, let alone a top-tier law school.”
John Banzhaf, professor emeritus of law at GW Law, announced that he will be filing a character-and-fitness complaint against the student protestors with the California State Bar.
Stanford President Marc Tessier-Lavigne issued a “welcome to spring quarter” message to the entire university community, emphasizing Stanford’s “commitment to academic freedom and to the expression of diverse viewpoints” and lamenting “recent deeply disappointing events at the law school in which an invited speaker’s talk was disrupted.” (Gavel bang: Ed Whelan.)
The Foundation for Individual Rights and Expression (FIRE) prepared a transcript of the entire event with Judge Duncan (based on my original audio, supplemented by additional video footage sent to FIRE by event attendees).
In addition, if you’re free at 4 p.m. (EDT), FIRE President and CEO Greg Lukianoff and Director of Campus Rights Advocacy Alex Morey will be speaking on a webinar about “the breakdown of free speech culture at law schools in light of the recent shout-downs and censorship at Stanford, Yale, Georgetown, and more.” I’m planning to tune in.
Two current law students—Teddy Ray, a 2L at YLS, and Tess Winston, a 3L at SLS—wrote thoughtful pieces about the SLS imbroglio for, respectively, The Dispatch (“The New Stanford Prison Experiment”) and the Washington Post (“With some of my fellow Stanford Law students, there’s no room for argument”).
As I mentioned over the weekend in Judicial Notice, there has been lots of additional analysis of the controversy by folks outside SLS. See, e.g., pieces in the Sacramento Bee by Erwin Chemerinsky, the New York Times by Pamela Paul, the Washington Post by Ruth Marcus, the Pittsburgh Post-Gazette by Peter Kalis (former chair of K&L Gates), and Law360 by Professor Nancy Rapoport. (Gavel bangs for several of these: Howard Bashman/How Appealing.)
I appeared on two podcasts to discuss the subject, The Long Game with Jon Ward and Summarily with Robert Scavone Jr.
I’ve been taking one of my occasional hiatuses from Twitter—I figured that after the news of Donald Trump’s indictment broke, it would be even more unpleasant than usual—but I have seen some discussion of the boycott on Twitter. Given Twitter’s left-leaning tilt, most of the commentary has been critical, not surprisingly. See, e.g., this thread by former Northwestern Law dean Dan Rodriguez and this thread by Lawprofblawg. (But be sure to look at the replies, in which some folks, like Professor Jonathan Adler, raise counterpoints.)

And that’s the latest and greatest in all news Stanford Law. As always, and in the spirit of hearing out diverse viewpoints, I welcome your thoughts by email and in the comments to this post. Thanks!

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Manhattan DA Alvin Bragg (photo by Michael Santiago via Getty Images).Stanford Law School has truly eclipsed Yale Law School as the poster child for intolerance of diverse viewpoints. Almost a month after the disruptive protest of Judge Kyle Duncan’s speech at SLS, we’re still discussing, digesting, and dissecting the debacle. In the past week, my coverage of that event has been mentioned or linked to in (excellent) pieces in the New York Times by Pamela Paul, the Pittsburgh Post-Gazette by Peter Kalis (former chair of K&L Gates), The Dispatch by Teddy Ray (a 2L at YLS), Law360 by Professor Nancy Rapoport, and Yahoo! News by Jon Ward—who also had me on his podcast, The Long Game, to talk Stanford Law.

Speaking of podcasts, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers. With the first quarter of 2023 now in the rearview mirror, we analyzed the current state of Biglaw, with a focus on the lateral talent market.

Now, on to the news.

Lawyer of the Week: Alvin Bragg.

Longtime readers know that I’m no fan of covering the many messy legal problems of Donald Trump (which are covered extensively by pretty much every other publication). That said, I’m acknowledging the history-making news of the first criminal charges against a former American president by naming Manhattan District Attorney Alvin Bragg my Lawyer of the Week.

What’s my take on Bragg’s actions? I’m with David French and Andrew Sullivan, who (1) wonder whether this is a wise exercise of prosecutorial discretion, (2) think the case for prosecuting Trump for election interference in Georgia is much stronger, and (3) are withholding further judgment until we see the indictment.

On point (1), you can read about the legal and factual hurdles faced by Bragg in Law360, this Wall Street Journal op-ed by former Federal Election Commission chair Bradley Smith, and this New York Times op-ed by former federal prosecutor Ankush Khardori. On point (3), even though I harbor my doubts about this case, I’m also no fan of the criticism that has been heaped upon Bragg by both Trump and House Republicans—which Bragg’s office has pushed back on strongly.

Which lawyers will have the pleasure of defending the Donald in this case? That would be Susan Necheles and Joe Tacopina, former Brooklyn assistant district attorneys whom Politico described as “a tactician” and “a showman,” respectively. Not all of Trump’s lawyers have been an “elite strike force,” but Necheles and Tacopina are well-respected litigators who should provide Trump with solid representation.

Other lawyers in the news:

Is that a gavel under your robe, or are you just happy to see me? Gregory Locke lost his job as a New York City administrative law judge after his “side hustle” as an OnlyFans porn star came to light.
Former Biglaw partner John Roesser got indicted for bankruptcy fraud—specifically, for lying to the bankruptcy court in order to keep his assets, including a multimillion-dollar home and an Aston Martin.

In memoriam:

Edward MacMahon Jr., the criminal defense lawyer most well-known for representing Zacarias Moussaoui, the so-called “20th hijacker” in the 9/11 plot, passed away at 62 from cancer.
Simone Marie Woung, assistant dean and registrar at Georgetown Law, passed away at 51 after a brief illness.

May they rest in peace.

Judge of the Week: Judge Reed O’Connor.

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A clerk walking the halls of the U.S. Supreme Court (photo by David Lat).Should Supreme Court clerk hiring be regularized? Should the process be more systematic, egalitarian, and transparent?

These questions occurred to me after reading a letter sent to clerkship applicants by the chambers of Justice Ketanji Brown Jackson, in which she outlines her approach to law clerk hiring (which she completed earlier this month—so all the justices are now done for next Term except for Justice Stephen Breyer, who gets one clerk as a retired justice). I reprint Justice Jackson’s letter, which I received from a source who applied (unsuccessfully) for a clerkship with her, at the end of this post.

As set forth in the letter, Justice Jackson’s clerk hiring process differs from those of her colleagues in at least three important respects:

It’s electric! Er, electronic—applicants must send the materials requested by Justice Jackson to a specified email address. It’s hard to believe that we’re in the year 2023 and only one justice has made the application process electronic. I assumed that some or all of the justices accepted applications electronically, whether by email or through OSCAR, the Online System for Clerkship Application and Review. But as it turns out, KBJ is actually the only justice to take applications electronically, as far as I know. Some justices use email for ancillary steps in the process, like scheduling interviews and rejecting candidates after interviews, but applications must be submitted in paper/hard-copy form in the first instance (again, as far as I know, based on responses to my Twitter inquiry and emails to some of my sources; please let me know if I’m wrong about this).
It has a specified timetable, like most processes for applying for coveted career opportunities—e.g., Rhodes and Marshall Scholarships, the Justice Department Honors Program, Skadden Fellowships. It’s not an ad-hoc thing, like applying for a summer internship at your dad’s golfing buddy’s company. For the hiring cycle that just ended, application materials were due on or before December 31, and after Justice Jackson completed her hiring, unsuccessful applicants received an email informing them that she filled her positions (which went out around March 21 this year). With a fixed timetable, applicants don’t twist in the wind, wondering whether perhaps they might still be called for an interview. It’s a process with an annual cycle, not the open-ended, rolling process used by some other justices (who as a result can end up hiring pretty far out in time).
It’s a “closed universe,” or as the letter explaining her process puts it, “No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.”

My guess is that Justice Jackson doesn’t want her process to be affected by the lobbying of feeder judges or law professors, personal or familial ties, and the like. Although she considers the input of recommenders and references—indeed, her letter explains in great detail what she’s looking for on this front—she wants that input submitted in a systematic way, not through random calls or texts from judges or professors with whom she’s friends. (And I think the warning is working; I spoke with one feeder judge who’s friendly with Justice Jackson, wanted to call her to push a certain applicant, but refrained because of the stern language in the letter.)

On the issue of family ties, after my last hiring roundup, one source wrote in with a fair point: my analysis reflects survivorship bias, defined as “the logical error of concentrating on entities that passed a selection process while overlooking those that did not.” While I highlight in these pages all the successful SCOTUS applicants with personal or familial ties to the Court, I have no way of knowing about all the SCOTUS applicants who have such ties and get rejected. So while I still think that connections matter (because I’m not a moron), I wanted to flag this issue for my readers.

Speaking of the Supreme Court, here’s an interesting little digression that combines two great obsessions of Original Jurisdiction, (1) SCOTUS and (2) campus culture wars. There’s currently a controversy raging at Columbia Law School over an Instagram post on the official CLS feed, featuring Justice Brett Kavanaugh and members of the Columbia Federalist Society at the Supreme Court:

columbialawschoolA post shared by Columbia Law School (@columbialawschool)Here’s the caption of the post, which went up on March 14:

On February 23, members of the Columbia Federalist Society (@clsfedsoc) visited the Supreme Court of the United States to engage in conversation with Justice Brett M. Kavanaugh. During the visit, they learned about the human side of being a justice, the Court’s deliberation process, and how to be an effective advocate. Justice Kavanaugh also answered questions about a few of his most famous opinions.

As you can see from the comments to the post, it set off a firestorm, with multiple affinity groups demanding that Columbia Law delete the post—and refusing to help the CLS admissions office with recruiting admitted students, in protest. For example, here’s language from a letter sent to the administration by the Black Law Students Association of Columbia Law School:

The Black Law Students Association of Columbia Law School can not, in good conscience, work as recruiters for this law school. Our admissions department consistently looks to us to drive recruitment of Black students. Yet, when those students arrive, Columbia does little to ensure our members have a positive, safe learning environment. Frequently, they do precisely the opposite.

This past week, Columbia felt it appropriate to post our Federalist Society meeting with Justice Kavanaugh. We are disgusted by this on multiple fronts, including, but not limited to, him being credibly accused of sexual assault and being an extremist judge dedicating his career to taking rights away from vulnerable Americans. Multiple members of our executive board reached out to the communications department. They were met with responses showing little care and understanding of the extremist judge’s impact on our society.

We request the post be removed and that the school expresses some understanding of the harm caused. In the meantime, the 2022-2023 Board of the Black Law Students Association is withdrawing from formal involvement in the law school recruitment process. To be clear—this is not solely due to the Instagram post; rather, the post is part of a pattern of behavior that we can not support. Because we care so deeply for current and future Black students at this school, we will participate only in events of our own creation and management.

Other student groups joining the boycott of CLS recruitment include the Asian Pacific American Law Students Association (APALSA), Empowering Women of Color (EWOC), IfWhenHow, the Latinx Law Students Association (LALSA), the Native American Law Students Association (NALSA), OutLaws, QTPOC, and the South Asian Law Students Association (SALSA). For additional coverage, see the Volokh Conspiracy (David Bernstein) and the Daily Wire (Luke Rosiak).

More than two weeks later, the Instagram post remains up. I reached out to Columbia Law School to inquire about whether CLS will be leaving the post up or taking it down; I did not receive a response. Whether or not the IG post is removed will be an interesting indicator of where things stand in the culture wars currently being waged at elite law schools.

Okay, back to the original subject of this post, Supreme Court clerk hiring. Can someone please let me know about Justice Breyer’s hire for October Term 2023 (assuming he has made it)? Once I have the identity of that person, I can start putting together my stats for OT 2023, in terms of top law schools and feeder judges.

In the meantime, below please find two items: (1) the letter sent by the chambers of Justice Jackson to clerkship applicants, which outlines her process, and (2) updated SCOTUS clerk hiring lists, for paid subscribers to Original Jurisdiction. Thanks!

LETTER FROM THE CHAMBERS OF JUSTICE KETANJI BROWN JACKSON TO CLERKSHIP APPLICANTS

November 8, 2022

Dear applicant -

Thank you for submitting clerkship application materials to Justice Jackson’s chambers.

Justice Jackson seeks clerks with excellent legal research and writing skills, proficiency managing complex and competing workflows, and the ability to overcome challenges. She is also interested in clerks who are committed to pursuing equal justice under law, and who bring to chambers valuable professional and personal experience that is relevant to the work of the Supreme Court, including but not limited to an appellate clerkship at the state or federal level.

Justice Jackson will begin considering applicants for October Term 2023 in January. All materials must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before December 31, 2022. The subject line of the email and the name of the attached PDF file of materials should be in the following format: Last Name, First Name Clerkship Application.

Materials must be combined into a single PDF file in the order listed below:

Cover letter of no more than 500 words. Successful applicants will use the cover letter to explain their interest in clerking for Justice Jackson and to highlight their relevant skills and characteristics in narrative form. The cover letter should provide different information from other application materials.
Resume of no more than two pages.
Official law school transcript.
Official transcripts from undergraduate and any other graduate institutions.
List of professional references. The list should include at least four, but no more than six, professional references. Please briefly explain how long and in what context you have worked with each reference. Please also indicate at least two, but no more than four, of the listed references who will provide a letter of recommendation. Justice Jackson welcomes letters that can speak directly to the skills and characteristics she seeks on the basis of first-hand experience. All letters must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before December 31, 2022. The subject line of the email and the name of the attached PDF letter should be in the following format: Last Name, First Name Letter of Recommendation.

Justice Jackson may later ask some applicants to provide existing writing samples or to draft an original sample in response to a prompt.

Justice Jackson thanks you for your interest in clerking for her and looks forward to reviewing your application materials in due course.

Best regards,
The Chambers of Justice Ketanji Brown Jackson

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I’ll have what she’s having! Oh wait—I have to stick a jade egg where the sun don’t shine? No thanks. (photo by Rick Bowmer/Pool via Getty Images)Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I describe Original Jurisdiction as “a newsletter about law and the legal profession.” These days, though, a more accurate description might be “a newsletter about Stanford Law, Stanford Law, and Stanford Law.“

Stanford is now vying with Yale Law for domination of my top 10 most-read stories list. And the SLS saga has resonated beyond the legal world as well. My coverage has been cited or linked in publications including the New York Times (David French and David Leonhardt), Washington Post (staff editorial), Wall Street Journal (op-ed by Judge Duncan), and Chronicle of Higher Education (Len Gutkin).

Now let’s turn to non-Stanford news. Compared to the busy past month, it was actually a fairly slow news week (excluding all the Trump-related fire drills). But there’s still plenty to discuss, so let’s get to it.

Lawyer of the Week: Lisa Blatt.

To borrow the old E.F. Hutton motto—yes, I’m old—“When Lisa Blatt argues, people listen.” Reading a cold transcript doesn’t do her justice. And I’m glad I listened to the argument in Jack Daniel's Properties, Inc. v. VIP Products, since it will end up being one of the most entertaining arguments of the Term (right up there with Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, another case starring Blatt).

The Jack Daniel’s argument was messy, and the case is too. Howard Bashman did excellent work in collecting copious coverage of this case about trademark law, the Lanham Act, and the First Amendment. Jack Daniel’s alleges trademark infringement by VIP Products, which produces a chew toy for dogs that looks like a bottle of Jack Daniel’s whiskey. But instead of promising “Old. No. 7 Brand Tennessee Sour-Mash Whiskey,” VIP’s “Bad Spaniels” dog toy offers “The Old No. 2 [aka dog poop] On Your Tennessee Carpet.” Geddit?

I won’t explain the doctrinal intricacies, since this category is Lawyer of the Week rather than Litigation of the Week; for a clear explainer that also reflects my personal view of the case, see this Vox story by Ian Millhiser. Instead, I’ll just walk you through the controversy over Blatt’s argument style.

This colloquy with Justice Ketanji Brown Jackson is illustrative. Justice Jackson offered what sounded like a reasonable way of reconciling First Amendment concerns and trademark law by focusing on whether an artist is using a trademark as a source identifier, i.e., a way of identifying the source of a product or service, or in some other way. That didn’t sit well with Blatt:

JUSTICE JACKSON (after outlining her approach): What's wrong with that?

MS. BLATT: Well, unfortunately, a lot.

That was way harsh, Tai.

Blatt then uttered a phrase that’s often a warning sign that something irreverent—or worse—is coming (emphases added):

MS. BLATT: And with respect, that—literally, you're taking language in the text of parody and in the text of 1115(b)(4), which you had a Supreme Court case on, KP Permanent Makeup, saying other—designation of a source are actually exceptions under two statutory provisions that don't appear in infringement. So I'm fine with you making up stuff.

Did Blatt just say the quiet part out loud? See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (the judiciary gets to make stuff up).

As the testiness continued (for about four more transcript pages), some lawyers reacted negatively to Blatt’s demeanor. Elura Nanos collected comments at Law & Crime: “rude,” “condescending,” and “not how lawyers are trained to do oral argument.” But on the bright side, Blatt had funny exchanges with other justices—like this one, after Justice Sonia Sotomayor offered a clever hypothetical involving a political activist who makes t-shirts featuring a drunken Democratic donkey or the Republican elephant and the slogan, “Time to Sober Up, America”:

MS. BLATT: Okay. So, I mean, first of all, that's funny, your example. I'm going to give you that.

(Laughter.)

Blatt’s delivery of this comment—which sounded like one stand-up comic giving grudging props to another—is what made it so entertaining. Again, you need to listen.

And here’s what unfolded after Justice Samuel Alito expressed incredulity at the notion that some consumer might think the “Bad Spaniels” dog toy was authorized by Jack Daniel’s:

MS. BLATT: Justice Alito, I don't know how old you are, but you went to law school, you're very smart, you're analytical, you have hindsight bias, and maybe you know something—

JUSTICE ALITO: Well, I went to a law school where I didn't learn any law—

Followed by “(Laughter.)” Because who doesn’t enjoy a good Yale Law joke?

The justices are pretty good-humored about Lisa Blatt’s unusual argument style—not surprising, since she makes their jobs more fun—and speaking for myself, I’m generally a fan of her refreshing candor and wit. But while I wouldn’t go as far as her harshest critics, I think she maybe crossed a line in the Jack Daniel’s argument, perhaps by being overly casual or familiar with the justices.

That said, Lisa Blatt is Lisa Blatt—the woman with the most Supreme Court arguments in history, and one of the most consistently victorious SCOTUS advocates of any gender, with a win percentage north of 80 percent—and as she told me in our podcast interview, she can’t be anyone but herself. But as a member of the Lisa Blatt Fan Club, I’d offer this friendly advice: before your next argument, Lisa, try decaf.

Judge of the Week: Judge Kato Crews.

Don’t be fooled by the “country bumpkin” affect of Senator John Kennedy (R-La.). Senator Kennedy is a graduate of Vanderbilt (magna cum laude and Phi Beta Kappa), Oxford (with first-class honours), and UVA Law (Virginia Law Review, Executive Editor, and Order of the Coif). And he’s the most dangerous questioner on the Senate Judiciary Committee, using his time not for bombast and speechifying, but for sly, tricky questions that trip up nominees.

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Dean Jenny Martinez (courtesy of Stanford Law School).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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In the world of campus free-speech issues, certain pronouncements have acquired canonical status. There’s the Kalven Report (1967). The Woodward Report (1974). The Chicago Principles (2014).

And now we have a new addition to their august ranks: the Martinez Memo (2023). This is what leadership looks like.

On Wednesday, Dean Jenny Martinez of Stanford Law School issued a 10-page memorandum addressing the disruptive March 9 protest of Fifth Circuit Judge Kyle Duncan. I’m a little late in covering the news (partly because of some weird 24-hour bug I had), but the delay has given me time to reflect on the memo, gather reactions from sources, and produce this deep dive.

The Martinez Memo is a follow-up to the dean’s March 10 statement, sent internally at SLS, and her March 11 letter of apology to Judge Duncan (which was co-signed by Stanford’s president, Marc Tessier-Lavigne). But the Memo is far more detailed. Here’s how it opens:

As my message to you last week indicated, I had hoped to wait until after final exams concluded at the end of this week to offer any further comments on the disruption of Judge Kyle Duncan’s speech at a student Federalist Society event on March 9, 2023, and the school’s response to that disruption. However, continuing outside attention to these events, as well as the volume of hateful and even threatening messages directed at members of our community, have led me to conclude that a more immediate statement is necessary.

In her next paragraph, Dean Martinez refers to the invective as “appalling,” and she’s absolutely right. As my original story about the March 9 protest should make clear, I’m no fan of how the protestors and Tirien Steinbach, Stanford Law’s associate dean for diversity, equity, and inclusion (DEI), conducted themselves. But there is no justification for sending anyone hate mail or responding to incivility with incivility.

Following this brief introduction, Dean Martinez’s memo proceeds in three parts. In Part I, she discusses academic freedom, free speech, and campus protests, making clear that while protest is permitted, disruption is not. In Part II, she addresses the relationship between academic freedom, free speech, and DEI, as well as the proper role of university administrators. Finally, in Part III, she outlines measures that SLS will be adopting to prevent such incidents from occurring in the future.

Part I begins with a quotation from Stanford’s Statement on Academic Freedom, adopted by the faculty Senate in 1974:

Stanford University’s central functions of teaching, learning, research, and scholarship depend upon an atmosphere in which freedom of inquiry, thought, expression, publication and peaceable assembly are given the fullest protection. Expression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.

Dean Martinez then addresses one argument that drives me batty:

Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.” As First Amendment scholar Dean Erwin Chemerinsky has written, “Freedom of speech does not protect a right to shout down others so they cannot be heard.”

See also David French’s New York Times column about SLS, as well as Ken White’s Popehat post and this FIRE dialogue between Greg Lukianoff and Nadine Strossen, which I’ve mentioned before in these pages.

But even if you think you know more about the First Amendment than Deans Chemerinsky and Martinez—who is, by the way, also a professor of constitutional law—you can’t dispute that private institutions like Stanford have the right to establish their own policies prohibiting disruption. This brings us to Stanford’s policy (citations omitted, as they are throughout this post—and there were quite a few, because the Martinez Memo contains an impressive amount of law):

The “nature of a meeting” in an indoor university classroom, under settled First Amendment law, does not countenance the same sort of “prolonged, raucous, boisterous demonstrations” that might be acceptable at an outdoor rally. Rather, different “customs and usages” apply in a setting like a planned lecture in a reserved room on campus. In such a setting, limiting audience participation to signs, questions during a planned Q&A, and a non-disruptive level of audience reaction is appropriate to the nature of the forum.

Stanford’s event disruption policy gives attendees a right to hold signs and to demonstrate disagreement in other ways as long as the methods used do not “prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies… and public events.” Moreover, students are encouraged to hold alternative events where they can share their own views without disrupting the invited speaker.

The SLS students disrupted the invited speaker, Judge Duncan—and he responded harshly at times. This generated a lot of “whataboutism”—e.g., “what about Judge Duncan and his rude treatment of the protestors”—which Dean Martinez addresses:

Some students contend that the judge invited the heckling with offensive comments or engagement with protestors. These arguments misunderstand the nature of the disruption policy. The policy would not be meaningful to protect the carrying out of public events and the right of attendees to hear what is said if it applied only when a speaker said things protesters in an audience found agreeable. Nor does the fact that the speaker departs from their planned remarks and engages with the hecklers justify further heckling that disrupts the event.

As I’ve said before, I wish Judge Duncan had been more restrained in reacting to the protestors. But as I told Nico Perrino of FIRE when we discussed L’Affaire Duncan on his free-speech podcast, So To Speak, that’s not really the news; the news is that yet another event at an elite law school was subject to a disruptive protest. (And in fairness to Judge Duncan, let’s not forget that he was provoked—by protestors who said, among other things, “we hope your daughters get raped”—and he tried to give his prepared remarks for quite some time before finally criticizing the hecklers.)

Now let’s turn to Part II, the intersection of free speech and DEI. Dean Martinez has a demonstrated commitment to diversity: she chaired Stanford Law’s Working Group on Diversity and Inclusion, which developed the law school’s DEI plan, before becoming the first Hispanic person and woman of color to lead SLS. And her commitment to DEI is precisely why she cares so much about free speech:

The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.

The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

Amen. True diversity includes not just the visual diversity of race and ethnicity, but ideological and intellectual diversity as well. Accordingly, university administrators—including, yes, DEI administrators—must enforce free-speech policies to protect minority views:

Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

This is an unmistakable rebuke of Dean Steinbach. Even though she’s not mentioned by name, who else “insert[ed] themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying”? (By the way, Dean Steinbach just published a Wall Street Journal op-ed defending her actions; I think her characterization of what transpired is belied by the evidence, including the audio recording, but read her piece and judge for yourself—and read the WSJ reader comments for the lulz.)

Dean Martinez then quotes three paragraphs from the Kalven Report, the University of Chicago’s landmark statement about free speech. Here’s the key language:

The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

Consistent with the university being “the home and sponsor of critics” and “not itself the critic,” Dean Martinez makes this excellent declaration:

[O]ur commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.

In other words, it’s not the role of a law school to say that #BlackLivesMatter or that #BlueLivesMatter, or to condemn critical race theory or to endorse it. Instead, a law school should create an intellectual environment in which individual professors and students feel comfortable taking those stands. Cf. my Boston Globe op-ed about law firms (arguing that firms should stop issuing statements on every issue in the news).

Dean Martinez goes on to observe that law students, if they want to succeed as lawyers, must be able to hear viewpoints they don’t share—or even find odious:

Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.

She then offers this eloquent meditation on the important role of law and the legal system—a role that’s more important and necessary than ever in polarized times:

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks—that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry.

Like a good lawyer, Dean Martinez addresses opposing viewpoints—specifically, the view that “harmful” viewpoints must be kept out of law schools:

There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided. I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups. We see this today, both around the United States and around the globe.

See generally Florida. If you don’t like what Governor Ron DeSantis is doing to the First Amendment in the Sunshine State—and paid subscribers to this newsletter, who receive Judicial Notice, are well aware of my own views—then you should understand the danger of “giving those in authority the right to decide what is and is not acceptable content for speech.”

Finally, in Part III, Dean Martinez outlines “Next Steps” for Stanford Law. She begins by addressing one topic that everyone has been wondering about:

First, Associate Dean Tirien Steinbach is currently on leave. Generally speaking, the university does not comment publicly on pending personnel matters, and so I will not do so at this time. I do want to express concern over the hateful and threatening messages she has received as a result of viral online and media attention and reiterate that actionable threats that come to our attention will be investigated and addressed as the law permits.

Some critics of Dean Martinez have complained that she didn’t come down hard enough on Dean Steinbach or fire her. I respectfully disagree. First, by the decorous standards of decanal declarations, Dean Martinez came down harshly on Dean Steinbach—in the aforementioned discussion of administrators who improperly “insert themselves into debate,” and in a passage I’ll discuss shortly.

Second, Dean Martinez didn’t state that placing Dean Steinbach on leave is the only thing that will happen to her. Given how tempers are running high right now at SLS, I can understand why Dean Martinez didn’t want to fire Dean Steinbach immediately, especially in light of the strong support she enjoys from the left flank of the student body. But don’t be surprised if after her leave is over, she finds herself in a new position at SLS, or no position at all—the fates of Yale Law School DEI director Yaseen Eldik and dean of students Ellen Cosgrove, respectively, after similar problems at YLS. (As one Stanford alum put it to me, “I am encouraged that SLS has placed [Steinbach] on leave, and I hope this is a first step towards terminating her.”)

Third, there may be facts here that we don’t know. For example, there were other administrators in the room during the Duncan protest, including the acting associate dean of students, Jeanne Merino. Did Dean Steinbach run her actions by any colleagues in advance? According to her WSJ op-ed, she “was asked to attend the event by the Federalist Society, the organizers of the student protest, and the administration.” Depending on what was said to her by fellow administrators and whether she got buy-in for her actions, Dean Steinbach might have a defense that we don’t know about.

So that’s the fate—for now—of Dean Tirien Steinbach. What about the protestors? From the memo (boldface type in the original):

[W]ith respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction…. My analysis here is informed by California’s Leonard Law, which as discussed above legally prohibits Stanford University from imposing disciplinary sanctions on students for activity protected by the First Amendment. Measures targeting constitutionally unprotected speech raise concerns when implemented in a way that may chill constitutionally protected speech.

As I have already explained at length above, the disruptive conduct of many students at the event was not protected by the First Amendment. There were easily a hundred students in the room, however, and some individual students crossed the line into disruptive heckling while others engaged in constitutionally protected non-disruptive protest, such as holding signs or asking pointed questions. Even if we could come up with a fair process for identifying and distinguishing between the two categories of students consistent with First Amendment values, the particular circumstances of this event raise additional concerns.

As promised, here’s the second act of shade-throwing against Dean Steinbach:

Given the sometimes uncertain boundary between permissible audience reactions and impermissible disruptions at an event, “a warning and a request that defendants curtail their conduct” before proceeding to sanction can in some circumstances be important in preventing a constitutionally impermissible chilling effect on speech. Such an onsite warning might not be required in all cases, and students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event).

In this instance, however, the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not (and indeed at one point to seemingly endorse the disruptions that had occurred up to that point by saying “I look out and say I’m glad this is going on here”) is part of what created the problem in the room and renders disciplinary sanction in these particular circumstances problematic.

As one Stanford Law alum quipped to me, this is where Dean Martinez “threw Steinbach under the bus—and ran it back and forth a few times.”

As for not punishing the students, another area where some admirers of the Martinez memo took issue with the dean, I again think Dean Martinez made the right call, or at least a reasonable one. I take a “rule of lenity” approach with something punitive like discipline, so I think violations should be very clear. And even though it’s very clear that Stanford’s policy was violated by the protestors collectively, Dean Martinez is correct in observing that (1) figuring out which individual students violated policy presents challenges, and (2) Dean Steinbach muddied the waters with her “is the juice worth the squeeze” speech, as well as her statement, made after the event to a smaller group of students, that the protest didn’t violate policy and was simply a manifestation of “messy” free speech. [UPDATE (12:38 p.m.): For the case in favor of punishing the students, see, e.g., this Bench Memos post by Ed Whelan (which was published just around the time of my post).]

Here’s what the educational programming will entail:

[T]he law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession. A faculty committee will plan the session and invite speakers representing a range of viewpoints. Needless to say, faculty and students are free to disagree with the material presented in these sessions or with the arguments I have presented in this memorandum—there will be no orthodoxy on this topic either.

Assuming she signed off on Dean Steinbach’s WSJ op-ed, Dean Martinez means what she says about “no orthodoxy.” (I have reached out to SLS to inquire whether Dean Martinez in fact authorized the Steinbach op-ed, but I have not yet heard back; I will update this post on the web if and when I do.) [UPDATE (3/25/2023, 12:48 p.m.): According to a Stanford Law spokesperson, “Tirien Steinbach did not share her op-ed with the law school or the university before publication.”]

In addition to training, there will also be policy changes:

In addition, a more detailed and explicit policy with clear protocols for dealing with disruptions would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds, and is something we will seek to adopt and educate students and staff on going forward. Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.

Clarifying policy is one of several steps that Yale Law took in the wake of its own free-speech debacles—and might be one of the reasons why a return visit to Yale Law by Kristen Waggoner of Alliance Defending Freedom was not disrupted.

In the wake of the Stanford protest, Professor Rory Little suggested that student protestors might be engaged in civil disobedience. If future protestors at Stanford Law knowingly violate these updated policies and willingly accept the consequences, I can respect that. But I don’t buy the argument that they should be able to violate university policy and be spared discipline; to quote from a recent Advisory Opinions episode on SLS, “It's not ‘Letters from a Birmingham Coffeehouse.’”

Here’s the closing paragraph of the Martinez memo:

I recognize that the course I have chosen will not please everyone, not least of which those who have demanded that I retract my apology to Judge Duncan and those who have demanded that students be immediately expelled. But this is the course I believe best furthers our obligations as legal educators, charged with training future lawyers and preparing them to participate in a profession that undergirds the very fabric of our democracy and the rule of law.

Brava, Dean Martinez. Your chosen course hasn’t pleased everyone, but it has pleased this observer. I also solicited opinions from my Stanford sources by email and from the world at large on Twitter, and to sum up, most folks in the “moderate middle” support your handling of the situation. (I have posted some of the more noteworthy or detailed responses as an addendum to this post.)

For folks who fault Dean Martinez for not being tougher on the protestors, let me ask you: can you name a current dean who has faced a recent free-speech controversy and issued a better statement than the Martinez Memo? I didn’t think so. Most deans would have written something like this: “While I understand why many members of the SLS community, including members of this administration, find Judge Duncan’s views deeply hurtful, his right to speak was protected under University policy.”

Let’s be realistic: Dean Martinez is the leader of an elite law school in the year 2023. Her faculty has a single public-law conservative. Her student body is overwhelmingly progressive. Her law school is located in northern California. She faces tremendous systemic pressures to sell out free-speech values in favor of social-justice values—or at least to waffle and engage in “bothsidesism.”

But she didn’t. She took a stand. She issued a clear, convincing, and courageous defense of academic freedom and free-speech values. Kudos to her.

Thanks to Dean Martinez for her valuable contribution to the discussion of free expression at U.S. law schools—which I hope can serve as a model for other deans facing similar controversies, giving them the fortitude to resist improper pressures to curtail speech—and good luck to her as she works to reinforce ideals of free speech and civil discourse at Stanford Law.

COLLECTED REACTIONS TO THE MARTINEZ MEMO

I’ll begin with a Stanford Law student. From a Stanford 1L who is neither a protestor nor a member of FedSoc/ACS/NLG:

Among my group of friends (similarly ideologically situated, though some did go to the Monday protest against the administration's initial response), Dean Martinez's memo is well-received. There are several students who attended the second protest not to “demand” an apology from Dean Martinez (or retraction of her apology to Judge Duncan), but to ask the school to recognize that some protestors' behavior at the event was likely acceptable "counter speech" (e.g., pointed Q&A questions, the protest prior to the event, perhaps even a shocked reaction or two from the audience at Judge Duncan's off-the-cuff remarks that didn't rise to purposeful heckling).

In other words, some of the community has been worried that there would be a move to quash those forms of speech because it would be easiest to cast all of March 9th as unacceptable. But Dean Martinez took on the difficult task of parsing through the series of events and actions that constituted the protest and, in her letter, drew lines around what was and was not acceptable behavior. I respect and greatly appreciate those efforts.

I've heard from a few people who wish Dean Martinez had addressed what they saw as “inappropriate” behavior towards students from Judge Duncan. But I think condemning Judge Duncan's response to students was beyond the scope of Dean Martinez's role. The school needed to clarify its understanding of the event and what its practices will be going forward—that's it. I also don't think it's appropriate given that some of the students' heckling was quite aggressive and out of the bounds of civility.

I'm also happy that the school will be releasing video of the event to the Federalist Society but blurring students' faces [as mentioned in footnote 2 of the Martinez Memo]. I have no idea what threats have been circulating, but Dean Martinez seems to suggest that there have been several lobbied at the community. I imagine you've seen the invective on Twitter, and I think the school has a responsibility to not add more images of students to that mess….

Overall, I think this is a nuanced and very solid response to a messy situation. But I wish it had come much earlier to spare the majority of law students, who had no role in any of this, from the backlash.

From a federal appellate judge (but not Judge Duncan, who told me he might address the Martinez memo in his Notre Dame speech at 12:30 p.m. today):

I thought Dean Martinez’s letter hit the bull’s-eye on the vital importance of free expression. It’s a stirring, well-reasoned defense of bedrock free speech principles. I only wish she’d offered a sterner rebuke of the acquiescing administrators who stood silently in the classroom as things veered off the rails. Bigger picture, ABA accreditation should (1) factor in schools’ demonstrated commitment to free expression, (2) broaden its definition of “diversity” in faculty hiring to include viewpoint diversity so that future lawyers can escape their echo chambers. Monocultures that lazily reinforce ideological conformity harm the profession, and the rule of law.

From Professor Nadine Strossen, former president of the American Civil Liberties Union:

I was very impressed with Dean Martinez’s letter, and encouraged that it states a strong support for academic freedom/free speech, not only in terms of legal principles, but also in terms of a constructive implementation/enforcement program moving forward.

Especially striking and positive to me was Dean Martinez’s explicit endorsement of the Kalven Principles (which, after being long ignored, or even unknown, have been enjoying a bit of a renaissance starting quite recently). I have long been convinced that these Principles provide critically important support for academic freedom/free speech, and also liberate Presidents and other university officials from escalating demands to issue statements on proliferating issues, so that they can attend to their many pressing responsibilities—including developing a culture in which academic freedom/free speech can flourish. I hope that, just as many campuses adopted the “Chicago Free Speech Principles,” many will also adopt the Kalven Principles. Given the prestigious stature of Stanford Law School, this step by it may well catalyze others to follow suit; that would be a silver lining to the cloud of the Judge Duncan incident.

For more on the Kalven Principles, see this Twitter thread by Nico Perrino of FIRE.

From Perrino’s colleague Alex Morey, director of campus rights advocacy at FIRE:

The dean's statement hits all the right points, going in depth on both the First Amendment and state law, as well as making the normative case for tolerating a very wide range of views. Whatever it is that's causing students to turn to authoritarian methods to forcibly silence speech they dislike is the scary stuff that goes right to the heart of whether our democracy can survive. A few hours of free speech training probably won't resolve whatever's at the core of that, but it's a good start.

At the University of Chicago, where they arguably do the free speech thing better than any other school, students repeatedly and clearly get the message from the time they apply, in orientations, in policy documents, and modeled in class and at events, that wide open debate is going to be baked into their experience.

In our current climate, we need that level of commitment from college and university administrators. They need to understand that free and open debate is the essential element of higher education, and act accordingly.

And I’ll end with a Stanford Law student. From a member of FedSoc:

Dean Martinez stood up for the values that make Stanford great. She championed pluralism, freedom of speech, and ideological diversity. She called for leniency for protesting students while laying the blame exactly where it belongs: at the feet of Tirien Steinbach and any other administrator that encouraged those who disrupted the event last week. And she also took time to express human decency, condemning the vile threats that Dean Steinbach and others have received from trolls inhabiting the worst corners of the Internet. I think that Dean Martinez hit all the right notes here, and the thoughtfulness and thoroughness of her statement proves her commitment to addressing the institutional rot that this incident uncovered.

Now, we will have to see if she succeeds in cultivating a true culture of free speech and diversity on campus. There is a lot of work to do, but I will do everything I can to help her succeed. We're all in the same boat. We all want to help Stanford remain the best place in the country to be a law student—whether you are conservative or progressive, or anywhere in between. Here's hoping Dean Martinez follows through and takes additional steps to ensure true ideological diversity at Stanford, not only among SLS students, but among SLS faculty and administrators as well.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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During my two-year detour into legal recruiting, I was struck by how many Biglaw attorneys, both associates and partners, want to make the jump to the in-house side. As a result of this keen demand, the competition for desirable corporate-counsel jobs can be fierce, with hundreds of applicants for a single opening.

What are in-house employers seeking in their hires? In my latest podcast interview, I explored the topic with Sonya Olds Som, a prominent figure in the world of legal search (and, full disclosure, an old friend). We also discussed her interesting and impressive life and career, which took her from a challenging childhood in Detroit to Cornell Law School to law firm partnership to Diversified Search Group, a fast-growing and highly regarded company in the executive-search industry, where she serves as a Global Managing Partner and leads the firm’s Legal, Risk, Compliance, and Government Affairs practice.

If you enjoy this interview, try and meet Sonya in person, since even a podcast can’t do her justice. She’s helping to organize or speaking at several events in the next few months, including the National Summit of Black Women Lawyers in Chicago (March 30-April 1), the National Bar Association Annual General Counsel Invitational in New York (May 11-12), and the National Bar Association Annual Corporate Counsel Leadership Summit in Minneapolis (July 31). In case you’re not familiar with it, the National Bar Association (NBA) is the nation’s oldest and largest national association of predominantly African-American lawyers, judges, law professors, and law students.

My thanks again to Sonya Som for such a delightful conversation.

Show Notes:

Sonya Olds Som bio, Diversified Search Group
Sonya Olds Som Joins Diversified Search Group as Global Managing Partner, Savoy
How Sonya Som Rebounded From The Recession, And Her Advice For Landing Your Dream Legal Job, by Renwei Chung for Above the Law

Sponsored by:

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Sonya Olds Som (courtesy photo)Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

You’re listening to the fourteenth episode of this podcast, recorded on Thursday, March 16. I post episodes every other Wednesday.

My guest today is Sonya Olds Som, global managing partner in the Legal, Risk, Compliance, and Government Affairs practice at Diversified Search Group. Combining her extensive executive-search experience in the legal industry with a proven track record of understanding the importance of diverse and inclusive leadership, Sonya leads searches and advises clients in recruiting Chief Legal Officers, General Counsel, and other C-Suite and Board members.

I try to bring on guests in a somewhat topical or timely way, and Sonya is no exception. February was Black History Month, March is Women’s History Month, and concerns of diversity and inclusion are front and center right now in the legal world. Sonya is a leading expert on diversity in legal, and she has been honored by numerous organizations, including the National Bar Association, the Metropolitan Black Bar Association, the Hispanic National Bar Association, and Ms. JD, for her work in helping to diversify the legal profession.

In our conversation, Sonya offered her honest assessment of how the legal world is doing when it comes to diversity efforts. She also shared her own personal story of growing up as a poor Black girl in Detroit to becoming a law firm partner to transitioning into a leader in the world of legal and executive search, a story which is full of both inspiration and insight.

Without further ado, here’s my interview of Sonya Som.

DL: Sonya, welcome to the podcast, and thank you so much for joining me!

Sonya Som: David, thank you so much for having me. It's a really great pleasure to be here.

DL: So I'm surprised—as you were just mentioning before we went on air, this is your first podcast?

SS: It is, and I hope that doesn't date me and make me sound old. I'm not on TikTok or any of that either, but I'm trying to get with the times. This is my first podcast, and I can think of no one better to start with than with you, an old friend whom I trust to be gentle with me as a first-timer.

DL: Well, again, I'm so honored and delighted, and I think this'll be a lot of fun. So we're old friends, but for my listeners, let's start at the beginning.

SS: I was born in a log cabin…. Too far back, too far back! Okay.

DL: Tell us a bit about what your childhood and upbringing were like. Where did you grow up, and were there any hints that you would someday become a lawyer?

SS: I was born in Pittsburgh, moved to Detroit when I think I was around three or four, raised in the city of Detroit. A lot of people say they're from Detroit, and they're actually from the suburbs. I'm actually from the city of Detroit, raised at Seven Mile and Southfield Freeway. If anybody is from Detroit, holler!

Spent my whole childhood in the city of Detroit. Then my mother remarried and we moved to Southfield, Michigan, a suburb of Detroit, and my parents and my younger brother and sister still live in Southfield.

My upbringing—it was a mixed bag, I guess I will say. There were hardships, there were struggles, and all those sorts of things. I don't like talking about them ‘cause I feel like they’re almost clichéd, and you can probably guess some clichéd things about my childhood—like yup, that totally happened to me!

But what I really want to focus on is that the constant, the one constant in my sometimes turbulent childhood, was my mother, who was always 100 percent in my corner, who when nobody else wanted anything to do with me, my mother always believed in me and always thought I was great and wonderful, and always encouraged me and really put me on the path that I'm on today. I like to say that if there are any good things about me that you like, that was Jessica's doing, that was Jessica raising me to try to be a better person and frankly help me overcome the bad angel on the shoulder. The good angel on the shoulder was always my mom, so I love her and thank her so much for everything.

Early indications that I might become a lawyer? Well, I will say, and I've said this before in articles and interviews, The Cosby Show. The Cosby Show was on, and we're not going to talk about him, we're going to talk about her, Claire Huxtable. I had never seen anybody like her who looked like me in my life—a beautiful, dark-brown-skinned, Black woman, smart and funny and confident. She was married, she had kids, she was a lawyer.

And I thought, wow. Wow! I remember saying to my mom, is this chick for real? And my mom was like, well, no, obviously there is a fictionalized superwoman element. I was like, really? Now she speaks Spanish? Is there nothing she can't do? That's not realistic (although I actually do speak some Spanish). But my mom said you can grow up to be whatever you want, and you can do whatever you want. You want to be a lawyer, you can be a lawyer. You want to get married and have kids., you can do that. You can do all of those things. And that was a big deal to me, ‘cause I'm the first person in my family to finish college.

DL: Oh wow.

SS: The first Black woman lawyer in my life, my real-life Claire Huxtable, was my constitutional law professor, Winnie Taylor, at Cornell Law School. And I actually just recently, at a Cornell event in New York—I hadn't seen her in 30 years—I recently had a chance to see her, and I said, do you remember me? She's like, oh honey, of course not. And I'm like, that's right, that's fair. She's like, oh wait, were you one of the ones from the nineties? I was like, yes, I'm one of the ones from the nineties!

But she was so sweet and so kind, and I hugged her and I was crying, and I often cry. I may still cry this morning—I think it's very cathartic. But I hugged her and I told her that between Claire Huxtable and then finally meeting you in person, standing in front of this huge room of students and just controlling the classroom, and so confident, and so knowledgeable, and people don't believe this about me, I am very shy and introverted….

DL: I don't believe it.

SS: No one ever believes it. But I have theater training as my background, so I psych myself up for performances. I'm always very nervous. And then afterwards, I'm always so relieved that it's over and I go in my bedroom and vow never to return again until the call comes and it's like, well, we need you to come do this thing or that thing.

But when I saw Winnie Taylor, I'm shrinking in the back of a classroom, and I saw her and she's tiny, and she was just commanding the classroom, dark skin, short hair like mine, and I just thought, so it's real, Claire Huxtable is real, and I may not be able to be all of those parts of her, but the lawyer part and the confident doing what I want with my life part, I can absolutely do that.

DL: Wow. That's interesting. And I think your comments also reflect the importance of role models and mentors, and I'm sure we'll talk about that later in this conversation, but I really think it's just so inspiring.

So when you were at Cornell Law School, did you have a sense of the type of law or the type of legal career that you wanted to have afterwards?

SS: So again, remember, poor kid, no professionals in the family, no internet, okay? No internet. So it was just whatever you could find in books or magazines or somebody that you might know. The information was not there, and if you were not plugged into those networks, you wouldn't know. So again, it was a very different time.

DL: And then how did you progress from Cornell into your first job as a lawyer? How did you make that decision?

SS: In the late nineties, everybody was graduating from law school with a job. Like everybody had a job, right? Cornell was like, we have a close to hundred percent placement record in terms of people having a job. Guess why it wasn't a hundred percent? This girl!

I did not have a job when I graduated. I really bombed my on-campus interviews so terribly. But also my first summer, I ended up going to the Sorbonne, which was terrific. That was a relatively new program that Cornell had. So I went to the Sorbonne my first summer.

My second summer, I didn't have a job. I decided to go and stay with relatives in Atlanta. I worked at Borders Bookstore in Atlanta because I had worked my way through college and on law school breaks at Borders in Michigan. So I went and worked at Borders in Atlanta.

But funny thing, when I was working at Borders in Atlanta, a man named Derrick Bell came into Borders for a book signing….

DL: Ah!

SS: … and I was assigned to take him around and talk to him and stuff. And at the time, he was a visiting professor at NYU Law. So I'm talking to him and he was like, wow, you seem to know a lot about the law. And I'm like, well, I know a little bit, I’m at Cornell Law. And he stopped and he was like, why aren't you at Cornell Law now, or at least at somebody's law firm, what happened to you? And I told him my whole sad story and he was like, wow, that's really incredible. You do not know what you're doing, he said—but as it happens, I am working on a constitutional law book, and I need somebody else to help me.

God bless his soul. He probably did not need anybody else to help him. He said I could use somebody else to help me with doing case summaries and editing and stuff, and you could help me out with that. So during the day I worked at Borders bookstore, and at night I was editing case law for Derrick Bell’s constitutional law book. And if you have that book, I am one of the listed people who are credited on that. And it was the nineties, so he was faxing me things to Kinko’s, and I was faxing things back. But again, God bless him, that was as close to legal experience as I got, during law school.

I graduated, didn't have a job, moved back to Atlanta, working at Borders, working at the High Museum of Art gift shop that I got fired from because I was always late because I was always also studying for BARBRI. Finally got a job because I had the good sense to get the Cornell Law School alumni office to fax me a list—what a nineties sentence!—they faxed me, to Kinko’s, a list of all the Cornell alums in Atlanta. There weren't that many. And I just started cold calling them and saying, hey, you don't know me, but we both went to Cornell Law, I am obviously broke and alone and afraid. Can you please talk to me? Can we have coffee? And God bless every one of their souls for Big Red alumni pride. People talked to me, people took me to lunch, people bought me coffee. I'm pretty sure every single one of them dried my tears and told me it was going to be okay.

And one of them called me one day and said, we have a temporary opening in the immigration group at Paul Hastings, my firm—I'll get you an interview, why don't you come on in? And that is how I finally launched my career. And you know how it is in the legal profession: you do one thing for two seconds, that is now your specialty, so I fell into immigration. I ended up loving it, and that ended up being my career.

I moved back home to Detroit, I moved from firm to firm, moved up the ranks, was an associate, was a partner, was ultimately the managing partner of my immigration practice group in my last two firms. So again, a lot of serendipity in my life because again, I didn't know any better, but it has worked out pretty well so far.

DL: I agree there was some serendipity, but I also think it's a testament to your grit and your resilience and your not taking no for an answer. And so I think there are a lot of life and career lessons to be learned from your story.

This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the best next step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.

Speaking of resilience, tell us then about how you were a partner at a firm, but then tell us about how you then were no longer a partner at a firm.

SS: Yeah, you talk about resilience and hard work and not taking no for an answer, and frankly, having a lot of great people who have helped me and taken pity upon me and believed in me along the way, starting with my mother and so many other people in between. But when you're born—again, not to be clichéd, but when you're born a poor Black child, you don't expect—as Langston Hughes would say, life for me “ain't been no crystal stair”— when you're born poor, when you're born Black, when you're born a girl, when you're born a poor Black girl, it's not like you come into this world thinking everything's going to work out. If anything, you're pretty certain things are not going to work out, and that if anything does work out, it's going to take a lot of prayer, a lot of hard work, and again, people to support you.

So if anybody's going to get laid off and have to start all over again, I'm probably uniquely qualified or as much as other poor Black women are qualified to do what I have to do to kind of start all over again. Because I never expected everything to work out for me. And I think that has been a difference for me or has helped me as I counsel candidates in the legal profession—having that experience, like I said, of having frankly started out down and had to kind of rise up and then knocked down a few times and had to rise back up. Each time you have to do that, it gets easier in a way because you're like, okay, I've been through worse, or I've been through this before. And if you have not had a lot of those experiences, it can feel very shocking. I know a lot of lawyers who almost feel a sense of entitlement, like this is supposed to happen to other kinds of people in other kinds of jobs, not me.

So I was a law firm partner in 2008, but I also, after great effort in IVF and a lot of sadness, finally became a mother in 2008. I changed law firms and joined a firm and I thought, this is going to be great. My whole life story is so clichéd, you can't even make it into a movie ‘cause nobody’d believe it. ‘Cause I'm always saying dumb stuff that ends up being like, wow, why did she think that? Like at one point in my career, I left a solid law firm to join a dot-com in 1999 ‘cause I was like, I'm going to be rich, I got all these shares, I'm going to be a dot-com millionaire—which again, is hilarious now, but at the time seemed completely plausible to me.

Anyway, in 2008, I finally become a mother, a partner of my firm. I'm trying to figure everything out. I changed firms, and I started my new firm the third week of September, 2008. Now for students of history, or if you were there, the third week of September, 2008, is when everything went to hell. Like literally that Monday was my first day at my new firm. And what were the specialties of my new firm? Wait for it: automotive and financial services.

DL: Oh….

SS: So again, kids, go Google it, and see what was happening in financial services and automotive in the third week of September of 2008. I thought, this is going to be great. The narrator was like, it would not be great.

So I spent six months doing my best, and then the firm had a RIF [reduction in force]. Of course they did. They had a RIF, and they were very sorry about it, but they were like, I know you've only been here six months and you haven't really had a chance to kind of get things going, but we're having to let people go who've been here 20 years who have never worked anyplace else—the whole situation is messed up.

I can be a vengeful person, but I hope I'm not entirely unreasonable, because I never blamed them. I totally understood. I was like, yeah, this is all terrible, I totally understand. So they gave me a nice severance, and I went home to spend some time with my baby, who I had barely spent any time with, and I had a really good chance to sleep. David, I slept better that night than I'd slept in 10 years. There was no reason to worry anymore. The thing I had worried about so much had happened and I finally got a chance to sleep. Then over the days and weeks, I had a lot of time to think.

And it was funny, the search firm that had placed me called me up and said, hey, you know, we're so sorry about this. You had other offers that you turned down to take this one. Some of these other firms are still interested—we can get you right back in the game. And because I had had a chance to finally, again, get some “baby brain” fog out and get some decent sleep and to think, I said, you know what? I feel like this was a sign. Because I'm not sorry that I'm not practicing law anymore. I'm nervous about the future, but I'm not like, oh, please get me in another firm. And it kind of took a moment. When you get thrown off the treadmill, maybe you would've never stopped on your own, but when you're thrown off the treadmill and you have no choice in the matter and it finally happens, you have some time to think, it can be a transformative moment.

Because why did I go into the law in the first place? Why did I go to work in law firms in the first place? Security. A poor child who wanted to feel secure. Well, when you find out that law firms are, again, no more secure than anything else in this world, that they are not a guarantee against misfortune, and I think a lot of people felt this after 2008, the covenant between lawyers and law firms was kind of broken.

The deal used to be, you will come to our firm, you will work every hour God puts in a day, you will sacrifice all, but in return, you will be safe. You are our family. You are one of us. You will not have to worry about money. You will not have to worry about security. We got you. And all we ask in exchange is your youth and your soul. And not knowing any better, at the time, that seemed like a good deal to me. Again, when you're poor and it's like, you know what, that sounds like a good deal to me.

So when it turned out that there is no safe, it's not family, it's not forever, you're vulnerable to the economy just like anybody else, you're in a service industry. If the industries that you serve are suffering, nine times out of 10, your firm is going to be suffering to a certain extent as well. And so when that covenant was broken, it's like, oh wait, I don't enjoy this. I'm working all the time. I've barely seen this baby that I tried so hard to have—and it's not secure? And I'm in this why, exactly?

And again, I don't claim to have had any great passion for the law or passion for the profession. And again, this was like 15 years ago, so there weren't as many different things in terms of legal operations and all these different things that were very popular. But the people I knew who were doing different things—marketing, professional services in law firms, all these different things—I talked to different people, okay, what have you done with your law degree that's not practicing law? And there were really good conversations.

But my former search firm said, you know, we think you could be a good legal recruiter. You’ve got great instincts for business development, you're good with people, and all of that. And they said we have two lower-level positions open: cold caller in the in-house practice group, or cold caller in the partner practice group. And they were like, so you probably want the partner practice group because you're a partner. And I was like, actually, I am not the biggest proponent of law firms right now, I probably wouldn't be the best partner recruiter, but let me see what this in-house thing is about.

So I went in as a cold caller in the in-house practice group. And the whole job was, here's a list of all the big companies in the Midwest, call them and ask them if they need a legal recruiter. That's the job. And I said, okay, well you know, I'll give this a try for six months until I figure out what I really want to do, and then I'll do something else. And I ended up kind of reinventing and changing my job to something that better suited the way I kind of do things. And to their credit, they let me do that. I ended up staying there nine years. And I rose up from the bottom again, rose up from cold caller to partner again in that search firm, and then changed firms and was at another firm as a partner for three years, and then just last year, I joined Diversified Search Group, and I head up the Legal, Risk, Compliance, and Government Affairs practice group at Diversified. So again, not a career that any sane person would have planned out, but I've been, like I said, very, very fortunate, and I've had really great people believe in me and support me along the way.

DL: So turning to what you do as a search professional, what are some of the qualities that are most prized right now by the clients you're working for who are seeking talent?

SS: So speaking of the age that we're in, literally the stuff that's going on this week, but also the things that have been going on the last three years. Resilience. Crisis management. Risk management. Again, if you have had to experience the struggle in some way in your personal life and certainly in your professional life, if you have had to help guide an organization or be a part of what an organization is trying to do to navigate rocky waters, this is your time to shine.

Because one of the things that has happened in the last three years is that a lot of these things that have happened with Covid, and even after the murder of George Floyd, these were uncharted waters, and there was no natural person to be the leader of how to guide the organization through this thing. There was no natural person to be the Covid leader. There was no natural person to be the racial-reckoning leader. Right? And so what ended up happening is this company's like, well, hmm, who we got? Well, it can't be the CFO, the CFO can't help. You know, like, who's going to be the person to lead this thing? And nine times out of 10 it’s the general counsel, because it's like you can read, you can write, you can analyze and assess, risk management, crisis management, figuring stuff out, analytical skills, interpersonal skills—all those liberal-arts things that people said were useless, are not.

And also, to be perfectly clear, if there's any diversity in the C-Suite, it's the head of HR and or the GC. And so a lot of times, frankly, these companies were looking for the highest-ranking Black person to say, this George Floyd thing, how do we get a handle on this? And on the one hand, that has been an opportunity for people to step forward as a leader outside of the narrow legal space and to shine. On the other hand, it's incredibly unfair that you've got this one Black person in your company and now they have to sort of do everything. But it has been the opportunity to say, this is what I can do to be a leader beyond just being your lawyer person. And that has led to people moving into CAO, COO, and other kinds of roles.

We see ESG emerging, obviously DEI is more of a thing now, and then of course outside of the company, you see people having more board opportunities because they have these skills. Again, crisis management, risk management, DEI, bankruptcy, restructuring—all of these different things are skillsets. And when people are talking about joining boards these days, ‘cause we're seeing more and more lawyers and GCs joining boards, I always have to advise them, don't lead with the fact that you're a lawyer or a GC. Nobody cares about that. Lead with the fact that you're a leader. Lead with the fact that you have helped to lead organizations through all of these different things.

People tend to shy away from the bad or the messy. And when organizations are in trouble, I get a lot of calls from people saying, should I leave? Should I jump ship? And I'm like, maybe, but don't be so quick to do that, if you can ride this out. First of all, you didn't create the problem, so nobody’s going to blame you. If you can help shepherd the company through this process, however it resolves itself, you will gain such amazing, valuable experience that frankly looks really good on a résumé. And frankly, I've seen people end up in higher-level positions because they were the person who stuck around and helped the company work through it. And again, however it resolves itself—if you can stomach it, if you can bear through it, it can be amazing experience that is very, very valuable.

I remember once putting together a panel on crisis management and how to survive a crisis. And I had a GC on the panel who had been the GC of several companies that had gone through crises. And some other GC got the invitation and emailed me and said, Sonya, do you think it's a good idea to put so-and-so on this panel, I mean, look at all these crises! And I was like, yeah—look at all these crises they survived. They ain't in jail, are they? In fact, they're at a really good job right now. Don't you want to know why? Don't you want to know how? And he wrote me back in like five minutes and said, good point, I'll be there.

DL: So turning to what you were just discussing in terms of DEI or diversity, equity and inclusion, which has been a very active space in an increasing priority, I think, for law firms and corporate legal departments, if you had to give the legal profession a grade on DEI efforts, what grade would you give and why?

SS: It's a great question, and I gave it some thought. I would give the legal profession a D.

DL: Ouch!

SS: But I would give the whole rest of the world a C-minus.

DL: Okay.

SS: So what I'm saying is that this is a real problem, this is a real ongoing issue across the board, and I grade the legal profession lower only because the legal profession is so resistant to change—real, systematic, deep institutional change.

And it makes sense, because lawyers are raised to be risk-averse, and change is, by its very nature, risky. And DEI means change. So if you're thinking about a group of people who, when emails came out, were like, what, I'm not doing that, that's not a good way to transport information, and when faxes came out, oh, I'm not faxing anything. I mean, there are partners who are still printing out their emails, right? So when you think about an institution like the legal profession, which is again, by its very nature—lawyers are cautious, lawyers are risk-averse, lawyers take comfort in doing things the way they've always been done. That is the least risky way to do things, the way they've always been done. So it's kind of a failsafe. Talk about bet-the-company litigation, right? A company will hire, say, a Skadden. Why? Because hey, even if it goes wrong, even if everything goes horribly wrong, and the board asks the CEO what happened, the CEO can say, I did everything I could—I hired Skadden.

Again, things will always happen in life. You can never have a guarantee as to how things will turn out. But some decisions make people feel more comfortable than others, and everything else seems risky. And that is the inherent problem, the inherent conflict between DEI and the legal profession.

DEI means change real, sustained, important change, not give everybody a black-and-white cookie on MLK Day. How are we assigning work? How are we assigning origination credit? How are we developing people? Let's look at the metrics. Let's change the way we're doing things. No, no, no, no—we just want to hand out cookies on MLK Day and have it look good.

So change and law firms are never going to be a comfortable mix, which is why—in all the things that we do, and we should absolutely keep doing them all—we have to initially recognize that the very nature of the profession is one that is conservative in the sense of “let us keep doing things the way we think they have always been done, and should always be done, because they have worked for some.”

DL: Before we move to our lightning round of the final questions, let's stay on that change theme. And I want to ask you, Sonya, what are some concrete changes that law firms and in-house legal departments can implement if they want to improve their grade from a D when it comes to DEI efforts?

SS: Well, I don't recruit lawyers for law firms.

DL: Yup, yup.

SS: I do recruit GCs, chief compliance officers, things like that, for law firms and for companies. Frankly, if you really want a great DEI consultant as a company or a law firm, I'll put in a plug for my friend Paula Edgar.

DL: I love Paula. I should have her on the show too.

SS: You should, and you should be on hers. That's my next podcast.

DL: Oh, great.

SS: Whenever a law firm these days reaches out to me and says, we need to hire a DEI person, the first thing I ask them is, okay, what work have you already done? Have you had any DEI consulting? Have you had any DEI training? What things have you already done? Because if you haven't tried to do anything on your own, to expect one person to come in and just magically fix it all is really to set that person up for failure. That’s the reason for setting people up for failure, and it’s one of the reasons why we have this rapid turnover in the space, where people go into these roles and they stay a year, 18 months, and then they're back out.

I would say to the firm, have you done the work? Have you done the pre-work? Because if you haven't done the pre-work and you haven't really taken a close look at yourself, if you really haven't gone through that process, then frankly, any DEI person that you would want to have is not going to want to join you. And if they do join you, it really would be expecting too much of them to just sort of magically resolve everything for your firm.

DL: So in the searches that you are doing for corporate legal departments or executives even beyond the legal space, is DEI more of a priority, at least among your clients?

SS: Let me put it this way: DEI has always been said to be a priority. First of all, the reality is that I am a Black woman recruiter. I am a well-known Black woman recruiter, so the kind of clients who come to me, that's a lot of the reason that they came to me to begin with, is, because this is a space that I'm known to be very active in. So my perspective is skewed by the fact that people always came to me from a DEI perspective because I've been Black 50 years. I didn't turn Black three years ago, right? That's always been the space that I've been in, that's why people come to me.

So people always say, DEI is important, and naturally, DEI is important to us, and it's sort of boilerplate language. So I think you always, again, want to have that conversation deeper as to, okay, well what does that mean, and why is it important, and how does that shape what we're going to try to be looking for in this search? And again, what have you done already so that, again, if this is going to be your first Black executive or what have you—which again, I applaud it, we all got to start somewhere on this journey—what is this person going to be coming into? What resources and support are they going to have? What are your plans? What are you trying to do?

Because again, you can't hire one person and tell them to fix everything. That's just not how this works. Ask [former president] Barack [Obama]. You can't hire one person and say now it’s fixed forever. No, it's not. This is our process, and it's a little forward and a little backward, and it's not one person who comes in and magically waves the wand and fixes everything. That's just not how this works. So I try to have a real conversation with clients about what their real commitment is.

Candidly, most of my clients are diverse people. Most of my clients have always been women or people of color, Black people, and most of them are people I already know well. So I've been with them on the journey for a long time, so I really don't have to spend a lot of time questioning their motivations because I've known them for years and I know who they are and I know their own lived experience and what they're trying to do now that they are where they are. I'm a trusted advisor to a lot of people, and a lot of people call me up and say, are they [the employer] for real? What's going on there? It's not my job to lie to people, and I don't lie to people. What I want to be able to say to someone is, look, they're on a journey, and they may be closer to the beginning of this journey, and you've got to ask yourself if this is the right challenge for you and for your family, depending on where you have to move to.

Is this the right challenge for you at this time? Are you up for this? Are the potential benefits going to outweigh the challenges? And again, and that's challenges to the person in the workplace, that's challenges to the family, sometimes that's challenges to the kids in school. And so the way I phrase it, and I have often phrased it to Black GCs and people is, is this your Rosa Parks moment? Are you at a point in your life and your career that the benefits that you would get from this and the potential that you see in this outweigh the potential challenges? And I can say that again, this is not a perfect situation, there are no perfect situations. You have to ask yourself if this particular situation is worth it to you to say, I'm going to step out on faith, in good faith, and roll up my sleeves and try to do the best I can to help this organization and learn and grow myself along the way.

DL: In closing, let's shift to the lightning round. I ask four questions that are standardized for all of my guests. The first one is, what do you like the least about the law?

SS: The thing that I like the least about the law is how rigid it can be. The conservative nature of, we can't do that, we can't try that until everybody else has done it and all the other law firms are doing it, and then maybe I might consider doing it ‘cause now it seems less risky. I understand why the law is that way, I understand why lawyers are that way, but I really don't like it.

DL: And it also ties into what you were saying earlier about how it does hamper DEI efforts as well.

So my second question is, what would you be if you were not a lawyer or search professional?

SS: Well, if you watch the Marvel movies and you see the multiverse, right, there's a version of you doing different things in different realities. If I had followed another reality, I'd be doing theater, I'd be singing, I'd be writing, I'd be fully indulged in my creative side if I had taken that road.

DL: A third question: how much sleep do you get each night?

SS: It's funny, since I've been permanently working remotely and since I have joined my new firm, I have a very different kind of personal and professional life now. I have a little dog and all these different things. Honestly, I do tend to get like eight hours of sleep a night.

DL: Great. I always love to hear that. And I've been pleasantly surprised by the number of high-profile guests I've had on this podcast, really successful people like yourself, who do get a decent amount of sleep.

So my last question is, any final words of either career or life advice for my listeners?

SS: I remember my mother would always say to me, when you're down, don't get too comfortable being down because forces are already in motion to bring you back up, which is lovely. But then she would also say, and when you're up, don't be too comfortable being up either, because forces are already in motion that can bring you back down.

But it's important to remember that over the course of hopefully a long life in a long career, there'll be lots of ups and downs, and I would say to the people who right now perhaps are being laid off and maybe experiencing one of their first downs, as someone who survived the dot-com crash, as someone who after 9/11 was an immigration lawyer, and as someone who in 2008, 2009 got laid off, now that I'm 50 years old, I've been out of law school 25 years, I've experienced a lot of ups and downs. I'm sure I'm not done. And each time it gets a little easier because you can rattle off the down times that you've had in the past and you remember that when you're down, forces are already in motion to bring you back up.

It's a long life, it's a long career, if you're fortunate. Do the best work you can. Develop a good reputation for doing the best work that you can. Make good, strong relationships and networks. Those are the people who will have your back over the years as you navigate all of these things. And again, remember, it's a long life, it's a long career. Shape it the way you want to shape it, not the way you think it's safe to shape it, not the way other people might think you ought to shape it. And again, try to enjoy the ride.

DL: Well, I think your life and career are excellent examples of the words of wisdom you've just shared. So thank you again for joining me, Sonya. I'm so grateful for your time and insight today, and of course for your friendship over the years.

SS: Absolutely. Thank you. It's been a pleasure, David. I appreciate it.

DL: Thanks so much to Sonya for joining me. What I’ve always admired about Sonya is her authenticity. She keeps it real, she always tells you exactly what she thinks, and we can all benefit from her insight and her honesty.

One theme of my conversation with Sonya is creating your own opportunities, which brings me to our sponsor. Thanks to NexFirm for sponsoring this episode of the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, April 5. Until then, may your thinking be original and your jurisdiction free of defects.

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Rep. Pat Schroeder (D-Colo.), interviewed on Bourbon Street, New Orleans, during the Republican National Convention in August 1988 (via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Welcome, all you new subscribers (and thanks for the boost, Stanford Law School). You’re reading Judicial Notice, the weekly legal news roundup that I provide to paid subscribers of Original Jurisdiction. I consume a vast amount of legal news, pick out what’s important, and distill it all down to a single summary, which saves my busy readers a ton of time (and to folks who bill by the hour, time is money).

I begin each edition of Judicial Notice with a short personal update. This week, I did a lot of speaking. I debuted a new talk about affirmative action in higher education—at the University of Michigan Law School, a fitting venue given the role it has played in the history of litigating this issue—and I challenge you to find a more beautiful law school library (yes, even including Yale’s). I appeared on my favorite legal podcast, Advisory Opinions, where I discussed the protest of Judge Kyle Duncan at Stanford Law School with Sarah Isgur and David French (who then spoke with Judge Duncan himself). And Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, where we interviewed Michael Heise of haistack.ai about another timely topic: artificial intelligence—and how it’s transforming the legal profession.

Now, on to the news. There’s a lot to discuss, since this edition covers two weeks (because I skipped the week ending March 11, while on vacation).

Lawyer of the Week: H. Rodgin Cohen.

The Duncan drama at SLS, while riveting in the manner of a car wreck, is not a big story in the grand scheme of things. Out in the “real world,” the big story is the massive turmoil in the world of banking, which started—but hasn’t ended—with the collapse of Silicon Valley Bank (SVB), the 16th-largest bank in the United States.

So it should come as no surprise that Lawyer of the Week is Rodge Cohen, senior chair of Sullivan & Cromwell and arguably the nation’s #1 lawyer when it comes to financial institutions M&A (I see you, Ed Herlihy). Famously dubbed the “trauma surgeon of Wall Street” by the New York Times during the 2008 financial crisis, Cohen has had a busy two weeks.

As reported by Reuters and the Financial Times, Cohen played a key role in the $30 billion plan to rescue First Republic Bank—a critically important development, since you can think of that as a “firewall” separating the collapses of SVB and Signature Bank from the rest of the U.S. financial system. If we can avoid recession (which I’m increasingly doubtful about), or if the recession isn’t as bad as it could have been, we’ll have Cohen—and many other lawyers, including Federal Reserve Bank chair and Georgetown Law grad Jerome Powell—to thank.

Turning to younger folks (Cohen is 79), congratulations to the winners of the National LGBTQ+ Bar Association’s 40 Under 40 Awards. And turning to the much younger, congratulations to Jimmy Chilimigras, 15, who scored a 174 on the LSAT and will be attending a yet-to-be-determined law school this fall.

In memoriam:

Patricia Schroeder, the first woman elected to Congress from Colorado, passed away at 82, of complications from a stroke. Although she was best-known for her political achievements, including passage of the Family and Medical Leave Act and the Pregnancy Discrimination Act, she had impressive legal chops: she graduated from Harvard Law School in 1964, one of only 15 women in a class of more than 500.
Donald Flexner—name partner at Boies Schiller Flexner and a “giant of the antitrust bar,” in the words of his longtime partner David Boies—passed away at 81, after a long illness.

May they rest in peace.

Judge of the Week: Judge Kyle Duncan.

The obvious Judge of the Week is Judge Kyle Duncan (5th Cir.). I’ve offered wall-to-wall coverage of L’Affaire Duncan, including a full audio recording of the protest against the judge, so I don’t have much to add here. I’ll just point you in the direction of Judge Duncan’s latest comment on the whole unfortunate episode, a Wall Street Journal op-ed entitled “My Struggle Session at Stanford Law School.”

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Trouble in paradise? Stanford University (via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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There has been a great deal of debate about various facts relating to Fifth Circuit Judge Kyle Duncan’s appearance last Thursday, March 9, at Stanford Law School, which was the subject of a rowdy protest. I hope that some of these debates can be settled by the following audio recording, which captures almost all of the proceedings. I thank my source for this valuable evidence.

The audio embed appears below, followed by my own observations, with (very rough) timestamps. I should add the caveat that I don’t have the best hearing, and in the interest of getting this out quickly, I have listened to the recording just once. But I know that you, my readers, can listen for yourselves and unearth additional nuggets. Please feel free to add your own observations in the comments to this post.

0:00: The recording begins near the end of Stanford Federalist Society president Tim Rosenberger’s introduction, so it’s missing some heckling of Rosenberger (but you can catch a bit when he refers to Judge Duncan being appointed by President Trump).
0:35: Judge Duncan takes the podium, as students make gagging noises, and attempts to deliver his prepared remarks. And it’s clear he does have prepared remarks, focused on high-profile rulings of the Fifth Circuit in specific areas of law where Supreme Court jurisprudence is unsettled. He’s heckled intermittently—e.g., “Boring!” or “We took Con Law!”—but he’s able to speak to a certain degree. It’s not as much of a shutdown as Ilya Shapiro at Hastings. But at least in my opinion—and now that we have full audio, we can have an informed debate—the protestors did violate Stanford University’s Policy on Campus Disruptions, which prohibits “[p]revent[ing] or disrupt[ing] the effective carrying out of a University function or approved activity, such as… public events.” The policy doesn’t prohibit “preventing the carrying out” of a public event; it prohibits “preventing or disrupting the effective carrying out” of a public event, and the words “disrupting” and “effective” should be given some meaning.
7:10: “The depth of contempt that you are showing me….” This is where Judge Duncan first diverges from his prepared remarks to criticize the protesters. From this point forward, it gets more difficult to hear because the frequency and volume of the heckling increase.
8:43: “It is appalling. And obviously in this school, the inmates have gotten control of the asylum.” This line by Judge Duncan, which is audible, is immediately drowned out by the audience response.
9:30: Students shout “This is our jurisdiction!” and “This is a valid form of communication!” (For why shouting down a speaker at a duly authorized event in an academic environment is not a legitimate form of counter-speech, see Ken White’s excellent Popehat post, “Hating Everyone Everywhere All At Once At Stanford,” or this great Q&A with Nadine Strossen and Greg Lukianoff for FIRE.)
9:43: Judge Duncan is still trying to deliver his prepared remarks, discussing divergent rulings of the Fifth Circuit and Sixth Circuit on the OSHA vaccine mandate.
10:10: After a student yells out, “You don’t respect us!”, Judge Duncan talks about the need to treat people the way you want to be treated yourself. A student asks, “How is it respectful to misgender someone in open court? I would like to know!”
11:40: Dean Tirien Steinbach identifies herself as an associate dean and enters the discussion: “You just asked for an administrator, and I’m here.”
12:48: Dean Steinbach begins her prepared remarks. What follows will be familiar to anyone who watched Ed Whelan’s video, read the transcript of Dean Steinbach’s remarks posted by the Foundation for Individual Rights and Expression (FIRE), or read my original story about the protest, so I won’t repeat or summarize her remarks again here. All I will say is this: to folks who are inclined to blame the difficulty of hearing Judge Duncan on the quality of this recording, this portion of the audio demonstrates that a speaker who isn’t relentlessly heckled or jeered can be heard perfectly clearly (except for where Dean Steinbach is interrupted by applause).
15:55: Dean Steinbach concludes, followed by enthusiastic applause.
19:16: One of the student organizers asks half the audience to walk out in protest and the other half to remain for Q&A, while “toning down the heckling slightly.”
22:12: Judge Duncan complains of being “heckled to death” and wonders whether the event has devolved into a “struggle session.”
22:35: Judge Duncan has an exchange with a student over Fusilier v. Landry, a case about the Voting Rights Act in which, according to his critics, he disenfranchised Black voters. While it’s true that Judge Duncan dissented in part, as he told me in our interview, I think this was a little disingenuous on his part. He dissented on standing grounds (and he concurred with Part II of Judge Edith Jones’s opinion on the merits). So like the majority, Judge Duncan would also have denied relief to the plaintiffs, a group of Black voters and the Terrebonne Parish NAACP—just on different grounds.
23:13: There’s an audible section here, beginning with “Let’s be clear about what’s going on here,” in which Judge Duncan again criticizes the protestors. He talks about how they are supposed to be learning to be lawyers and can’t act like this in court.
25:10: Judge Duncan asks the audience, after one of them notes that they asked FedSoc to cancel the event, “Why do you want to cancel people’s speech?” He goes on to condemn the protest as “infantile” and “ridiculous.”
26:38: Judge Duncan asks the audience when was the last time a FedSoc member showed up to one of their events to heckle a speaker. An audience member responds, “We’re not attacking their rights.” (Well, maybe their right to put on an event without disruption….)
27:15: Judge Duncan says “fine,” let’s move on to the question-and-answer session, but warns against asking him “hostile,” “ridiculous,” “when-did-you-stop-beating-your-wife-type questions.”
28:18: Someone asks an earnest question about scholarship arguing that one of Judge Duncan’s opinions, In re Abbott, reflects the principles of common-good constitutionalism. Judge Duncan responds that he doesn’t adopt academic theories to guide his decisions, and Abbott—in which he wrote an opinion upholding a Texas executive order temporarily postponing certain medical procedures, including abortions, during the pandemic—was a straightforward application of Jacobson v. Commonwealth of Massachusetts. This should be an interesting exchange to Con Law nerds; it reminded me of how Justice Amy Coney Barrett told me she is “not a fan of common-good constitutionalism.” It seems that even socially conservative judges like Justice Barrett and Judge Duncan are not running to embrace common-good constitutionalism, at least explicitly. (We could have had more meaty, substantive exchanges like this one, in which a sitting circuit judge explained how academic theories do or don’t affect his jurisprudence, had there not been so much disruption.)
28:56: A student asks about Judge Duncan’s comment, before he became a judge, that Obergefell, the Supreme Court’s ruling in favor of marriage equality, is “an abject failure” and “imperils civic peace.” He opines that it has indeed “imperiled civic peace” as “evidenced right here,” then goes on to complain about his being mistreated at this event merely because of “a difference of opinion.” This comment has been presented by some as Judge Duncan insulting the many LGBTQ+ students among the protestors. But in context, it sounds like he’s echoing the argument made by some of the Obergefell dissenters that the ruling would, in Justice Samuel Alito’s words, “be used to vilify Americans who are unwilling to assent to the new orthodoxy.”
30:54: Judge Duncan suggests that “one point of this [protest] is to intimidate other people,” such as students with dissenting views, or maybe even to “silence” them or “erase their existence.”
31:18: Judge Duncan asks, “How does it feel? You complain about people like me, or judges like me, or lawyers like me, or whatever, you complain about them denying your rights or erasing your existence or whatever other buzzword you want, and then you turn right around and do the same thing to somebody else…. Hypocrites. That’s what you are, a bunch of hypocrites. You’re not interested in actually having a civil discussion with anybody. You just want to shut them down.”
32:30: There’s an exchange about the “Judge Duncan can’t find the clit” sign, in which Judge Duncan asks the protestors, “Are you 14 years old?”
33:05: A student who describes herself as a woman from Texas and a victim of rape asks about Texas’s ban on abortion. After citing statistics about the high incidence of sexual assault, she asks, “How am I, as a woman from Texas, to have access to citizenship or autonomy, if I am incapable of making choices about my own body and my future existence, when the consequences of childbirth and sexual violence could mean death, frankly, from giving birth? We have pretty high maternal mortality in the state of Texas. How am I to have access to citizenship?”
34:32: After an exchange I found difficult to follow, the student resumes her questioning: “In a society where women experience severe sexual violence, sexual violence that often leads to pregnancy, how can women have access to citizenship and be treated the way they wanted to be treated, if they have no access to their own reproductive rights? That’s my question.” [UPDATE (8:50 p.m.): As I mentioned, I don’t have great hearing, but a reader enlightened me on the “exchange I found difficult to follow.” Wrote this reader, “At 34:27, you can hear Judge Duncan saying, ‘You made a speech. Great. Congratulations,’ very sarcastically. I think this is pretty similar to the dismissive comment along the lines of ‘nice speech.’ In fact, I think it's even more dismissive.”]
34:50: Judge Duncan compares the question to “a long speech,” then explains that the case where he served on the panel, Whole Woman’s Health v. Jackson, concerned whom you can sue to enjoin a law—in this case, S.B. 8, the Texas abortion law that authorized “private civil actions against persons who abort an unborn child with a detectable fetal heartbeat.” He notes that private parties who tried to bring S.B. 8 lawsuits “were shot down by the state courts in Texas,” so “that’s the answer to your question about [abortion] access.” On the federal side, the Fifth Circuit panel in Whole Woman’s Health was addressing a “very specific legal question,” on which it got affirmed by the Supreme Court, “95 percent.”
35:23: “That’s how courts work,” Judge Duncan says. “Courts don’t address questions like that [i.e., the student’s question]. That’s a very nice speech. But courts don’t address speeches; courts address legal issues.” With this additional context, it appears that Judge Duncan was trying to explain that courts address concrete cases and controversies, not issues in a vacuum or “speeches.” So I don’t think it was the case, as claimed by some, that he responded to a survivor of sexual assault by dismissively saying, “Nice speech.”
35:50: “That’s what federal courts do,” explains Judge Duncan. “And by the way, the people who address large-scale questions like [abortion] are legislatures. The Congress. The legislatures of states. People acting together to make decisions on difficult issues. But evidently some of you are being taught in law school that it’s all up to the super-wise, Solomonic judges to just sort of make decisions. Well, you know what? I don’t ascribe to that particular view of the judiciary. We have other branches of government. We have state governments to do things. We have local governments to do things. That’s an answer to the question.”
36:26: A student asks, “Do you ever think about the ethical implications of your decisions? Or no, is that beyond the scope of your work?” Judge Duncan complains that this is a “wife-beater question,” but I disagree. It seems to me that the student was asking a logical follow-up to Judge Duncan’s comment about the role of judges. I think it might have been clearer to ask something like, “Do you ever consider the extra-legal, moral implications of your decisions?” Judge Duncan says he doesn’t understand the question, then asks if the student is referring to the rules of judicial ethics (which is again why I personally would have framed the question in terms of “extra-legal moral considerations,” not “ethics”).
37:10: The student clarifies by asking Judge Duncan if it’s appropriate for him to consider “fairness” in making decisions. Judge Duncan responds, “Judges aren’t supposed to engage in some ‘Cosmic Fairness Balancing,’ since we have elected officials to do such things.” He acknowledges specific situations where perhaps judges might be called upon by law to entertain certain equitable considerations, but states that these situations are the exception, not the rule. (Some critics of Judge Duncan accused him of refusing to answer the question, but I don’t agree with them; he did answer the question, just not in the way the student wanted.)
39:30: Students ask about Judge Duncan’s opinion in United States v. Varner, denying a federal inmate’s motions to change the name on the judgment of confinement to “Kathrine Nicole Jett” and to be addressed with female pronouns on appeal. Judge Duncan tells the students to read the opinion.
40:35: The event concludes with Judge Duncan saying, “Thanks to the Federalist Society for inviting me. As for the rest of you people, whatever.” The audience responds by chanting “Bye!” and applauding.

In my original story, I quoted one source who said the event ended 40 minutes before its scheduled ending time, but noted that a second source said it ran a bit longer. If the event started at 12:45 and ran approximately 41 minutes, the length of this recording, then it ended more like 35 minutes early. I will correct my original story accordingly; I take pride in how frequently I update and correct my posts, which reflects my commitment to accuracy.

So there you have it: the full audio of Judge Duncan’s controversial appearance at Stanford Law. As I mentioned at the outset, I welcome having more ears on this recording, especially since my hearing is subpar. Thank you in advance for your additional observations and insights.

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Judge Kyle Duncan speaking at Stanford Law School (screenshot via Vimeo of the Ethics and Public Policy Center).Last Thursday, March 9, a disruptive protest broke out when Judge Kyle Duncan (5th Cir.) spoke at Stanford Law School, at the invitation of the Stanford Federalist Society. In case you missed my story—which wouldn’t be surprising, since I published it on a Friday night—here’s my comprehensive coverage of the controversy.

If you’ve already read that piece but want to know what’s happened since then, you’ve come to the right place. Let’s dive in; there’s a lot to cover.

1. On Saturday, Stanford’s president, Marc Tessier-Lavigne, and the dean of Stanford Law School, Jenny Martinez, sent a joint letter of apology to Judge Duncan.

In their letter, President Tessier-Lavigne and Dean Martinez told Judge Duncan that “what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus.” They explained that “[w]e are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings.” Without naming names—but clearly referring to Tirien Steinbach, Stanford Law’s associate dean for diversity, equity & inclusion—they added that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”

In a statement to Ed Whelan, who broke the news of the apology (as well as the original event), Judge Duncan expressed appreciation for the apology, which he accepted. He also articulated the hope that “a similar apology is tendered to the persons in the Stanford law school community most harmed by the mob action: the members of the Federalist Society who graciously invited me to campus.”

2. Also on Saturday, the SLS dean of students sent an email to Stanford FedSoc leaders encouraging them to “reach out” for support to administrators—including Tirien Steinbach, associate dean for diversity, equity & inclusion.

In an email to “Fed Soc leadership,” Acting Associate Dean of Students Jeanne Merino offered “resources that you can use right now to support your safety and mental health,” including herself, Dean Steinbach, and a clinical psychologist to conduct “threat assessments” of social-media postings. Merino also suggested that FedSoc leaders “consider pausing their student organization social media accounts until this news cycle winds down,” since “issues tend to escalate and trolls are looking for a fight” on Twitter and similar platforms.

Aaron Sibarium of the Washington Free Beacon, who first reported on Dean Merino’s email, opined that it “raises questions about the sincerity of Stanford's apology.” I’m not sure I’d go that far, but I do think it was a bit tone-deaf to refer the FedSoc folks to Dean Steinbach, whom many of them likely see as the villain in this whole episode. I’m a little surprised to find myself referring to Yale Law School as a role model on these issues, but after the Yale Federalist Society had major problems with the Office of Student Affairs (OSA), Dean Heather Gerken wisely removed Yale FedSoc from OSA oversight and provided FedSoc with a different official, outside of OSA, to serve as their liaison with the YLS administration.

One other thought: Dean Merino’s email suggests Dean Steinbach isn’t going anywhere, at least not anytime soon. Judge Duncan called for her firing, and so have various conservative commentators. But given the support she enjoys from progressive SLS students (see item #3 below), firing her would cause a huge uproar. I think the most that might happen to Dean Steinbach would be quiet reassignment in a few months, which is what Josh Blackman predicts, but even that is not a sure thing.

3. The Stanford chapter of the uber-progressive National Lawyers Guild (NLG), which co-organized the protest of Judge Duncan with OutLaw, sent a defiant message to its members in which it praised the protestors.

In their Saturday email (also via the Free Beacon), the members of the NLG board declared their “firm support and admiration for every single person involved in planning or enacting the protest,” which “represented Stanford Law School at its best: as a place of care for vulnerable people, and a place to challenge oppression and bigotry in all their forms, including on the federal bench.”

In addition to condemning what it saw as Judge Duncan’s “abhorrent” behavior, the NLG Board declared its “deep disappointment” in the official SLS response: “In veiled language, the law school threw its capable and compassionate administrators who were present at the event, and who interceded productively, under the bus, and expressed an intent to ensure that such disruptions do not occur again.” Based on the unapologetic tone of the NLG email, as well as the fact that no actions have been taken against either the student protestors or Dean Steinbach, I wouldn’t be shocked if such disruptions do occur again.

On Sunday, the board of Stanford’s chapter of the progressive American Constitution Society (ACS) issued a similar letter (via KC Johnson and Nicholas Wallace). Addressed to President Tessier-Lavigne and Dean Martinez, the letter expressed “frustration with the Stanford administration's response,” which “has fueled a dishonest narrative being circulated by Judge Duncan and right-wing media.”

4. On Monday, Dean Martinez sent a letter about the controversy to Stanford alumni.

The letter, posted by Eugene Volokh, is similar in substance to her apology to Judge Duncan. But the first paragraph is worth noting: “I want to thank those of you who have reached out to me and others at SLS to share your reactions to the event on March 9, 2023…. Your care for SLS is evident in your messages, and in all that you do to advance and steward our school.” My takeaway: Dean Martinez got an earful from alumni about the protest, and I’m guessing a lot of the comments were negative.

I do not envy Dean Martinez right now. She faces a predicament similar to what Dean Heather Gerken faced at Yale Law last year: she’s getting attacked by conservatives for being insufficiently protective of free speech (and insufficiently aggressive in punishing protesters), and she’s getting attacked by progressives for being insufficiently protective of vulnerable members of the law school community. She’s getting criticized by alumni for caving to the woke mob, and she’s getting criticized by current students for caving to the forces of oppression.

And I think that Dean Martinez is in an even trickier position than Dean Gerken or Dean David Faigman (who had to deal with the protest of Ilya Shapiro at UC Hastings). Neither Kristen Waggoner of the ultra-conservative Alliance Defending Freedom (ADF), who was protested at Yale, or Ilya Shapiro, who was protested at Hastings, fought back against their protesters, which made it difficult to defend the protesters’ actions. But at Stanford, Judge Duncan did lash out at the protesters, calling them “idiots” and acting in a rude and dismissive manner toward them. Because he took these actions—in my opinion, strategic missteps on his part, even if you think they were understandable or even justified—the Stanford situation is less black-and-white than Yale or Hastings, and Dean Martinez is in a stickier predicament.

[UPDATE (10:35 a.m.): As just reported by Aaron Sibarium of the Washington Free Beacon, “Hundreds of Stanford student activists on Monday lined the hallways to protest the law school’s dean, Jenny Martinez, for apologizing to Fifth Circuit appellate judge Kyle Duncan, whom the activists shouted down last week. The embattled dean arrived to the classroom where she teaches constitutional law to find a whiteboard covered inch to inch in fliers attacking Duncan and defending those who disrupted him, according to photos of the room and multiple eyewitness accounts.” Click through to Sibarium’s story to check out the photos; this clearly took some SLS students a lot of work. Say what you will about Stanford Law students, but they definitely aren’t lazy!] 5. Also on Monday, Judge Duncan spoke with Sarah Isgur and David French on my favorite legal podcast, Advisory Opinions.

I won’t summarize the episode because you really should just listen to it for yourself—especially since yours truly is also a guest on the same episode. ;-)

In addition, also on Monday night, Stanford FedSoc President Tim Rosenberger appeared on Tucker Carlson Tonight (via Mike Davis). Interesting tidbit from that interview: only two Stanford Law professors have reached out to Rosenberger to express support, the chapter’s advisor (Professor Michael McConnell) and Professor Joseph Bankman (most well-known right now as the father of FTX co-founder Sam Bankman-Fried, but before that, one of the most popular members of the SLS faculty). [UPDATE (10:35 a.m.): Updated to identify Professor McConnell by name.]

6. Not surprisingly, given the hot-button issues involved and the prestige of Stanford Law as an institution, the Kyle Duncan controversy has unleashed a raft of online commentary over the past few days.

Call L’Affaire Duncan “the protest that launched a thousand tweets”—and given the sheer volume of Twitter discussion, I won’t attempt to summarize it here. But I have collected blog and other online media commentary, which I prefer over the Twitter’s short, hot takes. Here are some of the more noteworthy pieces, from an ideologically diverse set of pundits, and you can read any in full by clicking on the links:

Josh Blackman: “The debacle at Stanford Law School is the logical conclusion of DEIdeology…. [C]onsistent with anti-racist teachings, [adherents of DEIdeology] seek to use their newly-acquired power to elevate preferred messages and to deplatform ‘harmful’ speech.”
GianCarlo Canaparo: “Stanford should punish the students who protested and the administrators who did nothing. Duncan has called for Steinbach to be fired; she should be. It isn’t enough for Stanford’s president to rebuke unnamed ‘staff members’ for failing to enforce the free speech policy. A few pink slips, on the other hand, might encourage those who remain to behave.”
Rod Dreher: “It was a revolt of the elites, a pogrom against free speech and civil discourse carried out by some of the nation’s most privileged. It was a scene from Dostoevsky’s political novel Demons played out in one of America’s most exclusive training schools for its legal ruling class. And it is a stark warning about the potentially totalitarian future of the US.” (Dreher also interviewed Judge Duncan, which ended with the judge asking, “What if, in ten or twenty years time, this kind of behavior is the norm in the courtroom, the law firm, the boardroom? And I don’t necessarily mean loud vulgarity and shouting people down. Instead, I mean a situation where power and ideology always trump reasoned debate.”)
Rory Little: “When repeatedly voiced complaints are ignored and individual rights are perceived as being trampled by ‘the Establishment,’ principled civil disobedience of generally accepted rules and regulations may be appropriate. The heckling of speakers—speakers perceived to be representative of racist or other discriminatory views—may be one such occasion.” (Professor Little’s op-ed makes clear why he didn’t attempt to silence the protesters at the Ilya Shapiro event at UC Hastings, where he was present as Shapiro’s sparring partner.)
Ian Millhiser (discussing the Duncan visit against the backdrop of State of West Virginia v. B.P.J., a transgender-rights case now before the Supreme Court via the emergency/shadow docket): “[W]hat does [the Duncan controversy] have to do with the B.P.J. case? The answer is that, if you tried to engineer a controversy in a lab with the goal of outraging a Court dominated by Federalist Society stalwarts, you would come up with something like this confrontation.”
Joe Patrice: “Judge Duncan dispensed with playing the respectable victim and went full wrestling heel, channeling his inner Ric Flair and preening for the crowd about how much they hate him because he’s beautiful—or in this case, because he’s life-tenured and doesn’t have to care about their rights. He successfully feasted on the crowd’s disdain, but can you really make the case that you’re getting canceled when you’re the one launching into calling students things like ‘appalling idiot’ while they ask questions you refuse to answer?”
Mark Joseph Stern: “Duncan got the attention he so obviously wanted, drawing instant support from GOP senators and Fox News. He emerged as a folk hero on the right, the audacious judge who punched back at crybullies on the left who tried to silence his free speech. Yes, his behavior was injudicious; that was the point. The judge has likely concluded that conducting himself like a truculent provocateur will increase his odds of advancing to the Supreme Court under a future Republican president.”
John Sexton (the writer for the conservative Hot Air website, not the former NYU Law dean, responding to Mark Joseph Stern): “There’s no doubt that Judge Duncan gave as good as he got. He was not especially kind to the law students who were baiting and berating him with crude and crass messages about his sex life. But it’s a long way from saying that to claiming his whole intent all along was merely to rile up students. To put it bluntly, Mark Joseph Stern can’t possibly know that unless he’s a mind reader on the side.”
Charlie Sykes: “While some critics on the left have focused on Duncan’s petulance, that’s not really the key issue here, is it? …. Once again, we learned that quite a few folks on the progressive left have no problem with suppressing or disrupting speech that they believe causes ‘harm.’”
Jonathan Turley: “This event was videotaped and shows students shouting down Judge Duncan to prevent others from hearing his views. It is called ‘deplatforming’ or silencing those with opposing views. Yet, neither [President] Tessier-Lavigne nor [Dean] Martinez promise to hold these students accountable or to sanction Steinbach [in their apology letter to Judge Duncan].”

7. What will happen at Yale Law tomorrow?

“Hey Stanford Law, Yale Law called—it wants its drama back.”

In case YLS students are getting jealous of all the attention their SLS peers are getting, the Yalies have a chance to take back the limelight. Tomorrow, March 15, Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.)—the two judges leading the boycott of clerks from Yale Law, based on their concerns about the state of free speech at the law school—will be speaking at YLS. How will they be received?

My guess is that they won’t be protested. First, Yale Law School seems to be turning over a new leaf, reflected in the successful Return of the Queen (of Darkness): in January, Kristen Waggoner of the archconservative Alliance Defending Freedom spoke at YLS, and her appearance went off without a hitch. Judge Ho is controversial, but he’s no Kristen Waggoner, and Judge Branch is far less controversial than both.

Second, and shrewdly on YLS’s part, Judges Ho and Branch are part of a larger panel of eight judges participating in this event of the Crossing Divides Speaker Series of the Tsai Leadership Program. There will be three Trump appointees besides Ho and Branch: Judges Marvin Quattlebaum (4th Cir.), Roy Altman (S.D. Fla.), and Dabney Friedrich (D.D.C.). And there will be three Obama appointees: Judges Pamela Harris (4th Cir.), Stephen Higginson (5th Cir.), and James Boasberg (D.D.C.).

Judges Friedrich, Higginson, and Boasberg are Supreme Court feeder judges, so expect the YLS students to be on their best behavior. The #1 rule of Yale Law gunners: you don’t bite the hand that feeds you.

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Stanford Law School (by Mx. Granger via Wikimedia Commons).Congratulations, Stanford Law School. You’re the nation’s new top law school—when it comes to free-speech debacles.1 (And I’m interrupting my vacation to cover you—so thanks for that too, SLS.)

As I first learned via this detailed Twitter thread and subsequent Bench Memos post by Ed Whelan, yesterday Judge Kyle Duncan of the Fifth Circuit was the subject of a highly disruptive protest when he spoke at Stanford Law School. I have received extensive information about the event from multiple sources at or affiliated with SLS, as well as Judge Duncan himself, whom I interviewed by phone, and I’ll share it with you now. I also reached out to Stanford Law, but have not yet hard back; I will update this story (or write a new one) if and when I do.

On Thursday, March 9, Judge Kyle Duncan (5th Cir.) was invited to speak at Stanford Law by the Stanford Federalist Society. The title of his talk, scheduled to run from 12:45 to 2:00 p.m., was The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter. Whether or not you agree with the rulings of the very conservative Fifth Circuit—and, for the record, I disagree with many of them—the opportunity to hear from a sitting federal appellate judge about his court’s jurisprudence is why students go to places like SLS.

But many students at Stanford Law, especially those on the progressive side of the aisle, disagree. They have major problems with Judge Duncan, in terms of both his work as a lawyer before taking the bench and his rulings since President Donald Trump appointed him to the Fifth Circuit in 2018. Ahead of his appearance, they put up posters around the law school like this one, accusing him of being transphobic, homophobic, and racist:

Are the accusations against Judge Duncan justified? Read his judicial opinions—not descriptions of them from interested parties, but the actual opinions—and decide if this poster accurately characterizes them. I have read a number of them when preparing my weekly Judicial Notice news roundups, and I dislike the outcomes of several them as a policy matter. I also disagree, as a policy matter, with many of the positions he advanced as a litigator before becoming the bench—not surprising, since I’m in a same-sex marriage, and my husband and I are raising a son together. But there’s an important, often overlooked distinction between policy and law.

A different poster included headshots of Fed Soc board members, along with their names and class years, and the title, “Meet the Federalist Society's 2022-2023 Board. You Should Be Ashamed.” I’m not a fan of posters like this; as one of my sources put it, they amount to “intimidating and ostracizing students just for their membership in an organization.” As I have repeatedly emphasized, I prefer environments were people can disagree with each other, even vehemently, without engaging in call-out culture.

But I wouldn’t ban posters criticizing Judge Duncan or Stanford FedSoc, provided that the posters otherwise comply with university policy (e.g., by not covering up fliers promoting the event, as we saw in the recent controversy at Northwestern Law). Members of Stanford FedSoc are entitled to invite Judge Duncan to campus, but they are not entitled to have him be well-received or to have their decision to invite him go unquestioned (or to be protected against mockery in satirical fliers). Liberal and progressive students have their own free-speech rights, which they are free to exercise as long as they don’t prevent others from speaking or otherwise violate university policy. And while there are policies against harassment and the like, but I don’t consider the “Meet the FedSoc Board” poster to rise to the level of “harassment.”

The posters gave the Stanford Law community, including the SLS administration, a warning that trouble lie ahead. So yesterday morning, Tirien Steinbach, Associate Dean for Diversity, Equity & Inclusion, sent out an email to all Stanford Law students stating that the Law School would be taking no action to prevent the event, despite the fact that “[f]or some members of our community, Judge Duncan, during his time as an attorney and judge, has ‘repeatedly and proudly threatened healthcare and basic rights for marginalized communities, including LGBTQ+ people, Native Americans, immigrants, prisoners, Black voters, and women, and his presence on campus represents a significant hit to their sense of belonging.’” She continued that students were free to protest, in compliance the school's policy against disrupting speakers. (I have posted the full text of Dean Steinbach’s email below.)

Later on Thursday morning, after wrapping up classes, some members of Stanford FedSoc and their friends went into the student lounge, Russo Commons, to eat breakfast (since it was raining, and the lounge is one of the few indoor areas where food is allowed). Unbeknownst to them, that was the area where the protestors were preparing for the Duncan event. Someone came up to them and told them to leave because the protestors were trying to create a “safe space” for the LGBT community, meaning that FedSoc members were not welcome—so they left.

Leading up to the event, Russo Commons took on a festive air. Stanford’s OutLaw and National Lawyers Guild chapters served Mexican food to protesters, some of whom had their faces painted. Colorful signs were everywhere. A dog decorated with a transgender flag was running around. It felt like an eagerly anticipated social occasion, one FedSoc member told me.

Then the event got underway. Approximately 100 protesters lined up outside the event to boo those who entered, with some students calling out individual classmates—e.g., “Shame, John Smith”—à la Cersei’s Walk of Atonement on Game of Thrones. Another 50 to 70 students came into the room where the event took place, compared to about 20 FedSoc students (if that). The protesters carried signs reading "RESPECT TRANS RIGHTS," "FEDSUCK," "BE PRONOUN NOT PRO-BIGOT," and "JUDGE DUNCAN CAN'T FIND THE CLIT" (among others), along with trans-rights flags.

I have no problem with quietly holding up signs (as long as the signs, consistent with many universities’ policies, don’t prevent attendees from seeing the speaker if they wish to). I also have no problem with protesters outside or even inside the room where an event is taking place, as long as they are quiet and not disruptive.

But here’s where things went off the rails. When the Stanford FedSoc president (and openly gay man) opened the proceedings, he was jeered between sentences. Judge Duncan then took the stage—and from the beginning of his speech, the protestors booed and heckled continually. For about ten minutes, the judge tried to give his planned remarks, but the protestors simply yelled over him, with exclamations like "You couldn't get into Stanford!" "You're not welcome here, we hate you!" "Why do you hate black people?!" "Leave and never come back!" "We hate FedSoc students, f**k them, they don't belong here either!" and "We do not respect you and you have no right to speak here! This is our jurisdiction!"

Throughout this heckling, Associate Dean Steinbach and the University's student-relations representative—who were in attendance throughout the event, along with a few other administrators (five in total, per Ed Whelan)—did nothing. FedSoc members had discussed possible disruption with the student-relations rep before the event, and he said he would issue warnings to those who yelled at the speaker, but only if the yelling disrupted the flow of the event. Despite the difficulty that Judge Duncan was having in giving his remarks, plus the fact that many students were struggling to hear him, no action was taken.

After around ten minutes of trying to give his remarks, Judge Duncan became angry, departed from his prepared remarks, and laced into the hecklers. He called the students “juvenile idiots” and said he couldn’t believe the “blatant disrespect” he was being shown after being invited to speak. He said that the “prisoners were now running the asylum,” which led to a loud round of boos. His pushback riled up the protesters even more.

Eventually, Judge Duncan asked for an administrator to help him restore order. At this point, Associate Dean Steinbach came up to the front and took the podium. Judge Duncan asked to speak privately between them, but she said no, she would prefer to speak to the crowd, and after a brief exchange, Dean Steinbach did speak. She said she hoped that the FedSoc chapter knew that this event was causing real pain to people in the community at SLS. She told Judge Duncan that “she was pained to have to tell him” that his work and previous words had caused real harm to people.

“And I am also pained,” she continued, “to have to say that you are welcome here in this school to speak.” She told Judge Duncan that he had not stuck with his prepared remarks and was partially to blame for the disruption for engaging with the protesters. She told Judge Duncan and FedSoc that she respected FedSoc’s right to host this event, but felt that “the juice wasn't worth the squeeze” when it came to “this kind of event.” She told the protestors that they were free to either stay or to go, and she hoped they would give Duncan the space to speak—but as one FedSoc member told me, the tone and tenor of her remarks suggested she really wanted him to self-censor and self-deport, i.e., end his talk and leave.

“This invitation was a set-up,” Judge Duncan interjected at one point while Dean Steinbach criticized him. And I can see what would give him that impression: as you can see from this nine-minute video posted by Ed Whelan, when Dean Steinbach spoke, she did so from prepared remarks—in which, as noted by Whelan, she explicitly questioned the wisdom of Stanford’s free-speech policies and said they might need to be reconsidered. (At least at Yale Law School, Dean Heather Gerken had the decency to criticize disruptive protesters, instead of validating them.)

As you can see from the video, about half of the protestors eventually left at the direction of a student protest leader, with one of them charmingly calling the judge “scum” as she walked out. Yet the heckling continued, and still the administrators did nothing to intervene. Eventually, the student-relations representative tried to intervene once it had become clear that the event was out of control—but Judge Duncan then criticized him, telling him that he should have acted sooner.

Not getting traction trying to give a speech, Judge Duncan moved on to the question-and-answer session, and the protestors quieted down enough to ask a few questions. The questions—and answers—were generally contemptuous. As the judge put it to me, while he’s generally happy to answer questions when he speaks at law schools, the questions he received at Stanford were not asked in good faith; in his words, they were of the “how many people have you killed” or “how many times did you beat your wife last week” variety.

At one point during the Q&A, Judge Duncan said, “You are all law students. You are supposed to have reasoned debate and hear the other side, not yell at those who disagree.” A protestor responded, “You don't believe that we have a right to exist, so we don't believe you have the right to our respect or to speak here!”

Finally, the event concluded when the heckling was so disruptive and Judge Duncan was so flustered that it could not continue. One source told me the event ended about 40 minutes before the scheduled end time (although a second source told me they thought it ran for a bit longer). So defenders of the SLS protest might argue that technically the judge wasn’t “shouted down,” since he did get to speak for some amount of time. But it was difficult for many to hear him, and it’s a pretty sad commentary on the state of free speech in American law schools if the ability to get out a few words is the standard for acceptable events. (As for why shouting down speakers is not itself a legitimate form of “free speech,” which is what a number of Stanford protesters claimed, I refer you to one of my earlier stories about Yale Law, as well as this post by Professor Eugene Volokh over at Reason.)

After the event, Stanford FedSoc members asked Dean Steinbach for her thoughts. She asserted that nothing the protestors had done violated the Stanford disruption policy and that the event had been “exactly what the freedom of speech was meant to look like—messy.” She said that if Judge Duncan had wanted to give his remarks, he should have just kept reading them, and she claimed that he was disrespectful to the attendees.

And is there a case for that? I have readers and sources on both sides of the aisle, I believe in presenting both sides of controversies, and I’ll now quote from a source who was critical of how Judge Duncan comported himself:

While I think the administration should have handled it differently, my main takeaway is that I have never seen a grown man—let alone a federal judge—comport himself so poorly.

From the moment Judge Duncan arrived on campus, he seemed to be looking for a fight. He walked into the law school filming protestors on his phone, looking more like a YouTuber storming the Capitol, than a federal judge coming to speak.

Judge Duncan, whom I offered the opportunity to respond to these allegations, did not deny this claim: “Did I try to record video? Damn right I did. I wanted to make a record.”

Back to my source:

He was heckled pretty relentlessly, but I truly can't have imagined a worse reaction. He could have had a moral victory if he’d stayed on message, kept his cool, and delivered his prepared remarks. He even had a heads-up that the event was likely to be disrupted, so I would have thought that he would have had time to prepare himself to stay composed.

Judge Duncan told me that while he was warned about possible protest, what he encountered far exceeded his expectations, as well as anything he has ever encountered at any of the many law schools he has spoken at. He also shared with me that he had received assurances from the SLS administration—through Professor Michael McConnell, the prominent conservative legal scholar and former Tenth Circuit judge, who served as intermediary—that while there might be protesters, they would not be disruptive. So Judge Duncan was definitely (and understandably) caught off guard by what transpired yesterday.

Back to Judge Duncan’s critic:

[The judge] lost his cool almost immediately. He started heckling back and attacking student protestors…. Someone accused him of taking away voting rights from Black folks in a southern state. He asked the student to cite a case. While she was looking up the case, he berated her, “Cite a case. Cite a case. Cite a case. You can't even cite a case. You really expect this to work in court” [not exact quotes, but something along these lines]. When she eventually cited the one she was referring to, he said something along the lines of, “Was I even on that panel?” When she told him he was, he just moved right along with his tirade.

Judge Duncan said the case didn’t ring a bell for him because he couldn’t recall any opinion of his that was about disenfranchising Black voters. He told me that after the talk, he looked up the case cited by the questioner—and found he actually dissented.

I ended up leaving before the end of the event, but from what I heard, during the Q&A, one student shared that she’d been raped in college and asked a pointed question. His response was something along the lines of, “Nice story.” Someone asked him a question about this decision denying a pro se motion to use the petitioner's preferred pronouns, basically saying, "In court we are supposed to show respect for judges and co-counsel, even if you couldn't force other judges to use the litigant’s pronouns, couldn't you have shown that person some respect and addressed them how they wished to be addressed?” Duncan's response: "Read the opinion. Next question."

According to one Stanford FedSoc student, when you do read the opinion, you’ll see that it “is not some screed against trans people,” but an opinion addressing technical issues of jurisdiction and procedure.

When asked what he meant when he said that Obergefell would “upset the civil peace,” he gestured at the room of mostly queer protestors and implied that the disruption at the event proved his point.

If the students should be embarrassed by their behavior during the event, which I think they probably should be, Duncan ought to be ashamed. Law students are adults and should act accordingly. Duncan is a federal judge and should also act accordingly. He did not.

I think folks on all sides agree that it was a day to forget. Sorry for the stream of consciousness.

What did Judge Duncan have to say for himself in general? In a phone interview this afternoon, he made several points to me:

“I don’t want anyone to feel sorry for me because I had to endure a bunch of people jeering at me. I did think it was outrageous and unacceptable, but nobody should feel sorry for me. I’m still going to be a judge, and I’m still going to decide my cases.”
“I do feel bad—and outraged—for the Stanford FedSoc students. They are awesome people who just want to invite interesting judges to come talk to them. They’re a small group, obviously way outnumbered. They are the ones who lack power and status at Stanford Law. It’s ridiculous that they can’t get treated with civility, and it’s grotesquely unfair.”
“I get there where my critics are coming from, and I understand why they don’t like me. They claim that I am marginalizing them and not recognizing their existence. But this is hypocritical of them, since that’s exactly what they are doing to their classmates in FedSoc.”
“I get the protesters, they are socialized into thinking the right approach to a federal judge you don’t agree with is to call him a fker and make jokes about his sex life. Awesome. I don’t care what they think about my sex life. But it took a surreal turn when the associate dean of DEI got up to speak…. She opens up her portfolio and lo and behold, there is a printed speech. It was a set up—and the fact that the administration was in on it to a certain degree makes me mad.”
“I later heard that the associate dean of DEI was claiming two things. First, she claimed that I didn’t have a prepared speech and was just there to stir up trouble. It was a long flight out to Stanford, I’m not a professional rabble-rouser like Milo Yiannopoulos, and I’m not trying to sell a book. I actually had a speech, it was on my iPad, and I was going to be talking about controversial cases handled by the Fifth Circuit that present difficult issues because the Supreme Court’s jurisprudence on them is in flux.”
“Second, she claimed that the fact that two U.S. marshals showed up at the event was a sign that I’m a rabble-rouser and disruption always happens when I speak. But I didn’t bring or invite these marshals; these marshals from the Northern District of California just showed up after getting a tip-off. I have never been protested like that at any other law school, I have known of other conservative judges who have spoken at Stanford without any problems, and I spoke there in 2019 without any problems. So I was lulled into a false sense of security.”
“You don’t invite someone to your campus to scream and hurl invective at them. Did I speak sharply to some of the students? I did. Do I feel sorry about it? I don’t.”

In hindsight, would it have been better if Judge Duncan had not lashed out at the protesters? Yes. Should he have instead acted more like Ilya Shapiro at the law school formerly known as UC Hastings (now UC Law SF), who simply made repeated unsuccessful attempts to deliver his prepared remarks? Sure. But in fairness to the judge, most people would be deeply upset by such a reception, and although Judge Duncan was aware that there would be protesters, what he encountered at SLS was far worse than what he expected. As someone who has been protested only once, by a single protester who quietly held up a sign during my talk, I’m not going to sit here and judge the judge for not acting more judicially in response to verbal abuse.

As for the protesters, they are similarly unapologetic. One SLS alum tells me that word on the street is some students want Judge Duncan to issue an apology. Added this alum (who is right of center), “What a debacle. They wonder why no one from our world donates when they act like this.”

So where does Stanford Law go from here? Just as I was about to hit “publish” on this story, having worked on it most of the day (while supposedly on vacation), Dean Jenny Martinez issued the following statement to all SLS students:

Dear SLS -

Most of you have likely heard about an event on March 9, 2023 at the Stanford Law School hosted by the chapter of the Federalist Society and featuring Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit. A video of a small portion of the event has been circulating online.

The law school advised students who announced that they planned to protest the event of university standards and policies on freedom of speech, including the specific university policy prohibiting disruption of a public event. It is a violation of the disruption policy to “prevent the effective carrying out” of a “public event.” Heckling and other forms of interruption that prevent a speaker from making or completing a presentation are inconsistent with the policy. Consistent with our practice, protesting students are provided alternative spaces to voice their opinions freely. While students in the room may do things such as quietly hold signs or ask pointed questions during question and answer periods, they may not do so in a way that disrupts the event or prevents the speaker from delivering their remarks.

In the past few years, we have had a number of events with controversial speakers proceed without incident. Other than someone who hoped to create a meltdown for the cameras to capture, no one can be happy about what happened yesterday. In this instance, tempers flared along multiple dimensions. In such situations, an optimal outcome involves de-escalation that allows the speaker to proceed and for counter-speech to occur in an alternative location or in ways that are non-disruptive. However well-intentioned, attempts at managing the room in this instance went awry. The way this event unfolded was not aligned with our institutional commitment to freedom of speech.

The school is reviewing what transpired and will work to ensure protocols are in place so that disruptions of this nature do not occur again, and is committed to the conduct of events on terms that are consistent with the disruption policy and the principles of free speech and critical inquiry they support. Freedom of speech is a bedrock principle for the law school, the university, and a democratic society, and we can and must do better to ensure that it continues even in polarized times.

Sincerely,

Jenny Martinez

My hot take (subject to revision upon further reflection): a solid message. I appreciate Dean Martinez acknowledging that (1) “[h]eckling and other forms of interruption that prevent a speaker from making or completing a presentation are inconsistent with [university] policy”; (2) “[h]owever well-intentioned, attempts at managing the room in this instance went awry”; and (3) “[t]he way this event unfolded was not aligned with our institutional commitment to freedom of speech.” I predict she will adapt this school-wide email to respond to the powerful letter that the Foundation for Individual Rights and Expression just sent to Stanford Law, expressing its deep concern over the Duncan protest.

I will be very interested in seeing what Stanford Law’s “review” of the incident uncovers, whether it results in any policy changes (similar to those implemented at Yale Law), and whether Dean Steinbach faces any consequences for her attempt to manage the room that “went awry.”

Stay tuned. This is my first story about Stanford Law School, but I suspect, sadly, that it won’t be my last.

UPDATES (7:36 p.m.): Judge Duncan has given a few other interviews, including one with Aaron Sibarium of the Washington Free Beacon and one with Nate Raymond of Reuters. The judge did not mince words when speaking with Sibarium, saying that the protesters behaved like “dogs**t” and that Dean Steinbach should be fired.

EMAIL FROM DEAN TIRIEN STEINBACH ABOUT STANFORD FEDERALIST SOCIETY EVENT WITH JUDGE KYLE DUNCAN

Today, Federal Judge Kyle Duncan (Fifth Circuit) will be speaking at an event on the topic of The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns and Twitter. While Judge Duncan is not expected to present on his views, advocacy or judicial decisions related directly to LGBTQ+ civil rights, this is an area of law for which he is well known. Numerous senators, advocacy groups, think tanks, and judicial accountability groups opposed Kyle Duncan's nomination to the bench because of his legal advocacy (and public statements) regarding marriage equality, and transgender, voting, reproductive, and immigrants’ rights. However, he was confirmed in 2018. He has been invited to speak at SLS by the student chapter of the Federalist Society.

A coalition of SLS students have expressed their upset and outrage over Judge Duncan's invitation to speak at SLS. For some members of our community, Judge Duncan, during his time as an attorney and judge, has "repeatedly and proudly threatened healthcare and basic rights for marginalized communities, including LGBTQ+ people, Native Americans, immigrants, prisoners, Black voters, and women," and his presence on campus represents a significant hit to their sense of belonging.

As a member of the SLS administration, and in my role as Associate Dean for Diversity, Equity, and Inclusion, I write to share my office’s goals and roles in this situation:

To listen to community members and work to support a culture of belonging for all – where people feel that their unique contributions are recognized and respected. "Belonging" does not negate disagreement, nor discomfort - those are necessarily part of how we learn and grow as a community dedicated to teaching and training a diverse group of future lawyers and leaders. However, creating "belonging" does mean acknowledging and rectifying historic and current ways that whole groups have been excluded or marginalized within law schools and legal practice, often based on racial/ethnic identity, disability, socioeconomic status, religion, veteran status, age, and LGBTQ+ and gender identities. Creating a culture of belonging in a law school also requires exploring the many challenging ways that the law is so often an exercise in balancing “freedom to” and “freedom from,” or aligning intentions and impacts.
To support and model principles of free speech and academic freedom – SLS is committed to promoting intellectually rigorous open inquiry, aligned with the University’s statement on Academic Freedom: “Stanford University’s central functions of teaching, learning, research, and scholarship depend upon an atmosphere in which freedom of inquiry, thought, expression, publication and peaceable assembly are given the fullest protection.” Moreover, as a law school, SLS is particularly invested in upholding First Amendment principles and protections, and has a responsibility to seriously consider the danger of actions that have the potential to chill speech. And while there may be differing views on how best to address speech that is abhorrent to some or most people, one generally agreed upon way to address harmful speech is through MORE speech, rather than censoring speech (that is within the bounds of constitutionally protected speech).

Today, SLS will not censor Judge Duncan’s, nor the students’ hosting him, nor stifle free speech by canceling this engagement. This would be antithetical to our school’s principles of free speech, academic freedom, AND creating a culture of belonging. Moreover, I believe cancellation would not result in actually quieting or stopping speech or a speaker that many may find offensive or harmful, rather it would only amplify it (as we have seen played out on campuses and in media across the country). Instead, SLS supports this event going forward, and also supports the rights of students to protest this event, in keeping with University policies including those against disrupting speakers. We are also providing alternative space and programming for community members for whom their sense of belonging is undermined by this event taking place (thank you to the Levin Center for coordinating with Outlaw on alternative programming).

I do not expect all of the SLS community to agree with this approach, yet I hope that even those who disagree will better understand these decisions today, and continue to engage and advocate for greater understanding in the future. I also hope that we, as an SLS community, can continue to explore the question I posed to students at orientation: “What would it look like for SLS to create belonging WITHOUT othering?” We are not there yet, and may never be, however, to me that is still a question worth exploring in the work to advance diversity, equity and inclusion.

As some of you know, my SLS office shelves are filled with ampersands (the & symbol for "and"). When I am asked about them I tell people that, in studying and practicing law, I was trained to think and speak "either/or," however, I have found over time that the answers to many important questions are "both/and." Both/and can be uncomfortable or frustrating when seeking clarity and direction, yet, for those committed to principles of diversity, equity, and inclusion - to creating communities where all people see and feel that they belong - both/and is not only helpful, it is necessary. Today, my hope is for this community to embrace the ampersand, BOTH/AND – and practice using the skillful communication and active listening tools we will need to understand, to advocate, and to be part of creating the inclusive, diverse, just, and fair world we aspire to build.

As always, I welcome your thoughts, concerns, suggestions, and reflections.

In community -

Tirien Angela Steinbach

Associate Dean for Diversity, Equity & Inclusion
Stanford Law School

1Yes, I’m well aware that the First Amendment applies only to governmental actors. But anyone who has read Original Jurisdiction for any significant amount of time is aware of my strong and longstanding view that we need to restore a culture of free speech and First Amendment values to educational institutions, private as well as public.

Many private universities, Stanford included, have policies in which they adopt free-speech values by, for example, prohibiting disruption of public events. And in California specifically, the Leonard Law applies certain free-speech protections to students enrolled in non-religious, private institutions of higher education in California.

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What do you know about the U.S. Court of International Trade (CIT)? Are you aware that it’s an Article III court, with life-tenured members who frequently sit by designation on circuit courts across the country? Although I fancy myself an expert on the federal courts, my knowledge of the CIT was pretty sparse until recently.

This began to change last November, when I spoke on a panel about the (problematic) practice of judges getting deeply involved in selecting their own successors. I felt the panel went well, and much of the credit belonged to our excellent moderator, Judge Stephen Vaden (who stepped in at the last minute after the passing of our original moderator, Judge Laurence Silberman). I’ve enjoyed getting to know Judge Vaden over the past few months, and I quickly realized I wanted to have him on the podcast.

Judge Vaden has served on the CIT since 2020. In this interview, he pulls back the curtain on his court, a fascinating cross between a trial court and the D.C. Circuit—and a great place to clerk for listeners interested in clerkship opportunities.

Devotees of the federal judiciary should appreciate this episode for its exploration of the CIT, unique among Article III courts in several ways. But it will also appeal to first-generation lawyers seeking inspiration (Judge Vaden is a farm boy turned federal judge), as well as lawyers or law students who value sound career advice.

Show Notes:

Judge Stephen Alexander Vaden bio, U.S. Court of International Trade
Senate Judiciary Committee questionnaire, Stephen Alexander Vaden, United States Senate Committee on the Judiciary
Interview of Judge Stephen Vaden, SCOTUS 101

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Judge Stephen Vaden (courtesy photo).Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the thirteenth episode of this podcast, recorded on Thursday, February 23. I post episodes every other Wednesday.

A big thanks to this podcast’s sponsor, NexFirm. NexFirm helps BigLaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

My guest today is Judge Stephen Vaden of the U.S. Court of International Trade. Before joining the bench, he served as General Counsel of the U.S. Department of Agriculture (USDA). I’m keeping this introduction brief since Judge Vaden and I discuss his very interesting educational and career path in the episode.

In teasing this episode in the newsletter, I said it would be of special interest to Article III devotees—referring to Article III of the U.S. Constitution, which established the federal judiciary. Even if you’re fairly knowledgeable about the federal courts, I’m guessing you don’t know much about the Court of International Trade. It’s an Article III court, so its members serve for life, and they frequently sit by designation on other Article III courts, including circuit courts. Decisions of the court are appealable up through the federal system, first to the Federal Circuit and ultimately to the Supreme Court.

In our conversation, Judge Vaden provided me with an excellent overview of his court, its interesting and important work, some of its unique features, and for my younger listeners, the benefits of clerking for the court. But we covered lots of other ground as well, including his service as GC of the USDA, his upbringing on a farm in western Tennessee, and tons of great career advice.

Without further ado, here’s my interview of Judge Stephen Vaden.

DL: Judge, thank you so much for joining me!

Judge Stephen Vaden: Good to be here, David.

DL: So tell me, where are you right now? Are you in Tennessee, where you are based, or are you in New York, where the court usually sits?

SV: I'm in Tennessee. I spend roughly half a month in my home in Tennessee, and then I'm in New York for seven to ten days per month, and then for the remaining period of the month, if it's a slower month, I'm in Tennessee, or if I've got other engagements, then I'm maybe elsewhere about the country.

But the wonderful thing about the environment that we have now is that wherever I am, you can rest assured I'm working on something court-related. We are a court of national jurisdiction, as you know, so we're limited by subject matter, we're not limited by geography, like many federal courts are—so we are allowed, thanks to Congress's graciousness, to live anywhere in the country, as long as we are willing to pay our travel to New York. The taxpayer does not fund our travel to New York, since that is our duty station; I pay that out of my own pocket, and I'm very consistent about making certain I have a regular presence in the courthouse, since the taxpayers have provided a nice office for me in Manhattan.

DL: Oh, interesting, I did not know that. I wasn't sure if that was covered. I know that when circuit judges sit on calendars, for instance, that's covered. But that is interesting about New York.

SV: Once you've become a senior judge, under the law, then your home, wherever that may be, becomes your duty station. At that point, it is possible for the federal government to pay for your travel, in this case to New York, or if you were a judge somewhere else, to wherever your court is located. But for active judges, if you are traveling to your duty station from somewhere that is not your duty station, you pay that out of your own pocket.

DL: So another perk of senior status—but we'll circle back to this in a bit, in terms of the work of the court and its jurisdiction and whatnot. Let's start with your upbringing. Speaking of Tennessee, I believe you grew up in western Tennessee?

SV: Yes. I grew up in a small town called Union City, which is where I am now. I still have a home here, my primary home. My father was a farmer and a local businessman, my mother was a retired nurse, and both of my parents were much older than your typical parents. My father was 64 when I was born, and I am his oldest child. I have a younger brother.

[My father] lived until the age of 97, so I was very fortunate to gain from his tutelage, and I think that's where my love of history came from. But because he was self-employed his entire life and in a later stage of his life when we came along, he took us everywhere that he went. And so from a young age, we learned a lot about business, interactions with government, and things that property owners and businesspeople have to deal with that usually ten-year-olds don't know much about. But because my father would take us with him wherever he went, in some aspects we matured more quickly than others.

DL: Did you have any lawyers in the family?

SV: No, neither of my parents graduated from college, and there were certainly no lawyers in the family. So I am what they now term a “first-generation lawyer,” and that's something I'm very sympathetic to in my outlook at law students as well as clerks and young lawyers, because if you don't have someone who has walked that path before, you have to learn everything yourself, and that means that you've got to watch out for the pitfalls yourself, and you may not have certain people whispering in your ear, telling you wise things that other people do because they have lawyers in the family. And so that's something that I'm particularly attuned to. I think it's important that the law is a profession, and at one time was a guild, that we have people join the law from all different backgrounds because it's those backgrounds and their uniqueness, I think with regard to both lawyers and judges, that bring a lot of the expertise that people end up paying good money for.

DL: That's interesting. You mentioned your father was a farmer, and I believe I heard this on a prior podcast you were interviewed on, maybe the Heritage [Foundation] one—you got a little exposure to law at an early age, even though you were not growing up with lawyers in the family, right?

SV: That's definitely right. Anytime you own property, you obviously have interactions with government, whether it be zoning or property regulation, eminent domain, normal contractual relations with people who wish to lease your property, all sorts of things that come up. And my father was also a landlord, as am I; I now own those properties. He owned mainly residential properties, but also a couple of commercial properties.

And so anytime you have this happen, you get into disputes, and I found that I had a natural affinity for representing my father, as it were. He was in many ways my first client, and I was young and knew a lot less than he did, which meant that I was more willing to engage in jousting with governmental officials than perhaps he would be initially inclined to do. But to his great credit, he let me do it. I had some success, including rolling back a whole bunch of property tax increases that he got around the time I was early in college.

As you know, in administrative proceedings, you don't have to be a lawyer; an individual can choose another individual who is not a lawyer to represent them if he or she wants to. So there was nothing inappropriate about what I was doing. It may have been a little strange, but I found that I was good at it. I enjoyed it. And quite frankly, a lot of what I saw that my father had to deal with informed my outlook on legal problems and trying to focus on the practicalities of what everybody's stakes are.

DL: So you were involved in some of those legal proceedings when you were studying at Vanderbilt, when you were in college?

SV: Correct.

DL: And then did you decide during college that you wanted to go to law school? Did you go straight through to Yale Law?

SV: I did not. I was torn. Law was something that was obviously on my radar from the time I entered college because of the natural affinity that I had toward issues of that type. But I also love American history, and I had a wonderful mentor at Vanderbilt named Thomas Schwartz, with whom I still remain in good contact, and if I hadn't have gone to law school, I probably would've gone to graduate school in history. And either way, he wanted me to go to Yale because Yale has an excellent American history program, and Yale, of course, also has a good law school.

I did not make the decision for law school until probably midway through spring semester as a senior in college, so it was too late at that point to apply for the next year. And he emphasized to me, wisely, that that was not a problem, that it was actually a good thing that I would have some time to further mature before I went to law school, and I shouldn't feel guilty or pressure because I wasn't marching straight through, that a lot of people burn out that way, and that's definitely some of the best advice I ever took.

So I had a gap year or gap 18 months, whatever you call it, between May of 2004 and the fall of 2005. And quite frankly, David, that was one of the happiest periods of my entire life, because I spent that entire time with my father back home in Union City, and we worked renovating some of his rental properties. And so there are certain houses that we literally tore back, not quite to the studs, but we tore everything out and completely redid. Those particular houses, which I now own following my father's passing, have a particular warm memory in my mind because my father and I worked on them together.

And it actually ended up forming part of my essay that I wrote to law school, which if you ever wonder whether law schools read those things, when I attended the Yale admitted students weekend or whatever it was that they had at the time, somebody who apparently read my essay came up to me and said, “You're the guy that spent the summer renovating houses. You know, I've got some drywall work. Do you think you'd be able to help me with that?” And fortunately, the librarian, I didn't know he was a librarian at the time, was behind me in line, and he overheard this and he said, “You know, he's got a lot to focus on as a student here. You're going to have to find a professional for that.” And he kind of saved me from having to deal with that. But it did let me know that they do read those things that you send in.

DL: Oh my gosh. That's hilarious.

So when you were in law school, what were you thinking about in terms of a career? Were you interested in something at the nexus of law and agriculture because of your farming background? Or construction law? Or real estate? What did you think about in terms of your future legal career?

SV: Well, the practice of law as I knew it was kind of your small-town general practitioner who's usually a solo and a jack of all trades and can do some litigation, obviously does a lot of trust and estates and real estate matters. So that's the legal practice that I knew, and of course I knew in bigger cities there were larger firms, and when I'm saying bigger cities, I'm thinking Memphis and Nashville, not necessarily D.C. and New York. And so all the way through most of my district court clerkship, which was the second clerkship that I did, if you would've asked me, where are you going to practice law, I would've told you I'm going to be practicing law in Tennessee.

It was really the economy that went off a cliff in 2008, not long after I graduated—which affected all manner of law firms, but midsize law firms, particularly of the type that are found in places like Tennessee at the time—that sent me on the path that I ended up taking to D.C. and now New York City. So the one thing that I tell people, and I fortunately have the opportunity to speak to students, and of course my clerks, is don't think that you can plan your path in life out, because if you would've asked me at any point, would I be where I am now? No. To be perfectly honest, the two most prominent jobs I have held I did not know existed in law school. And yet a decade or so out of law school, I was general counsel of a Cabinet agency, and then I became a judge on a court that I never read a case, certainly when I was in law school, that it had issued.

There’s no way in the world, even if I had known these jobs existed when I was in law school, that I could have plotted a path to get there. And so what I tell people is a quote from Vernon Jordan, the great Democratic consigliere, who passed away not too long ago: “Opportunity is never convenient.” And that's always stuck with me. It's never going to be exactly the right time to take advantage of an opportunity. So what I've learned from his quote and from my own life is, literally when the phone rings and somebody calls to make you an offer, unless there's a strong reason to say no, say yes, see where it goes.

DL: Hmm, interesting. You mean say yes at least to the conversation, that is?

SV: Yeah, and then ultimately [to the offer], if the offer is making sense, even if it may not be the perfect time. It's never going to be the perfect time. Take them up on it, because they may not call again.

DL: That is a good point. So did you summer at a Tennessee firm when you were in law school, or how did that go? You had two clerkships: a Sixth Circuit clerkship, and a Western District of Tennessee clerkship. How did you end up going to a large law firm after that second clerkship?

SV: I split my time. I did the first half of the summer in Washington, D.C., at Patton Boggs. They had a reception at Yale Law School when I was a 2L. Never heard of them before, but I saw they had something that they called “political law,” which sounded interesting to me. Went to the reception, really hit it off with some of the partners, and in the end, Patton Boggs was the only standing offer I had when it came time that I needed a job in the private sector, and so that's where I went.

DL: Wow. Very interesting. And tell us about your practice at Patton Boggs, now Squire Patton Boggs. What did you focus on? What were some of the things that you found interesting or enjoyed?

SV: That firm was a blast. Most people can't say that about the firm they worked at, but Patton Boggs, as you know, was originally formed as a lobbying firm, and then the law firm grew up around it as they needed to serve their lobbying clients. That meant it had a very convivial atmosphere, a very client- and social-focused atmosphere, and it also meant it was entrepreneurial, which is to say that if they thought you were capable of doing something, they would let you do it. So I got to straddle the public-policy practice, which is what they call lobbying, working with Ben Ginsberg, helping him represent Republican candidates, pollsters, donors, lobbyists, people who wanted to influence the political process, and then I also did litigation, particularly appellate and high-stakes litigation.

Where my sweet spot was between those two was if we had a political-law matter where a client wanted to litigate because there were some election rules or something that either hurt them or harmed them, they wanted to challenge or defend, or heaven save them, if they found themselves under some type of investigation, whether it be from the Federal Election Commission, the House or Senate Ethics Committee, or even the Department of Justice in a criminal matter, I was the litigator in the political-law group, so that meant I bridged that divide between, for example, the white-collar team and the political-law team, because I could speak both languages. It was an experience I wouldn't have traded for the world.

To get back to the point that they were a firm where if they thought you could do it, they let you do it, when I was a third-year associate, they had a client whom they represented in a lobbying matter, a rulemaking proceeding, and the client didn't get the result that it wanted, and the client decided they wanted to sue to challenge, and the lobbyist looked up the statute and said, well, this goes directly to the Court of Appeals. It has to be a petition for review. It bypasses the trial court.

And he talks to somebody in the litigation division, and they were like, well, Vaden’s our court of appeals clerk, go talk to him. And so as a result of that, starting as a third-year associate and continuing on into my fourth year, I got to first-chair and argue, for a paying client, a case before the D.C. Circuit. We won that case too, three to zero, beat the federal government, and that's not something many law firms of any size, particularly the size of Patton Boggs, would allow an associate that junior to do, and yet they had confidence in me and allowed me to do. So I'm forever grateful for that, and I wish there was more of that in law firms today.

I'll just close and circle on this point. I was recently at a judicial conference and somebody asked me, we have all these junior attorneys who work for us, are you willing to schedule a motion for oral argument that you wouldn't necessarily normally schedule for oral argument in order to give them some practice? And what I told the attorney in front of the conference was, look, I've had a number of occasions where there is a law firm partner arguing in front of me because the title behind his name is partner, and yet when I ask questions, because I'm looking at the entire courtroom, I can clearly see it is the associates at the table who know the answer, know where I'm going with my question, and quite frankly should be at the podium instead of the partner arguing the case. And so what I told them is, titles don't matter to me. What matters to me as a judge is, can you answer the question that I'm asking?

So what you need to realistically be doing is put your ego aside, and if you’re not the best person to argue the case because you don't know the facts backwards and forwards, then bring that associate up and let him or her talk to me. I can deal with somebody who's never been in court before and doesn't necessarily understand all the procedures. That's very easy to work through and work with. I'm very sympathetic to that. We were all young at one time and did something for the first time. What I don't like is when somebody who doesn't know what they're doing is up there because they're the partner and they think that they should, because of their bigger title, be the one handling it. That to me is bad client representation, and so I encourage them to ask themselves, are you the best person to argue this, or is that associate who spent the past year digging through all thousand pages of the record and knows it backward and forward better to handle the specific questions I'm going to be asking?

DL: That's a great point, and I think a lot of times part of the challenge is convincing the client, because I think maybe the client is reassured by the title, but I know exactly what you're talking about. There are many times where the associates are furiously scribbling something or kind of twitching because they know exactly how to answer that question and the partner is stumbling, so I totally get it.

So you were at Squire Patton Boggs, and then that group moved to Jones Day, I believe?

SV: It did, when Patton Boggs became Squire Patton Boggs, when that merger occurred. The group for whom I worked took other offers and determined that Jones Day was a better offer. And so they went to Jones Day and were kind enough to take me to Jones Day with them. And I was uncertain about that move, David, because as you can tell, I really loved my time at Patton Boggs. They were very good to me, and I seriously considered staying behind.

But once again—in a theme that I think, if we're being honest, is with most people's lives who've had any measure of success—a wise voice whispered in my ear, and that wise voice came to me and said, look, I know that you have concerns about whether Jones Day is the right place for you, but here's what I'm going to tell you: it may not be your forever home, but I think it's going to be the place that gets you to where you need to, so take the leap and go there. And I'm very glad I listened to her because that ended up being a hundred percent true.

DL: Tell us that story, actually, about how you made the jump from Jones Day to the Department of Agriculture during the last administration, eventually rising to become the Senate-confirmed general counsel to that department.

SV: Well, we represented a number of presidential candidates in the 2016 election—of course, most famously Donald Trump, who won, but we also represented Rick Perry, Chris Christie, Scott Walker as well. So there were four presidential candidates early in the primary process that were represented by the three partners of the Jones Day political group and then the two associates, myself and a good friend, Annie Donaldson. We did the grunt work on them and were happy to do so.

We had represented the Romney campaign both times he ran. Unfortunately he didn't win, so there were no opportunities that came from that in government service. But in August of 2016, I remember it well, Don McGahn, who later became White House Counsel and was President Trump's top outside counsel at the time, came to me and said, if then-candidate Trump wins, think about some places you might like to serve in the government, and give me a list of four or five. And I joked that August was the last time the polls looked anything approaching good before Election Day, but I gave it some thought and I put down four or five items. I thought about it over a weekend, actually, before I returned it to him.

When I did, it wasn't long before he came down to my office and he said, you put down Agriculture, nobody puts down Agriculture who's given this opportunity. They all want to work at the White House, or somewhere else [like that], why did you put down Agriculture? And I reminded him of my background and that I knew the communities USDA served because my community's one of them, I’m very familiar with the work of the Department. And at that point my father had passed away, so I was not only helping him with the farm, it was my farm. So I was familiar with their work, and it was personally meaningful to me. And you could literally see the gears turning in Don's head as I was talking. And he just said, you know, this makes perfect sense.

He was like, how would you like to be general counsel of the Department of Agriculture? And I said, well, that sounds great to me. And he said, good, we'll put that down. And I really didn't give it too much more thought until [Trump] won on Election Night, and then Don said, you know, congratulations, you're on the landing team for USDA, and you'll be there on day one running the legal shop. And I was there—he made me, through President Trump's approval, acting general counsel, and then in September of 2017, let's see, having just turned 35, I was nominated to be a Senate-confirmed officer and the head counsel of one of the largest Cabinet agencies in all of the federal government.

So it was kind of a confluence of opportunity, ability, and my background came together to make that the perfect role. And if you took me back to that date in 2016, knowing what I know now, and said, Stephen, I'll give you whatever position in the federal government you want, just name it, after having done what I've done, I would pick the general counsel of the Department of Agriculture all over again. When I die, I may still tell you that that's the most fun job I ever had.

DL: Very interesting. And I'm curious—at the time, your title, actually, going back to whether titles matter—you were just an associate at Jones Day, right?

SV: Correct.

DL: You had not made partner, and then you went on to eventually become the Senate-confirmed general counsel to a major agency, so that's great.

Can you now talk about how moved from heading the legal function of the Department of Agriculture to a judgeship on the Court of International Trade? I believe you got a fateful phone call?

SV: That's right. I did not apply for the position. I knew that the court existed at that point, I want to make that clear. Obviously, at USDA, we were involved in the trade policy that President Trump was implementing because agriculture is one of the few areas where America has consistently won on trade. And so that means when America takes a trade action that other countries don't like, one of the first things they retaliate against is America's agricultural exports.

So we were dealing with that and trying to compensate farmers who were being harmed because most notably China wasn’t—they didn't have a complete embargo, but they weren't buying anywhere near the amount of corn, soybeans, pork, and other products that they typically buy from American farmers, and thus, prices were being affected. And so I had actually received a phone call from someone who had clerked for the Court of International Trade, was aware there was a vacancy, had been told that I had good relations with the White House Counsel, and wanted me to pass along his name as someone they should consider. And after meeting with the gentleman and talking with people whom I trusted, I was happy to do so, and so I did so. I never gave the court another thought.

And then as I mentioned before, one day I was on an official trip out to visit the United States Department of Agriculture's Office of General Counsel Facility in San Francisco—believe it or not, we have an office there, we have 13 offices around the country, USDA Office of General Counsel does—and I was walking back from office to my hotel in downtown San Francisco and my phone rang, and when the White House calls you, it appears a certain way on your cellphone. So I knew it was the White House, and I wasn't going to be dumb enough to take a phone call from the White House on the streets of any city, much less San Francisco, and so I waited till I got back to my hotel.

They had left a message, it was a friend of mine from the Counsel’s office, and they said, give me a call back, without telling me what it was they wanted to discuss, but that was normal. I returned the call, and we started talking about trade matters and things that had popped up that I had worked on in the administration and what have you, and I thought that he wanted me to serve as a spokesman for the president's trade policy to rural America, which as I've mentioned, was at the tip of the spear being affected by it.

So I interrupted and I said, look, if you want me to serve as a spokesman for the president's trade policy, I'm happy to do that. But as you know, I've got to clear that with the Secretary of Agriculture because that affects our constituencies a whole lot, and that's a sensitive topic. And he said, oh no, that's not what this is about. Have you ever considered serving on the Court of international Trade? And I paused and I literally said, well, I didn't see that coming. And then he proceeded to sell me on why the White House thought it would be a good idea for me to serve on this court. And I listened to him and I asked some questions and I asked him if I could have some time to think about it. And he said yes, absolutely, you should think about this, because this has literally hit you out of the blue.

So I called friends of mine whom I trusted, some of whom were people that served in the Trump Administration and had been made judges, some of whom had been judges for years, and I called up a couple of very close friends from my law school class. And quite frankly, I've said this before, I was looking for someone to tell me no, if they had offered this to me, I would not take this position—that [was what] I was looking for someone to tell me, because to get back to my earlier point, it wasn't a convenient opportunity. I really loved my job at USDA, loved going to work every day, didn’t mind the long hours. It made me happy to do what I was doing on behalf of people like the people I grew up with in Union City, Tennessee.

But if I told you whom I spoke with, David, you would instantly recognize these names, these are nationally known, largely appellate judges whom I called up, and without missing a beat, every one of them told me, gee, if they'd offered that to me, that's a great gig, I would've taken that. And so having not found anyone to tell me no, I wouldn't do that, I don't think it's the right move for you, after about three or four weeks, I called the Counsel’s office back and I said, look, I've given it some thought. If it is the president's desire to nominate me for this position, I will accept the nomination. And they said, outstanding, and then the process began.

The background check itself took six months. So it was six months from the time that [I said yes]—and I'd already received a background check because I'd already been nominated and confirmed by the Senate—so that tells you how intense those background checks are, because it was my second go-round for a nomination, and it was six months from the time I told the White House, yes, I'm willing to do this, until the announcement was made publicly. Now I had to keep my mouth shut during the entire process. I couldn't tell anybody about it, couldn't even tell the Secretary of Agriculture about it, didn't want it leaking until everything came back hunky-dory, and then I went up and told the Secretary the day before it that this would be coming out, and the White House announced it one afternoon, I think in early October.

DL: This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the best next step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.

So let’s turn to the court now. I think a lot of people are not as familiar with the work of the Court of International Trade compared to other Article III courts—because it is an Article III court, and you do have life tenure—so tell us a bit about that. What types of disputes does it hear? You mentioned earlier it's a court of national jurisdiction. What's the main statute it's construing? Fill us in, for those of who are not familiar with the work of the court.

SV: We are a national court that hears matters affecting trade. Most of the items that get appealed to us are final decisions of two agencies, the Department of Commerce or the Customs Service, which is now part of the Department of Homeland Security, and they're nearly all administrative in matter. So what I tell people is we are the D.C. Circuit of trial courts. We are officially a trial court, but 70 percent of the work we do is what the D.C. Circuit does or any other circuit judge does when they get a petition for review of agency action.

Trials happen at our court occasionally in customs matters, but they're not frequent occurrences. We are appellate in nature. We are always reviewing a decision that an agency has already made, and they file an administrative record, and then the parties file briefs, arguing whatever legal points they wish, pro and con, about the decision that the agency has made. And then we have oral argument and write an opinion dispensing with it. And that's most of our work.

So we can have a trial in a customs matter, customs matters you have to remember are basically tax matters, they're about the duties that you pay. Sometimes how something is classified may turn on a factual issue, and so we may have to have a trial over that, but when that happens, it's almost never a jury trial because basically every case that comes before us is a corporation versus the government. The government is a party in every one of our cases, and then it's a private party suing them most of the time. The government can be a plaintiff occasionally, but most of the time they're a defendant. And so these are sophisticated parties who are represented by lawyers, and they don't want a jury. And so if it's going to go to a trial, they almost always opt for a bench trial. I think in the past 20 years, the Court of International Trade has had two jury trials.

DL: Oh wow.

SB: And that's it. We are a specialized court. We do administrative law. I know many people think we do trade law; it's administrative law in a trade context. But if you're formulating an argument about whether the agency looked at the record properly or not, unless it's a statutory interpretation question, we're dealing with issues of administrative law. That was my background in a litigator. And then of course at USDA, [I became] very familiar with the process of rulemaking, individual agency adjudication, how that works, from both sides. I've sued agencies, I've been the agency, so I feel like I have a complete perspective of what it's fair to expect people interacting with the government to do and what it's fair to expect the government to do when they're interacting with the private sector. And so I think that experience from my background has come in very handy.

The court has nine seats, currently seven filled. We have two vacancies. And the other unique thing about our court, David, is we have a statute that actually brings politics into play. We are the only Article III court, and I think the only federal court period, even counting the ones that are not Article III, where the statute says that no more than five members of our court may be affiliated with the same political party.

DL: Huh!

SV: So that means in order to be a judge on our court, you have to declare a political affiliation. Now, it's no surprise what my political affiliation is, having served in the Trump Administration, but that does mean that when you look at our court in particular, if you're someone who strongly thinks—and I don't think this necessarily comes into play on trade and administrative-law issues—that the party of the president nominating [judges] determines how they're going to vote, you can't guarantee that because, for example, if President Biden were to want to fill both of the vacancies on our court, with our current court’s composition, at least one of those vacancies would have to be filled by a non-Democrat.

So, for example, President Trump had three appointments to the Court of International Trade. I was the last one to be confirmed. My colleague Miller Baker was confirmed before me, and he is also Republican-affiliated. But Tim Reif, who is also a Trump appointee, is a Democrat. He was one of the Democrats’ chief counsel dealing with trade matters in the House Ways and Means Committee, which has jurisdiction over trade matters, and yet he is a Trump appointee.

So I think our court, even though the statute is the only one that mentions politics, it's because it was redone in 1980, is when they rejiggered our court's jurisdiction and renamed it. It used to be the Customs Court and they changed it to the Court of International Trade. It was Article III then. So the only thing that changed was the name, and they dealt with some of our remedial powers, cleaned it up, but they added this feature in, not clear exactly why they did it, not a lot of legislative history or things on it, but it's there. Presidents have abided by it in their appointments to the court. I think it's a reminder, and a helpful reminder in today's times, that even though many times when newspapers report on judges’ actions, one of the first things they say is what president appointed the judge, no one should think that that's the beginning and end of the thought process that went on or had anything to do necessarily with how the judge reached his or her decision. And that's certainly the case with our court.

DL: Oh, that's really interesting. I did not know about that.

What are the major statutes at issue before your court? Are you usually construing the agency action for its consistency with this particular statute or saying it's not grounded in law or didn't go through proper procedures or what have you?

SV: The Trade Act of 1930, as it has been amended multiple times since then, forms the basis for a lot of what we review because it allows the Commerce Department to receive petitions from American industries which believe that they are being harmed by unfair foreign competition. And if the Commerce Department investigates and determines that industries in a particular country are being subsidized by those countries’ governments, it gives the Commerce Department the power to put tariffs on them to make up for the difference and even the playing field. And so it is those final decisions, putting tariffs or not putting tariffs on specific goods made in specific countries, that form the vast majority of the work we do.

Then about 30 percent of the work we do are customs cases, which involve classification largely, and believe it or not, there was a list called the Harmonized Tariff Schedule of the United States, it is abbreviated HTSUS, and it attempts to list by category everything that you might ever want to bring into the United States and assigns it a tax rate. So companies will dispute with the Customs Service, we think it's this category rather than this category, and it sometimes can make huge differences in tax rates. If they can't come to a mutual agreement on that, it comes to us for resolution. And those are the two primary things.

One of the more high-profile things that our court deals with, which definitely got revivified in the Trump Administration and continues in the current administration, are a couple of unique powers that were given to the president of the United States by Congress in the fifties and sixties. These are known as Section 232 and Section 301 for where you'll find them in the statute book, but they basically give the president a large grant of unilateral authority to place tariffs on countries and goods from certain countries if he believes one of two things is true: either the importation of goods from this country is having a deleterious effect on our national security, that's Section 232, and that's the basis under which President Trump puts tariffs on steel and aluminum items from many countries around the world, and Section 301 is used if the president believes that for other reasons, the trade practices of a foreign country are having a deleterious impact on American industry, and the president can make these decisions after statutorily required investigations.

They had not been used for about 30 years when President Trump first started reusing them. The statutes have always been on the books, they just haven't been used, and under the law, we are the only court that can hear disputes when the president uses these statutes. They affected huge sectors of the economy and dramatically increased our caseload. We had more than 3,000 cases come in just challenging the tariffs that President Trump issued under Section 301.

Another unique thing about these statutes—I mentioned earlier that our court statute was last rejiggered in the early 1980s—if you're into history of the federal courts, you know that was before they rejiggered the statutes in the mid-eighties dealing with federal jurisdiction. What I mean by that is prior to the mid-1980s, if you as a litigant raised a constitutional claim in federal court, federal courts were required to convene a three-judge panel in order to hear it, and then you had an automatic right of appeal to the Supreme Court. And in the mid 1980s, Congress said, this is giving the Supreme Court way too much work, we're going to change this, it'll just be a single district judge, and then it'll go up the normal way that we all know now.

Well, we have a separate statute that governs us, and they did not amend our statute. And so that means that if you come to our court and you make a constitutional claim or you are challenging a decision made by the president himself under one of these two statutes I just mentioned, we statutorily have to convene a three-judge court in order to hear it. I am not on any of the panels hearing those challenges to President Trump's trade actions, but they are being heard by three-judge panels.

Now, the unique thing about it is you don't get a direct appeal to the Supreme Court, which I don't understand given how the statutory scheme has worked previously. Instead, you get three judges from us, and then you get three more judges from the Federal Circuit. But we are required to do it. Our statute hasn't been changed, and we follow the law.

DL: That's really interesting. A bunch of folks, including academics like Professor Steve Vladeck, have proposed having three-judge courts for constitutional issues, even outside of the trade context, just because of what you're seeing now with judge shopping, where you file in a particular vicinage or section of a district, knowing you're pretty much going to get Judge X. So that's very interesting.

And I will just put in a plug to any law student or young lawyer listeners: clerking for the Court of International Trade is a really interesting opportunity. You tackle issues of administrative law, constitutional law, and it's really good for people who have a background in law and economics, [which] has a lot of applications [to its work]. So think about Judge Vaden and his colleagues for clerkships.

SV: Two quick things on that, David, about clerking for us. In addition to getting great administrative-law training and great training in writing, if you're felicitous with numbers, it's not a requirement, but it's definitely a benefit if you've got statistical or scientific background, since some of those questions that do reach us about commerce or customs [involve] doing computation. But the other thing I want to let people know is we're unique in how we do our clerkship program. In almost every other federal clerkship I'm aware of, you go to work for a judge and they just throw it at you. There's no training. You learn on the job. When you come to the Court of International Trade, we have a clerk training program run by the judges ourselves.

Most of our clerks start in the fall. Starting in September of every year, we get all the new clerks together, we take them up to the library, and judges of the Court of International Trade teach three-hour sessions so many times a week for the first month so that the clerks learn about the rules of our court, what these agency adjudications are, how they reach us, what the typical questions are that we hear. We obviously don't tell them how to resolve them, but you know what's the legal framework that you're working with. Even if you don't know anything about trade law, which is true for most of our clerks, by the end of your first month here, you've had a very good course that will prepare you to do the work of a clerk in the cases that you will have while you clerk for us. So we have a very good clerk training program that may be unique in the federal judiciary, and I just wanted to plug that.

DL: Wow, that's great—and therefore people who don't have trade exposure should not rule themselves out, and it's certainly a lot better than the usual day or two of orientation that you get at most other courts.

SV: If you like administrative law, our court is the place for you.

DL: Excellent. So my final four questions are standardized for all guests. My first question, Judge Vaden, is what do you like the least about the law?

SV: The law is a business, and it's necessarily so. People are earning a living. But what I don't like is I'm increasingly seeing that the way the law is being practiced is not giving people time to think, and it's how much can you do simultaneously. That's not good for the lawyer's health, and it's not good for the lawyer's client, and I have seen an increase in the number of, I'll call them mistakes, because I don't want to make a legal judgment about malpractice that I'm seeing from very expensive law firms. And I think it's because they're a business, but they're thinking that the law is like making widgets, and it's not. And they need to stop thinking about how many thousand hours can I make an associate work a year and start thinking about how can I serve my client best to get the result most in accord with the law and my client's interests. That's not currently what I'm seeing, and it disturbs me.

DL: Very well said. Second, what would you be if you were not a lawyer, or a judge in your case?

SV: Well, I think I'd be a history professor, as I said earlier.

DL: Ah yes, mmm-hmm.

SV: I love history. Most of my pleasure reading is historical in nature, if it's non-fiction, and so I'm glad that I chose the path that I did. I think it's more naturally advantageous to me and fits in with more of my boxes that would need to check for my skills. But I love the study of history and spending time thinking about things.

DL: Third question, how much sleep do you get each night?

SV: I try to get at least six hours of sleep every night, and I'm generally successful about that. But once I get past seven and a half hours, I have trouble staying asleep longer than that, so I kind of have a narrow range that I shoot for. And I'm a night owl, so when I was in private practice, I had a joke, but it wasn't a joke: if you needed me to be there before ten o'clock in the morning, I needed 24 hours’ notice. And that's still how I am. But on the other hand, I'll be there at eight o'clock at night without problem because I usually stay up till about two o'clock in the morning reading and doing other things. So my clock tends towards being a night owl rather than a morning person.

DL: And I think it's important for people to figure that out for themselves in terms of when people do their best work.

Finally, any final words of wisdom such as career advice or life advice for my listeners?

SV: Well, when I talk to law students and clerks, a lot of them feel pulled in two directions. They are scared to show who they truly are because they think that our legal practice and our world at large is so polarized that if they were to be honest about who they are, they might not get the job that they want. That is deeply unfortunate, but I also think there's another way to look at that. Jobs are important. Money is important. Happiness is also important. If you've got to hide a large part of who you are, whoever that may be, in order to work for what you think is your meant-to-be job, maybe you ought to ask yourself, is that really where I'm meant to be?

People shouldn't have to hide who they are at work, and quite frankly, who they are shouldn't matter as much to whether they get hired. It should be, is this person competent and will they do a good job for my client, and that should be about all that matters. But even where it is not, I just encourage people, even though it may result in disappointment in the short term, it will result in my view not only in happiness, but much greater success in the long term if you're honest about who you are, let your employers or perspective employers know who you are and only go to those who are willing to accept you for who you are.

I'll just close with this thought, David. When I look at the disappointments—and I put that in quotation marks—that I've had, you know, the firm that rejected me, the Washington, D.C. firm, that rejected me, so I went to Patton Boggs instead, or what have you, looking back at it, thank goodness they rejected me. I wouldn't have been happy there, and people I know who went there weren't happy either. But it had a bigger name than Patton Boggs at the time, so that's where they went. Thank goodness for things like that. And I think that whether you believe in a higher power, as I do, or whether you just believe that things generally end up as they should be, just because that's the way nature usually works, that really is the case.

And like I said, you can't plot out your career path from start to finish. Don't try. Go with the flow and when someone gives you an opportunity, let the default be you say yes.

DL: That is a great note to end on, and I am just so grateful, Judge, for your time and your insight. Thank you so much for joining me.

SV: Thank you for having me, David.

DL: Thanks so much to Judge Vaden for joining me. I’m grateful for all the insight into the Court of International Trade, which is one reason I wanted to have him on the show, but I think the best part of our discussion was all the excellent career advice.

Judge Vaden talked about the importance of saying yes to new opportunities, which brings me to our sponsor. Thanks to NexFirm for sponsoring this episode of the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave BigLaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000, or email careerdevelopment@nexfirm.com to learn more.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, March 22. Until then, may your thinking be original and your jurisdiction free of defects.

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Hola from Cartagena, Colombia. My husband Zach and I here for a wedding, which took place last night and was amazing, and we’ve also been enjoying the chance to explore the beautiful Old City.

My week leading into this trip was unexciting. We took Harlan to the dentist, and his teeth are healthy, unlike mine (my dentist jokes that I paid for his office renovation). Together with my podcast co-host Zach Sandberg (there are a lot of Zachs in my life), I recorded a new episode of Movers, Shakers & Rainmakers; thanks to Steven Rushing for joining us to discuss the D.C. legal market.

I wasn’t sure I’d get to Judicial Notice, since I’m supposed to be on vacation, but I couldn’t help myself. There was a fair amount of exciting legal news, to which I now turn. (This edition might be pithier than usual—perhaps a good thing—as well as more typo-ridden than usual, since I’m not making Zach serve as my editor while he’s on vacation.)

Lawyers of the Week: the attorneys on both sides of Poppell v. Cardinal Health, Inc.

For almost a month, jurors in Glynn County, Georgia, heard heartbreaking testimony about the harm that opioid addiction has inflicted on both individuals and families. Suing under the Georgia Drug Dealer Liability Act, almost two dozen individual plaintiffs sought to hold three pharmaceutical wholesale distributors—Cardinal Health Inc., McKesson Corp., and J.M. Smith Corp.—liable for the suffering experienced by the plaintiffs and their families because of opioids. It was an important, closely watched trial, since it was the first jury trial in a case brought by individual victims of the opioid epidemic (as opposed to a governmental entity) against opioid distributors or manufacturers.

After deliberating for a day and a half, the jury returned a verdict of no liability on Wednesday afternoon. The defendants did not dispute the horrors of opioid addiction and the opioid epidemic, as well as the incredible harm that opioids have inflicted upon victims and their families. But the defendants’ lawyers successfully argued that responsibility for those harms lay elsewhere—with manufacturers, doctors, pharmacists, and individual users.

It’s a major win for the defendants’ lawyers—from Covington & Burling and HunterMaclean for McKesson, Williams & Connolly for Cardinal, and Fox Rothschild for J.M. Smith. A contrary ruling would have “open[ed] a massive new front in opioid litigation despite multibillion-dollar settlements covering harms suffered by communities,” as noted by Law360.

At the same time, the plaintiffs’ lawyers, from Griffin Durham and Bondurant Mixson, also deserve credit. Although their clients did not prevail, their powerful stories were shared with a nationwide and even worldwide audience. As John Floyd of Bondurant Mixson told Law360, “Obviously, we're very disappointed with the outcome. But I think our clients' story was told, and I think it was told well, and I think that was important. And I'm incredibly grateful to my co-counsel for the skill with which they did that.”

Other lawyers in the news:

Also on Wednesday, Attorney General Merrick Garland testified for four hours before the Senate Judiciary Committee. It was a contentious, politically charged hearing, and whether you see Garland as a hero or antihero will likely depend on your political priors. (Yes, he managed to slip in references to Taylor Swift, of whom he’s a huge fan.)
Also jousting with Republican politicians is prominent D.C. lawyer Abbe Lowell, now representing Hunter Biden. Having worked for Ivanka Trump and Jared Kushner, Lowell is no stranger to being a lawyer for the loathed.
In news of lawyers behaving badly, Judge Lewis Liman (S.D.N.Y.) ordered lawyers from Sim & DePaola, a Queens-based plaintiffs’ firm, to take four hours of continuing legal education about federal practice and procedure, after they repeatedly blew case deadlines. Ouch.
And Judge Max O. Cogburn Jr. (W.D.N.C.) condemned the “egregious” and “unprofessional” conduct of Taylor English partner Nathan A. White, who was accused of calling his opposing counsel, L. Michelle Gessner of GessnerLaw PLLC, a “worthless human” and a “piece of s**t.” But Judge Cogburn declined to impose sanctions, concluding the incident was an “anomaly” that reflected White’s “very stressed mental state” after a recent emergency-room visit.

In memoriam:

J.L. Pottenger Jr., the Nathan Baker Clinical Professor of Law at Yale Law School, passed away at 73. I never had the pleasure of working with Jay during my own time in the landlord-tenant clinic, but I heard so much about him, since he was renowned as both a lawyer and a teacher.
Former U.S. senator James Abourezk (D-S.D.), who practiced law in Rapid City, South Dakota, and Washington, D.C., before and after his single term in the Senate, passed away at 92.

May they rest in peace.

Judge of the Week: Judge Roger Benitez.

On Monday, my former colleague Joe Patrice broke a deeply disturbing story at Above the Law about the conduct of Judge Roger Benitez (S.D. Cal.) during a hearing for defendant Mario Puente’s violation of supervised release. Puente explained to the court that he wanted to move out of San Diego, where he was exposed to some bad influences, and expressed the concern that his 13-year-old daughter was hanging out with peers who might “lead her into the same path that I went down.” You won’t believe what happened next (according to the sentencing memorandum for the resentencing that took place before a different judge after Judge Benitez’s conduct in this case, which led to a reassignment).

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A clerk walking the halls of the U.S. Supreme Court (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Last week’s oral arguments about The Future of the Internet, followed by this week’s oral argument about the Biden Administration’s student-loan forgiveness program, have reminded us of the obvious: the U.S. Supreme Court is very, very important. And so are the brilliant young lawyers who work with the nine justices as their law clerks, helping them craft the law of the land.

Before I take a temporary leave—as mentioned last weekend in Judicial Notice, I’ll be away next week—I thought I’d give you a quick SCOTUS clerk hiring update. My last roundup was in December, and there have been some new hires since then.

As you can see in the lists below, the new hires cluster on the left side of the Court. Justice Sotomayor completed her hiring for October Term 2023, while Justice Kagan completed her hiring for October Term 2024 (and even started hiring for October Term 2025). As usual, the liberal justices are hiring later than the conservatives—which is also the case in the lower courts, where many top Democratic-appointed feeder judges follow the Law Clerk Hiring Plan, and many top Republican-appointed feeder judges do not.

This difference in timing has at least one deleterious consequence in the lower courts: it promotes more “siloing” of conservatives and liberals, i.e., makes it less likely that a clerk might work with a right-of-center circuit judge and then a left-of-center district judge, or vice versa. Why? Because by the time the Democratic appointees are ready to hire, consistent with the Plan, their Republican-appointee colleagues, both district and circuit, are done hiring—which means that many applicants interested in double clerkships are done applying as well. This difference in timing reduces ideological diversity in chambers, which is unfortunate.

Before providing you with the lists of names, here are my usual miscellaneous musings about SCOTUS clerk hiring:

In case you missed it—but you probably didn’t, since Adam Liptak covered it in the New York Times—three law professors have written an important new paper about Supreme Court clerkships. It’s titled Some Are More Equal Than Others: U.S. Supreme Court Clerkships, and it’s by Professors Tracey E. George (Vanderbilt), Albert Yoon (University of Toronto), and Mitu Gulati (University of Virginia).

Liptak focused on the study’s findings about educational pedigree, in particular, how graduating from one of three elite undergraduate institutions—Harvard, Princeton, and Yale—dramatically increased one’s chances of landing a SCOTUS clerkship, even controlling for other variables (including law school and academic performance in law school). But the types of folks who read Original Jurisdiction will also appreciate the authors’ deep dive into the phenomenon of the “feeder judge.” Their bottom line: “Yes, Virginia, there are feeder judges” (i.e., it is indeed true that a small number of lower-court judges send a hugely disproportionate number of their clerks to the Supremes). Download the full paper via SSRN; it’s a fascinating read. * Per his LinkedIn profile, Trevor Ezell, who clerked for Justice Gorsuch back in October Term 2020, has returned to One First Street, as of January 2023. Does anyone know why? Is he perhaps replacing a clerk who had to withdraw in the middle of the Term? Please drop me a line if you have information to share, and I’ll update this post on the web if and when I receive such info. (As my longtime readers know, although I do mention the identities of clerks who are entering and exiting in the middle of the Term, I generally don’t go into reasons, which tend to be personal—e.g., familial or medical.) * In my last hiring roundup, I alluded to possible shuffling among the Thomas clerks from Term to Term, and that has come to pass: Reid Coleman has been moved up to OT 2023, and Annie Wilson, originally slated for OT 2023, will clerk no earlier than OT 2024. As previously mentioned, Annie Wilson is married to Thomas Wilson, so I’m guessing she won’t be clerking in OT 2024, since that’s when her husband is scheduled to be clerking. But it’s not impossible—there’s no rule against it—and in that case, at least the Wilsons would be allowed to discuss SCOTUS cases with each other (unlike the clerks who confessed to Dobbs leak investigators that they had shared confidential case information with their spouses without authorization). * In my March 2022 and December 2022 clerk hiring reports, I noted the importance of family ties, i.e., how it appears to help your chances of landing a SCOTUS clerkship if you are descended from or married to a past SCOTUS clerk. I failed to mention two other clerks with family ties. * First, Claire Hungar (Yale 2023 / Thapar / Friedrich (D.D.C.)), clerking for Justice Kavanaugh in October Term 2025, is the daughter of Thomas Hungar, who clerked for Justice Anthony M. Kennedy and is now a partner at Gibson Dunn (after serving as both general counsel to the U.S. House of Representatives and a deputy solicitor general). Justice Kavanaugh and Tom Hungar have several shared résumé items. Both graduated from Yale Law (1987 for Hungar and 1990 for Kavanaugh), clerked on the Ninth Circuit for then-Judge Alex Kozinski, and clerked on the Supreme Court for Justice Kennedy (OT 1988 for Hungar and OT 1993 for Kavanaugh). They also served together on Justice Kennedy’s screening committee and interviewed me, years ago; alas, I did not advance to the stage of meeting Justice Kennedy. (I don’t remember much about the interview, but I do remember having an extended argument with them about Justice Kennedy’s opinion in Romer v. Evans, which I defended—since I was still a closet case back then—on jurisprudential rather than policy grounds. Did that make me seem too liberal to them?) * Second, James Lee, clerking for Justice Alito in October Term 2023, is James Rex Lee—yes, that Rex Lee, the legendary litigator who served as 37th Solicitor General of the United States (1981-1985). Rex Lee clerked for Justice Byron White in October Term 1963. One of Rex’s Lee’s seven children, Senator Mike Lee (R-Utah), is the father of James Lee—and Senator Lee clerked for Justice Alito in October Term 2006. So both James Lee’s father and grandfather clerked for SCOTUS (and so did his uncle, former Utah Supreme Court Justice Thomas Rex Lee, who clerked for Justice Clarence Thomas in October Term 1994). * My SCOTUS clerk hires are crowdsourced, so I don’t always hear about them in real time; in fact, sometimes I don’t learn about hires until weeks or months after the fact. So when you see question marks in my lists below, please don’t assume that the justice has an opening. For example, I suspect that Justice Barrett has hired all four of her OT 2023 clerks and I’m just missing one, and I also suspect that Chief Justice Roberts and Justice Alito might have hired more than just one clerk apiece for OT 2024. * Upon information and belief, however, Justice Jackson has not made any OT 2023 hires yet, nor has Justice Breyer hired the one clerk for OT 2023 that he’s entitled to as a retired justice. So if you’re hoping to clerk for KBJ or SGB next Term, don’t give up hope just yet.

For paid subscribers to Original Jurisdiction, updated SCOTUS clerk hiring lists appear below. Thanks!

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If your home internet goes down, Justice Kagan recommends restarting your router (photo by Alex Wong via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I hope everyone had a good week (shortened thanks to the Presidents’ Day holiday). Mine was fairly uneventful. Zach and I took Harlan skiing—and lived to tell the tale. I was quoted in a Bloomberg Law article by Kimberly Robinson about how J. Michael Connolly of Consovoy McCarthy will be making his Supreme Court debut in the big student-loan case, which makes him the eighth lawyer from the firm to argue before the high court—a pretty remarkable statistic, considering that the firm has only 20 lawyers. As I told Robinson, “I’m hard-pressed to think of a firm—of any size—where more than a third of the lawyers have argued before the high court.”

The next two weeks will be more exciting. On Friday, Zach and I are heading down to Cartagena, Colombia, to attend the wedding of two dear friends, and right after that we’re going on a cruise with Zach’s family. So, a quick programming note: I might skip Judicial Notice for March 4 and/or March 11. But I will be producing at least some content during this period, including a new podcast episode on March 8 that will be of special interest to Article III groupies.

Now, on to the news—of which there was no shortage this week.

Lawyer of the Week: Eric Schnapper.

The obvious choices for Litigations of the Week were Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, major cases about the future of the internet that were argued before the U.S. Supreme Court this week. And they were argued on behalf of the plaintiffs, on back-to-back days, by the same advocate: Professor Eric Schnapper, a member of the faculty at the University of Washington School of Law in Seattle since 1995. He faced off against two of the most formidable SCOTUS advocates: Lisa Blatt of Williams & Connolly, who argued for Google on Tuesday, and Seth Waxman of WilmerHale, who argued for Twitter on Wednesday.

How did the 80-year-old Schnapper, not a partner in Biglaw or at an elite boutique, land these big-ticket arguments? As reported by Kimberly Robinson of Bloomberg Law, attorney conflicts played a significant role. Because so many leading members of the Supreme Court bar were conflicted out of representing Google and Twitter, Robert Tolchin, the personal-injury lawyer representing the families of terror victims suing the tech giants, sought out Schnapper. And one can understand why: a graduate of Oxford and Yale Law School, Schnapper practiced for 25 years at the NAACP Legal Defense and Education Fund before entering academia, and he argued before SCOTUS an impressive 22 times going into this week’s arguments.

Schnapper’s arguments in the Gonzalez and Taamneh cases didn’t garner rave reviews from the #appellatetwitter peanut gallery on Twitter, but I agree with Sarah Isgur and David French of Advisory Opinions: it’s easier to criticize a Supreme Court argument than to make one, and Schnapper clearly had the losing sides of both arguments. While Schnapper could have been smoother—perhaps he was a bit rusty, since his last argument before the Court was back in 2014—I’m not sure that even the most skilled SCOTUS advocate could have argued these cases in a way that will change the ultimate outcome. Also, as noted by Tony Mauro in a 2010 profile, Schnapper has been arguing at One First Street since Justice William O. Douglas served on the Court—so cut the man some slack.

In memoriam:

Former governor Tony Earl (D-Wis.), who graduated from the University of Chicago Law School and practiced law in the Navy and as an assistant district attorney and city attorney before entering politics, passed away at 86.
Duncan Alford, associate dean for the law library and professor of law at the University of South Carolina School of Law, passed away at 59.

May they rest in peace.

Judge of the Week: Justice Elena Kagan.

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Welcome to the latest Lat’s Legal Library (LLL), in which I highlight noteworthy new books about or related to the law. Although it’s not Oprah’s or Reese’s book club, I’m unaware of any other recurring roundup of legally themed literary endeavors, and I hope it’s useful to both readers and writers.

Up to this point, I’ve published LLL every other month, near the end of the month. Since the last edition was in November 2022, I was going to publish one in January 2023. But since there weren’t enough books to fill out my traditional ten, I postponed to this month. Going forward, I’ll try to resume bimonthly publication.

Since three months have passed since the last Lat’s Legal Library, I now have the opposite problem: too many books. Instead of the customary ten, I’m presenting you with 15 titles. As usual with LLL, I haven’t had the chance to read all these books yet; they have come to my attention through media coverage, reader recommendations, or publicist pitches (and—disclosure—I have received review copies of some of them).

Unscripted: The Epic Battle for a Media Empire and the Redstone Family Legacy, by James B. Stewart and Rachel Abrams. Debuting at #4 on the New York Times bestseller list is Unscripted, a deep dive into the final years of Sumner Redstone, the late billionaire and media mogul. Although the book would officially get categorized under business rather than law, lawyers figure prominently in its pages because many of Redstone’s relationships involved complex legal issues—and spawned lots of lawsuits (which Stewart, a Harvard Law alum and former Cravath associate, was well-equipped to untangle). In a rave review on the cover of the Times Book Review, Adam Davidson of the New Yorker praises Unscripted’s “elegant” writing and “weird and compelling” story.
People vs. Donald Trump: An Inside Account, by Mark Pomerantz. In another buzz-generating book about a manipulative, megalomaniac billionaire, former Paul Weiss partner Mark Pomerantz pulls back the curtain on his work at the Manhattan District Attorney’s Office, which he joined out of retirement to investigate possible criminal conduct by former president Donald Trump. Kirkus Reviews commends the book as a “convincingly damning case that dives deep into the tangles of both law and finance.” (As I previously mentioned, there’s controversy over the legal ethics of the book; for his part, Pomerantz told the New York Law Journal that his book is “legal, ethical, and in the public interest.”)
The January 6 Report, by the January 6 Committee and Ari Melber (foreword). The misdeeds of Donald Trump are front and center in the report of the House Select Committee to Investigate the January 6th Attack, now in book form. Even if you followed the Committee’s proceedings closely, you might still be interested in the book, thanks to the original foreword by lawyer turned Emmy-winning MSNBC anchor Ari Melber (who also has a Substack newsletter).
Who Says You Can’t? Strategies and Tactics for Becoming a More Creative Criminal Defense Lawyer, by Jon May. Trump could use some talented criminal-defense lawyers right now—and they might benefit from reading this book by Jon May, who has been practicing criminal law for more than 40 years. According to fellow defense attorney Elizabeth Kelley, who also has a new book out (see below), “If you are a federal criminal defense lawyer, if you are fearless, creative, and zealous, if you believe in the full panoply of Sixth Amendment promises and protections, then Jon May’s ‘Who Says You Can’t’ is a must.”
Representing People With Dementia: A Practical Guide for Criminal Defense Lawyers, by Elizabeth Kelley (editor). Representing defendants with dementia presents challenges—and this book offers a wealth of advice, from mental-health experts, academics, and attorneys. As Kelley explains, it is “an attempt to help those who, because of dementia, are fragile, bewildered, and vulnerable—and to give their attorneys the tools to obtain a just and fair resolution to their case.”
May It Please the Campus, by Patricia E. Salkin. The talents of lawyers can be deployed in many contexts besides the courtroom—and one of them is the campus, reflected in the striking number of lawyers who have become university presidents. That’s the subject of this book by Salkin, former dean of Touro Law, which former Brooklyn Law dean Nick Allard lauds as “original, engaging, provocative, comprehensive, and data driven… a must read for anyone who cares about academic leadership and the future of higher education.”
Outside In: The Oral History of Guido Calabresi, by Norman I. Silber. A great leader in the world of legal education was Guido Calabresi, a legendary dean at Yale Law School before becoming a judge on the Second Circuit. In Outside In, Professor Norman Silber of Hofstra Law tells Judge Calabresi’s remarkable life story, based on recorded interviews that took place over a decade. As Professor Paul Horwitz explains, the result is “a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.”
Never Far from Home: My Journey from Brooklyn to Hip Hop, Microsoft, and the Law, by Bruce Jackson. Microsoft associate general counsel Bruce Jackson has also had a remarkable life in the law, rising from childhood poverty in pre-gentrification New York to a high-powered legal career at the top of the music and technology industries. According to House Minority Leader Hakeem Jeffries, “In grappling with the complexity of his own childhood—from poverty’s pernicious effect on his neighbors to early encounters with a flawed criminal justice system—Jackson asks his readers to confront the systemic inequalities that continue to plague communities of color across our nation.”
American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795, by Edward J. Larson. The origins of racial inequalities go back to the Founding, which Professor Edward Larson of Pepperdine Law explores in American Inheritance—”a wise and balanced account of the founding era’s thorniest themes: liberty, equality, slavery, and race,” in the words of Professor Akhil Amar.
A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action, by Lee C. Bollinger and Geoffrey R. Stone. How should we address both the legacy of past discrimination and discrimination that exists in the present day? I’m no fan of affirmative action—but to defend this embattled policy, I can think of few better advocates than Lee Bollinger and Geoffrey Stone. Per Professor Laurence Tribe, “In this brilliant history and reassessment of our still unfinished journey of race, President Lee Bollinger of Columbia University and Professor Geoffrey Stone, formerly Dean of the Chicago Law School, put the long-simmering affirmative action debate in its urgent current context and reframe that debate in terms more faithful to what is truly at stake.”
A Short & Happy Guide to Judicial Clerkships, by Tessa Dysart. Are you thinking about clerking (which I recommend exploring if you’re interested in litigation)? Clerkships with federal judges like the aforementioned Judge Calabresi get the most attention. But there are many other great opportunities—with state, administrative, tribal, and international judges—ably explored in this accessible new book by Professor Tessa Dysart of University of Arizona Law.
Behind the Bench: The Guide to Judicial Clerkships, by Debra M. Strauss. When I conducted my own clerkship search years ago, I appreciated the wise counsel of Debra Strauss, then the clerkships advisor at Yale Law. You can benefit from her advice as well, collected in Behind the Bench, now in its third edition.
The Profit Motive: Defending Shareholder Value Maximization, by Stephen M. Bainbridge. If you’re a longtime follower of the legal blogosphere, as many of my readers are, then you’re surely familiar with the wise and witty work of Professor Stephen Bainbridge of UCLA, who has been blogging for even longer than I have (since June 2003). In the latest of his many books, the prolific professor mounts a vigorous defense of shareholder capitalism and maximizing shareholder value, an important contribution to a timely and crucial debate.
The World Crisis and International Law: The Knowledge Economy and the Battle for the Future, by Paul B. Stephan. According to Professor Jack Goldsmith, Professor Paul Stephan’s book is “a must-read for understanding where international law is today.” Professor Matthew Waxman praises The World Crisis and International Law as “an incisive and original account of [the liberal world] order—including how it developed, what sustained it, and why it is unraveling.”
Beyond Data: Reclaiming Human Rights at the Dawn of the Metaverse, by Elizabeth M. Renieris. We’re all fascinated by ChatGPT and other powerful new AI tools—but are we paying enough attention to the threats that they and other technologies might pose to human dignity and autonomy? In Beyond Data, “Renieris illuminates profound and urgent privacy challenges that we must confront in a post-digital world and sketches out an intriguing human rights–based solution,” according to Professor Jonathan Zittrain.

If you clicked on any of the titles mentioned above, you might have noticed a change. In the past, when you clicked on a book title, it typically took you to that book’s Amazon page. Alas, the terms of the Amazon Associates program, through which I earn a (modest) amount from qualifying purchases by my readers, do not allow me to send out affiliate links in emails (including Substack newsletters). So now when you click on a title, you’ll be taken to a Google Doc containing affiliate links, which you can click on to purchase. I apologize for the inconvenience of this extra step.

The next installment of LLL will probably appear in late April. As always, I welcome nominations, but please note the timeframe: the book should ideally have been published after this roundup but before the next one, i.e., it will probably have a March or April publication date. I maintain this temporal limitation because the number of law-related books I could possibly recommend would be overwhelming otherwise. (I also stick to the books that are already available, as opposed to forthcoming books; while I understand the importance to authors of preorders, in my experience readers are more likely to buy a book if it’s already available.)

If there’s a law-related book outside my timeframe that you’d like to mention, please give it a shoutout in the comments. Thanks, and happy reading!

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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In almost thirty years of following the world of U.S. legal education, from applying to law schools in fall 1995 to covering them today as a journalist, I don’t think I have seen as consequential a time as the current one. To explain the whirlwind of recent developments, I sought out two of my favorite observers of the legal academy: Dan Rodriguez, former dean of the Northwestern University Pritzker School of Law, and Anna Ivey, former admissions dean at the University of Chicago Law School.

When I asked them to join me, I selected as our topic the U.S. News law school rankings—specifically, the withdrawal of dozens of schools from the rankings, followed by the announcement of significant revisions to the rankings methodology. But it’s impossible to discuss the rankings in a vacuum, so we wound up having a wide-ranging discussion that touched on two other possible major changes—abandonment of the LSAT (or any other test) as an admissions requirement, and an end to affirmative action—and the future of legal education more generally.

How do Anna Ivey and and Dan Rodriguez really feel about the U.S. News rankings? As former rather than current deans, they spoke freely and didn’t pull their punches. And are they worried or hopeful about what lies in store for U.S. law schools? Find out, in this new installment of the Original Jurisdiction podcast.

Show Notes:

Why Six Top-Ranked Law Schools Left U.S. News in the Dust This Week, by David Lat for Slate
Anna Ivey bio, Anna Ivey Consulting
Daniel B. Rodriguez bio, Northwestern Pritzker School of Law

Prefer reading to listening? A transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

You’re listening to the twelfth episode of this podcast, recorded on Friday, February 10. I post episodes every other Wednesday.

I’d like to begin by thanking this podcast’s sponsor, NexFirm. NexFirm helps BigLaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Today I’m mixing things up a bit. Generally this has been a biographical podcast, where I interview a notable lawyer or judge about their life and career. Today, however, I’m going for a topical podcast, where I interview experts about an interesting subject in the news.

Today’s topic: the U.S. News law school rankings. Last November, Dean Heather Gerken of Yale Law School announced that Yale would be withdrawing from the influential law school rankings put out each year by U.S. News, i.e, not providing U.S. News with the data that it asks of ranked law schools in order to put together its rankings. In the weeks and months that followed, dozens of other law schools followed suit, and as of this recording, around 40 law schools have announced their withdrawal from U.S. News, including 12 of the so-called top 14 or “T14” schools.

In the wake of these defections, U.S. News and its rankings czar, chief data strategist Robert Morse, announced a radical revamp of the U.S. News methodology. They announced that U.S. News would no longer rely on any proprietary data from law schools in putting together its rankings, and would instead rely only on (1) publicly available data, including disclosures the schools must make to the American Bar Association or ABA, and (2) reputational surveys about the schools, which U.S. News generates itself. The first U.S. News rankings under the new methodology are expected to be published in March.

For folks who follow legal education, the defection of top law schools from U.S. News was a huge story—and even spilled over into the mainstream media, with coverage in the New York Times, Wall Street Journal, and Slate, for which I wrote a piece. And it comes at a time when other major changes are looming for legal education, including a possible end to affirmative action, depending on how the Supreme Court rules in cases against Harvard and UNC, and a possible abandonment of the Law School Admissions Test as an admissions requirement—although the demise of the LSAT might be postponed, in light of a recent vote by the ABA House of Delegates against the proposed change.

To make sense of all these developments, I invited two of the smartest and most thoughtful observers of the world of legal education to join me on the podcast. In alphabetical order, my first guest is Anna Ivey, founder of Ivey Consulting, which advises applicants on applying to selective law schools and colleges in the United States. Anna is the former dean of admissions at the University of Chicago Law School, from which she herself graduated, and where she served on the Law Review.

My second guest is Dan Rodriguez, the Harold Washington Professor at Northwestern Law, where he teaches and writes on administrative law, local government law, statutory interpretation, federal and state constitutional law, and the law-business-technology interface. He served as dean of Northwestern Law from 2012 to 2018, and as dean of the University of San Diego School of Law before that. He graduated from Harvard Law School.

I could go on at great length about both Anna Ivey and Dan Rodriguez, who have long and distinguished careers, but I will instead just put their bios in the show notes. Without further ado, here’s my conversation with Anna Ivey and Dan Rodriguez.

DL: Dan, Anna, thank you so much for joining me!

Anna Ivey: Hi David!

Daniel Rodriguez: Glad to be here.

DL: I guess you are both actually in California, so I appreciate your taking the time to chat with me on Pacific Time. Let's dive right in. This is a hot topic, and you are, as I was saying before we started recording, two of the most knowledgeable, thoughtful, and smart observers of legal education.

Dan, let me start with you. What is your big-picture take on what is going on with the U.S. News rankings, in terms of the law schools withdrawing, and then U.S. News and Bob Morse announcing all of these changes to the methodology? Do you think this is a good or bad thing?

DR: So as befits an old-time law professor, I guess I feel on the one hand, on the other hand, zeitgeist about this. So on the one hand, to quote the great artist Lizzo, I think it's about damn time. Kudos to Dean Heather Gerken—whom you know well, and so do I—who took a meaningful step that many of us, speaking as a former dean, had wanted to and thought about doing and, in the privacy of our own offices, pounded the table and said, “you know, wouldn't it be great if we withdrew from U.S. News,” but we never really did. And I think the boulder rolling down the hill, starting by Yale and continuing through certainly a lot of the so-called “elite” law schools, has shed a spotlight on an important conversation, not simply measured by the number of schools that have withdrawn, but the sort of iterative conversation with U.S. News.

On the other hand, I think that in many respects it's a tempest in a medium-sized teapot. We seem to have, despite the news about so many schools withdrawing from U.S. News, the last time I looked at one of the blogs on that, a minority of schools, indeed less than 25 percent of schools, have withdrawn, although it's a continuing movement. And if you actually combine the schools that have indicated that they're going to maintain U.S. News rankings and provide data, and those that have indicated they've pulled out as of this week, it's still less than a majority of all 200 law schools that have said something one way or the other.

So that combined with what I'm sure we're going to get into, which is what the impact of this will be on legal education, makes me suggest that it's big news for journalists, maybe somewhat less big news for those who matter, which of course are the law schools, students, potential students, etc.

DL: Thank you, Dan. Anna, what are your thoughts?

AI: Yeah, I have not been a fan of the rankings. As people in my orbit know, including my newsletter readers, one of the freedoms that comes with being a former dean of admissions rather than currently representing an institution is that I have been able to speak a bit more freely than if I were still in an official role with a university.

So I've had the luxury of being a bit more vocal and blunt about my feelings about the rankings, and from where I sit, where we work with a lot of applicants and we cross paths with a lot of applicants and field a lot of applicant questions, I can certainly confirm that they're still very, very rankings-conscious, very, very rankings-driven—which would be neither here nor there if I didn't see them sometimes making some poor decisions from where I sit around their school lists and some of the decisions they make around “full fare at school A versus a cheaper ride somewhere else.” And I still see the distortions in decision-making that the rankings cause, and I'm well aware of how the rankings, of course, also cause some serious distortions on the admissions side of the desk. I've been there, done that, bought the t-shirt.

So I'm not sorry to see schools withdrawing from them. I agree with Dan: as a practical matter, I think this is more about optics than anything else. They're good optics, but as we saw on the undergrad side, when schools have refused to participate in the U.S. News rankings, [there have been consequences].

The big example that comes to mind is how Reed College took a stand years ago not to participate in the rankings (and for your listeners, participating in the rankings when you're sitting on the school side means you have to fill out all these forms and give them all this data). U.S. News punished Reed for refusing to participate. And Reed, from one year to the next, dropped a whole bunch of slots in the rankings.

So it's no surprise to me that Yale was the first mover because it had to be the school that benefited most in the rankings that would be the first mover. So it was not surprising to me that it would be Harvard, Yale, Stanford. I'm also not surprised that plenty of schools just shrugged because I think if you're not Harvard, Yale, Stanford, and sort of in those Olympian heights of law schools, the rankings really do influence, as well, the way applicants think about your school.

You have all these constituents who care about the rankings, even if you personally think they're stupid, right? Your trustees, your alums, your current students, employers. So even if you think the rankings are silly and harmful, you have all these constituents out in the wider world who still care.

So if U.S. News ends up punishing Harvard, Yale, and Stanford—and we can talk about Chicago, which is where I worked, that somewhat notoriously took a stand to stay in the rankings, which doesn't surprise me—I think if Harvard, Yale, and Stanford suddenly drop from their high, high positions in the rankings, I don't know that anyone will care, honestly, because they've had such Teflon-like brands for such a long time. I don't know that in the wider public of people who care about law school rankings that all of a sudden they're going to have a lesser opinion of Harvard, Yale, and Stanford, if the rankings decide to punish them.

So that'll be a question mark. I think that remains to be seen, but I don't think all of a sudden people will have a different opinion about Harvard, Yale, and Stanford. What do you guys think about that?

DL: So actually I had a question for Dan, because Dan, you've had a lot of great commentary on this on Twitter, and the issue Anna raised about schools getting punished. I think one thing that happened with the punishment was, when U.S. News has this proprietary data that it gets from the schools directly that's non-public, if the school doesn't participate, I think U.S. News would come up with these numbers on its own. I think you called them maybe “placeholder values” or something like that in your Twitter thread, Dan. And sometimes when U.S. News comes up with them, maybe it comes up with them in an unfavorable way, and it hurts the [non-participating] schools. But what's notable about the sort of revamp to U.S. News is now Bob Morse and U.S. News have announced they're going to be relying only on public data, meaning that they don't have to come up with any imputed values.

So what do you think the new U.S. News rankings are going to look like, Dan? Is Bob Morse going to take a two-by-four to the kneecaps of Harvard and Yale? Or in order for the rankings to have some semblance of legitimacy, do they kind of have to look like the old rankings? If Harvard comes in number 30, isn't that kind of more the joke on U.S. News?

DR: Yes, so let me say “cynicism times two.” Let me start with cynicism about Bob Morse and U.S. News. I think that the last thing you said is absolutely true. Probably all three of us are old enough to remember the Thomas Cooley rankings from many, many years ago, when the then-dean decided to rank law schools, and Thomas Cooley ended up number five in the country and everybody got a big chuckle about that, right? So there is, of course, a legitimacy factor that is baked into all of this. And it doesn't necessarily mean that legitimacy stands or falls on the rankings looking exactly like they have before the withdrawal—I think there will be some turbulence, particularly as you move down the rankings—but I don't imagine that they'll look profoundly different. And the reason why I say “cynically” is I think that Morse understands that and understands that based on the information, like you said, most of which is publicly available, which to Anna's point makes it look different than 30 years ago or whenever it was when the undergraduate ones come.

Now I said “times two.” The other part of cynicism is I think law school deans know that, and I think the law schools that withdrew from U.S. News—I'm not a mind reader of Dean Gerken or any of the others—but I suspect, having been a dean, that you can now with a stroke of a pen or a stroke of a computer, reverse-engineer the rankings in a pretty important way, especially given what you know about the publicly available data, and have at least some boundaries knowing how far your school will drop or how far your school will climb. Now there's still a collective action issue in all of that, but I think that the impact will not be tectonic, and schools well know that.

Now, again, to Anna's point, the fact that they won't be tectonic, and that Yale won't drop to 30, is important, but it's not the whole story. There are some 200 law schools, and there are law schools that exist in the U.S. News orbit. And I was a dean of one of those law schools, University of San Diego, that would move 20 spots one year and 15 spots the other, up and down and up and down.

And I think for those schools whose reputations are enormously impacted by where they are in the ranking—too much so, in my editorial opinion—and those very much do worry about whether these changes and tweakings of the formula and the decision of some schools to pull out and some schools to stay in will make a significant difference on whether they're going remain, I don't know, 85th in the U.S. rankings or 105, which does drive student applicants in an important way. And I think in some ways that gets less of the ink, as we say, than what the so-called “T14” schools do. But I think in terms of the reality of admissions on the ground, that makes a huge difference.

DL: I’m curious, Dan. Now that U.S. News is going to be relying on public data—plus its reputational surveys, which I guess are proprietary to U.S. News, but U.S. News is no longer relying on schools to give them information like expenditures per student—what does it mean for a school to “withdraw” from U.S. News?

I understand why it was courageous when Heather Gerken withdrew Yale—although I guess you could argue Yale had a strong market position, maybe it wasn't super courageous, but I still think it was bold, I think you still have to give credit to Dean Gerken for that—but what does it mean now, when I read, you know, last week that some school “withdrew”? Is it sort of just like virtue signaling at this point?

DR: You know, I'm glad you raised that phrase, because if you hadn't, I was going to use that phrase. So there's an enormous amount of virtue signaling that's going on here, although I hasten to add, that’s not always a bad thing. Virtue signaling is underrated, frankly. To signal virtue on the part of the school that we're going to take a stand—and a number of deans, of course, beginning with Dean Gerken, but continuing through many, many deans, me, not one of them because I'm not a dean—have articulated in some really bold and eloquent ways why they're not going to make decisions, educational decisions, on the basis of U.S. News and the destabilization of the rankings. Not the ending of the rankings, because they're not going away, but the destabilization of the rankings gives schools an opportunity to double down on initiatives like public-interest fellowships and all of that.

But your point is essential, which is that, what does it mean to withdraw from those rankings? The devil's in the details, and the detail here that's critical is what exactly Bob Morse is going to do with the reputational surveys, because if we know anything about U.S. News formula in law schools, it's that reputational surveys—the surveys of lawyers and judges, the surveys of academics—are a very key point.

So two quick points. Number one is he's announced that he's reducing the amount of weight that's put on reputational surveys, but he has not, consistent with his behavior and performance over the years, told us exactly how much that'll be reduced.

Number two, and here’s a key point: we don't know whether or not lawyers, judges, and even academics are going to no longer fill out those surveys. That's not public information, but academics [at each school who get the surveys]—deans, associate deans, the most recently tenured faculty member, heads of the appointments committee—if you look closely, none of the schools have necessarily said we're going to forbid our faculty members from filling out these surveys.

So I don't want to be too cynical in saying this, but it's possible that law schools, even those law schools that have announced they're withdrawing from U.S. News, may still fill out these reputational surveys, on the assumption of strategic behavior: if they don't fill them out, other folks will fill them out. And if that happens, then there's even less to the impact of the withdrawal than there would be because this data is being provided along with publicly available data.

DL: Interesting….

DR: So I'm sorry, that's sort of in the weeds, but it's important to be in the weeds to answer your good question of what the heck difference is this actually going to make in terms of the survivability of U.S. News.

DL: I think that's a key question, and I think a lot of people are wondering what exactly are these new rankings going to look like, and how transparent is U.S. News going to be about the inputs.

Anna, do you have any thoughts on what Dan was just saying? And I'd be especially interested in hearing any thoughts you might have based on where you sit. You have a team of folks who advise applicants going through this process, and I'd be curious to hear what you're hearing from the applicants and whether you think this is a good thing for the applicants.

I do want to return to Dan and talk about whether this is a good or bad thing for legal education, which he hinted at in his last response, but I'd like to hear from you, Anna, on where the applicants fit into all of this.

AI: I don't want to purport to speak for all applicants, but from what I'm hearing, it's a whole big nothingburger for applicants. They still have a certain hierarchy in their minds that has been grafted on there over the years. Think about even the concept of the “T14,” right? It’s totally rankings-driven. There's nothing magical about 1 through 14 versus, I don't know, 15 and 16, and it's kind of ridiculous that we all even use the term, but it has worked its way into the vernacular, of course. And if I recall the origins of that phrase, they go back to, “you know, these are the 14 schools that are consistently ranked in the top of U.S. News,” but the idea that there's some line in the sand at 14 is just absurd on its face.

But as I was alluding to earlier, if the rankings end up looking different going forward because they have changed the weighted algorithm and the factors that go into that weighted algorithm, whatever they are, I always tell applicants, your priorities don't have to be the same as one person at U.S. News and World Report. If your interests and your priorities align perfectly with that weighted algorithm that they come up with, great, they've done the work for you, you're in luck. But I would always encourage that people really dig in deeper because it's a shortcut mentality: I don't need to do my own research because U.S. News has done it for me, which is why every year for many years, we talk to a good number of people who have their hearts set on Yale Law School, even though we know they're not getting into Yale Law School, first of all, and we tell them that, and second of all, not everyone's a good fit for Yale Law School. As we know, schools have different cultures and different institutional priorities, but they just look at those rankings, and that's been ranked number one for however long, so that needs to be my number-one choice, even when our advice falls on deaf ears sometimes. So I would not be sad to see all of that go away.

At the same time, I understand that people want information, and yes, there are these ABA disclosures, and yes, if you know where to look on the LSAC [Law School Admission Council] website, you can go find them, but I can appreciate that people want easier access to information and more transparency. And some schools are more transparent than others, right? Some of the top schools, for example, do not participate in the LSAC Odds Calculator. And so they, I think, encourage some magical thinking among applicants because they're not publishing their odds data in that database the way every other school does among those ABA-approved law schools. And so they'll say in podcasts things like, “Oh, well, you can't get in if you don't apply.” And I'm thinking, then please publish how many people you let in in the last five years with a 162 LSAT—because if that number is zero, maybe people should know that too. So magical thinking is alive and well.

I can appreciate this hunger for information, but I would argue that the rankings are a pretty poor substitute for that. But yeah, a big nothingburger among applicants. They don't care what's going on at U.S. News. I could be wrong—you know, if the rankings change in some material way or the outcomes change in some material way, there might be some chatter on Reddit. Is that going to mean that Yale, Harvard, Stanford, and you know, down the list takes some kind of big hit? I doubt that very much.

And let's not forget, to Dan’s point too, there are a lot of law schools that have a stake in the rankings. They're part of that ecosystem, and it is a collective action problem, and it is hard to disentangle oneself. You can't walk through an airport in America without seeing an advertisement, “Our such-and-such program is ranked number five by U.S. News and World Report.” We see that even on banners hanging from lampposts here in major cities. So the schools, many of them, are invested in this as well.

Chicago—and I don't know if other schools took as public a stance as Dean [Tom] Miles at Chicago, he wrote a defense of continuing to participate in the rankings. I'm not surprised that part of his argument rested on the fact that, you know, it's a magazine, and we believe in free speech, they can do whatever they want, and I certainly can understand that reasoning. I think there's a difference, though, between saying, you know what, they have a right to do what they want, and actively participating in the rankings. I do distinguish between those two things. Dan would probably have a better insight into this than I do, but among the law professors that I'm in touch with, I don't think any of them will be sad to see those reputational questionnaires go the way of the dodo if they don't have to fill them out anymore.

I think Orin Kerr, now at Berkeley, wrote a really insightful tweet thread a few years ago about when he got the reputational ranking survey, and he's like, I don't know how all these schools stack up for, you know, expertise in IP law versus antitrust versus whatever. He's like, how would I know? It gets so granular, so I haven't heard a whole lot of faculties say, oh, I would really miss those reputational surveys. But it'll be interesting. Are there faculty out there that still want to fill those things out?

DR: I do. I feel a little sad about it, actually.

AI: Yeah?

DR: Maybe I just confessed my inner nerd-ism about law schools, but I always felt having filled them out, almost every year in some fashion, I had an incentive to learn more about the schools. Now I'm not going to sit here and say, I knew, you know, the difference about 200 schools, but I developed some little bit of, you know, seat-of-the-pants expertise about a number of schools because I felt that it was important to learn about them to fill out the rankings. But am I the modal voter? I have no idea.

AI: Well, and I think that's the sticking point. It is 200 schools. How could you possibly have insight into those granular differences among all these institutions, right? I mean, it's kind of silly as a premise, right?

Anna, you mentioned the Odds Calculator, and you had mentioned the rankings influence admissions, they were a factor in the U.S. News calculus, and vice versa, the admissions may also influence the rankings.

Do you think we are going to see schools be more flexible, especially on numerical things, under the new ranking system? And again, I know there are tons of question marks, we don't know exactly what the new methodology is going to be, but one thing that I think deans did talk about was just I think they did feel a little hamstrung by some of the U.S. News factors. Do you predict that maybe admissions will become less predictable?

AI: I think that very much rests on what these changes will be to that weighted algorithm. This is true across the board. This is not specific to law schools, right? Whatever that weighted algorithm is, schools are going to respond to it, applicants will respond to it, in terms of the inputs, and can I give a little shoutout to some of the other rankings out there? You know, even Above the Law’s rankings, which if I remember correctly, are still focusing more on outputs versus inputs, which always made more sense to me to focus on outputs rather than what are incoming LSAT scores? Who cares? I mean, honestly, to this day, it's for some reason it's always men, I don't think I've ever had a woman come to me, they’re grown men who tell me like what their SAT scores were or what their LSAT scores were, and I'm like, who on God's green earth could possibly care? But it becomes this important part of their identities, the whole thing is so ludicrous, you know?

So I do know that admissions officers certainly would appreciate more flexibility and to not be so beholden to the rankings. I think what would affect that a lot more, though, would be whatever the ABA ends up finally doing with test-optional.

DR: And what the Supreme Court is going to do, in June and July, with the Supreme Court decisions [on affirmative action].

AI: So there are a lot of moving parts here that are going to influence each other, right? So—and we can all make predictions about these things—personally, I thought the ABA ultimately would go test-optional, so I was wrong in that prediction.

DR: Too soon to tell, Anna, too soon to tell.

AI: Too soon to tell. Too soon to tell.

DR: It's a novel whose last chapter has not been written.

AI: Have you noticed, though, that the kind of non-specialized media—so the David Lats of the world obviously know this stuff, inside and out—the more general media, though, really I think misreported what the ABA was doing around test-optional. I saw a number of really big-name media report as if the ABA had, like, this decision had already been made, right, to go test-optional, even though there's this whole bureaucratic decision tree that it has to go through, right? There are multiple levels of approvals, so that was sort of a hot mess in the media, I found the way they were reporting movements on the ABA side around test-optional.

I will say—and I hope I'm wrong—I would think that the current Supreme Court will be striking down race-conscious admissions policies. What do you think, Dan?

DR: A hundred percent. Well, let me back away from that, I should never say a hundred percent about anything about the Supreme Court. So let me walk back from that and say, highly likely. And as they're highly likely, I don't want to distract us from the topic that David introduced about U.S. News, but let's just say there is a perfect storm. There's three events that are going on that are overlapping. There’s the U.S. News event. There is the ABA, and I didn't mean that glibly when I said it's one chapter in an ongoing novel, not only because of the ABA processes, but remember, all the ABA requires is a “valid and reliable” admissions test. We have now sort of succumbed to this notion that, for many years, that was, “Oh, well, the only one that's eligible is the LSAT.” The ABA has never required the LSAT. They've required a valid, reliable admissions test, and in the interest of disclosure, I've been working with ETS for a couple years now and was part of the effort to have the GRE included, but it doesn't just mean that the LSAT and the GRE are included.

There's other alternatives. University of Arizona has, if your listeners don't know about this, JD Next, which is a really remarkable initiative. So the jury's still out about what tests or alternative tests will develop. And then as Anna mentioned, the affirmative-action decision, which circles all the way back, David, to your question, is, I do think that in the intermediate term, there will be less of a reliance on the medians of the test, principally the LSAT, inevitably, given law schools pushing, maybe not all the way toward test-optional, but pushing toward alternative metrics, because it's not only what schools do in admitting students, but it's how they allocate financial aid. And that's of course been an enormous impact that's had all sorts of ripple effects. So as the reliance on admissions testing declines, as I believe it will under any of these scenarios, but particularly if the Supreme Court puts a stake in the heart of the use of racial preferences, as I think is likely, then U.S. News will have to go along with that, and there'll have to be some changes to how they calculate and assess admissions metrics.

DL: Let me ask you this then, Dan, as you and Anna have been talking about, there have been a bunch of things that are all kind of happening or potentially happening at the same time. Are you optimistic or pessimistic about the future of legal education in light of all these changes, in light of all these moving parts?

I think that many of the critiques that were leveled at U.S. News, for example, by Dean Gerken—it incentivizes this sort of misalignment of aid, allocating it to people with high scores, or the expenditure per student metric, which I guess is not going to be part of the new rankings?

DR: Correct. They're taking that away.

DL: Yeah, it's not an ABA-required disclosure. So, then again, there's all this other stuff going on. Again, it's such a fuzzy question, answer it however you like, but are you optimistic or pessimistic about where legal education is going in 2023?

DR: I'll give you a short answer that befits the time constraints we have. I am optimistic, and here's why. I think we're moving from an era in which many, not all, but many law deans and education leaders were frankly too passive, too reactionary, and used the combination of ABA rules and regulations, along with U.S. News and also sort of their seat-of-the-pants behavioral judgments about what students do or don't do, as an excuse for keeping business as usual.

So even sometimes choices that law schools made, if you actually look at the fine print, were not decreed by the ABA, but were sort of choices law schools made in a world in which they felt like, hey, this is what law schools do. You know, we can't use, for example, financial aid for need-based scholarships, because law schools don't do that, they mostly use it for merit aid. I could give you other examples, and I think we're going through a movement, and I think a lot of what we're calling virtue signaling, the statements the deans are making, if customers, students, employers, education leaders like yourself, and other legal folks put pressure on schools, I think schools will be much more imaginative and creative.

I don't wish the Supreme Court decides the way they do—I mean, you and I may have a reasonable disagreement about that—but I think the reality of that is we're going to see a very different world in terms of law-school discretion. If law schools use this discretion, newfound discretion, and obligation, to actually make meaningful changes in the educational content of what they're providing, then I think we're going to see some really important changes, not next year or the year after, but in the next ten years, that will actually be to the benefit of legal education. I really feel optimistic about that, and I say that as somebody whose leadership is sort of in the rearview mirror, my own leadership in law schools. But I think this new generation of deans and of law schools are really terrific and ambitious and are change agents.

DL: Anna, same question to you, and by the way, I should say, one of the reasons I wanted to have both of you on is you have been in those seats of dean and admissions dean, but you're not currently in those seats, and so I felt that you would be very candid, and I am pleased to say that I was correct.

But Anna, what about you? Are you optimistic or pessimistic about what this is all going to add up to?

AI: I think law schools have a certain culture, and to Dan's point, it is in flux. Sometimes cultures, their hands are forced by events like Covid or other things, the Supreme Court. But if I look at the bigger, higher-ed picture, so not just law schools, law schools have had so little innovation in their curriculum. They've had so little innovation in the admissions process. And let me give a shoutout to Northwestern, and I would be saying this even if Dan were not my fellow guest here on this podcast episode, Northwestern has always been the big shining outlier when it comes to innovation, both especially around admissions, but also with the curriculum.

Of course the curriculum has to follow ABA rules, and that's very hidebound as well. But we've seen so much more innovation with undergrad admissions. We've seen so much more innovation with MBA admissions. Law school has just been same-old, same-old, same-old, for so long. I mean, think about the fact that one of the biggest changes was adding the GRE to the list of acceptable tests, and that was the biggest change in a long, long time in law school admissions.

So I think these are certain cultures that are very deep-seated in the law school world, and those hands are going to be forced by external circumstances, whether it's from one place or another. I think innovation in general would be a good thing, and so to the extent that they have more wiggle room to innovate and experiment, that strikes me as a good thing for legal education.

DL: Dan, I'm curious, you mentioned in your earlier remarks that this was something that certainly when you were a dean was talked about. Was there a movement at an earlier stage? Could you have seen this happening back when you were a dean, or did it kind of have to reach this point in history for it all to sort of come toppling down? And now that you're a faculty member, what are you hearing from your colleagues about this?

DR: So it's a really interesting question, why now? It wasn't that there was some episode that happened. You know, I've talked to Dean Gerken and others, and it wasn't like there was an uprising from the faculty or from the alums, which is why it makes this decision, you know, all the more interesting and courageous, because it wasn't driven by one episode or one event.

So there's no really good answer to the question of why now, rather than five years ago, ten years ago, other than maybe fatigue in how the rankings were being done. I'd like to think, apropos of Anna's comments, that the combination of legal journalism, employer dissatisfaction, what we're seeing in kind of the inertia in legal education, the high costs, and all of that, has generated an enormous amount of, “Come on, enough already. There has to be some substantial change, and U.S. News is a piece of this.”

I will say this, in the olden days, in the stone ages, when I was just beginning my academic career, and folks that you know were really prominent then, John Sexton, former dean of NYU Law School, and others, the movement was less about abandoning the U.S. News, but developing alternatives to U.S. News. And the business schools were of course a step ahead of us, and as a result, there's a plethora of business-school rankings. With all due respect to Above the Law’s rankings and others, there's U.S. News, and then there's just a bunch of other stuff that a lot of students regard as noise.

So we had our opportunity in legal education, but I think that opportunity has passed, by a couple decades, to develop alternative rankings that the students, that is, consumers and employers, really regard as sort of equivalently important as U.S. News. So I don't think U.S. News [rankings] are going anywhere—they have enormous skin in the game, in economic interest, and I think this movement, it's naive to suppose that it's going to affect the crumbling of the ranking. But I do think the signaling about “we're not going to play the same kind of game that U.S. News has given us” is an important one, part of a statement that we're going to innovate, and we're going to do what's better for our students.

And I didn't really answer your question, why now? Again, I'll give credit where credit's due, to an innovative, new generation of law school leaders that is more diverse, that is more data-driven, that's more responsive to external events in different ways. I think it's more ideologically diverse, which I think you and I would agree is a good thing, a long time in coming. And so that's generated maybe some movement that 20 years ago, for a combination of reasons, just wasn't there.

Also, one other point, this is a longer story for a longer day, but I'll just mention it as a footnote, as we say in the business, is I think the ABA was a much more powerful figure in terms of the oversight of law schools and its embeddedness in what law schools do or don't. I think for a variety of reasons, the ABA simply does not provide the kind of leadership and engine of either innovation on the one hand, or regulation on the other hand, and I think nature appears abhors a vacuum. In the absence of ABA leadership and the absence of AALS [Association of American Law Schools] leadership and other sorts of organizations, the change has to come from the ground up, and it's starting to come from the ground up, meaning from the schools themselves, rather than just being generated from outside interest groups and organizations like the ABA and others that are sort of telling the law schools how they should operate.

AI: And to your point, Dan, at least from the applicant side of things, we have an organization that represents the schools, right? LSAC is a consortium of the participating schools, LSAC puts certain information out there to make publicly available certain information about each law school that is on the LSAC platform for applicants.

Could law schools be doing a lot more to make information more available and more transparent? I would argue yes, I've been arguing that for some time, but they already have a way to do that, and that would be through LSAC, which is the interface for all of the applicants, right, when they're going through the process.

DR: I know we're winding down, let me just jump in and say, with all due respect to LSAC, Kellye Testy’s leadership and others, it is an organization whose economic wellbeing stands or falls on law schools’ use of the LSAT. Let's not kid ourselves.

AI: Absolutely. And I've always wondered—and I am not an antitrust specialist, I do not play one on TV—I have always wondered how do they get away with having the platform that all applicants have to use to apply to law school, and they also create and administer the test that until recently has been the test that you used to apply to law school.

If I could create an analogy to undergrad, it's as if the people who make the Common App also are the same as College Board, and that actually creates problems for applicants. For example, if an applicant registers, so much as registers, for a future test, schools that they're applying to can see that they've registered. I think that shouldn't be anyone's business but the applicant’s. And it creates problems for applicants, because all of a sudden there are some schools—not all, they all have different policies—will say, well, we're not even going to review your application, even though you already have a score, because we can see that you've registered for one in the future. Schools shouldn't have that kind of visibility, and it's only because of this huge market power that LSAC has that schools even have that kind of visibility. I think it's very troubling.

DL: That's a very interesting point, and just by the comparison to undergraduate admissions, even though the three of us, our college days are a little bit behind us, we talk to people, and I know that in my day, the SAT was so dominant, and now, from what I understand, the ACT is a very strong contender, and in some areas of the country has even supplanted it. So it's interesting to see market disruption on the undergrad level, but nothing near that on the law-school level.

We are winding down, but I'd like to actually close by allowing you any final statements or observations. And Dan, I guess we started with you, so I'll give Anna the last word. Dan, do you want to offer any final thoughts?

DR: David, you asked before, and I'm not sure I really got to really respond to the good question you asked, will this U.S. News change and the abandonment by many law schools have an actual impact on law school decision-making and choice?

We've talked a lot about admissions, and appropriately so, but I think it will be interesting to see whether some changes at the margin will happen, and actually I am, again, sort of optimistic. Even reducing the impact on expenditures per student, which has been a way in which the law schools may have justified higher salaries—I'm going to get tarred and feathered by my faculty colleagues for saying what I'm about to say, maybe the pressure for law schools for faculty salaries and other accoutrements of the business will be less profoundly important if it doesn't affect rankings, decisions made about employment, we could go down the list, these are marginal decisions, but not unimportant decisions.

And so it may be one of the salutary results—and Dean Gerken and some of the other deans made mention of this is—it will give law schools the freedom to pursue some goals and objectives that it was not impossible to pursue in the world of U.S. News hegemony and the formula being used, but it was difficult to do. Then we have a natural experiment. Then we have an experiment in which we can see the schools that have made these adjustments that are independent of U.S. News, whether they will be rewarded in the marketplace.

And you know—Anna's judgment from working with so many applicants would be better than my judgment—I hope the answer is yes. I hope the answer is that some students would, even in the face of having rankings information, say, “You know, I like the cut of your jib, law school X, in terms of what you're doing in making these changes.” And then again, that would be a really positive development for legal education.

AI: Yeah, I'll just wrap up by saying that I really do admire the deans that have very publicly opted out of the rankings. It sounds like even if it is mostly optics and even if it doesn't turn out to change much in the world of the rankings, I think it's an important position to take, and it's one that hasn't been taken until now.

And it really did require the thought leadership of those first deans that did it, and they have inspired other divisions, so colleges haven't moved so much, but all of a sudden medical schools are opting out. I don't think that would've happened if law schools hadn't started first. Somebody had to be the first mover here, and I really admire that handful of law schools that moved first.

I think that that took some courage. Are we going to see a bunch of innovation? I hope so. I think that's long overdue, as I was saying before, and I think the one thing that we haven't talked about today, and maybe we have that for another podcast, is that one of the things that law schools do have to be mindful of, even if they have more flexibility in the future, is that there are studies showing a correlation between LSAT score and bar passage rate. Dan would have more granular information about this because he's been so involved on the testing side, and I do appreciate that on the admission side, you don't want to admit people just to set them up for failure. You don't want to admit people to law school who are not likely to pass the bar.

And that is the sticky wicket for law school admissions that you don't have in MBA admissions, you don't necessarily have in undergrad admissions, that is particular to law schools. And so I think that will remain to be seen, how that all unfolds if schools, for one reason or another, end up having more flexibility around their admissions policies.

I would love to be able to tell applicants, oh, you will not be as beholden to the LSAT as in times past. Time will tell. But I think that the bar-passage question is an important one, and I'll be really curious how the data unfold around that and what law schools end up deciding to do about it.

DL: Well, I will have to have you both back to talk about that. And that is another hot topic: should the bar exam be the gatekeeper for the legal profession?

AI: Mmm-hmm. Yeah. And we have thoughts.

DR: Yeah. Yes, exactly. We have the receipts.

DL: Well, thank you. Thank you so much to you both. This has been a great conversation. I know my readers will really enjoy it. Anna, Dan, I am so grateful for your time and your insight.

DR: Thank you, David and keep up the great legal journalism work and commentary work that's so very, very important to all of us.

AI: Great talking to you all.

DL: Thank you so much to Dan Rodriguez and Anna Ivey for sharing their insider insights with me. After our conversation, I feel cautiously optimistic about the direction of American legal education—but time will tell.

Thanks to NexFirm for sponsoring this episode of the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave BigLaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

Thanks to Tommy Harron, my sound engineer at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by paid subscriptions to the newsletter.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, March 8. Until then, may your thinking be original and your jurisdiction free of defects.

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(via Getty Images)I hope everyone had a lovely Valentine’s Day. Zach and I had to postpone our celebration since I was traveling on the 14th, returning from Utah after speaking on Monday to Dean Gordon Smith’s Law and Leadership Colloquium at BYU Law. Then on Thursday, I joined McKinsey CLO Pierre Gentin for his Columbia Law course, “Aspiration and Action: The Role of the Chief Legal Officer.” I thoroughly enjoyed both classes, and I thank my hosts and their students for the warm welcomes.

Also on Thursday, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, interviewing veteran legal recruiter Zain Atassi about the Chicago legal market. I’ve long been a fan of the Windy City, and based on Zain’s account, it sounds like a great place to practice law (the cold notwithstanding).

Now, on to the news.

Lawyer of the Week: Christine S. Wilson.

On Valentine’s Day, Christine Wilson sent a very public breakup letter to her soon-to-be-former colleagues on the Federal Trade Commission (FTC). In a Wall Street Journal opinion piece, she announced her intent to resign from the FTC, declaring that FTC Chair Lina Khan’s “disregard for the rule of law and due process make it impossible for me to continue serving.”

A loud and longtime critic of Khan, Wilson raised a slew of issues. The two that jumped out at me were (1) Khan’s refusal to recuse from the FTC’s review of Meta’s acquisition of virtual-reality gaming company Within, despite Khan publicly calling for blocking future acquisitions by Meta before she joined the FTC, and (2) the FTC’s proposed ban on nearly all noncompete clauses in employee contracts, which Wilson criticized as an abuse of the FTC’s regulatory authority.

Wilson was the only Republican left on the five-member FTC after the departure of Noah Phillips last October, which means that Khan and the two other Democratic commissioners can now pursue their ambitious antitrust agenda without any internal opposition. As William Kovacic, a former Republican FTC chair, told Bloomberg Law, “The position of the dissenting commissioner has been a source of enormous transparency over time. A consequence of her leaving is you don’t have an artillery spotter within the agency—a running, insider account of the operations of the agency and what she sees to be its flaws.”

So Wilson’s departure from the FTC could have downsides—former FTC general counsel Stephen Calkins described it to Law360 as “a devastating blow to the FTC as an institution”—but it could benefit the private antitrust bar. Without any internal check on their actions, the Democratic majority on the FTC might move even more aggressively on antitrust enforcement. This could generate even more work for Biglaw—and even more wins, since the courts don’t seem to be fully onboard with Khan’s effort to expand the boundaries of antitrust law.

Other lawyers in the news:

Congratulations to Charles Eblen, Eric Hobbs, Caroline Gieser, and Jason Scott of Shook Hardy & Bacon, who won a nearly $190 million verdict for CPI Security Systems Inc. in an unfair-competition lawsuit against Vivint Smart Home Inc., a rival home-security company.
Congrats also to Charles Weiss and Jonathan Potts of Bryan Cave for winning a bench trial that led to the exoneration of Lamar Johnson, who spent 28 years in prison for a murder he did not commit.
Richmond lawyer Robert C. Smith, a descendant of 19th-century tobacco magnate T.C. Williams, wants the University of Richmond School of Law to pay his family $3.6 billion. Smith claims this is the current value of gifts made by the Williams family to the university over the years—and since the university recently took “T.C. Williams” out of the law school’s name, after finding he owned 25 to 40 enslaved persons, Smith wants the money back.
Speaking of law school renaming, I have a quick correction about last week’s Lawyer of the Week, prominent civil-rights lawyer Ben Crump. Although the St. Thomas University School of Law is now the Benjamin L. Crump College of Law, Crump himself didn’t graduate from St. Thomas; instead, he received his law degree from the Florida State University College of Law. Go Gators!

Judge of the Week: Judge Andrew Carter.

As my regular readers know, I’m obsessed these days with free speech and the First Amendment. So it should come as no surprise that I was pleased by the ruling of Judge Andrew Carter (S.D.N.Y.), enjoining New York State’s so-called “Hateful Conduct Law,” in Volokh v. James. (Yes, that Volokh—Professor Eugene Volokh, a leading scholar of the First Amendment, is one of the plaintiffs in this case, since he’s subject to the law as co-owner and operator of the Volokh Conspiracy blog.)

As explained by the Foundation for Individual Rights and Expression (FIRE), which successfully litigated the case, the Hateful Conduct Law was a “misguided” law that would have “force[d] websites and apps to address online speech that someone, somewhere, finds humiliating or vilifying.” But thanks to Judge Carter’s ruling, “New York cannot legally force blogs and other internet platforms to adopt its preferred definition of hate speech or be drafted into New York’s ‘speech police.’”

I have a ton of interesting nominations news to cover this week, so in the interest of efficiency, I urge you to read Judge Carter’s cogent and concise opinion, which is just 21 pages, for yourself. I also commend you to additional analysis from Jonathan Turley on his blog and Sarah Isgur and David French on Advisory Opinions (around 34:00; also, I agree with them that the Wikipedia photo for Judge Carter, a “grainy photo of him making the shrug emoji face,” needs replacing). Kudos to Professor Volokh and his lawyers at FIRE—Darpana Sheth, Daniel Ortner, and Jay Diaz, plus local counsel Barry Covert—on the win.

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(via Getty Images)I recently published an essay in the Boston Globe about the need for greater diversity of viewpoint in the world of large law firms aka Biglaw (which you can read here if not a Globe subscriber). My basic argument: Biglaw firms are largely left-leaning, and this ideological uniformity is not good—not for lawyers, law firms, and the rule of law.

I didn’t think this would be controversial, but I was wrong. I got lots of disagreement—in comments on the Globe website, on Twitter, and from Joe Patrice of Above the Law and Jay Willis of Balls and Strikes. Last week, I mentioned that I’d address these critiques in a follow-up post; here it is.

Rather than engaging in snarky fisking—which I used to do at Above the Law, not so much now—I’m going to try something different. As my longtime readers know, I’m a big believer in civil discourse. So rather than caustically calling out individual critics, I’m going to respond to them collectively, through an imaginary dialogue between me and a friend (who will stand in for my critics, articulating the main arguments made in response to my piece).

Why are you even writing an op-ed titled “Big Law Cancel Culture,” in light of all the other problems the world faces? Are we really supposed to feel bad for multimillionaire partners like Paul Clement, who must now make his millions at his own firm rather than Kirkland & Ellis?

As I previously explained, the “Big Law Cancel Culture” title was chosen by the Globe, and I would have gone with something different. One problem I have with the term “cancel culture” is that it focuses too much attention on the supposed plight of the “canceled.” Yes, Paul Clement is going to be just fine, but this really isn’t about him.

As I’ve argued before, the problem with cancel culture is less about any individual injustices visited upon the canceled and more about what the rest of us lose out on when we live and work in environments where almost everyone thinks alike. This has been pointed out numerous times, but maybe more of us wouldn’t have been shocked by the result of the 2016 presidential election if we didn’t live in ideological bubbles.

I acknowledge that the problems of Biglaw are not, in the grand scheme of things, very big; they just happen to be what I’m well-situated to write about, given my professional background and network. But as lawyers, we should still care about what happens in Biglaw firms, given their power and prestige as institutions, as well as their role in setting norms for the rest of the legal profession.

Regarding your premise, how can you say with a straight face that Biglaw is “liberal”? These firms are paid billions to represent the world’s biggest, richest, most powerful—and often morally suspect—corporations.

A fair point. I should clarify—and admittedly could have been clearer in the piece—that the disfavored ideology in Biglaw is social conservatism, on the so-called “God, guns, and gays” issues. As someone who has been covering Biglaw for decades, I’m well aware that large law firms work to protect entrenched economic interests (limited pro bono work in the other direction notwithstanding).

You focus on social conservatives, but aren’t hard-core leftists unwelcome in Biglaw too? You can’t be a radical environmentalist in a firm that defends (alleged) polluters. Or a Bernie Sanders or AOC-style socialist in a firm that does private-equity deals, helping the rich get richer.

I don’t disagree—and I think it would be great if more Bernie Sanders and AOC types worked in Biglaw. The ones I know don’t want to work in Biglaw—they get their Skadden Fellowships, then spend their entire careers in public interest—but I think it would be great if more of them went to Biglaw, which they could enrich with fresh and valuable perspectives.

Fun fact: Chancellor Kathaleen McCormick of Delaware Chancery, the top judge on the nation’s top court for corporate law, worked at Legal Aid before joining Young Conaway Stargatt & Taylor, a leading corporate law firm. I suspect that as a former legal-aid lawyer, she brought interesting insights to Young Conaway and its work for large companies, which made her a better lawyer and Young Conaway a better firm.

Even limited to social issues, what evidence do you have that Biglaw is liberal?

This is an empirical issue, so there’s research on it. Perhaps the most well-known study is a 2015 paper, The Political Ideologies of American Lawyers. Professors Adam Bonica, Adam Chilton, and Maya Sen found that lawyers in private practice, taken as a whole, “have liberal-leaning distributions,” and the most liberal subset of all are “attorneys who work at one of the twenty-five largest law firms.”

More recently, in a 2021 analysis, Professor Derek Muller reached essentially the same conclusion. After examining the partisan distribution of campaign contributions by donors at Am Law 100 firms, he found that “[m]any firms had fewer than 10 percent of contributions go to major Republican outlets, a handful had at least 25 percent, and just three crossed 50 percent.” (If you’re aware of scholarly literature that reaches contrary conclusions about the political views of Biglaw lawyers, please send my way; I’m very interested in this topic.)

Haven’t you heard of Jones Day?

I’m not sure that citing a single firm can refute studies by political scientists and law professors based on hundreds of firms, but as it turns out, I am aware of Jones Day. In fact, I was one of the first to write about the firm’s decision to represent the Trump campaign in 2016—so early to the story that one Jones Day lawyer told me, “If you’re wondering why there hasn’t been more of an associate outcry, it has a lot to do with the fact that most of us are learning this for the first time reading it on your website.”

Why did so many Jones Day lawyers complain to me about their firm’s decision to work with Donald Trump in 2016? Because even Jones Day isn’t that conservative. The Bonica/Chilton/Sen survey found that although Jones Day was the most conservative of the Vault 20 (the 20 most prestigious law firms), its overall ideological score is still “a slightly liberal score, roughly comparable to that of Democratic West Virginia Senator Joe Manchin (–0.13).”

Has Jones Day shifted right since the Bonica/Chilton/Sen survey in 2015? Probably, since some left-leaning lawyers quit the firm over Trump work. But even in Muller’s 2021 analysis, more than 75 percent of Jones Day campaign contributions went to Democratic rather than Republican candidates—and remember, that’s at Jones Day.

Even conceding that Jones Day is conservative, how many other conservative firms are there in Biglaw? Barnes & Thornburg? Kasowitz Benson? (And Kasowitz is no longer in the Am Law 100, but we can still consider Am Law 200 firms to be “Biglaw.”)

Even if I grant you 19 more Jones Days in the Am Law 100—which I actually don’t think there are—that would mean some 80 percent of Am Law 100 firms are liberal. So it’s fair to write, as I did in my piece, that “large law firms are overwhelmingly liberal.” (I did not write “universally” liberal, and I explicitly acknowledged exceptions, including but not limited to Jones Day; please feel free to mention other conservative firms in the comments.)

Very well. Let’s say, for the sake of argument, that Biglaw is strongly liberal on social issues, and some conservative Biglaw attorneys are pressured into leaving because of their views.

I’d then say: so what? As private businesses, law firms can hire and fire based on politics. Social conservatism is not protected under Title VII.1

True. And as I said on Twitter, I oppose proposals to make political opinion a protected category in employment law, since doing so could unleash a torrent of dubious lawsuits and threaten First Amendment association rights. We have the freedom to associate with people who share our political, religious, or cultural beliefs, and we have the freedom not to associate with people whose views we find abhorrent.

But just because something is legal does not make it a good thing. And for the reasons explained in my op-ed, I don’t think it’s a good thing to fire or otherwise show hostility toward colleagues whose views on social issues differ from your own.

This next observation is quite banal, but the fact that I need to say it is a sign of the times: based on my years at Above the Law, having colleagues who disagreed with me forced me to sharpen my thinking and hone my arguments, and it also made for a more fun and interesting workplace. Water-cooler or lunch conversations are more enjoyable and engaging when the participants don’t agree on everything. (Alas, conversations about politics are much more fraught and tense than they used to be.)

Some of what you describe is the result of law firms responding to pressures from corporate clients. In this day and age, large companies don’t want to work with law firms that represent repugnant clients or causes—which is entirely understandable. Shouldn’t law firms listen to their clients?

I agree that significant pressures come from clients. When I reported on Paul Clement’s departure from Kirkland, I noted that it was after super-lucrative clients on the transactional side complained about his work for gun rights.

But now it’s my turn to say: so what? As lawyers well know, just because your client asks you to do something doesn’t make it right.

Interestingly enough, many of the folks making this “obey the corporations” argument don’t hold corporate America in particularly high esteem, which is why it’s odd to see them defending the companies here. I’m more pro-business than many of my lefty critics, but that doesn’t preclude me from calling out corporations when they act badly. If anything, I’d argue that my willingness to acknowledge the good that large companies do gives me greater credibility when it comes to criticizing them.

Corporate America is not above reproach. Some accuse corporations of caving to the “modern woke-industrial complex,” while others claim that corporations tout social-justice initiatives to distract from or conceal their role in promoting economic inequality. These are arguments for another day. For present purposes, it’s enough to say that the client might not always be right.

I’d like to follow up on that. It’s easy for an armchair observer like you to tell Biglaw firms to say goodbye to their clients, since you’re not the one sacrificing millions in legal fees. Why can’t law firms do a cost-benefit analysis and make a rational business decision about which side their bread is buttered on?

The “firms are acting rationally to maximize their revenue” argument reminds me of the famous line from The Godfather: “It’s not personal, it’s strictly business.” But should law firms should be taking their ethical cues from the Mafia?

If firing conservative lawyers (1) is unfair to those individual lawyers, (2) hurts your firm’s ability to effectively represent its clientele as a whole, and (3) makes your firm a less interesting and enjoyable place to work, does it suddenly become the right thing to do simply because a client asked for it? As long as they’re being effectively represented, why should clients have the right to dictate internal law firm policy?

When one prominent chief legal officer urged law firms to bring their people back to the office, he got roundly criticized. When Elon Musk told Cooley to fire an associate because of that associate’s prior work at the SEC on a Musk matter, Cooley said no, and it received praise.

As Ralph Baxter, former chairman and CEO of Orrick, said at the time, “To be a great law firm, you must organize it and lead it in a way that is principled. You simply can’t permit outsiders, even clients, even highly valued clients, to dictate how you run the law firm.” Or as Paul Clement said on my podcast, “Nobody would go to their doctor and say, ‘I really don’t like the fact that you’re treating this other person for their cancer because they’re a scumbag and I hate them.’ And I really think lawyers ought to have the same approach, which is that one client doesn’t get to dictate which other clients you can represent.”

When clients make unfair demands and law firms accede to them, it only encourages clients to issue more such demands in the future. But if law firms stand firm, politely but firmly denying the requests, clients will be less inclined to make unreasonable requests—and more inclined to respect their firms.

It’s not just about clients; it’s also about talent, which is the lifeblood of law firms. Many talented lawyers, especially young lawyers, care deeply about social-justice issues. They don’t want to work with a bunch of racists, sexists, and homophobes. Is that so wrong?

We need to define our terms. What makes someone a racist, a sexist, or a homophobe?

Obviously a law firm can—and should—fire an employee who mistreats colleagues based on their race, sex, or sexual orientation. But does opposing affirmative action make you a racist? Does agreeing with the Supreme Court’s decision in Dobbs, overruling Roe, make you a sexist? Does questioning the participation of transgender athletes in girls’ sports make you anti-LGBTQ?

My own inclination is to say no, not necessarily. And my personal preference is to err on the side of a larger rather than smaller window of discourse.

Why? Because even though I have many different opinions on many different issues, I admit that I might be wrong about any given issue (including about what I’ve just discussed here). I might change my mind after being exposed to more arguments—and over the years, I have done so often.

In his celebrated 1944 speech, The Spirit of Liberty, Judge Learned Hand described the spirit of liberty as “the spirit which is not too sure that it is right.” Our discourse and democracy would be greatly improved if we all acted with less certainty that the other side is wrong and we are right.

1Of course, Title VII is simply one of many laws about hiring and firing. To my many readers involved in law firm hiring and management, please note that—according to Professor Eugene Volokh, based on his exhaustive analysis of the statutes—”[a]bout half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation.” So check applicable state law before, say, firing an employee because you heard they were canvassing on the weekends for Donald Trump.

Woke, Inc.: Inside Corporate America's Social Justice Scam

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Civil rights lawyer Benjamin Crump, speaking last month at a press conference about the death of Tyre Nichols, flanked by Nichols’s stepfather and mother, Rodney Wells and RowVaughn Wells (photo by Scott Olson via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I had a good week, thank you very much. After appearing on a webinar about free speech and civil discourse in U.S. law schools (covered by Avalon Zoppo for the National Law Journal), I headed down to Durham, where I spoke at Duke Law about the current state of the legal profession (alongside Jennifer Dickey, deputy chief counsel at the U.S. Chamber Litigation Center). It’s always a pleasure to speak at law schools—especially in locales where temperatures hit the 60s in February.

Continuing my writing for outlets other than this fine newsletter, my husband Zach and I just co-authored a piece for the New York Times, Trump’s Supreme Court Picks Are Not Quite What You Think. To paraphrase Jeb Bush, “please click”—whether or not you read—to help us make the NYT most-read list.

In our essay, we evaluate the track records so far of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, pushing back on the narrative of a monolithic conservative bloc on SCOTUS. Instead, we argue, “[t]here are interesting and important differences of opinion among the conservative justices”—and “understanding these nuances is critical, especially for lawyers and legal organizations on the left who are ‘playing defense’ before a conservative court that’s far from done with its transformation of American law.”

Now, on to the legal news.

Lawyer of the Week: Benjamin Crump.

Congratulations to Ben Crump, the prominent civil-rights and plaintiffs’ lawyer currently representing the family of Tyre Nichols, who died after being beaten by Memphis police during a January 7 traffic stop. Crump is now the first and only living Black lawyer to have a law school named after him: his alma mater, the St. Thomas University School of Law in Miami Gardens, Florida, which on Wednesday rebranded itself as the Benjamin L. Crump College of Law. Of the 199 law schools accredited by the American Bar Association, only one other is named after a Black lawyer, the Texas Southern University Thurgood Marshall School of Law.

Crump made a $1 million gift to the school—which, while sizable, probably wouldn’t be enough to earn naming rights by itself. But as reported by TMZ—which doesn’t often report on law school renaming—a slew of celebrities, including actor Will Smith and funk-music legend George Clinton, raised $10 million to support the renaming of St. Thomas Law. Appearing at the renaming ceremony, Smith slapped Crump—affectionately, on the chest—and offered hearty congratulations.

Other lawyers (and a law professor) in the news:

Representative George Santos (R-N.Y.), under investigation for a litany of alleged lies, took lawyer Michael Weinstock, a Democrat who once ran for the House district that Mr. Santos now represents, as his guest to the State of the Union. Weinstock told the New York Times that his acceptance of the invitation led to his dismissal from his law firm (which the Times did not name).
Texas attorney general Ken Paxton agreed to pay $3.3 million in a settlement with four former aides, conservative lawyers who alleged that Paxton retaliated against them after they raised concerns about possible corruption (involving a wealthy real estate investor who was Paxton’s friend and donor).
Congratulations to Professor Brian Fitzpatrick of Vanderbilt Law, whose methodology for calculating attorneys’ fees, now known as the “Fitzpatrick Matrix,” was adopted by Chief Judge Beryl Howell (D.D.C.) in determining the fees owed to a prevailing plaintiff in a lawsuit against the District of Columbia.

In memoriam: Harry Whittington, the wealthy and well-connected Texas lawyer who was shot by then-vice president Dick Cheney in a hunting accident in 2006, passed away at 95. May he rest in peace.

Judge of the Week: Judge Vince Chhabria.

This benchslap was dispensed on the West Coast, but I heard it all the way here in New Jersey. And on the receiving end was one of Biglaw’s biggest and best law firms.

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The Supreme Court of the United States, July 2022 (photo by David Lat).Last week, I published a Boston Globe op-ed about the benefits to Biglaw of viewpoint diversity—i.e., having lawyers and staff who come from across the ideological spectrum. The essay was behind the Globe’s paywall, so some of you weren’t able to read it.

Fortunately, under the terms of my freelancer’s agreement with the Globe, I’m now able to publish it digitally. It appears below, for those of you who weren’t able to read it previously.

The Globe’s copy editors gave my piece its title, “Big Law’s Cancel Culture.” As a freelancer, I didn’t come up with it, and I wasn’t consulted about it. I would have chosen something different, mainly because I think the term “cancel culture” at this point carries with it a lot of baggage, and some folks will just tune out anything that comes after those words. Personally speaking, I think it’s more productive to talk about the fairness or unfairness of particular incidents or situations than to just slap on a label like “cancel culture.”

My essay generated ample engagement, including lots of comments on the Globe website, plenty of tweets, and detailed and thoughtful responses by Joe Patrice of Above the Law and Jay WIllis of Balls and Strikes. I addressed some of the most common critiques in a Twitter thread, but I’ll probably write a follow-up post as well. For better or worse, these issues aren’t going away anytime soon, so we might as well talk about them.

Big Law’s cancel cultureIdeological uniformity in Big Law, whether on the right or the left, is not a good thing — not for lawyers, law firms, and the rule of law.By David Lat

On the morning of June 23, the U.S. Supreme Court issued a landmark opinion in New York State Rifle & Pistol Association v. Bruen, holding that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home. You might have expected the lawyers who won the case, celebrated Supreme Court litigators Paul Clement and Erin Murphy, to receive congratulations within their firm for such a major victory.

Instead, they received walking papers. That afternoon, Clement and Murphy announced in the Wall Street Journal that they were leaving Kirkland & Ellis, the nation’s highest-grossing law firm. Why? Because Kirkland presented them with an ultimatum: withdraw from representing clients in Second Amendment cases, including existing clients in ongoing representations, or withdraw from the firm.

“We couldn’t abandon our clients simply because their positions are unpopular in some circles,” the lawyers wrote. So they left Kirkland to start their own litigation firm.

It’s not just representing unpopular clients; even articulating an unpopular opinion might be a fireable offense today in the world of large law firms (aka “Big Law”). Take support for the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent abortion back to the states. At least two antiabortion women partners allege — one in the Wall Street Journal and one in Original Jurisdiction, my newsletter about the legal profession — that their support for Dobbs played a major role in their being forced out of their firms.

These are not isolated incidents. Other situations have involved lawyers being criticized for expressing concerns about the transgender rights movement, clerking for judges appointed by former president Donald Trump, or working for faith-based public-interest organizations.

Of course, it’s not a recent development that large law firms are overwhelmingly liberal (as reflected in, for example, their lopsided contributions to political campaigns). What’s different today is not only the partisan intensity but the possibility that you might lose your job for holding the wrong views. Simply put, Big Law — the nation’s largest, most prestigious, most profitable law firms, which in many ways set the norms for the rest of the legal profession — is currently seized by ideological intolerance and groupthink. (There are some exceptions — most notably Jones Day, which gained notoriety for its work on behalf of Trump.)

Some might say: So be it. A private law firm is generally free to suppress or punish opinions from its employees that it or its clients might find distasteful (consistent with specific state laws protecting employee speech and political activity). If a law firm wants to brand itself the “woke” law firm or the “MAGA” law firm, taking on only those lawyers and clients who pass its ideological litmus test, it has a free-association right under the First Amendment to do so.

This view is understandable but wrongheaded. Ideological uniformity in Big Law, whether on the right or the left, is not a good thing — not for lawyers, law firms, or the rule of law.

To successfully represent their clients, lawyers need to understand all sides of an issue, which is why research shows that ideologically diverse teams are more effective teams. If liberal or progressive lawyers are not exposed to conservative viewpoints, they will be less effective as advocates — especially when arguing before conservative courts, of which there are plenty (including the current Supreme Court).

As for the rule of law, here’s what Clement and Murphy wrote in the Wall Street Journal: “Our adversarial system of justice depends on the representation of controversial clients, no matter which side has most of big law rooting for it. This is particularly true in constitutional cases. Many of our fundamental constitutional guarantees are designed to be counter majoritarian, and many have been vindicated by litigants who are deeply unpopular.”

As the majority within Big Law, left-leaning lawyers might be perfectly happy to enjoy dominating their workplaces. But they should keep in mind that beyond Big Law, a “majority rules” approach to free speech can lead to terrible outcomes, including bans on everything from teaching critical race theory to the novels of Toni Morrison.

The conservatives behind these bans share the same reasoning as progressives in Big Law: If something offends us, it must be cast out. But this logic leads to nothing more than an endless cycle of dominant parties using (or abusing) their power to punish opposing opinions. Firms should instead aspire to environments in which people of radically different viewpoints can coexist in mutual toleration, respect, and maybe even admiration — for the deeply held, carefully considered views of their adversaries, even if they disagree vehemently with those views.

Turning to the practical, how can managing partners and other Big Law leaders combat this epidemic of intolerance? How can they promote ideological diversity and free expression within their organizations?

First, they should support politically diverse pro bono efforts. In the past, lawyers from large firms could be found representing both sides of contentious issues in their pro bono work, but today, there’s an overwhelming imbalance in favor of the left. As Clement noted in remarks last November,about two dozen Big Law firms filed amicus briefs in support of abortion rights in Dobbs — and zero filed on the other side. If managing partners give the green light to pro bono projects in defense of, say, religious liberty — and maybe even handle some of these projects personally, as lawyers — that would send a powerful message to rank-and-file lawyers about the firm’s commitment to viewpoint diversity.

Second, they should stop issuing statements weighing in on every controversy in the news, including statements condemning everything from Russia’s invasion of Ukraine to the Supreme Court’s decision in Dobbs. Yes, the Russian invasion of Ukraine deserves condemnation — but are law firms the ones to be doing it? Law firms are collections of lawyers — ideally, lawyers of diverse viewpoints — who have come together to practice law. They’re not think tanks, editorial boards, or Hollywood celebrities, and opining on the issues of the day is not their job. But when law firms issued statements condemning Dobbs — or even gave employees the day off after the ruling came down — they sent a message about which side they weretaking in the culture wars.

Finally, if law firms are going to have diversity training — which may or may not be a good thing — and if they are going to encourage lawyers to “bring their whole selves” to work, then perhaps they should have training about respectful discourse. This fall, Yale Law School, which had significant problems last year relating to free speech, redesigned its orientation for new students “to center around discussions of free expression and the importance of respectful engagement.” Perhaps law firms should follow suit.

In our adversarial system of justice, part of a lawyer’s job is to disagree with other lawyers. We must find our way back to the time when lawyers could disagree with each other and not disagreeably — for the sake of lawyers, the legal profession, and the rule of law.

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Being a federal judge is a dream job for many lawyers. Why would anyone want to leave it behind?

And yet that’s what several high-profile, highly regarded judges have been doing in recent months. One of them is Gary Feinerman, who stepped down as a judge of the U.S. District Court of the Northern District of Illinois at the end of last year, then joined the Chicago office of Latham & Watkins just last month.

Why on earth did Judge Feinerman leave the bench? I asked him that and much more—including what it was like to clerk for Justice Kennedy alongside two future Supreme Court justices, how he became a federal judge, how he funneled his clerks into SCOTUS clerkships as a “feeder judge,” and what type of practice he plans to build at Latham & Watkins—in this latest episode of the Original Jurisdiction podcast.

Show Notes:

Gary Feinerman bio, Latham & Watkins LLP
Latham Enhances Litigation Practice in Chicago; Welcomes Former Federal District Judge and State Solicitor General, Latham & Watkins LLP
On The Retirement Of Miles Ruthberg And The Rise Of Litigation At Latham & Watkins, by David Lat for Above the Law

Prefer reading to listening? A transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Gary Feinerman (courtesy photo by Latham & Watkins)Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

You’re listening to the eleventh episode of this podcast, recorded on Friday, January 27. I post episodes every other Wednesday.

I’d like to begin by thanking this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

My guest today is Gary Feinerman, who served as a judge for the U.S. District Court or the Northern District of Illinois, with chambers in Chicago, from 2010 to 2022. He also served as the Solicitor General of Illinois, from 2003 until 2007, and as a law clerk to Justice Anthony M. Kennedy.

As readers of the Original Jurisdiction newsletter know, Gary recently left his judgeship to return to the practice of law. He is now a partner in the Chicago office of Latham & Watkins, where he represents clients in their highest-stakes litigation.

I refer to him as Gary rather than Judge Feinerman because, well, he told me to call him Gary, but I do think his preference is revealing. Unlike many judges who leave the bench to become arbitrators or mediators, Gary is back to being a working litigator, taking depositions, arguing motions, and trying cases. His experience on the other side of the bench for some 12 years makes him an invaluable addition to the Latham team.

He left behind a federal judgeship, which is a dream job for many lawyers. Why would anyone step down from the bench? That’s one of the questions that Gary and I discussed in our interview. We also talked about what it was like to clerk for Justice Kennedy alongside two future justices, his most noteworthy case from his time on the bench, how he worked his magic as a Supreme Court “feeder judge,” and the type of practice he plans to build at Latham & Watkins.

Without further ado, here’s my interview of Gary Feinerman.

DL: Hello, Gary! Thanks so much for joining me.

Gary Feinerman: Thanks for having me.

DL: Congratulations on your move to Latham and Watkins. I hope you're settling in well there?

GF: Yeah, absolutely. It's been almost a month. The welcome has been really warm, lots of orientation, lots of meeting colleagues whom I encountered during the interview process and new colleagues, and it's just been terrific through and through.

DL: Excellent, excellent. So we'll circle back to that in a bit, but to rewind, can you tell us about your upbringing and whether there was any hint in your childhood or adolescence that you might become a lawyer or a judge someday?

GF: Not really. So my dad was a pharmacist, just a retail pharmacist in town, one of the towns next to the town where I grew up. And my mom was a stay-at-home mom at first, and then when my sister and I got older, she became a calligrapher of all things, which was pretty neat, and then she worked in retail.

I had a relatively uneventful childhood. I played sports, not that well, and I was a somewhat better student. We were a typical middle-class family. We started off in Des Plaines, Illinois, which is west of the city [of Chicago]. Then we moved to Skokie, and then my parents made the typical middle-class move of buying a relatively inexpensive house in a great school district in Highland Park, and that's where I went to high school.

As to indications that I would be a lawyer, probably not, and I'm about to reveal myself as a huge geek—I had four years of Model UN in high school, so that was probably the biggest indication that I might be headed in the direction of being a lawyer, but not much beyond that.

DL: And then in college, what did you study, and did you get interested in law then?

GF: Yeah, kind of. So I was a poli sci major in college, but I also thought I wanted to be a doctor, so I was premed…

DL: Oh wow.

GF: … on top of that. My dad was a pharmacist, and it was kind of a natural fit for me to want to stay in that general field and go to med school. Then between my junior and senior year, I worked in a hospital, and I hated it. And I realized if you don't like working in a hospital over a summer, medicine's probably not the right profession for you. And given the poli sci major, I realized that my passion, both intellectually and just in terms of what made me tick, was politics and law. So I switched gears and took a year off between college and law school, and then went to law school.

DL: Did you ever take the MCAT?

GF: Embarrassingly, yes. I did take the MCAT because at that point, the point at which you took the MCAT in those days, I had not yet reached the inflection point where I had decided that medicine wasn't for me. So yes, I studied for and I took the MCAT, and then pivoted after that.

DL: Wow, you were quite the masochist then. What did you do in between college and law school?

GF: I worked at this environmental consulting firm in D.C., which moved to Vienna, Virginia. It's called ICF Incorporated. It was a great company, and I spent most of my time there—we were, I guess “retained” is the right word, by the EPA, to help them with NPRMs, Notices of Proposed Rulemakings, and then the actual rulemakings, and going through all the comments that got submitted. So it was a really nice [segue] from college to law school, and just spending the year [before] law school in D.C. with so many classmates and so many people from across the country, it was just a really fun year.

DL: When you went to that consulting firm, did you already know you were going to law school, or did you apply while you were there?

GF: Yeah, I knew that I was going, and I had deferred a year with the understanding that I’d spend a year working and then head off to law school.

DL: And when you went to law school, what was your thinking in going to law school? Why did you go, did you think you wanted to do environmental law?

GF: That was definitely a possibility. It was quite some time ago, so I can't remember precisely what was on my mind, but having worked at ICF and done environmental regulation, at least at the front end for a year, that was certainly a possibility. When I was a poli sci major in college, I did a lot of international relations, so I thought international law might be in the cards.

But I knew always that I wanted to be a litigator rather than a transactional lawyer, because of the strategy of being a litigator, formulating arguments, being persuasive, making arguments, that was most in my wheelhouse. So whatever it was that I was going to end up doing, I knew it was going to be on the litigation side rather than the transaction side.

DL: So after graduation, I believe your first job or jobs were clerkships, right?

GF: Right. So I first clerked for Judge Joel Flaum on the Seventh Circuit, who is an extraordinary judge and an even more extraordinary person, just a wonderful first job to have out of law school. He's just exceptionally talented, exceptionally smart, exceptionally kind, and I'm just so fortunate to have clerked for him. He's been a mentor to me for the last 30 years, and we stay in very close touch, and it just was a joy to be working in the same building with him for the 12 years that I was a district judge.

DL: And then after that, I believe you clerked for Justice Kennedy?

GF: I did, yes. So I took a year between clerkships. I was at Mayer Brown for a year, and then went back to D.C. and clerked for Justice Kennedy.

DL: So this is a fun bit of trivia for my readers or listeners who are very interested in the world of Supreme Court clerkships. You clerked in October Term 1993, which I would say—some of your co clerks have made the argument to me—is the most illustrious class of SCOTUS clerks in history. Your co-clerks included now-Justice Kavanaugh, now-Justice Gorsuch, and you were all clerking for then-Justice Kennedy. But then other clerks that Term included Michelle Alexander, who is the author of the bestselling The New Jim Crow and Katherine Adams, who is the general counsel of Apple, and a whole bunch of other judges, current and former—former judge [Mark] Filip, Judge [Paul] Oetken, Judge [Allison] Eid. What was that like to clerk with that bunch of people, which even by SCOTUS clerk standards, I would say, is an extraordinary bunch?

GF: It was a wonderful experience. In terms of our chambers, Justice Kennedy could not possibly have been a better boss, just gracious through and through, and although we didn't agree on everything—and by the way, none of us agreed with Justice Kennedy on everything—we all really appreciated and respected his approach to cases and his approach to the job and his approach to law.

We had, as you might imagine, a very ideologically diverse chambers in terms of law clerks. And that made it just such a great deal of fun because we all respected each other, we all liked each other, and it just was a very interesting experience to be in chambers with that group of folks. In addition to Justice Kavanaugh and Justice Gorsuch, there was Miles Ehrlich, who is now a prominent criminal defense attorney in the Bay Area, and Nate Forrester, who is just a great guy, and he was earlier in his career the Solicitor General of Alabama and now he's at OLC [the Office of Legal Counsel]. It was just great to work with them.

As to the other chambers, it was fantastic to work and become friends with all of them. And we got along. It was one of those years, I know some years it's not so much, but it was one of those years where we all got along really, really well, regardless of our views on the law.

I guess if you were cynical you'd say, well, that's because it was a relatively uneventful term. There weren't many hot-button cases that Term. But I would argue differently: I think regardless of how many hot-button cases there were during the Term, it was just a very genial, friendly group, a respectful group, and by respectful I just mean respectful of differences, and so I think we would've gotten along regardless of what the docket was that particular year.

DL: Interesting. So do you have any random specific recollections of either Justice Kavanaugh or Justice Gorsuch, because I believe they were your colleagues in the Kennedy chambers?

GF: Yes, they were.

DL: I guess technically Justice Gorsuch was a clerk for actually Justice White, I believe, but he was sort of farmed out to the Kennedy chambers.

Gary: Right, yes. The clerks for the retired justices get affiliated with the chambers of an active justice, so it was great to have Neil with us in chambers.

As to recollections of anything in particular, I guess what I enjoyed most was our weekly and sometimes our twice-weekly basketball games up on what they then called, and I think continue to call, “the highest court in the land.” It wasn't much of a basketball court, and the ceiling was kind of low. If you had a jump shot with a very high arc, it was going to hit the ceiling, so you had to kind of learn to shoot more in a line-drive-type fashion. But those were great times.

James Forman was a great player—James Forman, who won the Pulitzer Prize for Locking Up Our Own. I think our ringleader probably was Julius Genachowski, who's now at Carlyle Group, but he was the chair of the FCC a few years ago. It was just a lot of fun. It was a way of letting off steam, and it was a way of building relationships with colleagues from across the building.

I should also mention the weekly happy hours that we had, which were another highlight because they were forums where we could just put work aside and be ourselves and form relationships outside of the work on the cases—that of course was very important, we spent a great deal of time on it—but it was nice to set that aside and just be with each other, as people. And I think that's one of the reasons why we had such a wonderful year and we were such a close group that year.

DL: I'm curious, I know that on and off justices have played in that game, not just clerks. Did any justices play in your day?

GF: No. Now General [William] Suter did, the Clerk of Court, at that point, and he was a formidable presence. He was just very tall, and let's just say he knew how to throw a pick, and you could not get through his picks under any circumstances. But I think I remember that Justice Thomas might have played the year before, but I think he might have snapped his Achilles or injured his Achilles, so he never made it up there, at least during my year.

DL: Okay, well, it's good he didn't injure himself during your Term. So after clerking, what was your path after that?

GF: Immediately after clerking, I went to DOJ and worked at what was then called the Office of Policy Development, and it's now called the Office of Legal Policy. And I did some policy work there, including on the 1994 crime bill. But my main role was to help with judicial nominations, both in terms of vetting prospective nominees and then supporting the nominees after their nomination through confirmation.

And then I was detailed for a bit over to the White House Counsel’s Office, where I did the same work over there, and it was a great time. I spent probably a year and a half in D.C. at DOJ and the Counsel’s Office, then I came back to Chicago and spent several years at Mayer Brown, a great firm. I was an associate there and then a partner, and I had a general litigation practice. I did a lot of arbitrations under the Telecommunications Act of 1996, which was a great deal of fun and a great experience.

Then several years in, an opportunity arose at the Illinois AG’s office, when the outstanding Lisa Madigan was elected attorney general, and she chose me to be her solicitor general, which was a great role and a great job. I know the attorney-general offices are structured differently across the country. In Illinois, the solicitor general—really a better [title] would have been the deputy attorney general in charge of appeals, because the SG in Illinois of course does Supreme Court and important Seventh Circuit and important Illinois Supreme Court cases, but also does every appeal. So there's a staff—at least when I was there, there was a staff of 40 lawyers, and other non-legal staff—where we just handled all of the state's appeals, other than direct criminal appeals in the Illinois appellate court, those were handled by the state's attorney's appellate prosecutor. But that was a great job, and I really enjoyed my colleagues there.

I spent four years as SG of Illinois, and after that I went to Sidley Austin, and I spent three years there. And after the 2008 election, an opportunity arose to join the court to become a district judge on the Northern District of Illinois. And I pursued that path and fortunately was able to join the court in 2010.

DL: So there's a lot to unpack there. Let me begin by asking you about your service as Illinois SG. I feel that the job of being a state solicitor general has really increased in prominence and influence, and a lot of states that didn't have state SGs now have them. There's even an association or group for them. But back when you did it, was that a position of long standing in Illinois? Had there been Illinois SGs for a while, or were you one of the first, and what was that like? Were you excited about the job going in?

GF: Very excited about the job. It had a leadership component where I was leading a group of 40 lawyers and other non-lawyer staff, and it [involved] very interesting legal issues. There were a lot of public-law issues, constitutional challenges to statutes and regulations, among many others. And there had been solicitors general in Illinois since the seventies, so Illinois was one of the states at the forefront of having state SGs. Obviously others were New York, where Barbara Underwood was an early SG and now has returned and is the SG again. In Ohio, Jeff Sutton, of course, was SG in Ohio, Texas had SGs of long standing, and my time in Illinois overlapped with Ted Cruz's time as SG of Texas. Alabama as well had SGs for a good long while. I mentioned my co-clerk, Nate Forrester, was SG, and I overlapped with Kevin Newsom, who was SG of Alabama when I was SG of Illinois. And Kevin, of course, is now on the Eleventh Circuit, and Caitlin Halligan was in New York, an extraordinary appellate litigator in New York.

So we had a really good group. It was a bit of a smaller group than they have now—it has been 15 or 17 or 18 years since I left the AG’s office. And kind of our ringleader was Dan Schweitzer at the National Association of Attorneys General, and he was kind of our organizer, and he would facilitate multistate amicus briefs in the Supreme Court and sometimes in the federal courts of appeals. And it was a really nice community, and we would get together every year at one of the attorney-general meetings for the National Association of Attorneys General. And at least back in that day—and I know things may have changed a little bit—whether it was a so-called “blue state” or a so-called “red state,” attorneys general and state solicitors general agreed kind of on like 90 percent of the stuff that came across our desks. There were some disagreements, but it was mostly we were on the same team, and that made it a really wonderful experience.

DL: That's interesting, because I do think times have changed. Now when you have a case involving states’ rights in the Supreme Court, you have a coalition of red states filing one amicus brief, and a coalition of blue states filing another amicus brief. So that is an interesting evolution you describe. And I believe as Illinois SG you argued before the Court also?

GF: Yes, I argued Illinois versus Lidster, which was a Fourth Amendment case. And actually on our side from the SG’s office was Patty Millett, who of course is now on the D.C. Circuit. So yeah, that was a great experience.

DL: And I believe you prevailed in that case, right?

GF: We did. Yes. Six to three maybe. Yes, we prevailed.

DL: Were you nervous going into the argument?

GF: Oh yes! Very nervous, for any number of reasons.

One is it was my first argument in front of the U.S. Supreme Court, and of course I had seen dozens of arguments when I was a clerk there, but it's a lot different sitting off on the side in the clerk seats than standing up at the podium. And of course Justice Kennedy was on the Court at the time, and I wanted to—I felt very nervous and a lot of pressure, and I'm sure he would never want any of his former clerks to feel this—but you just can't help but want to do a good job in front of your former boss and reflect well on him. So yeah, I was very nervous, but I somehow managed to get through it.

DL: Excellent, excellent. So congratulations on that.

Now at the tail end of your career narrative, you talked about your transition to the federal bench, and of course having been at OLP and having been at the White House Counsel's Office, you had seen that process from the other side. So was being a judge something that you had aspired to for a while, and can you talk in a little more detail about that process of outreach from either the administration or your senators in terms of the bench?

GF: Right. So given the wonderful experiences I had with Judge Flaum and Justice Kennedy, it was something that was always, I suppose, in the back of my mind, like at one point if the opportunity arose, I would want to be a judge, but there are just so few slots and opportunities.

It's not something that you could—at least, if you're handling things the way you should handle them, it's not something you should really curate your career around, like “I'm going to do everything I need to do in order to be a federal judge,” just because odds are, just given the relatively few number of slots, you're not going to be a federal judge, and you wouldn't have had the practice that you would've had, had you been doing the things you loved, as opposed to the things that you thought you needed to do in order to get yourself in a position to be a federal judge.

So I was just practicing the kind of law I wanted to practice. I was back at Sidley and after the 2008 election, I got a reach-out from Senator [Dick] Durbin's office and Senator Durbin, of course, was the senior senator from the president's party, and he was in charge of making recommendations, as is the case across the country. So I threw my hat in the ring and there was a process with a committee and I was fortunate enough to come out on the other end, being recommended to the president and then nominated and confirmed.

So I talked about this a little in my recent interview with Secretary Jeh Johnson—you were a partner in a law firm at the time [of your nomination]—were you involved in politics? Were you involved in fundraising for either President Obama or Senator Durbin? Did you have political connections?

GF: In terms of fundraising, no. We certainly contributed, but we weren't bundlers, and we didn't solicit others to contribute at all. I did work on then-Senator Obama's presidential campaign, just as a layperson who got involved in one of their policy committees. But other than that, no, I wasn't involved politically at all.

DL: So looking at your tenure as a judge, you served on the bench for more than a decade. Is there a particular case or matter you handled as a judge that you would view as either your most memorable one or a matter that you're particularly proud of your handling of?

GF: I handled several thousand cases during my time on the bench, and when any particular case was before me, I handled it as if it were the most important case on my docket, because most of the time, it was to the litigants and the lawyers in the case, the most important case on my docket. So I didn't—at least my instinct was not to think about cases in that way.

But that said, if I had to identify my most memorable case, I'd have to say it was the one that received a lot of public attention, or one of them that received a lot of public attention. It was a challenge by Cook County and an immigrant-rights association here in Chicago to an immigration regulation implementing the “public charge” statute that was promulgated during the prior administration.

The case presented fascinating and difficult legal issues under the Administrative Procedure Act and the Equal Protection Clause. I ended up invalidating the regulation, and the government appealed. And then after the current administration dismissed the government's appeal of my judgment invalidating the regulation, the case then presented more really interesting and fascinating issues regarding whether and, if so, under what circumstances, states can intervene to defend a federal regulation, when the federal government is no longer defending the regulation.

DL: And did that case go to the Court, or is that issue before the Court? This is definitely ringing a bell, and I believe there's a case in February that looks at this issue.

GF: Yes. That particular issue is before the court. There was another case involving the same regulation out of the Ninth Circuit that got argued in front of the Court, and I believe that case got “DIGged” [dismissed as improvidently granted]. It was Arizona versus San Francisco. But yes, there is a case coming up this Term, not in the context of a public-charge challenge, but in another context involving the ability of states to intervene. And I believe last year, last Term, there was another case, I think out of Kentucky, where the Court considered either this issue or an issue that's adjacent to this.

DL: Yes, I think that's right. I think also the February case might be the case involving the Remain in Mexico policy, which I think a number of red states want to defend.

So it's interesting. You're handling these high-profile cases, these interesting and complex legal issues. Being a federal judge is a dream job for many. It sounds like it was a dream job for you as a young lawyer. So why did you decide to leave the bench?

GF: It was a very difficult decision. Serving as a federal district judge was the honor of my professional lifetime. It was a privilege to serve the court, the Northern District of Illinois, and the country. And our court—well, the judiciary as a whole, and in particular the Northern District of Illinois—is a wonderful community. Other than Judge Johnston, who's out in Rockford, we were all in the same building, all the active judges are in the same building, and I loved my colleagues. I loved my staff—courtroom deputy, court reporter, and I loved all my law clerks. And I loved as well the public-service aspect of being a judge and advancing justice. It's a great job. It really is.

Even with all those positives, and I hope you'll forgive the cliches, but I just concluded that after 12 years, it was time to start a new chapter and take on a new challenge. In particular, I missed two aspects of practice, both in private practice at Sidley and Mayer Brown and public practice at the Illinois AG’s Office.

The first was being an advocate, of taking sides and fighting for a client. There came a point during my tenure as a judge later on where I'd be handling a case and I'd be on the bench, and if I were being honest with myself, which is hard in this kind of a situation, I was thinking, all things being equal, I'd rather be doing what they were doing than what I was doing.

The second aspect of practice that I missed has to do with the fact that being a judge, and particularly a district judge, where you sit alone, is a relatively solitary endeavor. And I found myself… I would join any committee that would have me as a member. I was just really, really hungry for collaborative opportunities. But just the nature of the job—for the most part, even if you max out on the committees—it's a solitary job, and practicing law is a team sport and. Eleven, twelve years in, I realized that I'm much more of a team-sport person than a solitary-endeavor person.

But still, I enjoyed being a judge, and it's a great job, and I didn't have to leave, and I decided that I would leave only if presented with an extraordinary opportunity. And Latham & Watkins, where I joined earlier this year, fit that bill to the T. It does first-rate work across the board. It epitomizes excellence and it has, just significantly to me, a collegial, collaborative, and hardworking culture, where I believe that I could thrive both professionally and personally, and that culture came through in the interview process, and it has continued to come through during my first few weeks at the firm.

And joining that firm in the Chicago office was a particular draw. The Chicago litigation group is just phenomenal. It has an extremely solid foundation, and it's poised for even greater success. My sherpa or rabbi or whatever metaphor you want to use during the interview process with Sean Berkowitz, who I'm sure you've heard of, pretty much everybody's heard of, he’s an immensely talented lawyer, an outstanding leader, and an extraordinary person. And the prospect of working with Sean and the other litigators in Chicago—Mary Rose Alexander, Ken Schuler, Mark Mester, John Sikora, our Chicago litigation chairs, Terra Reynolds and Eric Swibel, and I could go on, but I'm going to start something like an infomercial, so I'll stop—the chance to work with them to build on the practice’s many successes and to help mentor the associates and the younger partners was an opportunity I just couldn't pass up.

DL: So if you will forgive the plug of my own work, I actually did a profile of the Latham litigation practice for Above the Law a number of years ago, and I got to interview Sean, who rocketed to fame for his work as a federal prosecutor on the Enron case. And I think even though Latham has a world-class transactional practice, private equity and public M&A, I think its litigation practice is really amazing. And so I can understand why if you were going to go join a firm, you would join Latham.

Now, I do note that your departure from the bench is part of this mini-trend of some young, as in not eligible for senior status, high-powered, highly regarded judges, leaving. Judge [Gregg] Costa left in the Fifth Circuit. Judge [Paul] Watford is leaving in the Ninth Circuit.

What do you make of this trend? And forgive me if this is a little direct, but could it have something to do with the increasing gap between compensation for partners at Latham, where they make millions of dollars a year, and the federal bench?

GF: I don't know if I would even call it a mini-trend. Judge have left the bench before retirement age for quite some time, and it just so happens there was Judge Costa and Judge Watford, and of course Judge Abdul Kallon from Alabama and Judge [George] Hazel from Maryland who also recently left.

I can't really speak to what motivated the others. Certainly, just as a factual matter, the compensation is better in the private sector, or at least at firms like Latham & Watkins, than it is on the court. But federal judges get paid well, and so for me it was really the two things that I mentioned a few moments ago, rather than have anything having to do with compensation.

DL: That's a totally fair point. And I would also mention on federal judicial compensation that judges who are eligible for senior status when they are age 65 or above and they've served 15 years or more on the bench are eligible for their salary for life, which is a very generous retirement benefit. I talked to one former judge who went to the private sector and basically did want to be compensated for forfeiting the value of that very lucrative retirement benefit.

But anyway, can you tell us a little bit about the type of practice you aspire to build for yourself at Latham & Watkins? I know you're joining a great team, and certainly they have areas that they're already known for, but are there things that you are trying to focus on, either issues or areas of law or type of litigation?

GF: That's a great question. So my home at Latham is in the complex commercial litigation practice, which is led by Sean Berkowitz, within the firm's litigation and trial department, and I'll also plan on working on intellectual-property cases, securities and derivatives, white-collar and investigations, to the extent there's a role for me to play. Particularly in Illinois or the Seventh Circuit, I could handle some appeals, and complex commercial litigation handles a wide array of cases, consumer fraud, business torts, contract cases, product liability, and the like. So the goal of my practice is just to provide as much value to Latham's clients as I can.

As we discussed, before I was a judge, I worked in two law firms, and I was the solicitor of Illinois. And in those roles I was a working litigator handling complex matters. At the law firms, they were high-exposure cases for our clients, and for the state of Illinois, they were significant public-law cases. For cases that were in the trial court, I set strategy, I conducted discovery, took depositions, drafted and argued motions, conducted hearings, and tried cases before courts and arbitrators. For cases on appeal, I drafted and edited briefs and argued appeals.

My plan is to continue, or I guess resume, that practice at Latham, rolling up my sleeves and handling complex, high-exposure cases. But I'll be able to do so with the perspective that I've gained from 12 years on the bench, both as a district judge, which was most of my work, and having sat by designation on the Ninth Circuit pretty regularly over the last few years and earlier on the Seventh, and I hope it will prove to be a valuable perspective.

I lost count at some point of the number of times as a judge when I was reading briefs or hearing argument or presiding over a hearing or at trial where I thought to myself, boy, I wish I knew that when I was a practicing lawyer. And what I mean by that is that as a lawyer, you make the most informed judgment you can about how a particular argument or strategy or tone or piece of evidence will hit the judge or the jury. But what can appear to be a good or smart or strategic move on paper or on the chalkboard when you draw it up in the conference room, it's not necessarily a good play in reality. And given the number of reps I had as a judge, particularly during my day job on the district court, I could bring to bear, hopefully, a perspective and exercise judgment that will bring value to our clients, whether I'm drafting or editing a brief or motion to dismiss or summary judgment motion or Daubert motion or engaging with imposing counsel about discovery or taking or defending a deposition or handling a hearing or a trial.

So I guess that's a long way of saying I want to resume my practice of actually being a working litigator handling cases. And another component of my practice, which complements the first and will draw on the perspective that I gained as a judge, is to be a strategic advisor on a particular case or a particular client. And that can entail something as simple as conducting a moot court in significant cases, whether for Latham teams or for clients who are using another law firm on a particular matter. It can entail reviewing strategy or litigation themes at the outset of a case or in the middle of a case or right before trial. Or it can entail taking a broader look at a client's portfolio of litigation or prospective litigation and thinking strategically in long term about how the client could mitigate its litigation exposure and better manage its litigation risks. So I know that's a lot, but that's what my plan is, at least at the moment, for the kind of practice that I hope to have at Latham.

DL: And it is a notable plan, in the sense that many former judges sort of become judges in private, they go into arbitration, mediation, alternative dispute resolution. But I noticed in the announcement of Latham about your arrival and in what you were just saying to me that you do want to be a working litigator. So I think clients will really benefit from your perspective from a dozen years on the other side of the bench.

Before we move to my final four questions in the little speed round, I want to ask one last question. When you were a judge, you developed a reputation as a district court feeder judge. You would send many of your clerks into Supreme Court clerkships.

What is that like? And specifically, are you picking up the phone to be like, “Justice, I got a great one for you!” Or is it more like they're already interested in your clerk and they call you to say, “Judge Feinerman, what's this person like?” What's the balance between pushing and responding to incoming inquiries?

GF: It was mostly responding to incoming inquiries. There are a couple justices on the Court whom I know personally, so our relationship was such where I would feel comfortable reaching out to them, either by email or text, to say, “Hey, I have somebody who's really great and is worth a close look.” But I certainly didn't have that relationship with most of the justices on the Court, so I would wait to hear from them.

But it was nice for me to be able to work with these clerks. I would often say that I punched well above my weight when it came to clerks, and I just felt so fortunate to have as my law clerks young people who not only were outstanding lawyers, but outstanding people, and it just gives me so much enjoyment and satisfaction to be able to continue my relationships with them over the years.

But yeah, being able to have clerks that went on to the Supreme Court was a nice, unexpected bonus of the judge-clerk relationship.

DL: And I'm sure, of course, as a partner at Latham, you can continue to mentor young lawyers, associates, so I think you'll certainly enjoy.

So turning to my final four questions, which are standardized for all my guests, the first is, what do you like the least about the law? And this can either be the practice of the law, in the trenches, or it can be law as the abstract system that governs us.

GF: I'm far from the first person to say this, but the incivility that occasionally arises between or among counsel is the thing I like the least about the law. Litigation is contentious by nature. People are having disputes and they're significant, whether it's in the criminal realm, which is extraordinarily significant, or the civil realm, which is also significant and it's very important and essential, and a lawyer's duty is to advocate zealously for a client. But that can be done in a civil and gracious manner while continuing to be a decent human being. And so a lawyer can disagree, must disagree, even heatedly, about very important things, without being disagreeable.

Most lawyers, I found both in practice and as a judge, do that just fine. And they handle that balance. But too many, and I think one is too many, but too many don't manage to handle that balance, and there's enough of that—again, the minority, but there's enough of that where it impinges on the practice of law and it impinges on the role that lawyers and courts play in our society and it hurts what the law should be, which is a learned profession where people act civilly, fight hard in the courtroom, but always maintain composure and dignity.

DL: I totally agree, and sometimes I fear that that is eroding. But I do agree with you that the vast majority of lawyers do comply with that value system.

So my second question is, and maybe you touched on this about the pre-med track, but what would you be if you were not a lawyer?

GF: It's a great question. I've been a lawyer for 30 years and then a law student for three years before that, so it's hard to imagine what else I would be doing. But if I kind of had a fantasy job, and while I don't follow sports as closely as I'd like to, I would want to be a sports broadcaster. I think that would be just a great deal of fun, and it's intrinsically interesting, and not just the sport component of sports, but also the societal component of sports, more and more over the last few years, has become an aspect of professional collegiate sports. And so sports broadcaster is what I would want to be, if not a lawyer.

DL: Do you have one or two sports that you follow particularly closely?

GF: I mean, I try, I mean, it’s really hard to be a football fan when you live in Chicago these past few years. So I managed to catch a game this year, and we went to the Packers game, and I'm in a mixed marriage: my wife is from Milwaukee and is a Packers fan, and I'm a Bears fan. And as I joke with her, it's been a very long 29 years we've known each other, because they've had two quarterbacks and I think we've a dozen or two quarterbacks. And I like to follow basketball, professional basketball as well. And one other sport: one of our daughters is a collegiate rower, so I very much follow collegiate rowing as well.

DL: Oh yes. I remember a number of years ago pre-pandemic when we grabbed lunch, I think she was in the middle of a competition, and so you were checking on the status of that. And then on the Packers, one of my earlier guests, Paul Clement, was saying it's really like the civic religion, so I can understand why your wife is a diehard fan.

My third question is, how much sleep do you get each night?

GF: Not as much as I should, always, but I probably average around seven or seven and a half hours a night.

DL: Okay, that's good. And I've actually been heartened by the number of successful lawyers and judges who've told me they get seven to eight hours, which I think is great.

So my final question is, any final words of wisdom, especially for listeners who look at your life and career and say, I want to be Gary Feinerman?

GF: Well, I don't know if you want to be Gary Feinerman, but the words of wisdom I would have would be, practice the kind of law that you love to practice, the kind that energizes you, the kind that makes you want to leap out of bed in the morning and get to work. And whatever it is you do in the law, form close relationships with the people who are in your space and who are in your legal community. That could be with colleagues, it could be with opposing counsel, it could be with staff at your firm, it could be judges who you meet through bar associations or inns of court, and it could be with clients.

And when I said practice the kind of law that you love to practice, that's ultimately what's going to make you happy. And it's going to make you a better lawyer because if you're doing something you love, you're going to be better at it than if you're doing something that you really don't care for.

And just in terms of the arc of your career, be open to opportunities as they arise, and importantly, be open to change—shifting gears, regardless of the stage of the career that you're at.

DL: Yes. I think that many lawyers are sometimes afraid of change, but certainly a theme I've noticed in interviewing successful lawyers and judges is, many of the time, they took opportunities that they never even thought about and it worked out very well for them.

So again, Gary, thank you so much for joining me. Congratulations on joining Latham. Good luck in building your practice. And I'm really glad to have had you on the show.

GF: Thank you David. It's been a true pleasure and I appreciate your having me.

DL: Thank you to Gary Feinerman for joining me. It was wonderful to hear his insights from behind the bench, and I suspect we’ll continue to see his name in the news as he handles high-profile cases as a lawyer.

One of the lessons of Gary’s career is not to be afraid of exploring new opportunities, which brings me to our sponsor. Thanks to NexFirm for sponsoring this episode of the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, February 22. Until then, may your thinking be original and your jurisdiction free of defects.

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Chief Justice Roberts and his wife Jane Sullivan Roberts, leaving the funeral of Justice Antonin Scalia on February 20, 2016 (photo by Chip Somodevilla via Getty Images).I continue to write and speak about ideological diversity, civil discourse, and free speech in the legal profession. On Monday, I had an op-ed in the Boston Globe about these issues in the world of Biglaw, and this coming Monday, I’m participating in a webinar about what law schools can do to promote civil discourse. The other panelists are Paul Clement, Jay Edelson, and Professors Renée Lettow Lerner and Eugene Volokh, with Judge James Ho moderating. Feel free to register here.

Speaking of lively online discussions, Zach Sandberg and I interviewed the remarkable Brian Potts for Movers, Shakers & Rainmakers. A partner in the environmental practice of Perkins Coie, Potts is also an inventor, writer, and founder of the Legal Mentor Network—which you can sign up for here, as mentor or mentee.

Now, on to the news.

Lawyer of the Week: Alex Spiro.

When I interviewed him as my first guest on the Original Jurisdiction podcast, Quinn Emanuel partner Alex Spiro explained how he rejects a lot of conventional wisdom of trial lawyers. So his approach to trying cases might be unusual—but it’s working. At the end of a three-week trial, jurors deliberated for only an hour before ruling in favor of Elon Musk, Spiro’s longtime client. The jury concluded that Musk was not liable for losses sustained by investors after his “funding secured” tweet in 2018, in which he claimed investor support to take Tesla private at $420 a share.

I viewed this case as a tough one for Musk—just like the “pedo guy” trial, in which Spiro also prevailed—and I wasn’t alone. Before trial, Judge Edward Chen (N.D. Cal.) ruled that Musk’s tweets were untrue and that Musk had acted recklessly in posting them, and Judge Chen instructed the jury accordingly. So as Professor Adam Pritchard put it, “I thought [Musk] was crazy to try his chances at trial, given the stakes involved. You’re fighting with one hand behind your back in that situation—and yet he won.” When it comes to jury trials, underestimate Alex Spiro at your peril.

Other lawyers in the news:

Mark Pomerantz, the former Paul, Weiss partner who joined the Manhattan District Attorney’s Office to serve as a special assistant district attorney investigating former president Donald Trump, published a new book about his work on that matter—and could get disbarred over it, if publication is found to violate Pomerantz’s ethical duties, such as not making public statements about confidential information and not opining on a subject’s guilt. Pomerantz told the New York Law Journal that his book is “legal, ethical, and in the public interest.”
Speaking of Trump’s legal troubles, Doug Letter spent much of his time as general counsel to the U.S. House of Representatives investigating the ex-president. But now that Republicans are back in control of the House, Letter has a successor: Matthew Berry, an alum of the Justice Department’s Office of Legal Counsel, the Federal Communications Commission, and Akin Gump. Berry, who is openly gay, is a former law clerk to Justice Clarence Thomas.
And speaking of Trump’s legal antagonists, the Washington Post just profiled former Fourth Circuit judge J. Michael Luttig. He never became Justice Luttig, but in the words of acclaimed SCOTUS advocate Neal Katyal, “There’s a good argument that Judge Luttig, by not being on the Supreme Court, did more for our democracy than most any sitting Supreme Court justice or past one.”

In memoriam:

Prominent professor R. Kent Greenawalt, who taught at Columbia Law School for five decades, passed away at 86.
Henry R. “Harry” Lord, a former assistant U.S. attorney and Maryland deputy attorney general who was active in his state’s civic and cultural affairs, passed away at 84.

May they rest in peace.

Judge of the Week: Chief Justice John Roberts.

Another week, another controversy involving the Supreme Court. And this time it involves someone who generally stays out of trouble: Chief Justice John Roberts.

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After last week’s Yale Federalist Society event with Kristen Waggoner of the Alliance Defending Freedom (“ADF”) went surprisingly smoothly, without a repeat of last year’s disruptive protest, I wondered why. One of my sources, a current Yale Law School student who was involved in last year’s protest, shed light on this topic, in a detailed and thoughtful email (reprinted with their permission, with links added by me for clarity):

The current narrative, including in your piece, is that the free exchange of ideas has returned to campus after the tragedy of last year's event. But I think it's surprising that no commentator is questioning why students chose to not even engage in a peaceful protest. There are a number of reasons this was the case (a desire not to have the media backlash of last year being a prominent one), but I posit that there are two significant reasons, both of which have serious repercussions for free speech.

The first was the change to the Rights and Duties of the Members of Yale Law School, specifically the establishment of “Substantially interfering with the conduct of classes” and “Substantially interfering with student-sponsored or student group-sponsored events or functions” as major offenses. There are those who would cheer this one as a response to last year, but I think there are serious concerns about what these actually mean.

Does a peaceful protest holding up signs constitute “substantial interference?” How about a silent walkout during the event? Yale Law School students, as you know, are very averse to anything that would impact their careers (a very valid criticism of last year’s protests, for instance, was that the students involved were confident they had nothing to lose). And so I believe that part of what led to not even a peaceful protest occurring was concern over what these rules mean.

This concern is valid. Not knowing whether a given form of protest will trigger discipline can have a chilling effect on permissible speech. Although I was critical of last March’s rowdy protest, I have no problem with non-disruptive forms of protest.

In my personal opinion, quietly holding up signs (as long as they don’t block anyone’s view) or silently walking out of an event (at the beginning) would be acceptable. But students deserve to know in advance whether YLS administrators agree with me. Perhaps there should be a process by which students can get advisory opinions on acceptable forms of protest.

Here is the student’s second point:

But by far the biggest concern, at least from my perspective, is the doxing of students. As you are probably aware, allegedly a member of the Federalist Society sent screenshots of three students’ Instagram feeds (two of which were private) to the Washington Free Beacon, which published those images. The Free Beacon reached out to at least one of the student’s employers, and the students faced significant online threats.

Similarly, an email sent to the Outlaws listserv was forwarded to the Free Beacon in relation to this most recent event, where the student’s email signature was published (except for their pronouns, which were cropped out, and which the Free Beacon continued to misgender—just seemed like an unnecessarily s*y thing to do). Passing screenshots around has always been an issue, what with the Amy Chua-related messages being passed around.

As someone concerned about privacy, I find this abhorrent, but even more recently I have experienced firsthand the impact on free speech these shared screenshots have. I am a member of Outlaws but not publicly out to my family, and so much of how I interact in our Outlaws chat is framed in what conservative members of the group could potentially share and have a terrifying impact on my life. When members of FedSoc took a picture of the protests last year and the Free Beacon published those images, I was honestly concerned about what would happen if my family saw those images. And I know at least a couple of students who did not attend the event out of concern they could be potentially outed to their families.

Also a fair point. And I suspect that these two points, taken together, explain a lot of the difference between last year’s protest and this year’s lack of protest.

Should law students be able to protest anonymously? I view school as a period of experimentation and exploration, and one reason I have argued against holding college writings against judicial nominees is because of the chilling effect it would have. Students would be much less willing to experiment, explore, and write and say controversial things—all valuable parts of the educational process—if they felt that their words and deeds would come back to haunt them, years later.

When I was in charge at Above the Law, we had a policy of generally not naming law students involved in controversies; instead, we would come up with (often cute) pseudonyms for them (e.g., Johnny Applethief). We did this because we didn’t think it fair for a law-school controversy—often a pretty silly law-school controversy—to dominate a student’s so-called “Google footprint,” i.e., what comes up when the student is the subject of a Google search.

One of the reforms that Yale Law instituted in the wake of last year’s protest debacle was a ban on surreptitious recording. In announcing the ban, Dean Heather Gerken pointed out that it “mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.” And although the ban received criticism (from both the left and the right), one can see the logic of it. Students would be much less willing to participate in discussion, especially to voice a controversial opinion or to play “devil’s advocate,” if an out-of-context snippet of their remarks could make its way to Twitter or TikTok.

So that’s the pro-anonymity case. There’s a case to be made against anonymity, which Professor Nancy Rapoport makes in this blog post (discussing a situation in which anonymous law students filed complaints against a professor—complaints a university investigation concluded were unfounded):

[T]hese are law students who are making these allegations about this law professor. In a few years, they will be lawyers. As lawyers, they will have to sign their names to their pleadings, their drafts of contracts, and any other work product that they do. They will appear in public on behalf of others, and they will have to announce their names as they represent their clients. They will be bound by ethics rules that include the obligations to be truthful to the court and to others, and to avoid making unmeritorious claims….

How do we get people who are afraid to associate their names with their allegations to develop into lawyers who may be asked to argue in favor of controversial topics or to represent controversial people?

….

So should we train law students that they should go on the record with their names when they have complaints about the law school in order to train them for the professional jobs that they will have? I think that we should.

The three anonymous students in today’s article may sincerely fear retaliation. Law students in general now are more fearful, more anxious, and more depressed that I’ve seen in prior generations of law students, and I worry about them and their ability to thrive in a world that is nowhere near gentle. If they can’t speak up as themselves now, while they are students at a school that is trying hard to protect them from discrimination, will they be able to do their jobs as lawyers later?

Professor Rapoport is discussing a situation involving law students filing complaints with the administration about a professor. What about when students file a lawsuit?

This issue arose in the case originally known as Doe v. Gerken, filed by two then-anonymous Yale Law students against YLS, Dean Heather Gerken, associate dean Ellen Cosgrove, and diversity director Yaseen Eldik. The lawsuit is now known as Stubbs v. Gerken, since the plaintiffs’ motion to proceed under pseudonyms was denied. Judge Sarah Merriam—then of the District of Connecticut, now of the Second Circuit—wrote as follows in her ruling:

Pursuant to Rule 10 of the Federal Rules of Civil Procedure "[t]he title of the complaint must name all the parties[.]" "This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." … "Identifying parties in a proceeding is an important dimension of publicness, as people have a right to know who is using their courts." …

This result was predicted by most observers (including Professor Eugene Volokh, an expert on pseudonymous litigation). The strong default rule is that legal proceedings are public—which is why some judges are starting to push back on parties’ requests to seal records that don’t meet the (high) standard for sealing.

I’m not sure what I think about law student anonymity; I see good arguments on both sides. So I’ve made it the subject of this Notice and Comment (“N&C”) post, in which I encourage readers to opine in the comments section. I see at least three separate issues to discuss:

Should law students be able to protest anonymously—or at least without having their names showing up in news articles?
Should law students be able to file internal complaints with the administration, whether against professors or fellow students, anonymously?
Should law students be able to file lawsuits, whether against their schools or professors or fellow students, anonymously?

Please share your views in the comments to this post. If you prefer, you can also email me; if you do, I will treat your comments as okay to post in the comments on your behalf, keeping you anonymous, unless you explicitly designate them as completely off the record and for my eyes only.

As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Columbia Law School (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I usually begin Judicial Notice, my weekly legal news roundup, with a brief personal update. This week, though, I don’t have anything to report. To those of you who have complained about the personal stuff, this is your lucky week—I’m plunging straight into the news, of which there’s a good amount.

Lawyer of the Week: Alexander “Sandy” Thomas.

A Biglaw leader leaving their firm to work for a nonprofit is not something you see very often. So Sandy Thomas stepping down as global managing partner of Reed Smith to become the first chief legal officer of Kids in Need of Defense (“KIND”), a nonprofit devoted to protecting unaccompanied and separated children entering the United States as migrants or refugees, garnered significant media coverage. As he told Gina Passarella Cipriani and Dan Packel of the American Lawyer, he felt this “unexpected opportunity” was “too important to pass up,” and he’s at a point in his career when he hopes “to contribute in a different way.”

Thomas is only 56, and he’s leaving in the middle of his third four-year term as managing partner—a seemingly successful tenure, in which Reed Smith’s revenue and profit increased significantly. This led Jenna Greene of Reuters to wonder: was he possibly pushed out of the 1,700-lawyer firm? He denied that, and multiple members of firm leadership confirmed his account. According to Carol Loepere, global chair of Reed Smith’s business and finance department, “The partnership did not ask Sandy to leave the firm. This was solely his decision, and we support him 100 percent.”

James Sandman—who left Arnold & Porter in 2007 after 30 years, including a decade as managing partner, to become general counsel of the D.C. Public Schools—told Greene that he has no regrets about his own move out of Biglaw: “You can be very happy not making millions of dollars a year. If more people made moves like the one [Thomas] is making, I think law would be a happier profession.”

Congratulations to Sandy Thomas on his new role, and good luck to him as he transitions from Biglaw to public interest. His move is a salutary reminder that we’re in control of our own careers. If there’s something out there that you think you’d find more fulfilling than what you’re currently doing, and you can make it work as a practical matter (e.g., financially), then don’t be afraid to explore it.

In law-and-politics news, Donald Trump is gearing up for his third White House bid, and his lawyers are still making headlines. In the New York Times, Charlie Savage, Adam Goldman, and Katie Benner wrote about what they described as “internal dissent and ethical disputes” in special counsel John Durham’s meta-investigation into the origins of the Russia investigation. Meanwhile, the California State Bar announced that it will seek to disbar Professor John Eastman, a leading legal architect of Trump’s attempt to overturn the results of the 2020 election.

In law school news, a Columbia Law School adjunct professor went viral—and not in a good way. Check out the video:

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Tuesday’s event with Kristen Waggoner, Nadine Strossen, and Robert Post (photo by the Yale Federalist Society).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Last October, I wondered whether Yale Law School, which experienced a series of scandals relating to free speech last year, might be turning over a new leaf. The YLS administration announced several concrete steps to protect speech and improve its intellectual climate, and there were early indications that they were bearing fruit—or that things were at least settling down at 127 Wall Street. For example, leading Supreme Court advocate Kannon Shanmugam came to give his traditional SCOTUS Term Preview to the Yale Federalist Society, and he was not protested—unlike the year before, when he faced 70 vocal protesters.

But Shanmugam, one of the nicest and most reasonable people you’ll ever meet, is not exactly a lightning rod, and he was protested mainly because his law firm, Paul, Weiss, represents ExxonMobil. A much better test for whether things have truly changed at Yale would be to host an event with the Queen of Darkness herself: Kristen Waggoner, the CEO, president, and general counsel of the Alliance Defending Freedom (“ADF”), the conservative Christian advocacy group that is loathed by the legal left for its stances on LGBTQ issues, among other things. When Waggoner spoke at Yale last March, all hell broke loose: more than 100 angry protesters attempted to shout down the event, and although they didn’t succeed in shutting it down, they did disrupt it significantly.

Last September, I suggested that Yale Law School should bring back Kristen Waggoner, arguing that “if Waggoner could return to 127 Wall Street and not have to leave the building with a police escort—or even leave having had a pleasant experience—that would go a long way toward showing an improved intellectual environment at Yale.” And it looks like someone heeded my suggestion.

This past Tuesday, January 24, Kristen Waggoner returned to Yale Law, this time to discuss 303 Creative LLC v. Elenis, which she argued before the Supreme Court in December. Waggoner’s client in 303 Creative is a Colorado website designer who doesn’t want to design websites for same-sex weddings, and the case presents the following question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

303 Creative is one of the most interesting, important, and high-profile cases of the current Term, so it’s obvious why a law student group might want to host an event with one of the lawyers who argued it. In other words, I don’t consider the invitation to Waggoner to be “trolling” by the Yale Federalist Society, i.e., something done for the sole purpose of antagonizing the left.

In addition, Yale FedSoc arranged for Waggoner to be joined by two other speakers: Professor Nadine Strossen of New York Law School, who served as president of the American Civil Liberties Union from 1991 to 2008, and Professor Robert Post of Yale Law School, which he led as Dean from 2009 to 2017. Professors Post and Strossen are two of the nation’s leading scholars of the First Amendment, so an event featuring them plus Kristen Waggoner is impressive. Given my longstanding interest in the First Amendment and free speech, I would have wanted to attend myself, had it been open to the public.

So how did Tuesday’s YLS event with Kristen Waggoner go? In a word, swimmingly—which might surprise or even shock people who are used to associating the words “Yale Law School” with “free-speech debacle.”

More than 100 people attended the panel, which took place in Room 127, the largest classroom at YLS—and the site of last year’s rowdy protest. But this time around, things couldn’t have been more different, as reported by Aaron Sibarium of the Washington Free Beacon (who doesn’t pull his punches when it comes to Yale Law):

The event on Tuesday appears to have gone without a hitch. Nadine Strossen, the former president of the American Civil Liberties Union, joined Waggoner, the president of the Alliance Defending Freedom, for what was by all accounts a cordial, well-mannered discussion of First Amendment law. Students exiting the event said there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions.

“There was not even a peaceful protest,” Strossen told the Free Beacon.

I spoke yesterday with Robert Capodilupo, president of the Yale Federalist Society, and he confirmed that Tuesday’s event proceeded smoothly.

“We were very pleased to be able to host a conversation on this important case without any disruption or issues,” Capodilupo told me. “It was great to hear arguments on all sides of this issue presented by some of the legal world's leading First Amendment experts and to see so many students thoughtfully engaging with these ideas in good faith.”

Although there was no on-site protest of the 303 Creative event, critics of Waggoner and ADF were able to say their piece and make their views heard. On Monday, OutLaws, the LGBTQ student group at YLS, held an event of its own: a panel about the rise in right-wing violence against trans and queer people, featuring David Dinielli, a visiting clinical lecturer at YLS who previously worked on LGBTQ rights at the Southern Poverty Law Center, and Ryan Thoreson, a YLS alum who is now a specialist in the LGBT rights program at Human Rights Watch. This also sounds like an excellent event, which I would have wanted to attend—and I understand that several FedSoc members attended the OutLaws event, just as several OutLaws members attended the FedSoc event.

The ability to hold a “counter-event” like the one OutLaws hosted on Monday is why I never bought the argument that banning shout-downs means banning protest, or that people who oppose shout-downs simply want to squelch dissent. Holding an event offering views you espouse, at or around the same time as an event offering views you condemn, is a principled, productive form of protest. This is exactly how the marketplace of ideas is supposed to work.

There was one minor kerfuffle involving Tuesday’s event: members of the press were not allowed to attend, which wound up excluding Aaron Sibarium of the Washington Free Beacon, and he wrote an article about it. If I were in charge, I wouldn’t have excluded Sibarium, and I agree with Nadine Strossen that it was ironic to exclude the press from an event about free speech.

That said, the success of the event is far more important than the fact that one member of the press couldn’t attend. And there’s an argument to be made that the event might have turned out differently if attendees felt it was FedSoc ginning up a controversy for purposes of media coverage, as opposed to a genuine attempt to foster civil discourse at YLS about important issues.

So what explains the difference between last year’s event, which was a circus, and this year’s event, which was a success? There are lessons to be had for both student organizations and law school administrators.

Some credit should go to the Yale Federalist Society, which started preparing for this event far in advance. Last November, FedSoc officers met with Yale Law School Dean Heather Gerken and Dean of Students Jennifer Cerny, informing the deans of their desire to host an event with Waggoner. Deans Gerken and Cerny assured FedSoc that it would have the administration’s full institutional support.

Dean Gerken put the FedSoc officers in touch with Professor Douglas NeJaime, the faculty adviser to OutLaws, who told the FedSoc folks that he too did not want a repeat of last March. Professor NeJaime in turn gave a heads up about the Waggoner event to the officers of OutLaws, which gave them enough time to put together their own counter-event on Monday. Professor NeJaime and several members of OutLaws also attended the FedSoc event on Tuesday, where they asked thoughtful questions of the panelists in a respectful manner.

It’s also significant that the Yale FedSoc event featured Professor Post as moderator—an active moderator, who provided his own views as well. Having a prominent faculty member and former dean involved in the event was another sign of the YLS faculty and administration’s support for robust discourse about controversial subjects. At some other law schools, FedSoc officers have a hard time getting faculty members to participate in events because professors are afraid of criticism from the left for “legitimizing” the Federalist Society.

Finally, shortly before the event, FedSoc officers met with Associate Deans Debra Kroszner and Mike Thompson, to discuss how to handle possible protesters—a discussion that wound up not being necessary, but was still a good one to have had. So significant credit for Tuesday’s successful event must be given to the Dean Gerken and the Yale Law administration as well; without their strong support, it could have turned out very differently.

In light of these and other recent developments at YLS, I wondered: should federal judges stand down on their boycott of Yale Law in terms of clerkship hiring? I reached out to Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.) to check in on the status of the boycott, but have not yet heard back.

As you might recall, Dean Gerken invited Judges Ho and Branch to speak at YLS about issues of free speech and intellectual diversity. That event, originally scheduled for January, has been rescheduled to March—so perhaps the judges are waiting to see what kind of reception they receive before officially lifting their boycott.

Critics of YLS would probably also note that the faculty is still sorely lacking in intellectual diversity, without a single conservative professor of public law, e.g., constitutional law. It’s possible that Judges Ho and Branch might want to see some movement on faculty hiring as well before declaring themselves satisfied that Yale Law is fully reformed.

So it might be premature for defenders of free speech and intellectual diversity to declare victory at YLS. But at least there’s now reason for cautious optimism from folks who care about these values—and who care about Yale Law School.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Jeh Johnson, currently co-head of the Cybersecurity and Data Protection practice at Paul, Weiss, Rifkind, Wharton & Garrison, has had a truly remarkable career in law and public service. Over the past four decades, he has gone back and forth between Paul Weiss, one of the nation’s leading law firms, and the federal government. He has served as an Assistant United States Attorney for the Southern District of New York (1989-1991), General Counsel of the Department of the Air Force (1998-2001), General Counsel of the Department of Defense (2009-2012), and finally, Secretary of Homeland Security (2013-2017).

I first met Jeh (pronounced “Jay”) Johnson when he was GC of the Department of Defense (“DoD”) and I profiled him for Above the Law. At the time, he told me he thought it would be his last position in public service. But President Barack Obama had other ideas: in 2013, he asked Johnson to join his Cabinet as Secretary of Homeland Security. From December 2013 until January 2017, Johnson led the Department of Homeland Security (“DHS”), a sprawling agency with some 22 components and 230,000 employees, and helped keep the United States safe.

Remembering fondly our 2011 conversation, and eager to hear about his time as a Cabinet official, I reached out to Secretary Johnson late last year to invite him on the podcast. He kindly agreed, and in our conversation last month, we discussed everything from his being an academic “late bloomer”; what he’s most proud of from his time in public life (interestingly enough, not a specific success like the Osama bin Laden operation or the repeal of Don’t Ask, Don’t Tell); and his advice on mentorship (specifically, how to be a good mentee).

My timing for posting this episode turned out to be excellent: just yesterday, DHS unveiled Secretary Johnson’s official portrait, a tribute to his service to the Department and to the nation. Congratulations to Secretary Johnson on this honor, and thanks to him for his long and dedicated service to our country.

Show Notes:

Jeh Charles Johnson bio, Paul, Weiss, Rifkind, Wharton & Garrison LLP
DHS Unveils Secretary Jeh Johnson Official Portrait, U.S. Department of Homeland Security
An Afternoon With Jeh Johnson, General Counsel of the Defense Department, by David Lat for Above the Law

Prefer reading to listening? A transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Then-Secretary Jeh C. Johnson, ringing the opening bell at the New York Stock Exchange in October 2015 (photo by Andrew Burton via Getty Images).Two quick notes:

This transcript has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.
Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

You’re listening to the tenth episode of this podcast, recorded on Tuesday, January 10. I post episodes every other Wednesday.

My guest today is Secretary Jeh Johnson, who served in the Obama Administration as the fourth U.S. Secretary of Homeland Security, from 2013 to 2017. His service as DHS Secretary was the capstone to a long and distinguished career in public service, which included serving as General Counsel of the Department of Defense, General Counsel of the Air Force, and an Assistant U.S. Attorney for the Southern District of New York. He has gone back and forth between government service and Paul, Weiss, one of the nation’s leading law firms, where he today serves as co-head of the Cybersecurity and Data Protection Practice. He has received numerous awards and accolades over his long career, as well as 12 honorary degrees.

This was actually not my first interview of Secretary Johnson, whom I profiled back in 2011 when I was still at Above the Law. I went down to D.C. to interview him at the Pentagon, back when he was general counsel to the Department of Defense, and interviewing him was a highlight of my years at Above the Law. At the time, he told me he thought that serving as GC of the Defense Department would be his last stint in public service—but that was before President Obama asked him to serve as Homeland Security Secretary.

Of course I wanted to hear about his life and career in the decade-plus since our last interview, including his service as a Cabinet officer. So I reached out to Secretary Johnson late last year to invite him on the podcast, and I was thrilled when he agreed.

Without further ado, here’s my interview of Secretary Jeh Johnson.

DL: Secretary Johnson, thank you so much for joining me. I’m honored to have you on the podcast.

Jeh Johnson: David, I have always enjoyed our discussions and your interviews. So when you emailed me to ask for this, I was happy to accept.

DL: Since we last spoke, you have had a new role, of course, serving in the Cabinet as Secretary of Homeland Security. But to go back to the beginning, can you tell us a bit about what your childhood and upbringing were like? I understand that maybe you were not an overachiever in your early educational career?

JJ: To say I was not an overachiever is an understatement. I was in high school a D and C student. A C was a gift in my house. When I brought home a C on my report card, I felt like I had a reprieve until the next semester. I was not motivated academically. I lacked role models except for my immediate family.

I was convinced that I was destined to be the left fielder for the New York Mets, therefore I didn't need to study. And so you're talking to someone, David, who has today 12 or 13 honorary degrees, but never successfully completed beyond tenth grade math. I took ninth grade math in ninth grade and flunked it. I retook ninth grade math in tenth grade. I took tenth grade math in eleventh grade, and I took eleventh grade math in twelfth grade and flunked the New York State Regents.

Somehow I got into college, and I started to excel my sophomore year at Morehouse College. Morehouse College was an inspiration for me. When I came in, I started as a D student, and I left an A student.

DL: You did have a very distinguished academic background in your family. I believe your grandfather was president of Fisk [University]. What do you think explains why you were a late bloomer?

JJ: That's a good question. Sometimes—and I tell this to younger parents—sometimes it takes a decade for your children to finally hear you. My education was a huge value in my father's family, and it was something very important to my mother's family—my mother's work ethic, her family's work ethic, their school ethic. It used to really drive my mother crazy when I was such a C or D student.

But then as I got older, I inherited their value set, and I'm pretty much as they are today, and I'm probably imposing it on my kids. So sometimes it takes a long time to finally hear the messages that your parents conveyed to you.

I was indeed a late bloomer, and though my family was of a certain background, we lived in upstate New York in a predominantly white community, so I was not surrounded by lots of extended family. It wasn't until I got to Morehouse College that I really began to see my own full potential. And it was at that point when I began to think about law, public service, as a career.

DL: I'm curious, since this is definitely a topic in the news with, of course, a lot of debate over higher education and things of that nature: what role did Morehouse play in helping you become the success that you are today, and did it have anything to do with Morehouse being an HBCU [Historically Black College and University], or do you think that wasn't really relevant?

JJ: I think it had everything to do with the fact that Morehouse was an HBCU. For context, we're talking now mid-1970s, and my father—you mentioned my grandfather was president of Fisk, and my father grew up on the campus of Fisk University, an HBCU in Nashville, Tennessee—he had the idea that it would be good for me, given where I was in school as a 17-year-old in a predominantly white community in upstate New York, to spend four of my formative years at an HBCU, and it's one of the best decisions my parents ever made on my behalf.

I went to Morehouse, and ambition is contagious there, surrounded by other Black men of purpose, ambition, drive, energy. When I got to the campus of Morehouse in 1975, the most famous graduate of Morehouse College, Martin Luther King, class of 1948, had been dead for only seven years. There were members of the faculty at Morehouse in the 1970s who had taught him in the 1940s. Martin Luther King III was in my class. Martin Luther King Senior would preach sermons at Morehouse, and it was impossible to not become inspired in that environment.

And the other thing about Morehouse in that period, in the late 1970s, when I got there, was it was still pretty much a Southern Baptist school, and the student body was represented principally from the states of Georgia, Alabama, and Mississippi. By the time I left in 1979, it turned out that a whole lot of other Black families had the same idea my father did. And so the student body at Morehouse became a national student body, and the parking lot was filled with cars with license plates from California, Washington DC, New York, Massachusetts, Illinois, Michigan. It had become a national school because at that period, parents were realizing that “maybe an HBCU would be right for my son,” and it was certainly right for me—not right for everybody, but certainly right for me, given where I was at that stage of my development. It's one of the best things I ever did, and a lot of who I am today I credit Morehouse College.

DL: You mentioned earlier that it was during your years at Morehouse that you developed a possible interest in law as a career?

JJ: Correct. Everybody has a moment when they have their political awakening. Though I was a lackadaisical student, the year of my political awakening was 1968, when I was 10 going on 11. A lot happened in the year 1968. It was a very consequential year: Vietnam, the Tet Offensive, the King assassination, the Robert Kennedy assassination, LBJ withdrawing from the race, the riots at the Democratic Convention, the election of Richard Nixon. It was a presidential election year. I was fascinated by all of it, culminating in Apollo 8, the first men to orbit the moon, in December of 1968. So I became aware of the larger world around me, and I realized a few years later that I thought I wanted to be part of it, either by going into politics or public service.

Law seemed to be the best vehicle for doing that, so I developed an interest in law school while I was in college. I thought I wanted to go into politics. By the time I left Morehouse and got into Columbia Law School, Biglaw also became a fascination of mine. And so by the time I finished law school, I had these twin objectives of going into public service and going to a big law firm, and the firm that I knew about, from this article your audience can't see when I'm holding up and showing you [on Zoom], but it's a New York Times story from 1976 about this law firm, Paul, Weiss, Rifkind, Wharton, & Garrison.

It's a profile of Paul, Weiss. My father knew I was becoming interested in law school. I was home from college on Christmas break my sophomore year, and he showed me that article, and it was a story about a law firm that was involved in Democratic Party politics and that had these celebrity clients and celebrity partners.

And the one line in this article, David, that I read then 46 years ago and never forgot—first impressions are often unshakable—was this line: “On many levels—the celebrity of its clients, the high proportion of government officials and agencies it has represented, and the frequency with which its partners move in and out of government service—Paul, Weiss is as close as any New York City law firm to the public consciousness.” That was my first impression of this law firm long before I ever set foot here, and that has been the standard to which I’ve held this firm, and looking back on it, this has been the model for my own career as a Paul, Weiss lawyer.

DL: I totally agree with your description of Paul, Weiss. I think it in some ways has a very “DC” approach to these things. I feel that DC firms really value public-sector and government experience, but it seems that a lot of law firms in New York have this approach of basically hiring so-called “lifers” where they pick 'em up as summer associates, they become partner, they spend their whole career there, and so I don't really know if many New York law firms have the approach that Paul, Weiss does to valuing public and government service and having people like yourself who have done multiple stints in the firm, and then out of the firm.

JJ: That is probably true, and as you know as well as I do, David, the legal market has changed a lot since I got out of law school in 1982. And you're right, we are not a Washington law firm, though we now have a very active and busy Washington office that consists of people who've been in government service.

You know, my model for being a New York lawyer is Cy Vance or Ted Sorensen, people who were in government in Washington, and I have, I think, a Washington-style practice today, though I'm very much a New Yorker. I couldn't wait to return to New York when I left Secretary of Homeland Security. I was born in New York, I'm a native New Yorker, I consider this my home.

DL: You've had an amazing array of jobs in both the private practice world at Paul, Weiss, where you were an associate and then a partner, but also in government. You were Secretary of Homeland Security, as noted earlier. You were General Counsel to the Defense Department, which is when I previously interviewed you. You were General Counsel to the Air Force. Those are all PAS positions [Presidential Appointments requiring Senate confirmation].

What would you say of your long career is the position that you found the most interesting or fulfilling or enjoyable? People would probably guess being a Cabinet member, but sometimes people with long and interesting careers have special affection for something they did early on?

JJ: That's exactly right. First, it's interesting to note that two of the four jobs I had in government service I did not see coming, I did not anticipate.

My favorite job of the four in public service was being an Assistant United States Attorney in 1989, 1990, 1991. When I was a young lawyer, an associate at Paul Weiss, my mentors here, Arthur Liman, had been an Assistant U.S. Attorney, he was at Paul Weiss, he left and returned, and I wanted to do the same thing. I was anxious to get into court. I was anxious to learn how to try cases. I was anxious for some autonomy and some independence, and I went downtown in 1989, hired by Rudy Giuliani…

DL: Hmm.

JJ: … and I loved the job. In three years, I tried 12 cases and argued 11 appeals before the Second Circuit. I learned the inside of a courtroom. I learned criminal law. I got to represent the government. I got to do good, so to speak, and had a lot of independence. I developed some wonderful relationships with people in law enforcement. One of my best friends today is a retired New York City police lieutenant who I met when I was an AUSA. He came to work for me at DHS years later. So that was my favorite job.

The most—I want to use the right word, I won't say consequential, but the most demanding job—I won't even use the word demanding. I would say that the job of being the senior legal official for the whole Department of Defense in the first Obama term, it was a very consequential moment to be in that job at that time. Seven years after the 9/11 attack, the Obama Administration had determined we wanted to reframe the legal thinking around going after Al-Qaeda and other terrorist groups. And so the job of general counsel of the Department of Defense (“DoD”) was certainly the most intellectually challenging job I had, and it was an important moment to be there.

We got [Osama] bin Laden on May 1st, 2011. We pushed through Congress the repeal of Don't Ask, Don't Tell. We did a lot of legal thinking about the detainees at Guantanamo, some of whom are still there, as you know. So it was in a very important time to be in that role, and very often I found myself at the focal point. Being a political appointee in the Pentagon, I found myself at the focal point between where the Obama Administration wanted to go in national security and where the military wanted to go in national security, and sometimes the two were somewhat different, and it was my job as the lawyer to kind of forge consensus, find consensus, and arrive at something that represented a strong, solid national security position that protected our interest and our security consistent with President Obama's agenda.

The job of Secretary of Homeland Security I did not see coming. I had left DoD in 2013 and the President eight months later asked me if I would be Secretary of Homeland Security. I was shocked, amazed, surprised. I didn't see it coming. That was a very big job. The Department of Homeland Security (“DHS”) has 22 components, 230,000 people, so there the job fundamentally was being a leader and a Cabinet officer. Some legal thinking very definitely went into it, but that job, you're on defense—the goalie, so to speak. One failure equals a thousand successes, and nobody notices the successes—they all notice the failures. So I was very much on the defensive team in that job. And yes, it was fun being a Cabinet officer. I can't say I enjoyed the job. It was demanding. It was the high point of my professional life. Not sure I'd ever want to do it.

DL: Well, actually, I wanted to ask you, your name was also floated for various roles in the Biden Administration. Did you seriously think about doing another term of duty in government under the current president?

JJ: I will tell you that President-elect Biden interviewed me for the job of Secretary of Defense during the transition. It was a Zoom interview—a virtual interview with the President-elect of the United States, it was a little weird. He was sitting at his home in Delaware and I was at my home in Montclair, New Jersey, in November of 2020.

He ultimately decided to pick Lloyd Austin, who happens to be a good friend of mine. And sometimes, if you understand what I mean by this, sometimes the stars are not aligned. It was just four years after we had left Washington, and I wasn't really ready to go back to Washington. I was just getting resettled into private life. I have a good life now.

So was I disappointed that I didn't get to be Secretary of Defense, which would've been the culmination of a public service career? Yeah, but for a couple of weeks. And maybe the job I had already was the culmination of a public service career, and I'm good with that. Sometimes you can overstay your welcome in Washington, in public life. So yeah, I was considered for that job, and you know, these things are so circumstantial that I didn't feel like it was a lost opportunity.

It's interesting, your service as Secretary involved you addressing a number of issues, which I think persist to this day. Certainly there are issues about national security, there are issues about immigration, issues at the border.

Let me ask you two questions. The first is, what accomplishment from your time as Secretary are you most proud of? And then the second question I would ask, forgive the compound question, is what advice would you give the current Secretary of Homeland Security if you could right now?

JJ: Well, the job, first of all, is different than it was when I was in office seven, eight years ago. The current Secretary was my Deputy Secretary, Alejandro Mayorkas. The job is different. The immigration problem is much bigger than it was. The number of apprehensions on our southern border my second year in office is the equivalent of what you'd get in six to eight weeks on the southern border now. The entire year, 2015, it's the equivalent of six to eight weeks now. So that issue is a much bigger problem.

The thing that I am probably most proud of is not one particular success like being involved in planning for the bin Laden operation or the repeal of Don't Ask, Don't Tell, not one big policy success, but I spent a lot of time on management reform, making the Department function better, and it's that the Senate gave me in the confirmation process was to improve the morale within that Department, which I did, finally, my last year of office.

I did all sorts of things to improve morale. I was determined to improve morale at DHS if it killed me. And according to the FEVS survey, the Federal Employee Viewpoint Survey, we raised morale a whole three percentage points my last year in office, which is a significant movement for an agency of 22 components and 230,000 people that include the Border Patrol, TSA, FEMA, Secret Service. To move a big mountain like that was no small feat, and I did everything. I literally one day went to BWI Airport and played Undercover Boss and put on a TSA uniform and worked the line with TSA officers and went out on Twitter, and they all loved it. It was part of my effort to improve morale. I got on horseback with the Border Patrol in the southern border, I put on a customs uniform and went to the port of Baltimore, just to be with the employees and the workers and just be very visible.

Incidentally, for your audience, lawyering is not a skill that translates easily into leading. We lawyers, we like to master a problem, we have to learn everything about a problem as well as the client does. When you're the leader of a large organization, you have to learn to delegate and learn certain traits that don't come naturally to those of us trained as lawyers, like being visible, like the art of simple, straightforward communication, learning to repeat yourself 26 times over and over again.

You asked me what advice I'd have for DHS today. Sometimes you have to repeat yourself dozens of times before anybody will listen, before anybody will finally say, “You know what? The Secretary of DHS says that illegal migration on our southern border is a problem much smaller than it used to be, 20 years before.” And that was true when I was in office, and I repeated it over and over and over again, and finally even the conservative media began to run the story because they had to, because I kept repeating it. And so sometimes the essence of the job is repeating over and over again one simple, straightforward message that you want people to hear.

DL: So hopefully Secretary Mayorkas or one of his colleagues will hear this, but I'm guessing you probably communicate with him already….

Doubling back to your service as General Counsel for the Defense Department, which you mentioned was a very impactful role, your service there was very successful, and I think it's partly why you were confirmed by such a large margin, even in a very partisan age, to serve as Secretary of Homeland Security. But your decisions regarding targeted killings definitely generated a lot of controversy. Do you still adhere to your views on that issue? Has your thinking changed in any way since then?

JJ: I pretty much believe now what I believed then. Through evolutions in our technology, in our capabilities, we are able to reach an objective, a target, with minimal to no collateral damage—whereas generations before in warfare, if you wanted to take out a certain objective, you'd have to take out a whole city block, or a whole neighborhood, or a whole factory, or a whole plant.

Now through—you used the phrase targeted killing, I would say targeted lethal force—now because of the precision rate of our weapons, we're able to focus solely on the objective through drone strikes, missiles. Targeted lethal force is not limited to just unmanned drones, by the way. It could be a missile, it could be something dropped from a fighter jet. What makes people uneasy, in my view, in my observation, about drone strikes, is that no one is putting themselves in harm's way, like a Special Forces operation on the ground, like the bin Laden operation. The pilot can be half a world away. No one's putting themselves in harm's way in this type of warfare, and this is, I think, the real concern. It could be, in the wrong hands, a convenient substitute for law enforcement, to take out an objective, a terrorist, who's wanted in multiple jurisdictions, in a remote area where he can't be arrested or captured. In the wrong hands, that could become an expedient substitute for bringing someone to justice in a courtroom, and we have to be careful to not let that happen.

But do I adhere to the view that this type of counterterrorism is effective? Yes, absolutely. And I know for a fact that we made our homeland safer through this form of counterterrorism. When I was in office, we were dealing with an unconventional enemy that did not adhere to the laws of war, and my determination was that we apply traditional legal principles to an untraditional, unconventional type of combat, and that through that we'd have the most credibility and the most sustainability in terms of how we thought about this. And I continue to believe that today

DL: I think that's a very logical and persuasive defense. Are there any issues during your long career in public life where you've changed your mind since your time in office, whether it was as Secretary or as General Counsel to either of the departments?

JJ: Only with the benefit of hindsight. Hindsight is brilliant. I was in 2009, the first year of the Obama Administration, probably the principal proponent of the military commission system at Guantanamo. Let's reform the system, make it better, but let's not throw it out entirely. The JAG community in the military was very much supportive of that, and I listened to them. I was persuaded by them. They were very committed to the system, if we could improve it. Had you told me then, in 2009, that not a single one of these cases has gone to trial, I would've had a different view. But I could have known that only if I had a crystal ball.

There are many things that we decided, that I decided, that I supported, that of course with the benefit of hindsight, I might have thought differently of, but on the most difficult issues that I wrestled with, I remember very clearly what the circumstances were at the time, and to this day feel comfortable that given the circumstances at the time, given what we were wrestling with at the time, we came out the right way.

DL: It makes, again, perfect sense, and it’s very understandable.

I am interested in finding out from you, on behalf of listeners who are interested in the kind of career in public and government service that you've had, how important is it for lawyers, whether young or not-so-young lawyers, to get involved in politics?

You mentioned earlier that you were somewhat interested in politics as well as law. You were involved in the Obama and the Kerry campaigns. If somebody wants to have a PAS position in an administration, how important is it for them to be a bundler, to be a fundraiser? Some people are very uncomfortable with that type of political activity. They see it as maybe “icky” or something. But do people who want to serve at the highest levels of government perhaps need to get their hands dirty, so to speak, and get involved in electoral politics?

JJ: I wouldn't necessarily call it getting your hands dirty, David. I was very involved in the Obama campaign of 2007, 2008. Yes, did I raise money? Absolutely. Did I give money? Absolutely. But I also was a lawyer for the campaign. I was a delegate at the convention. I canvased door to door in West Philadelphia, in Northwest Des Moines, Iowa, in advance of the Iowa caucuses. I did all sorts of things, and it was an exciting thing to do for a very exciting, historic campaign.

Without a doubt, being involved in someone's campaign is a pretty safe ticket to being involved in that person's administration if they win. But there are plenty of people who populate the Biden Administration, for example, who were not involved in his campaign. There were plenty of people in the Obama Administration who were not involved in his campaign.

When young lawyers come to me and ask me the question you just asked, I say, very often you can get a start in public service by working on Capitol Hill, or on congressional staff for a committee or for an individual member. You can start off in a very junior position and work your way up, without seeming to have your eye on the next job above—just do the best job you can at the time, and just be persistent. Don't give up. I know plenty of associates at this law firm who are in public service today that I've helped get them there, who tried one thing, didn't get it, tried again, then got it. So be persistent.

And the other thing I'll say, David, is—and I suspect many in your audience are involved in private law practice—there's a whole other aspect of the legal profession, people who are career public servants. Let me tell you about one who retired last week, Paul Koffsky. Paul Koffsky for 28 years was the Deputy General Counsel of DoD for Personnel and Health Policy. It was an SES-level [Senior Executive Service position], which is like a super-bureaucrat, not political at all. I couldn't tell you what Paul Koffsky’s politics are. He has served as Deputy GC of the Defense Department through multiple administrations. I couldn't tell you how he votes, I couldn't tell you his politics, but he’s probably the nation's expert on the Vacancies Act, on military-personnel legal issues. He retired last week and from a career filled with remarkable and remarkably consequential achievements. He probably makes the same thing as a third-year associate in this law firm, and he leaves federal service with a remarkable career, lots of awards, medals, and plaques, and I'm sure would do it all over again if he had the chance.

DL: This actually goes to something we were talking about before we started recording. To any government lawyers out there listening, I would love to have some career government lawyers on the podcast too. Feel free to reach out to me.

Before we shift to my final questions, which I give to all my guests, I don't want to give short shrift to your time at Paul, Weiss. How would you describe your current practice, the types of clients you're dealing with, the types of issues you're confronting? How would you describe what you're currently doing?

JJ: Growing up at Paul, Weiss and through much of my career at Paul, Weiss, I was a trial lawyer, stemming from my days as an Assistant U.S. Attorney when I learned how to try cases, so I used to try lots of cases. Now, at this chapter, since 2017, when I returned, I’m more advice. Our client base has also changed. It's more high-tech now. So I spend a lot of time advising clients, many of whom are in the high-tech space, about government relations, cybersecurity, crisis management, crisis response. One of the interesting things about law practice at this level is that it tends to bleed into other things that are not strictly law, like consulting or communications or crisis management or cybersecurity.

And so that's what I do now, in addition to a lot of extracurricular things, which you might be interested in. I serve on the board of directors of two public companies. I serve on the board of trustees and the board of directors of several not-for-profits. I lend my public voice on TV once in a while, and speeches and podcasts and lectures. I make a point of being on MSNBC and Fox and a lot in between, so I reach a large audience with my points of view.

And then last but not least, I have a radio show, on WBGO 88.3 FM in Newark. It's a public radio station, and I've been a big supporter of the station for years and years. Finally, the station manager said, “How would you like to have your own radio show?” And I said, “Fine. What should we call it?” He said, “I don't care, as long as it ends with the words ‘With Jeh Johnson.’” So once a month on Saturday mornings, 8 to 10 a.m., you can hear All Things Soul with Jeh Johnson.

I play classic R&B ‘cause that's the music I love. I bring my own playlist, and I have one interview per show. My debut show, I interviewed former President Bill Clinton. He agreed to be on my show to talk about his love of the saxophone. Most recently, for MLK Day weekend, I interviewed Andrew Young, 91 years old, one of Dr. King's closest friends and allies in the civil rights movement. I've interviewed Afghanistan combat veterans, Henry Louis Gates, I have a lot of fun doing that. So particularly at this stage of a legal career, it's always good to have hobbies and extracurricular activities to keep it interesting.

DL: I could not agree more, and now that I'm your neighbor in northern New Jersey, I will be sure to tune in to your show on Saturday mornings.

My final four questions are standardized for all guests. And my first is, what do you like the least about the law? And this can either be the practice of law or it can be law as that abstract system that orders our affairs.

JJ: Diaries.

DL: In what sense?

JJ: Timesheets.

DL: Ah, yes, exactly!

My second question: what would you be if you were not a lawyer?

JJ: I would be a subway motorman.

DL: Huh? Oh, you're holding up a sign for the number seven line, which goes between Manhattan and Queens.

JJ: I love trains, trains are my hobby, another one of my hobbies. If I had to be somebody other than a lawyer—lawyer would be my first choice—I would be a subway motorman, or an engineer. Your listeners can't see it, but that's my train set.

DL: Oh wow. That's amazing. I actually thought it was real footage of [an actual] train. Wow. You keep that at your home or office?

JJ: My basement. Yes. So HO-scale trains are one of my hobbies. I'd love being a subway motorman, particularly on an elevated line like the number 7 train into Queens.

DL: Oh, interesting. I remember in our earlier interview, in addition to radio and trains and music, you mentioned gardening. Do you still garden?

JJ: I still garden, though not as much as I used to. I've had to turn it over to the professionals, although once or twice a year I do get out with my shovel and plant some rose bushes. But yes, that's another hobby.

DL: In light of all your hobbies and all your boards that you serve on and your busy law practice and your media interviews, my third question is, how much sleep do you get each night?

JJ: I haven't slept well since I was Secretary of Homeland Security. You talk to the current Secretary of Homeland Security and ask him, “Did I wake you?” “No, I never sleep.” So I haven't slept well for a long time. Hopefully that'll change.

DL: So four or five hours a night?

JJ: Oh, it varies. Four or five is… optimally seven, but that's optimal. Sometimes it's four or five, which means I'm in for a bad day. Optimally, seven.

DL: And my final question: any words of wisdom for listeners who look at your life and career and say, I want to be Secretary Johnson?

JJ: Well, you asked me what I like least about the law. One of the things I like most about the law is the opportunity to mentor younger lawyers and law students to encourage them and show them the virtue of having a career in both private law practice and public service.

Advice I'd give is a good mentor-mentee relationship requires that you have a good and committed mentor, and a good and committed mentee. Lots of people don't know how to be mentees. Sometimes it requires being persistent, knocking on the door of the mentor, making yourself visible. You don't disappear into the wind, and you bring to the mentor some very specific ideas of where you'd like to go, so that he or she can help you.

Everyone needs a mentor. I've had several mentors in my career, and to make that relationship work effectively requires work on both sides of the equation. That's the best I'd advice I could offer.

DL: That's excellent advice. I think many people are very focused on just finding a mentor, but then they don't put in the work necessarily once they have that mentor, and it is a two-way street. So I think those are very wise words.

So again, Secretary Johnson, thank you so much for joining me. I am so grateful for your time, your insight, and I know my listeners will view this as a real treat.

JJ: All right, David. My pleasure. Good to talk with you.

DL: Thank you to Secretary Johnson for joining me. It was an honor and a pleasure to speak with him, and I hope you enjoyed and drew inspiration from this interview, as I certainly did.

Thanks to NexFirm for sponsoring this Original Jurisdiction podcast. NexFirm has helped many attorneys to leave BigLaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

The next episode of the podcast should appear two weeks from now, on or about Wednesday, February 8. Until then, may your thinking be original and your jurisdiction free of defects.

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Former federal judge Katherine Forrest, speaking at Claremont McKenna College in April 2020 (screenshot via YouTube).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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I had a busy week—in a good way. On Tuesday, I was a guest speaker at a Cardozo Law class, “How Judges Decide.” On Wednesday, I participated in a panel at the annual meeting of the New York State Bar Association (“NYSBA”), focused on what happens when the attorney-client relationship breaks down. On Thursday, I had the pleasure of attending a great New Year’s party hosted by LexFusion and Priori, attended by a “who’s who” of legal tech.

I was quoted in two news articles: the NYSBA panel was written up by Jane Wester in the New York Law Journal, and my tribute to Will Consovoy was quoted in his Washington Post obituary by Emily Langer. My co-host Zach Sandberg and I also recorded a great new episode of Movers, Shakers & Rainmakers, featuring the inspirational Layli Miller-Muro. She founded the Tahirih Justice Center, which has helped more than 30,000 immigrant survivors fleeing gender-based violence.

Now, on to the news.

Lawyers of the Week: the attorneys suing MSG Entertainment for booting lawyers from MSG venues.

In last week’s Judicial Notice, I wrote about how MSG Entertainment is using facial-recognition technology to bar lawyers from its venues—specifically, lawyers who work for firms with pending lawsuits against MSG, whether or not those lawyers are personally working on the MSG matters. This struck me as pretty repugnant, although not necessarily illegal.

But you can’t keep a good lawyer down—or out, as the case may be. As reported by my former colleague Kashmir Hill for the New York Times, lawyers at three different law firms have dusted off a 1941 New York law that prohibits “[w]rongful refusal of admission to and ejection from places of public entertainment and amusement.” The law was originally passed to protect theater critics who were being barred from shows put on by producers whose previous productions the critics had panned. But lawyers are experts at finding new applications for old laws, and so far, their strategy is working: they have secured preliminary injunctions allowing them to attend a variety of shows at MSG venues. Good on them.

Runner-up for Lawyer of the Week is another ingenious advocate, Massachusetts immigration lawyer Rachel Self. Remember the 49 mostly Venezuelan migrants that the administration of Governor Ron DeSantis (R-Fl.) flew from Texas to Martha’s Vineyard, in what DeSantis critics decried as a cynical publicity stunt to play up the border crisis for political gain? Working together with Javier Salazar—the sheriff of Bexar County, Texas, who is looking into possible violations of law related to the migrants’ treatment—Rachel Self has gotten them “U visas,” available to crime victims to allow them to assist authorities investigating illegal activity. As a result, they will be able to remain legally in the United States for at least the next few years—surely not what Governor DeSantis intended when his people put those migrants on a plane.

In law-student news, Jordan Marshall Taylor, 29, a 1L at CUNY Law, has been missing since January 6. If you have any information about his whereabouts, please call the NYPD at 800-577-8477.

In memoriam: leading antitrust lawyer Stephen Neuwirth, who chaired the worldwide Antitrust and Competition Law practice at Quinn Emanuel, passed away at 60 from pancreatic cancer. May he rest in peace.

Judge of the Week: Justice Hector LaSalle.

In the judicial world, the big news was the (inconclusive) SCOTUS legal investigation, which I analyzed at length on Friday. Please note the update appended to my story; the justices were questioned as part of the investigation (although they weren’t asked to submit affidavits or turn over personal devices, it seems).

After that, the week’s major story, at least here in the New York metropolitan area, was the New York Senate Judiciary Committee’s rejection of Justice Hector LaSalle, Governor Kathy Hochul’s nominee to serve as Chief Judge of the Court of Appeals, i.e., New York State’s top judge. Although Democrats control the Committee and Governor Hochul is a Democrat, Justice LaSalle was voted down, 10-9. Per Politico, this is ”the first time New York lawmakers have denied a gubernatorial nominee to the state Court of Appeals under the current system that started in the 1970s.”

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The Supreme Court of the United States, July 2022 (photo by David Lat).Yesterday afternoon, the U.S. Supreme Court issued its eagerly awaited report on its investigation into last May’s historic leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and sent abortion back to the states. The bottom line: “investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs.”

The Court actually provided us with three separate documents:

a two-page, unsigned “Statement of the Court Concerning the Leak Investigation”;
a one-page statement evaluating the investigation by Michael Chertoff, the former Third Circuit Judge and Secretary of Homeland Security who now leads The Chertoff Group, “an internationally recognized leader in security and risk management advisory services”; and
a 20-page “Report of Findings & Recommendations” from the Marshal of the Supreme Court, Colonel Gail Curley, who led the investigation.

I’ve read these documents, more than once, as well as much of the commentary on them, from an ideologically diverse range of pundits. Here are my six key takeaways.

1. It’s increasingly unlikely that the leaker will ever be uncovered.

The investigation is not yet officially closed. As noted in the report, “[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending,” and “[t]o the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”

But observers across the ideological spectrum, from Professor Melissa Murray of NYU Law to Dan McLaughlin of the National Review, agree that the leak investigation is, for all practical purposes, over—without having produced any real answers. In McLaughlin’s words, the Court “has essentially wrapped up the Dobbs-leak investigation, and… the leaker has gotten away with it.”

If the leaker was going to get caught, they were most likely to be caught in these first eight months since the leak of the draft Dobbs opinion to Politico. As in any investigation, the passage of time will only make things more difficult, as forensic evidence vanishes and memories fade.

I previously suggested that the leaker might come forward to take credit for what they did. And after the Democrats did better than expected in the midterm elections—aided in part by backlash against Dobbs, which the leak helped promote, at an earlier point in time than otherwise would have happened—I wondered whether the leaker might want to take a victory lap.

But now we know a possible reason why no victory lap was taken. According to Marshal Curley’s report, all Court employees who had access to the Dobbs draft signed sworn affidavits stating, in sum and substance, that (1) they didn’t leak the Dobbs draft and (2) they don’t know who did. So now the leaker, who might have escaped prosecution for the leak itself, ”would be subject to prosecution for a false statement in violation of 18 U.S.C. § 1001,” as the report pointedly mentions.

My guess, then, is that the leaker will keep their conduct a secret, for at least the five-year length of the § 1001 statute of limitations (assuming it doesn’t get extended, as advocated by Dan McLaughlin). This means that we might never find out the leaker’s identity, or find it out only decades later, à la Deep Throat of Watergate fame.

2. The Supreme Court was surprisingly forthcoming and transparent about the leak investigation.

Maybe this is the soft bigotry of low expectations talking, but I was impressed by how much detail the Court gave us about the investigation and its results. I was expecting a statement along these lines:

At this time, Marshal Curley’s investigation has been unable to determine, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs.

If the investigation unearths additional, material information, a public statement will issue. Otherwise, this represents the final comment of the Court on this matter.

Instead, the Court provided us with three separate documents, totaling 23 pages, which contained a surprising amount of information about how the investigation was conducted and what it unearthed.

Now, some might say 23 pages isn’t much; as white-collar lawyers well know, reports on internal investigations can run into the hundreds of pages. But by the historical standards of SCOTUS, we actually got a fair amount. As Professor Orin Kerr put it, the documents released by the Court “describe the investigation in a lot more detail than you normally expect to get.”

It’s of a piece with how Chief Justice John Roberts acknowledged last May that the draft opinion posted by Politico was, in fact, an authentic draft. In an earlier era, maybe under the late Chief Justice William Rehnquist, we probably would have gotten a statement like this in response to the leak, neither confirming nor denying the draft’s authenticity: “The Court speaks through its duly issued opinions, and until it releases its final opinion in Dobbs v. Jackson Women’s Health Organization, the Court will have no comment.”

There are certainly legitimate criticisms that can be leveled against SCOTUS when it comes to transparency and accountability, and there are many things the Court could do to improve on these fronts. See, e.g., the many reform proposals of Fix the Court. But I would submit that the current Court—which livestreams oral arguments, has its members giving speeches left and right, and responds in real time to controversies like the Dobbs leak, “Maskgate,” and a clerk-hiring kerfuffle—is the most transparent and responsive Court in the years that I’ve been following it. (In fact, I’ve heard some argue the justices should quiet down a bit, by giving fewer speeches and writing fewer books, and start asking themselves, “WWSD”—”What Would Souter Do?”)

3. The investigation appears to have been reasonably thorough.

As outlined in the report, here are some of the steps taken by Colonel Gail Curley, the Marshal of the Supreme Court, and her team of seasoned investigators:

They “obtained forensic information from the Court’s IT systems,” in order to (a) determine if the leak was the result of a hack into the SCOTUS computer system, and (b) “to identify individuals of interest to the investigation, and to furnish the basis for questioning of employees.” (They found no evidence that the computer system was hacked into, leading them to conclude that the leak was unlikely to have resulted from a hack.)
They used this forensic information, including event and print logs, to determine which Court employees had access to Dobbs drafts, in which form (hard copy or electronic), and to track how these drafts got disseminated. (Unfortunately, for various technical reasons, the logs were incomplete, which is a big part of why the investigation couldn’t be more conclusive.)
They “collected Court-issued laptops and mobile devices from all personnel who had access to the draft opinion,” which they reviewed for leads, and they also reviewed the call and text logs for the personal devices of certain employees who voluntarily provided such records.
They “conducted 126 formal interviews of 97 personnel…. All personnel agreed to be interviewed, and many were interviewed more than once.” They reviewed forensic evidence, including legal-research history, to maximize the effectiveness of these interviews.
After these interviews, they asked employees to sign sworn affidavits denying that they leaked the Dobbs opinion or that they know who did. All employees completed these affidavits. (This is noteworthy because a few weeks after the leak, there were rumblings of clerk pushback against certain investigative steps, including the possibility of non-cooperation.)
They “carefully evaluated the statements and conduct of personnel who displayed attributes associated with insider-threat behavior—violation of confidentiality rules, disgruntled attitude, claimed stress[], anger at the Court’s decision, etc.”—and they “also carefully evaluated whether personnel may have had reason to disclose the Court’s draft decision for strategic reasons.”
They “looked closely into any connections between employees and reporters, especially “any contacts with anyone associated with Politico,” and they “assessed the wide array of public speculation, mostly on social media, about any individual who may have disclosed the document.” (In the end, “the investigators found nothing to substantiate any of the social media allegations.”)

Taken together, these steps strike me as constituting a solid and comprehensive investigation. Or as Orin Kerr put it, “this was a more thorough investigation than I expected, given the limited investigatory tools of the Marshal.”

To be sure, I’m not an expert in data security and internal investigations. But Michael Chertoff, the former Secretary of Homeland Security who now leads The Chertoff Group, is such an expert. In his one-page statement accompanying the Marshal’s report, Secretary Chertoff stated that “the Marshal and her experienced investigators undertook a thorough investigation within their legal authorities,” and “[a]t this time, I cannot identify any additional useful investigative measures.”

4. The investigators should interview the justices and their household members, including spouses, if they haven’t done so already.

Actually, I can identify a few “additional useful investigative measures”: the nine justices themselves, as well as their spouses and other household members, should be subjected to the same scrutiny that Court employees were. They should be made to sit for the same interviews, sign the same affidavits, and provide the same forensic evidence to investigators—assuming they haven’t already done so.

I include the “assuming they haven’t already done so” qualifier because Marshal Curley’s report does not make clear what investigative steps, if any, were taken vis-a-vis the justices and their family or household members. The New York Times sought clarification on this point, but the Court did not respond. In the absence of clarification, I’m inclined to agree with commentators like Professor Josh Blackman and Chris Geidner that the report’s reference to questioning “permanent employees” does not include The Nine. (Yes, the life-tenured justices might be “permanent,” but they’re not exactly “employees.” Would you like fries with that per curiam?)

Why do I believe the justices and their household members should be investigated? For reasons I have previously explained, I do not believe the Dobbs draft was leaked by a justice, a justice’s spouse, or another household member. But many other commentators, primarily on the left—such as Dahlia Lithwick and Mark Joseph Stern of Slate, and my former colleague Joe Patrice of Above the Law—think it’s possible the opinion was leaked by a conservative justice or at such a justice’s direction.

To put such speculation to rest, I’d make the following recommendation: Colonel Curley and her team should investigate the justices and their household members, if they haven’t done so already. After that process is complete, the Court should release a supplemental statement, clarifying that the justices and their household members were interviewed and stating what, if anything, came of those interviews.

An aside: I remain puzzled as to why commentators on the left want to pin this leak on someone from the right. I agree with Dan McLaughlin of the National Review:

The leak had real, foreseeable consequences: It triggered protests at the conservative justices’ homes and even an assassination attempt against Justice Brett Kavanaugh. It gave Michigan Democrats a head start in organizing and getting a proposition on abortion on the November ballot. The leak was roundly condemned by conservatives outside the Court and cheered by many progressives, a number of whom then publicly argued against clerks’ cooperating with the leak investigation. We still do not know who the leaker was, but cui bono? Certainly, everyone on all sides of the political commentariat acted as if they believed that this came from an opponent of the final outcome.1

As I argued last May, there’s a strong case for folks on the left to view the leak as a good thing, in terms of how it spurred supporters of abortion rights to start preparing earlier for a world without Roe and galvanized Democratic voters ahead of the midterms. Or even if not a good thing, folks on the left can view the leak as “no big deal”—at least not compared to an activist, illegitimate Supreme Court taking a long-recognized constitutional right away from tens of millions of Americans, overturning decades of precedent in the process. In the words of Elie Mystal, over at The Nation:

The conservative justices, their media enablers, and the right-wing conspiracy-making machine worked itself into a tizzy over the leak—not, mind you, over the fact that the Supreme Court was poised to overturn 50 years of settled law and take away a constitutional right for the first time in American history, but over the breach of Supreme Court protocol….

From the start, the leak and the attendant pearl-clutching over it has been a giant distraction from the true level of corruption and bias emanating from the Supreme Court.

In contrast, it’s far more understandable for conservatives to be deeply upset over the leak and to want to blame it on someone on the left. To conservatives, the current Supreme Court and its decision in Dobbs still retain some legitimacy, so an egregious violation of the integrity of SCOTUS proceedings is still a serious offense.

5. The repeated mentions of the “preponderance of the evidence” standard make me wonder: do the investigators have a hunch about the identity of the leaker, but feel unable to share it because it’s too speculative?

As lawyers well know, the standard under which something is evaluated is critical. A criminal defendant might get acquitted of murder under a “beyond a reasonable doubt” standard, but found liable for wrongful death under a “preponderance of the evidence” standard. A decision might get affirmed on appeal under an “abuse of discretion” standard, but reversed under a “de novo” standard.

So it’s worth noting that the Marshal’s report mentions, on three separate occasions, that it could not determine the identity of the leaker “using a preponderance of the evidence standard.” Enquiring minds want to know: do the investigators have an idea about the leaker’s identity under, say, a “probable cause” standard?

To the extent that the documents released yesterday hint at something, they seem to suggest a lefty as the leaker. Consider the first two sentences of the Court’s statement about the report: “In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion. The leak was no mere misguided attempt at protest.”

I disagree with other aspects of their analysis, but I agree with Professor Melissa Murray and Mark Joseph Stern that the “misguided attempt at protest” language obliquely fingers the left, by suggesting the leaker wanted to “protest” the Dobbs decision. Considering how pleased most conservatives were by Dobbs, any “protest” would have come from liberals or progressives.

6. We need ‘Severance’ for SCOTUS clerks.

Have you watched Severance, the sci-fi, psychological-thriller series that came out on Apple TV+ last year? If not, you should; it’s very good, and it has a great premise:

A biotechnology corporation, Lumon Industries, uses a mindwipe medical procedure called “Severance” to separate the consciousness of their employees between their lives at work and outside of it. One severed employee, Mark (Adam Scott), gradually uncovers a web of conspiracy.

Each morning, before he descends into the subterranean offices of Lumon, Mark’s mind gets wiped of his life outside work; once inside, he has no idea of who he is outside the office. Then each evening, when he leaves the office, his mind gets wiped of his life at work; once outside, he has no idea of who he is inside the office, what type of work he performs, or anything else about Lumon.

You know what we need? “Severance” for SCOTUS clerks. Each morning, when they show up at One First Street for work, their minds get wiped of their personal lives. Each evening, when they leave the marble palace, their minds get wiped of everything that happened at the Court. Voilà—no more leaks!

Why would “Severance for SCOTUS Clerks” make sense? As noted in Colonel Curley’s report, even though the Law Clerk Code of Conduct states that the “temptation to discuss interesting pending or decided cases [with spouses] must be scrupulously resisted,” several law clerks “admitted [to investigators] to telling their spouses about the draft opinion or vote count” in Dobbs.

One can understand the difficult position these clerks were in. On the one hand, they were told not to discuss pending cases with their spouses. On the other hand, we’re talking about their spouses—their best friends, their soulmates, who maybe some of them see almost as extensions of themselves. Given human nature and the nature of the marital bond—which the law itself recognizes, in things like the spousal privilege in evidence—is it really realistic or fair to expect clerks not to talk to their spouses at all about what happened at work, for an entire year?

This is where we could use Severance. Given the lifelong benefits of a SCOTUS clerkship, I’m sure law clerks would willingly subject themselves to Severance for one year, as a condition of the clerkship. While Severance in the television series lasted indefinitely, Severance for SCOTUS Clerks would last only for the duration of the clerkship. In other words, at the end of the Term, the clerks would get their workplace or office memories back—because at the end of the Term, all the cases have been decided, and the consequences for a breach of confidentiality are dramatically lower.

If the Supreme Court can somehow invent a Severance procedure, I can imagine one other person besides the clerks who might be willing, or even eager, to undergo it: Chief Justice John Roberts.

His request? “Please remove any and all memories of May 2022.”

1Yes, I get the “lock in” argument: release the draft to “lock in” any wavering votes. I have three responses.

First, as the oral argument in Dobbs suggested, and as the lack of any real edits to Justice Alito’s draft confirmed, the outcome of the case was never really in doubt. In particular, Justice Brett Kavanaugh, whom some suggested might be open to joining with the Chief to preserve Roe, didn’t sound eager to save Roe at oral argument, based on all his questions about the need sometimes to overturn precedent.

Second, please read my post Cui Bono? post, as well as Tom Goldstein’s SCOTUSblog post, from last May. The “lock in” goal was accomplished by a separate leak to the Wall Street Journal’s conservative editorial page, which preceded the leak of the full Dobbs draft to Politico (and I think it’s quite possible that, say, Ginni Thomas leaked to the Journal). Who had an incentive to leak the full draft? As Goldstein persuasively argued, “The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and—with important caveats—substantive due process rights more broadly. And as a first draft—without the benefit of later refinement—it does not yet present the critique of Roe in its most persuasive form.”

Third, folks on the left have repeatedly criticized the quality and persuasiveness of Justice Alito’s opinion. If his Dobbs draft was so bad, wouldn’t leaking it be just as likely (or even more likely) to trigger rather than prevent a defection, as the outside world saw how bad it was, and commentators started piling on to criticize it (as many of them did)?

It’s time to whip out Occam's razor and stop overthinking this. The Dobbs draft was most likely leaked for the very obvious reasons I previously set forth back in May.

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Special counsel Robert K. Hur, speaking at a May 2019 farewell ceremony for Deputy Attorney General Rod Rosenstein (photo by Chip Somodevilla via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Welcome to the first Judicial Notice news roundup of 2023. Did you miss me?

Zach and Harlan and I recently returned from a wonderful trip to the Philippines, where we hosted a party to celebrate my parents’ golden wedding anniversary, had a great time seeing family, and spent lots of time at the beach. Alas, when we got home, we faced an unfortunate situation involving water damage to our house. We’re grateful for homeowners insurance (in our case, Travelers, which has been reassuring and responsive throughout this ordeal).

On Wednesday night, I participated in my first event of the year, a fireside chat with Helen Wan, author of The Partner Track. Thanks to the New York Women’s Bar Association Foundation for sponsoring and to Boies Schiller Flexner for hosting. For folks who couldn’t join us in person, listen to our podcast conversation, in which we discuss The Partner Track’s journey from novel to hit Netflix show.

Now, on to the news—of which there’s a ton, since I’m going to try and capture all the news that has happened since December 17, when the last edition of Judicial Notice went out. So today’s newsletter is slightly longer than usual, but it’s like an issue of The Economist: once you’re done, you can congratulate yourself for being all caught up on everything. You’re welcome!

Lawyers of the Week: Robert Hur and Bob Bauer.

The big story this week was President Joe Biden’s alleged mishandling of classified documents. There are many differences between President Biden’s documents problem and former president Donald Trump’s documents problem, but Professor Jonathan Turley and others are likely correct in predicting that it’s now far less likely that Trump will be prosecuted for Mar-a-Lago—and even some Trump critics, like David Von Drehle of the Washington Post, think that would not be a bad thing.

Unsurprisingly, Attorney General Merrick Garland appointed a special counsel to investigate the Biden documents situation: veteran prosecutor turned Gibson Dunn partner Robert Hur, who served as U.S. Attorney for Maryland under Trump. According to the New York Times, the well-regarded Hur, a former clerk to Chief Justice William H. Rehnquist, “has two attributes that suit the task—years of prosecutorial experience, and a vivid understanding of the perils inherent in high-wire special counsel investigations.” Hur served as a top aide to then-Deputy Attorney General Rod Rosenstein when Rosenstein was overseeing the Russia investigation of special counsel Robert Mueller.

Hur’s opposite number will be another high-powered lawyer who knows his way around high-stakes situations: Bob Bauer, former White House Counsel to President Barack Obama, hired by President Biden to represent him personally. As noted by Reuters, the “[g]ray-bearded and scholarly” Bauer, a former Perkins Coie partner and current NYU Law professor, is “a longtime Democratic problem-solver” and extremely well-connected in Democratic circles. Bauer is married to Anita Dunn, senior advisor to President Biden, and his hiring “shows Biden circling the wagons [and] relying on a trusted inner circle… as he weighs running for re-election in 2024.”

Other lawyers in the news:

New Jersey injury lawyer Kelly Conlon was ejected from Radio City Music Hall, where she was chaperoning her daughter’s Girl Scout troop to the famed Christmas Spectacular, after facial-recognition flagged her as working for a firm that has a pending lawsuit against Radio City’s owner, MSG Entertainment (even though Conlon has no personal involvement in the case). As reported by my former colleague Kashmir Hill for the New York Times, MSG Entertainment is now being sued for what its critics call “a dystopian, shocking act of repression.”
In another viral controversy, Jon Dileno, formerly a senior attorney at the Cleveland employment law firm of Zashin & Rich, lost his job after sending an insulting text message to a former colleague who left the firm for another job after returning from parental leave: “What you did—collecting salary from the firm while sitting on your ass, except to find time to interview for another job—says everything one needs to know about your character. Karma’s a bitch.” Indeed.
Professor Jeannie Suk Gersen wrote a probing and perceptive New Yorker profile of Jonathan Mitchell, the legal architect of Senate Bill 8, the Texas anti-abortion law that he intentionally crafted to evade pre-enforcement judicial review. It’s part of his larger project to reduce the power of the judiciary—which perhaps some on the left might now support.

In memoriam (in addition to Will Consovoy, whom I wrote about on Thursday):

Lincoln Almond, 86, former Republican governor of Rhode Island and longtime U.S. attorney in the state;
Edward Weidenfeld, 79, former general counsel to Ronald Reagan’s 1980 presidential campaign turned successful cannabis entrepreneur; and
Thomas Hughes, 97, former director of the Bureau of Intelligence and Research at the State Department during the Johnson and Kennedy Administrations.

May they rest in peace.

Judge of the Week: Justice Richard Bernstein.

In late November, I gave Judge of the Week honors to Kyra Harris Bolden, the first Black woman to serve on the Michigan Supreme Court. She surfaced in the news again this month—after one of her new colleagues tried to interfere with her law clerk hiring, generating widespread condemnation of that colleague.

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Will Consovoy, speaking at a 2018 event hosted by the Federalist Society (screenshot via YouTube).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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William Consovoy, a leading figure in the conservative legal world, passed away on January 9. He was only 48. I shared the news in a Twitter thread, which was confirmed by an official obituary and a news release from Consovoy McCarthy, the elite litigation boutique he founded in 2014, and followed by coverage in Law360.

The obituary and news release did not specify a cause of death, but as Consovoy’s law partner Thomas McCarthy told Joan Biskupic of CNN last year, Consovoy was being treated for brain cancer that had been diagnosed approximately two years earlier. If not for his illness, Consovoy would have argued before the Supreme Court last October in his firm’s legal challenge to affirmative action at Harvard—a landmark litigation that he and his colleagues shepherded patiently through the courts for years.

The Harvard and UNC affirmative-action cases case could end up being Consovoy’s most enduring legal legacy if they bring an end to racial preferences in higher education (as many predict), but he worked on numerous high-profile matters over his two-decade career. At Wiley Rein, where he and Tom McCarthy were partners before leaving to launch their own firm, Consovoy was part of the team that successfully litigated Shelby County v. Holder, a consequential and controversial case about the Voting Rights Act of 1965, and also worked on Fisher v. University of Texas, an unsuccessful challenge to affirmative action at UT.

Will Consovoy wasn’t your typical Supreme Court advocate. In a Washington Post profile discussing Consovoy’s representation of former president Donald Trump in litigation over his tax and financial records, Ann Marimow described Consovoy as “unconventional lawyer with an unconventional client”—and one can see why. In the words of Professor William Baude, a longtime SCOTUS watcher and friend of Consovoy, “Many lawyers in D.C. have this kind of upper-class affect, and Will is not one of those. You can tell he’s still sort of the scrappy guy from New Jersey who doesn’t care about the pomp and circumstance.” As noted in his obituary, Consovoy was passionate about several things that wouldn’t be regarded as hoity-toity, like the Philadelphia Eagles, Bruce Springsteen, and the Jersey Shore (the place and not the show, mercifully).

Nor did Consovoy attend an Ivy League college or top-14 law school—and there’s a message in that, as Sarah Isgur explained in her moving personal tribute to Consovoy on the latest episode of Advisory Opinions:

To the high schoolers, undergrads, and law students who listen to this podcast, Will wasn’t “that guy.” He didn't go to Princeton and Harvard. He went to Monmouth. And then he worked for the parole board. He went to George Mason Law School, and his first-year grades could generously be described as mediocre.

But then something changed. Will just said he realized he loved this stuff and it meant something. He clerked for an Arlington County judge, and that judge knew something was different about Will and called [Fifth Circuit Judge] Edith Jones and told her she had to meet this guy, and Judge Jones made the same call to Clarence Thomas.

Based on the recommendation of Judge Jones, as well as raves from former clerks who worked with Consovoy at Wiley Rein, Justice Thomas hired him—the first GMU Law graduate to clerk for SCOTUS, and one who paved the way for others (including two who are currently at One First Street).

Back to Isgur (these are just excerpts, listen to the whole thing—and try not to get choked up, as I did):

[L]ife isn't always a meritocracy. But at the same time, it's hard to keep the truly spectacular from succeeding. Will was just a guy from Jersey who found his calling. But most importantly, Will succeeded without sharp elbows. He didn’t revel in other people’s failures. He wasn't particularly interested in gossip. For those just starting out, Will is proof that you can succeed in the law and be a zealous advocate—and let me be clear, Will was zealous—while being good, kind, and gracious.

After clerking for Justice Thomas, Consovoy returned to Wiley Rein and worked with founding partner Bert Rein on major cases like Shelby County and Fisher. But perhaps realizing that a boutique might be more conducive to handling cutting-edge, controversial cases (cf. the Cooper & Kirk model), Will Consovoy and Tom McCarthy left Wiley Rein in 2014 to start their own shop. As reported by Tony Mauro in the National Law Journal, they took with them the Supreme Court clinic at GMU Law (now Scalia Law), which the firm continues to oversee, and what would turn into the Harvard and UNC affirmative-action cases. (I profiled the firm—then known as Consovoy McCarthy Park, before Michael Park left to become a Second Circuit judge—in 2015.)

In the intervening eight-plus years, Consovoy McCarthy has thrived. It has done well financially, growing from two lawyers to more than 20, and excelled in other ways too. It has handled headline-making cases, from the affirmative-action litigation to multiple matters for Trump, including litigation over his financial records that went all the way to SCOTUS (Trump v. Mazars); legal battles accusing him of violating the Emoluments Clause; and election-law cases (but none of the crazy ones). Consovoy McCarthy has also served as a launching pad for legal careers, minting SCOTUS clerks—several of its former summer and full-time associates have gone on to clerk for the Court—and SCOTUS advocates, thanks to the founding’ partners willingness to “share the wealth” on oral-argument opportunities.

On the professional front, Will Consovoy had so much to be proud of. But according to his friends and colleagues, career success wasn’t what mattered most to him. Far more important were his friends and family, including his wife Masa Anisic, who passed away after her own cancer battle in April 2021 (only a year after they got married); his sister Amanda; and his niece Lila, whom he referred to as “his favorite person in the world.”

Consovoy cared deeply for his colleagues as well. Certain Supreme Court advocates are “ball hogs” when it comes to SCOTUS arguments, but not Will Consovoy. As noted in the firm’s news release, he believed deeply in mentoring and giving opportunities to younger lawyers—which explains why five other Consovoy McCarthy lawyers argued before the high court during his time there, and a sixth will argue next month. (Consovoy argued two cases personally before SCOTUS—Spokeo, Inc. v. Robins, a case not famous to the public but of great practical importance to litigators on “standing,” and Evenwel v. Abbott, about the “one person, one vote” principle.)

As his law partner Patrick Strawbridge told me yesterday over the phone, “Will was an extremely gifted lawyer, the smartest lawyer I’ve met in my life, but he was an even better person—unfailingly kind, civil, and supportive. He mentored a ton of people, pretty much anyone who sought him out, for any type of advice.”

“There’s a reason why he got so many invitations to coffee and lunch,” Strawbridge said. “Anyone who knew Will wanted to learn from him and wanted to be his friend. You always felt you were the most important person when talking to him. We’re just going to do our best at the firm to be his legacy.”

Even those who disagreed vociferously with Consovoy on the law acknowledged his talents as a lawyer and decency as a person. In a 2019 Washington Post op-ed, George T. Conway III and Neal Katyal condemned Consovoy’s D.C. Circuit brief in Trump v. Mazars as “spectacularly anti-constitutional.” But both expressed sadness over Consovoy’s passing, with Katyal adding that even though he and Consovoy disagreed on pretty much everything, he “was always brilliant and fierce and terrific,” but “tempered that with a deep civility to me and his other adversaries. I will miss him.”

Although we had many friends in common, I didn’t have the pleasure of knowing Will Consovoy well. But whenever we crossed paths, he was always gracious and warm. The last time I saw him in person was at the Second Circuit courthouse in New York, for the September 2019 investiture of our mutual friend, Judge Michael Park. Consovoy suggested that we grab lunch the next time I was in D.C.—which I remember thinking odd, since we weren’t close—but I now realize that was just the kind of outgoing and generous person he was.

Remarks at investiture ceremonies are often staid, sometimes stale. But Will Consovoy’s speech about Judge Park was the perfect combination of hilarious and heartwarming—so entertaining that it actually made the investiture fun. Consovoy roasted his friend, but not too much (it’s a fine line), then concluded by making clear why Judge Park would be such a superb addition to the bench. The remarks were perfectly calibrated, the best investiture speech I’ve ever heard.

I reached out to Judge Park, who had this to say about his former law partner and friend:

One of the silver linings in all this is seeing the outpouring of love and admiration for Will—people who remember not just his legal work, but his warmth, humor, and loyalty. As he got sicker, he got even more down-to-earth, wanting to talk mostly about friends, memories, and sports.

One of the hardest things about his death is knowing that he was just hitting his stride. The firm he and Tom started eight years ago is now one of the elite boutiques in the country. Is there any firm with more lawyers who have done a SCOTUS argument? That was Will’s leadership style—he wanted to develop a team.

The firm and its work will be a great legacy. I’m proud to have been his partner and friend.

I agree with Judge Park about how Consovoy “was just hitting his stride,” and how especially sad it is when we lose someone in their prime. I have memorialized a number of remarkable lawyers and judges in these pages, but none as young as Consovoy, who still had decades ahead of him.

Another prominent federal judge and close friend to Will Consovoy, Judge Andrew Oldham (5th Cir.), wrote as follows in his own tribute (collected alongside others from Edward Blum, Ashley Keller, Cory Liu, and Adam Mortara, all of them worth reading):

William Consovoy was a generational legal talent. He had the sort of prodigious legal mind that made him the smartest person in a room full of geniuses. He could see arguments that eluded everyone else. And he could win cases that not only struck others as unwinnable, but that transformed the way we understand the law….

What’s harder for everyone to understand is that, as unmatched as Will was as a lawyer, he was even more unmatchable as a friend. He was thoughtful and kind. The sort of man who would remember, even in the midst of his own crises, to love those around him. Who supported us while facing challenges that dwarfed ours. Who answered his phone on the first ring in the middle of the night, just in case it was a friend who needed something. And who put others’ needs before his own, no matter the cost, and no matter the occasion….

It’s the bitterest imaginable tragedy that Will would be felled by the very brain that made him so transcendentally brilliant, kind, and generous. He leaves behind one of the Nation’s finest law firms. Countless friends and family members whose lives are poorer for his absence. And an American legal tradition that owes him an inestimable debt.

Indeed. William S. Consovoy, rest in peace.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) the ability to comment on all posts; and (4) written transcripts of podcast episodes. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Judge Frederic Block has served as a federal judge for the Eastern District of New York since 1994. During his nearly three decades on the bench, he has presided over high-profile cases involving organized crime, terrorism, financial fraud, and the death penalty. He is also the author of three books: a memoir, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge; a legal thriller, Race to Judgment; and a nonfiction book about federal sentencing, Crimes and Punishments: Entering the Mind of a Sentencing Judge.

The best interviews feature uninhibited guests speaking freely about hot topics. So it should come as no surprise that my podcast episode with Judge Block is a fun one: he turns 90 next year, enjoys life tenure, and hails from Brooklyn. If that’s not a recipe for candor, then I don’t know what is. I hope you enjoy listening to this interview as much as I enjoyed conducting it.

Show Notes:

Frederic Block, author website
United States v. Nesbeth (E.D.N.Y. 2016)
May v. Shinn (9th Cir. 2020)
May v. Shinn (9th Cir. 2022)
United States v. Russo (E.D.N.Y. 2022)

Prefer reading to listening? For paid subscribers of Original Jurisdiction, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Judge Frederic Block, sans robe (courtesy photo) Read more

Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge

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(via Getty Images)Happy new year. I hope that you had a great 2022 and your 2023 is off to a wonderful start.

Last year was a successful one here at Original Jurisdiction. A year ago, I expressed the hope that writing this newsletter could turn into a livelihood for me, and today it is. I’m grateful for the ability to make a living as an independent journalist, not dependent on a large news organization for my job, and I have you, my readers, to thank for this.

I’m still on vacation, visiting family in the Philippines, but I wanted to offer you some reading material until I return: the top 10 stories of 2022. As I did the last time around, I’ll actually give you two lists: the top 10 stories by readership, and the top 10 stories based on my own personal preference.

Let’s start with the list based on readership, i.e., total views (including both newsletter opens and views on the web):

Twitter v. Elon Musk: Let’s Look At The Lawyers

With a $44 billion deal on the line, Twitter’s lawsuit against Elon Musk in Delaware Chancery Court was one of the largest civil cases in history—which turned the lawyers involved into celebrities of the legal world. (I later interviewed one of them, Alex Spiro—a partner at Quinn Emanuel, famous for representing celebrities including but not limited to Elon Musk—as the inaugural guest of my podcast.)

An Open Letter To Yale Law Dean Heather Gerken

I urged Dean Gerken to take a stronger stance in defense of free speech at YLS—and based on recent changes she has instituted, it seems she’s moving in this direction. (See also how U.S. News rankings guru Bob Morse overhauled their law school rankings, along the lines that I proposed.)

Supreme Court Clerk Hiring Watch: Up-And-Coming Feeder Judges

My readers enjoy (a) coverage of SCOTUS clerk hiring and (b) rankings, so of course a ranking of “feeder judges,” the lower-court judges who excel at sending their clerks on to One First Street, was going to be popular.

Biglaw’s Latest Cancel-Culture Controversy

As we learned in the wake of Dobbs v. Jackson Women's Health Organization, the Supreme Court’s landmark abortion decision, most large law firms have left-of-center views on controversial social issues (and I don’t necessarily have a problem with that, as long as they’re honest about it).

What The SCOTUS Leaker Might Say For Themselves

Eight months after the historic leak of the draft Supreme Court opinion in Dobbs, we still don’t know anything about who leaked and why—but it’s fun to speculate, as I did in this fictionalized op-ed confessing to the transgression.

My Latest Theory About The SCOTUS Leaker

Some additional speculation about the leak: the Politico reporters who published the draft opinion actually don’t know the identity of their source, further increasing the likelihood that we won’t be learning the identity of the leaker anytime soon (unless the leaker comes forward and confesses).

A Prominent Federal Judge Declares He Will No Longer Hire Clerks From Yale Law School

Two top topics for these pages are (a) free-speech and cancel-culture controversies and (b) clerkship hiring. So the popularity of this story, discussing the decision of Judge James Ho (5th Cir.) to no longer hire law clerks from Yale Law School until YLS cleans up its act on free speech, was no surprise.

Is Free Speech In American Law Schools A Lost Cause?

March 2022 witnessed two distressing developments at U.S. law schools: a successful attempt to shout down Ilya Shapiro at the school formerly known as UC Hastings Law (now UC Law SF), and a nearly successful attempt to do the same to Kristen Waggoner and Monica Miller at Yale Law.

Affirmative Action Is Going Down

Based on the justices’ questions at oral argument, it looks like the Supreme Court will do away with racial preferences in education. And that might not be a bad thing, if the current emphasis on “visual diversity” is replaced by richer forms of diversity, including socioeconomic diversity, diversity of experience, and diversity of viewpoint.

Supreme Court Clerk Hiring Watch: Meet The October Term 2022 SCOTUS Clerks

It’s important for media outlets to have differentiated content, i.e., content that’s not available anywhere else. For this newsletter, that includes detailed coverage of SCOTUS clerk hiring, plus Bristow Fellowships and Skadden Fellowships.

For my second list, here are ten more stories from last year that I consider personal favorites, which showcase both the wide range of subjects and different types of writing featured in these pages:

Here Come The Judges—Down The Aisle!

To folks who have been reading me since Underneath Their Robes, this story—about Chief Judge Priscilla Richman of the Fifth Circuit and Chief Justice Nathan Hecht of the Texas Supreme Court getting married—is for you. See also my interview of Judge J. Harvie Wilkinson (4th Cir.) about the romantic novel he published last year.

What Is A ‘Letter Of Marque And Reprisal’?

One of the most fun parts of my job is interviewing smart experts about trending topics—like when I interviewed Professor Ingrid (Wuerth) Brunk about letters of marque and reprisal, an obscure part of constitutional law that surfaced in the news as a possible response to Russia’s invasion of Ukraine. See also my interview of Craig Seebald of Vinson & Elkins about antitrust enforcement in the Biden Administration.

Musings On Mizelle's Mask-Mandate Magnum Opus

Although it’s not glamorous, the “explainer” piece is a useful and popular piece of journalism (reflected in the rise of Vox, aka the House That Explainers Built). I enjoy writing explainers, such as this one about the ruling by Judge Kathryn Kimball Mizelle (M.D. Fla.) vacating the Biden Administration’s mask mandate. I penned similar FAQs about the leak of the draft opinion in Dobbs and the August 8 search of Mar-a-Lago.

President Biden's Supreme Court Nominee Will Be....

There are few things I like better than taking a deep dive into judicial nominations, especially SCOTUS nominations, and 2022 was a great year for this. I correctly predicted, in late January and again in early February, President Joe Biden’s nomination of then-Judge Ketanji Brown Jackson to the Supreme Court. I also published a detailed analysis of Biden nominees to the circuit and district courts.

The Top 20 Most Profitable Law Firms and The Top 20 Most Prestigious Law Firms In America

The courts receive copious coverage from several excellent Substack newsletters, including at least three that launched this year—Shapiro’s Gavel by Ilya Shapiro (June), Law Dork by Chris Geidner (also June), and One First by Steve Vladeck (November)—but the world of large law firms aka Biglaw is relatively neglected. Although I don’t write about law firms as much as I expected when I launched this newsletter, I still write more about the business of law than almost any other Substack—as reflected in these breakdowns of industry rankings of profitability and prestige, as well as my weekly Judicial Notice news roundups.

The #1 Lawyer At The #1 Company: An Interview With Rachel Brand

I also write about the in-house world, especially in-house leaders—like Rachel Brand, the top lawyer at Walmart, the #1 company in the Fortune 500 for the past decade. She offered advice to both outside counsel hoping to work for her company and young lawyers aspiring to careers like hers.

Yale And Harvard Law To U.S. News: Drop Dead

After years of complaining about the U.S. News law school rankings, this year law school deans took action. Yale and Harvard Law withdrew from the rankings, other top law schools followed suit, and the magazine just announced dramatic changes to its influential rankings.

SCOTUS Bar Superstar: An Interview With Lisa Blatt

The launch of the Original Jurisdiction podcast was the biggest addition to this newsletter last year, and I’ve been honored to welcome high-profile guests like Paul Clement, Robbie Kaplan, and Alex Spiro. My conversation with the funny and frank Lisa Blatt, a top Supreme Court litigator with a style all her own, has been one highlight of the series so far.

In Memoriam: Judge Laurence H. Silberman (1935-2022)

Judge Laurence Silberman (D.C. Cir.) was a giant of the law, and his passing represented a great loss to the legal profession. I spoke with several of his former clerks, including Justice Amy Coney Barrett, about what he meant to them as a boss, mentor, and friend.

A Leading Litigation Boutique Turns 25

The D.C. litigation boutique of Cooper & Kirk is tiny, with fewer than 20 lawyers, but its alumni include two U.S. senators, three federal judges, and a former U.S. solicitor general. I profiled the firm on the occasion of its 25th anniversary, producing a magazine feature-like piece exploring the secrets of the firm’s success.

These are just some of the more than 130 stories I published in 2022. I’m proud of what I produced last year, which I believe represents some of my best work over the past two decades, and I’m grateful to you, my readers and subscribers, for making it possible. Thanks as always for your support, and I look forward to seeing what the year ahead has in store for us.

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With 2023 around the corner, many of us are coming up with New Year’s resolutions. One of mine is to finish my second novel—and I suspect I’m not alone in aspiring to authorship in the year ahead.

Writing a book while balancing a day job and parenthood isn’t easy. If you’re seeking advice and inspiration for how to make the transition from counselor to content creator, then you’ll enjoy my interview with Helen Wan, the Biglaw associate turned in-house lawyer turned acclaimed author. Her novel The Partner Track, which I reviewed for the Wall Street Journal when it was published in 2013, became a hit series for Netflix in 2022, as well as a top conversation topic within Biglaw and the legal world more generally. If you enjoyed the Netflix show and would like to learn more about its backstory, this episode will interest you as well.

For those of you in the New York area, Helen and I will be doing an in-person event on January 12 at the offices of Boies Schiller Flexner in Hudson Yards. Details and tickets are available via the New York Women’s Bar Association Foundation, and we look forward to seeing some of you there. Happy new year!

P.S. I’m still on vacation, so I won’t be writing much between now and January 9, and I might be slow on correspondence. But I wanted to maintain my every-other-Wednesday schedule for this podcast, so I recorded this episode before leaving the country.

Show Notes:

Helen Wan, author website
The Partner Track, Amazon
Book Review: The Partner Track, by David Lat for the Wall Street Journal
Partner Track, Netflix

Prefer reading to listening? For paid subscribers of Original Jurisdiction, a transcript of the entire episode appears below.

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U.S. Attorney Damian Williams (S.D.N.Y.), announcing the indictment of Sam Bankman-Fried, founder of the now-bankrupt FTX cryptocurrency exchange (photo by Stephanie Keith via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Hello, hello? Is this thing on? Is anybody out there?

I’m guessing that many folks have already checked out for the holidays—and I’m not complaining, since I’m about to join them. We’re leaving soon for a few weeks with my extended family in the Philippines—my first visit since 2017, Zach’s first since 2010, and Harlan’s first ever—and I’m not sure how much I’ll be writing while away. So Original Jurisdiction might be going on a little hiatus (or at least a reduced-publication schedule) until January 9.

But I’m not gone just yet, so let’s turn to the news of the week—dominated by developments related to FTX, the bankrupt cryptocurrency exchange, and Sam Bankman-Fried (“SBF”), its potentially felonious founder.

Lawyer of the Week: Damian Williams.

Different U.S. Attorneys for the Southern District of New York (S.D.N.Y.) have different legacies. Some become famous for cracking down on organized crime. Some garner headlines for cleaning up Wall Street. And Damian Williams, 42, could go down in history as the “crypto cop.”

On Monday, SBF was arrested in the Bahamas on criminal charges brought by Williams and his S.D.N.Y. colleagues. The 13-page, eight-count indictment alleges securities fraud, wire fraud, and conspiracy involving money-laundering and campaign-finance violations. Cryptocurrency might be novel and complicated, but the allegations in the indictment describe surprisingly simple schemes to defraud customers and lenders—which FTX’s new CEO, John J. Ray III, characterized as “old-fashioned embezzlement.” One report even claims that SBF participated in a Signal group chat nicknamed “Wirefraud,” which doesn’t smack of sophistication (but note that SBF denies this allegation).

Although they don’t appear to be the focus on any criminal inquiries, SBF’s parents—two eminent academics and longtime members of the Stanford Law faculty, Professors Joseph Bankman and Barbara Fried—are under media scrutiny as well. Articles in the New York Times and Wall Street Journal profiled the couple and the role they played in their son’s rise and fall, from encouraging his interest in “effective altruism” to helping him find legal counsel (and pay his legal bills).

Thus far, SBF is the only FTX executive to be criminally charged, but stay tuned. The contents of the indictment, which allege that SBF conspired with others, along with the speed with which charges were brought against him, have led observers to suspect that some of FTX’s former colleagues are cooperating against him, which could result in them ultimately pleading to reduced charges. As Damian Williams warned in his Tuesday news conference about the indictment, “This is our first public announcement, but it will not be our last.”

In fact, we had to wait only a few days for more crypto-crime news from the Southern District. On Friday, Karl Greenwood, who sold a fake cryptocurrency called OneCoin, pleaded guilty to fraud and money-laundering charges. Greenwood founded OneCoin together with Ruja Ignatova aka the “Cryptoqueen,” who remains a fugitive (and the only woman on the FBI’s Ten Most-Wanted List). As Williams put it, Greenwood’s guilty plea “caps a week at S.D.N.Y. that sends a clear message that we are coming after all those who seek to exploit the cryptocurrency ecosystem through fraud.”

In memoriam: Jay Goldberg, a colorful courtroom character known for representing boldface names (like Donald Trump in his divorce from Ivana), passed away at 89. Goldberg’s New York Times obituary is a fun read. May he rest in peace.

Judge of the Week: Chief Judge William H. Pryor Jr.

Chief Judge Bill Pryor (11th Cir.) has been dominating these pages in recent weeks, writing the en banc ruling in United States v. Garcon, which deepened a circuit split on an important interpretive issue about the First Step Act, and serving on the panel in Trump v. United States, which told Judge Aileen Cannon of Mar-a-Lago infamy to just stop, please. And now he’s Judge of the Week, since he got talked about quite a bit over the past few days—although this time not for any judicial opinions.

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In a few days, I’ll be heading off for a fairly long vacation, trading the cold of northern New Jersey for the warmth of the Philippines. But before I do that, and before the year draws to a close, I wanted to provide you with an update on Supreme Court law clerk hiring, since my last SCOTUS clerkship roundup was back in July.

As usual, here are some sundry observations before the lists of names:

The conservatives are farther along in their hiring than the liberals. For October Term 2023 (aka the 2023-2024 judicial year), the six Republican-appointed justices have completed their hiring, and I have the clerk names to prove it (with the exception of one clerk to Justice Amy Coney Barrett whose name I happen to be missing). For October Term 2024, I show three conservatives as fully hired—Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—and Justice Kavanaugh even has two hires for October Term 2025.

In contrast, for the Democratic appointees in OT 2023, I show a full house for Justice Elena Kagan only, plus one hire by Justice Sonia Sotomayor. For OT 2024, I have one hire for Justice Kagan and none for Justices Sotomayor and Jackson. If I had to guess, Justice Sotomayor will make some hires in the next month or two, while Justice Kagan will make additional hires in summer 2023.

As is always the case with these roundups, I can’t guarantee that the hires I’ve listed below are all the hires made as of this date; they just happen to be the hires I’ve learned about. But I have decent sources on both sides of the aisle, so I don’t think I’m missing too many hires, and I’m fairly certain about the general observation that the conservatives are farther along than the liberals. * Justice Ketanji Brown Jackson is taking an interesting, thoughtful, and more structured approach to clerk hiring. KBJ is using a hiring committee, which is not unusual; she has a more defined timeline, with an application deadline of January 1; and she has certain specific requirements, like a personal statement. It seems that she’s going for a more regularized and rigorous process, rather than the rolling, random process employed by some others. One of Justice Jackson’s current clerks, Claire Madill, founded Law Clerks for Workplace Accountability, and I wonder whether KBJ consulted with Madill in trying to reimagine clerk hiring from the ground up. This could be good; stay tuned. * New feeder judges are emerging. I don’t have complete clerk lists for OT 2023 or OT 2024, but based on the 48 hires listed below—29 for OT 2023, 16 for OT 2024, two for OT 2025, and one for an unspecified Term—here are the feeder judges with two or more clerks bound for One First Street:

+ Katsas (9)
+ Thapar (8)
+ Grant (5)
+ Oldham (5)
+ W. Pryor (5)
+ Friedrich (D.D.C.) (5)
+ Bibas (4)
+ Newsom (4)
+ Srinivasan (3)
+ Kovner (E.D.N.Y.) (3)
+ Barron (2)
+ Pillard (2)
+ J.R. Walker (2)
+ Wilkinson (2)
+ Engelmayer (S.D.N.Y.) (2)
+ Mitchell (Ala.) (2)

Who would I consider the “emerging” feeder judges? If you take the list above and remove the “established” feeders, i.e., any judges who appeared in my feeder-judge ranking based on OT 2017 through OT 2021, you get this list of 11:
- Oldham (5)
- Grant (5)
- Friedrich (D.D.C.) (5)
- Bibas (4)
- Newsom (4)
- Kovner (E.D.N.Y.) (3)
- Barron (2)
- Pillard (2)
- J.R. Walker (2)
- Engelmayer (S.D.N.Y.) (2)
- Mitchell (Ala.) (2)
- Of these 11 judges, seven are Trump appointees, which generally means that they are (1) quite conservative and (2) quite young—and therefore probably going to be feeding for many years to come. The non-Trump appointees are Judges Barron, Pillard, and Engelmayer, who are Obama appointees, and Justice Jay Mitchell of the Alabama Supreme Court.
- Feeder judges are often judges who clerked for SCOTUS themselves, and that’s reflected in this list of 11 as well. All of them clerked for the Court except for Judge Grant (although she clerked for then-Judge Kavanaugh on the D.C. Circuit), Judge Friedrich, Judge Pillard, and Justice Mitchell.
- What’s the record for most clerks at SCOTUS in a single Term? Judge Thapar has a whopping six clerks at One First Street for OT 2023, and Judge Katsas has the same impressive number for OT 2024 (and both Terms are not yet complete, so it’s possible they could place still more clerks). This means that for the 36 clerks to the active justices, one out of six came from the Thapar chambers for OT 2023 or from the Katsas chambers for OT 2024.
- Some feeders are great for specific justices, while other feeders place clerks more broadly. This is useful information if you aspire to clerk for a particular justice, since certain feeders excel at sending clerks to certain justices. For example, Judge Friedrich is a strong ticket to the Kavanaugh chambers, with four out of her five feeds going to Justice Kavanaugh. Similarly, Justice Gorsuch loves him some Oldham clerks; half of NMG’s hires for OT 2023 and OT 2024 clerked for Judge Oldham (or, looking at it another way, four out of Oldham’s five feeds are going to Gorsuch). The Friedrich-Kavanaugh pipeline makes sense in light of the long friendship between the two judges (who actually dated decades ago); I’m not sure of the Oldham-Gorsuch connection, since Oldham never clerked for Gorsuch, whether on the Tenth Circuit or SCOTUS.
- Similarly, if you aspire to clerk for Justice Thomas, your best bets would be Chief Judge Pryor, a longtime CT feeder, and Judge Katsas, a former CT clerk; they each have three clerks with Justice Thomas for the next two Terms. But Judge Katsas feeds so much that he also exhibits breadth, placing clerks with Chief Justice Roberts and Justices Alito, Kavanaugh, and Barrett. And Chief Judge Pryor also has clerks with Chief Justice Roberts and Justice Gorsuch, so he’s no one-hit wonder either.
- As for breadth of feeding, Judge Thapar has clerks with all six conservative justices during OT 2023 and OT 2024, which seems to be the record (and he has fed to liberal justices in the past as well). Three other judges have clerks with four different justices: Judge Grant has clerks with Justices Alito, Gorsuch, Kavanaugh, and Barrett; Judge Bibas has clerks with Justices Alito, Kagan (interesting), Gorsuch, and Barrett; and Judge Newsom has clerks with Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett.
- Feeder courts. Back in my day, the top three feeder courts were the D.C., Second, and Ninth Circuits. But based on the hires in this roundup, the top three courts today are the D.C., Eleventh, and Sixth Circuits. Here are all the courts with three or more clerks in my current lists:
- D.C. Circuit (18)
- 11th Circuit (15)
- 6th Circuit (12)
- 5th Circuit (9)
- D.D.C. (9)
- 3rd Circuit (7)
- 2nd Circuit (3)
- E.D.N.Y. (3)
- My interpretation of these stats: feeding is now much more about individual judges than about courts. Or as Professor Orin Kerr put it in a comment on an earlier roundup, “My sense is that, when it comes to prestige, these days it's much more judge-by-judge than circuit-by-circuit. I don't think it makes as much sense as it used to to say that one circuit is more prestigious than another, with the possible exception of the D.C. Circuit.”
- It wasn’t always this way. Back in my day, applicants thought a lot about court prestige, which correlated with powerful and prestigious places like D.C., New York, Los Angeles, and San Francisco. But today—with the possible exception of the Most Holy D.C. Circuit, praised be its name, where pretty much every judge can feed (although we’ll see about the newbies)—courts matter much less than judges. The Eleventh and Sixth Circuits have risen dramatically in the rankings in recent years, thanks to feeders like Chief Judge Pryor, Judge Grant, and Judge Newsom of the Eleventh, and Chief Judge Sutton, Judge Thapar, and Judge Kethledge of the Sixth.
- As for cities, Birmingham, Alabama, is one of the “feeding-est” cities in the country. It’s the “duty station” aka home base of Chief Judge Pryor and Judge Newsom, plus Justice Mitchell of the Alabama Supreme Court has a satellite chambers there (with his main chambers in Montgomery). Given its modest population, under 200,000 in 2021, Birmingham must have the highest “future SCOTUS clerks per capita,” if anyone were to try and calculate such a silly stat.
- Family ties. My March SCOTUS clerk hiring roundup centered around the theme of “family ties,” and the new hires reflect the reality that it does help to be descended from or married to a past SCOTUS clerk. For example, Reid Coleman, clerking for Justice Thomas in OT 2024, is the son of the late Greg Coleman, the renowned appellate lawyer who also clerked for CT (and who died in a tragic plane crash in 2010). Reid’s co-clerk for Justice Thomas, Thomas Wilson, is married to Annie Wilson, currently scheduled to clerk for Justice Thomas in OT 2023. And as noted in a prior roundup, Will Courtney, also clerking for CT in OT 2023, is a grandson of the late Justice Scalia.
- Unusual backgrounds/prior careers. In Business Insider’s profiles of the OT 2022 SCOTUS clerks, there were a number of clerks with interesting backgrounds (or at least more interesting than “K through JD plus one or two clerkships”), and that’s true of some of the new hires. One of Justice Kavanaugh’s OT 2024 hires, Pat Reidy, is an ordained Roman Catholic priest with the Congregation of Holy Cross. As one source informed me, “Father Reidy was a well-known figure on Notre Dame’s campus” circa 2015, thanks to his chaplaincy work. And speaking of Notre Dame, Justice Gorsuch still has a penchant for professors from ND Law: Christian Burset, clerking for NMG in OT 2024, is the third Notre Dame law professor to wind up in the Gorsuch chambers, following Stephanie Barclay and Stephen Yelderman. Burset is a legal historian with expertise in civil procedure.

Okay, I’ve gone on for far too long; let’s look at some names. For subscribers to Original Jurisdiction, updated SCOTUS clerk hiring lists appear below.

Some of you might avail yourself of the free trial, check out the lists, and then cancel before the trial period ends (and that’s totally fine). But if you’ll allow me a suggestion, a subscription to this fine publication is an excellent holiday gift, whether you’re looking for something to request for yourself or looking for something to give to the lawyer, law student, or law-curious person in your life. Happy holidays!

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If you enjoyed my very first blog, Underneath Their Robes (2004-2006)—which I wrote under a pseudonym while working as a federal prosecutor, pretending to be a female associate in Biglaw obsessed with federal judges and fashion—then you’ll enjoy this latest podcast episode. How many podcasts combine analysis of Supreme Court oral arguments with discussion of pumps versus cowboy boots versus Mary Janes? (For the record, my guest made the first reference to shoes; I didn’t go there unprompted.)

My latest guest is—of course—the inimitable Lisa Blatt, chair of the Supreme Court and appellate practice at Williams & Connolly, the legendary litigation firm. Lisa needs no introduction to Original Jurisdiction devotees, so I’ll mention just two distinctions.

First, Lisa has argued 43 cases before the U.S. Supreme Court, more than any other woman in history. Second, she has won 37 of those 43 cases (86 percent), which makes her one of the most consistently victorious SCOTUS advocates. (Trivia question: is there a Supreme Court lawyer currently practicing who has argued that many cases before the high court with that high a win percentage?)

In our ebullient and enjoyable interview, Lisa and I covered her special relationship with the late Justice Ruth Bader Ginsburg, for whom she clerked; how she rose to the top of the male-dominated Supreme Court bar, as a woman from Texas who “didn’t go to a fancy law school”; how she developed her distinctive, famously unfiltered style of oral argument; and why she prefers cowboy boots over stiletto heels. I hope you have as much fun listening to this episode as Lisa and I had recording it.

Show Notes:

Lisa Blatt bio, Williams & Connolly LLP
Reflections of a Lady Lawyer, Texas Law Review
Lisa S. Blatt: Cases argued, Oyez

Prefer reading to listening? For paid subscribers of Original Jurisdiction, a transcript of the entire episode appears below (although you really should listen to this one, since as is the case with her SCOTUS arguments, a transcript doesn’t do Lisa justice).

Lisa Blatt (courtesy photo by Williams & Connolly) Read more

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Neal Katyal, standing outside the U.S. Supreme Court after oral arguments in Moore v. Harper with Allison Riggs, chief counsel of voting rights at the Southern Coalition for Social Justice, and Kathay Feng, national redistricting director at Common Cause (photo by Drew Angerer via Getty Images).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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December might be the most wonderful time of the year, but it’s also incredibly busy. It can be challenging to keep up with work while at the same time completing holiday shopping, attending seasonal soirées, and preparing for upcoming travel.

After returning from a trip to Milwaukee, where I spoke to local lawyers and judges about free-speech issues in the legal profession, I published two stories, a look at the new class of Skadden Fellows and an interview with Judges Jim Ho and Lisa Branch. I also recorded a new episode of Movers, Shakers, and Rainmakers, in which Zach Sandberg and I interviewed Lindsay Hutner, co-chair of the employment litigation practice at Greenberg Traurig.

And some folks were far busier than I was—like all the lawyers in the news this week, to which we now turn.

Lawyer of the Week: Neal Katyal.

A former acting U.S. solicitor general and current star of the Supreme Court bar, Neal Katyal of Hogan Lovells argued before the Court in one of the most important cases of the Term, Moore v. Harper (discussed in more detail below as Litigation of the Week). His bravura performance won praise from a wide range of observers, including Mark Joseph Stern of Slate, who wrote that Katyal was in “top form,” and Sarah Isgur of Advisory Opinions, who said Katyal turned in the best advocacy of the Term so far.

What I most admired about Katyal’s argument was how he engaged with the originalist justices on their own terms. Addressing Justice Thomas, Katyal said, “In two decades of arguing before you, I've waited for this precise case because it speaks to your method of interpretation, which is history.” Justice Thomas, who famously refrained from questioning advocates for more than a decade, quipped in response that he had been waiting 30 years to ask Katyal a question—to good-natured laughter.

Moore v. Harper wasn’t the only bright spot in Katyal’s week: two days later, the Supreme Court granted his certiorari petition in Coinbase, Inc. v. Bielski. Together with a team from Cooley, Katyal and Hogan Lovells represent Coinbase, which asked SCOTUS to resolve a circuit split on whether litigation should automatically be stayed for parties appealing the denial of a motion to compel arbitration. If you have a high-stakes case before the high court, whether constitutional or commercial in nature, you should seriously consider hiring Neal Kumar Katyal—if you can afford him.

Other lawyers in the news:

Congratulations to Atif Azher of Simpson Thacher & Barlett, honored by the American Lawyer as its 2022 Corporate Attorney of the Year, as a result of handling more than 40 deals worth over $200 billion since 2020.
In the latest news about disgraced South Carolina lawyer Alex Murdaugh, prosecutors have provided additional details to support their theory that he murdered his wife and son in order to distract from his financial crimes.
Leading litigator Derek Shaffer, co-chair of the government and regulatory and national appellate practices at Quinn Emanuel, incurred the ire of Chief Judge Kimberly Moore when defending a $187 million fee award before the Federal Circuit. Chief Judge Moore wondered whether what she perceived as his (over)zealous advocacy might be influenced by a financial interest in the outcome, asking him, “Does your profit and your paycheck reflect whether Quinn Emanuel gets that $187 million?” Shaffer demurred, explaining that his compensation is really up to “the powers that be” (read: John Quinn).

Judges of the Week: Justice Samuel A. Alito Jr. and Justice Elena Kagan.

In the other big SCOTUS case argued this week, 303 Creative LLC v. Elenis, website designer Lorie Smith argues that forcing her to design websites for gay weddings under a Colorado public-accommodations law would violate her First Amendment free-speech rights. This predictably led to a plethora of hypotheticals at oral argument—such as this rather bizarre one from Justice Samuel Alito:

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Judge Elizabeth “Lisa” Branch and Judge James C. Ho (courtesy photos).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Last week, I made my way up to Yale University for an event sponsored by the William F. Buckley Jr. Program, “Is Free Speech Dead On Campus?” It featured Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.) in conversation with Professor Akhil Amar of Yale Law School, followed by a wide-ranging discussion with the (standing room only) audience.

Inspired by that event, I invited Judges Branch and Ho to participate in a written Q&A with me. They kindly accepted my invitation, allowing them to share and expand upon some of their points, and our discussion appears below. I thank them for their time, their insights, and their commitment to the cause of free speech.

DBL: It was wonderful seeing you both at the Buckley Program event at Yale last week. Thank you for schlepping all the way up to New Haven—on a rainy, dismal day—to talk about an issue that’s so important to all of us.

JCH: Great to see you there. I was surprised how many students, liberal and conservative, told us how much they liked the event. Some even said it was the best event they’d attended at Yale.

I was happy to hear that, but also sad. Happy because it shows people still crave open dialogue. But sad because it felt like serving a modest meal to the starving. A sad reflection of the state of free speech on campus today.

People want open dialogue. But we’re afraid to speak up. We don’t want to be canceled by the mob. So we self-censor. And people are tired of it—tired of being afraid.

We need more of these discussions. That’s why we accepted your invitation to discuss these issues on the record. Judges are genetically press shy, and I’m an introvert, to boot. But Americans of good faith need to talk to one another. The more conversations we have, the more we’ll learn that we may disagree on many important things, but there’s much more that unites us than divides us.

That’s why I opened my remarks by talking about naturalization ceremonies. They remind us that what binds us as Americans is not a common race, religion, or political viewpoint—but a common hope for the future.

ELB: David, I truly appreciate that you were willing to brave the elements and travel to attend the event in person.

I was quite pleased with the number of students who crowded the room and how engaged they were in the topic. Like Jim, I was surprised at how many told us they appreciated the opportunity to learn more about our perspective. I must admit that I had steeled myself for the possibility that we would be met with hostility; I have never been happier to be wrong. I walked away from campus far more hopeful than I expected. And I will be happy to return to Yale early next year, this time to the law school, so that we can continue the dialogue. I hope the next event is as positive an experience as this one was.

DBL: You’ve touched on what I wanted to ask about next, but let me frame it more directly: why are you taking all this time, away from your judicial duties and your families, to travel across the country talking about free speech?

JCH: I do zealously guard my family time. So if cancel culture was just a college thing—if it were something you endure a few years and then leave behind after you graduate, like bad cafeteria food and cramped dorm rooms—I wouldn’t have gone to Yale last week.

But there’s a troubling new development in the legal profession. I see more and more lawyers, especially young lawyers, with their careers threatened for nothing more than having certain viewpoints—typically conservative and Christian viewpoints.

Cancel culture has become a cancer on our culture. Students see how folks behave on campus—not just other students, but professors and university administrators. They learn all the wrong lessons from it. We launch them into the world. And guess what happens next? They treat employers, co-workers, and colleagues the same way. What happens on campus doesn’t stay on campus.

Powerful law firm leaders and tenured law professors from top law schools are now telling reporters—typically off the record—that they’re scared of the associates and the law students. Just look at what happened last week. The same week we spoke at Yale about free speech and cancel culture, you reported on the latest explosion of intolerance at major law firms.

I’ve always enjoyed counseling young (and not so young) lawyers on their legal careers. But lately, too many people have come to me because they’re concerned, not about career development, but about career destruction.

This is not America. This is not the Constitution. I swore an oath to defend the Constitution. And that oath is not limited to judicial opinions.

ELB: I agree with Jim on all fronts. It is true that our busy schedules make travel difficult; however, I always make time for important occasions. And standing up for free speech is pretty near the top of the list.

If we don’t make this stand, who will? With life tenure comes a measure of security. Perhaps we are the last line of defense. As federal judges, we swore an oath to the Constitution. Of course we are giving speeches about it.

Somewhere along the way, we lost sight of the founding principles that make our nation great. Our people are exceptional, but we are not perfect. Sometimes we say things inartfully. It’s how we learn to hone our opinions and perfect our arguments. In the past, we excused missteps; today, we assign malicious intent. Instead, we need to afford people a moment of grace. It’s time for cancel culture to stop and open debate to return.

As judges, we have a special relationship to the law and the legal system. I have seen firsthand how the infection has spread to the legal profession. Law firm partners are struggling to navigate management challenges in our new “woke” culture. As mentors to our law clerks, we want to ensure that their career paths aren’t cut short because of the cancel-culture poison that has infected our profession (and many others). So it makes sense for judges to travel to schools to talk about free speech and ensure young people understand how far our country is straying.

DBL: Free speech often gets cast as a “liberal versus conservative” issue. But as a judge, Judge Ho, you’ve defended free speech from all along the political spectrum—for example, in favor of a student who objected to being forced to transcribe the Pledge of Allegiance and listen to the Bruce Springsteen song “Born in the U.S.A.,” or in favor of a citizen journalist who was arrested for asking questions of the police.

Why is free speech not a partisan issue? Why should we all care about defending free speech?

JCH: A principle is not a principle until it costs you. In that sense, free speech is like democracy: If you only believe in it and fight for it for folks you agree with, then you really don’t believe in it at all. That principle captures so much of what I have loved about America since I was a kid—that it doesn’t matter who you are, where you come from, or who you look like, you have the same rights and opportunities to speak and to succeed in America as anyone else.

We’re all creatures of our past experiences. So I’ll mention just two of mine here. One was co-founding my high school newspaper. I developed an early passion for journalism and law and policy, and for our commitment to free speech and open debate. I originally enrolled in the Northwestern journalism school, before I got off the waitlist at Stanford and went there instead.

And that leads me to my second passion—equality of opportunity. I’ll never forget my college advisor telling me that, after all my hard work, my grades and test scores and activities and everything else, I should be accepted at my top choice of school—if only I weren’t Asian. Things worked out in the end. But it was bumpy.

That’s why I volunteered on the Prop 209 campaign before law school. It’s why my first three arguments as a young lawyer were all First Amendment cases.

Cancel culture directly implicates both of these principles—free speech and open debate, and nondiscrimination and equality.

These are foundational principles for our country. To begin with, the First Amendment protects the freedom of speech. Yes, it applies only to the government. It doesn’t require private citizens to respect speech. But if you think that’s the whole story, I would suggest that you have an impoverished understanding of what it means to be an American.

Remember the old debates between the Federalists and the Anti-Federalists, which I discussed in my Kentucky speech. The Federalists advocated a federal government that would unify the several states into one great country, while the Anti-Federalists argued that it would be impossible to have a republic this large and this diverse.

From that debate, we got a Constitution based on freedom of speech, federalism, and respect for diverse viewpoints. We have a political system and a legal system to resolve our differences. And we would work together as one nation under God. E pluribus unum.

I’m glad the Federalists prevailed. But I worry that the Anti-Federalists may ultimately be proven right.

What’s we’re seeing now is antithetical to America, and to the academy. We’re no longer content to simply engage with one another and resolve our differences in the political sphere—we expel people from social and economic life. We live in a culture of cancellation, not conversation. We don’t talk—we tweet. We don’t disagree—we destroy. It’s unsustainable and, I fear, existential.

ELB: The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” Nothing about it is partisan. Currently, however, the main speech that is being silenced, at least in most law schools and law firms, is either conservative or Christian. And so, people try to paint the issue as a political one.

But memories are short. The Supreme Court has often ruled in favor of protecting speech that is far from conservative such as flag-burning, communist speech, and hateful language at service members’ funerals. Right now, conservative speech is in the crosshairs, but we should be mindful that the pendulum often swings. Everyone should have an interest in protecting speech, regardless of ideology.

DBL: The topic of the Yale event was “Is Free Speech Dead on Campus?” When you were college or law school students, what was your experience with this issue?

ELB: When I was in school, it never occurred to me that there might be topics that were off-limits. We discussed everything that popped into our heads, from the sensitive to the mundane. Of course, campuses were generally not so severely divided along political lines back then. We were interested in politics, but we did not allow it to affect friendships. We approached discussions with open minds. Sometimes we changed our minds after listening to others argue. And my feelings were never hurt after hearing a contrary opinion. We weren’t tougher skinned; it just never occurred to us that words could cause lasting harm.

JCH: I had a great experience—both at Stanford and the University of Chicago Law School. It’s not because no one disagreed with me! But the environment was very different. People could debate and discuss and challenge and befriend and learn from one another. So it saddens me when I go to campuses today and hear that students no longer want to even talk to and befriend people who disagree with them. I’m sad that students endure such extreme intolerance—not just from their fellow students, but from professors and university administrators. And that attitude is now infecting the rest of the world.

DBL: Campuses have changed a great deal since we were in college or law school. You have more women, people of color, and LGBTQ people on campus than ever before.

But it’s not enough to just admit them and then let them fend for themselves. Your critics ask: how can you defend the inviting to campus of speakers who make these historically marginalized groups feel unwelcome or even unsafe?

Defenders of free speech often draw a distinction between “mere words” and “physical harm.” But if an anti-LGBTQ speaker comes to campus and spews hate, and a transgender student takes their own life as a result, wasn’t that harm far greater than, say, punching that student in the arm?

ELB: In response to your hypothetical, hate speech is despicable. In a similar vein, at the Yale event we were asked about how best to respond to the argument that “words are violence.” Any speaker espousing violence deserves condemnation. But there’s a lot more lurking behind both the student’s question and yours.

These days, we seem to take shortcuts with arguments by using broad labels, such as characterizing opposing viewpoints as “violence” or “hate speech.” Simply because someone disagrees with you does not mean that their words fall into these extreme categories.

So let’s get away from broad labels and define terms more specifically. Why do critics claim that speakers with opposing viewpoints are “committing violence” or “spewing hate”? What they aren’t saying out loud is that the speakers they condemn typically are conservative or Christian. The liberal students often don’t know the specifics of what the speakers will discuss; rather, the students just want to prevent them from coming to campus to present their views. And the most effective way to do that is to use an emotionally charged label, however false it may be.

JCH: I despise bullying. I experienced bullying as an awkward Asian kid. But we should be able to draw a distinction between bullying and good-faith dialogue, and I would err on the side of presuming good faith—bullies typically aren’t too hard to spot.

I wouldn’t attend an event that “spewed hate” to anyone, and if I were leading a student organization, I wouldn’t invite a speaker who spewed hate. But let’s be honest. Some of the most hateful people right now are the ones canceling speakers.

If we’re truly worried about making sure that everyone—everyone—feels welcome on college campuses, we should be concerned about welcoming conservatives and Christians as well as other groups. And we should be concerned about discrimination against Asians as well as other groups. Otherwise, the sincere concerns you’re referencing—they’re not sincere after all, they’re just a rhetorical move.

DBL: Students who oppose a particular speaker coming to campus have their own free-speech rights to protest; they aren’t required to say or do nothing in the face of what they perceive as hateful speech. What options are available to them?

ELB: When I was in law school, Holocaust deniers were gaining traction and were being invited to deliver speeches. A few of my classmates and I were horrified when we learned about one such event nearby, and we struggled with our response. We didn’t organize a boycott, picket the event, or attend the event and ask tough questions—we stayed home. And it turns out that a lot of people had the same idea. And because no one showed up, the speaker was never invited back. By staying away, we showed that the speech was truly unpopular.

I object to students shutting down speakers. Other forms of protest are certainly available—attend and ask tough questions, hold up signs outside the event, stay home, or organize a competing event. So why are students turning to disruptions rather than these other forms of protest? I suspect that students are turning to disruptions because they are afraid that the speech is not as unpopular as they would like. And that approach should cause grave concerns.

JCH: There’s a big difference between protesting and disrupting. Personally, as a student, I always preferred listening and engaging and then making up my own mind. I heard from every speaker I could, across the spectrum. And I learned a ton as a result. I always saw much more value in engaging over protesting. Engaging gives you the chance to learn when you’re wrong as well as persuade others to come your way.

But protesting is certainly your right. And it’s certainly better than disrupting. And that’s where you cross the line—when you start to disrupt and interfere with someone else’s right to speak or listen.

That’s what we were seeing at Yale last year. Administrators threatened a student’s legal career based on his viewpoint and membership in the Federalist Society. They even said things would be even worse for him if he were white. Meanwhile, they stood by and did nothing while students actively threatened and disrupted others, even one of their most respected law professors, from speaking and listening. Police were present, yet they had to call for backup. There’s been some denial about what happened, but the conservative and liberal speakers wrote a joint op-ed that folks can read for themselves.

The story they tell is one of an intolerant and indefensible educational environment if I’ve ever heard of one. And it’s one I want nothing to do with.

DBL: On that subject, you have famously—well, famously at least within our little corner of the legal world—instituted a boycott of Yale Law School when it comes to clerkship hiring. More specifically, you have declared your intent not to hire students who matriculate at YLS from this point forward (i.e., not current students or alumni).

Why is this the best solution? Isn’t it just discouraging conservatives from going to Yale Law, where their voices are sorely needed?

JCH: My complete reasoning appears in my Kentucky speech, which has been published, but I’m also happy to try to summarize here. What’s the point of any boycott? Boycotts always hurt the boycotter as well as the boycottee. So why are you forgoing transactions that you’ve been engaging in—and benefiting from—for quite some time? You’re doing it to make a point—to spur change in an institution. That’s why you saw boycotts during the civil rights era, and why labor unions go on strike today. They do it to induce change.

Why is Yale boycotting U.S. News? There are conflicting reports, but whatever the reason, it’s helpful to compare what we’re doing and what Yale is doing. We’re both trying to use whatever influence we have to spur change. If anything, what we’re doing is more modest: Yale is trying to make U.S. News more progressive, while we’re just trying to hold Yale to its own commitment to free speech and rigorous debate.

Remember Sweatt v. Painter. What would we say if a judge refused to hire from that law school during that era—even though that would hurt the white students there who opposed segregation?

I’ve said from the outset that, if there’s a more effective way to restore free speech, I’m all ears. But if you talk to students on campus these days, law schools are in “crisis,” to quote Professor Kate Stith. And the situation seems to be getting worse.

I didn’t come up with the boycott idea. I’ve talked to countless students and recent grads who know much better than I do how bad it’s gotten on campus. Including recent Yale law grads. They’re the ones who first suggested the idea to me—and to the late Judge Laurence Silberman (D.C. Cir.), too, I imagine.

Since our announcement, we’ve heard from students, alums, and faculty that the national conversation has in fact influenced the institution. Vivek Ramaswamy, a Yale law grad who literally wrote the book on these issues, has cited our efforts and explained that external pressure is often far more effective than internal efforts to drive change. Because incentives matter.

We’ve also heard from countless federal circuit judges around the country that they support what we’re doing—even if they don’t plan to do so publicly.

You asked us last week whether a private law school has a First Amendment right to be a “woke” law school. And I said: Of course they do! But people deserve to know what you are, before they go there. Are you a free speech school for everyone? Or are you a school for only one segment of the population?

The point of the boycott is to call that question now. Because schools shouldn’t say that they’re one thing, when they’re in fact another. Be transparent about who you are. Be honest with people. And then the market can respond accordingly—students, judges, everyone.

The boycott will either spur change—or it won’t. If it spurs change, great. And if not, then at least the market is on notice. You put it well last week, in a different context: “You walked into the lion’s den—are you really surprised that you got eaten?”1

ELB: Is our approach the best solution? We’re open to other ideas, but it’s the best one we’ve found. We did explore other avenues.

When I first learned of the disrupted event at YLS, I was horrified. And I was not alone. Judge Silberman—a great judge and a patriot who recently passed away—sent an email urging all federal judges to consider whether the participating students should be disqualified as clerkship candidates. After talking to Judge Silberman, I began speaking to law students urging that they embrace free speech and cease disruptive protests. I soon realized that Jim was doing the same.

I learned of Jim’s boycott in the press reports following his Kentucky speech. I must admit, I was surprised at his bold stance. But I have known Jim for almost twenty years, having served with him in the Bush Administration. Jim is a serious person, and his idea deserved serious consideration. So, after pondering it for a week, I called him and told him I would join him; he deserved to have someone stand beside him.

The boycott has changed the dynamics. School administrators are now paying attention. The student balance of power has shifted, even if slightly. The student disruptors are in a more defensive posture, and I hope those who embrace free speech feel slightly less afraid.

Are there downsides to the boycott? Of course, but no solution is perfect. Conservative students may choose other schools, but they might have reached the same decision without our involvement. After all, the YLS incident received a fair amount of media coverage and did not shine a positive light on the school.

If someone else has a better idea, I’d love to hear it.

DBL: What would you say to those who accuse you of just grandstanding by weighing in on a topic that will obviously generate a lot of media attention?

JCH: I suppose critics could ask Dean Gerken the same thing: You’re boycotting U.S. News. Aren’t you just grandstanding? I heard a number of comments when I was at Yale last week—folks questioning her motives, suggesting she’s just cancelling U.S. News to get a promotion somewhere.

Personally, I think it’s much more valuable to address the merits of an idea than to lob insults or cast aspersions on character. So I’m happy to assume that she’s doing what she sincerely believes is in the best interests of her institution—and to address her proposal accordingly.

Look, everyone has a choice to make. You can engage people, or you can alienate them. I choose the former.

As you’ve kindly noted, I have a lifelong passion for the quintessential American principles of freedom of speech and equality of opportunity. Students face more intolerance and hatred on campus than ever before. Other efforts to restore freedom of speech have been ineffectual. And now the problem has spread to the rest of the world.

As Americans, what are we going to do about this? Because I refuse to do nothing.

ELB: I always say that a good day for a judge is a day without media coverage. So, it’s a bit jarring to have someone accuse us of seeking it.

I guess I would respond with a question: how important does the issue have to be for federal judges to take a position (outside of a case) that they know might result in media coverage? Jim and I believe that standing up for free speech on campus and speaking out against cancel culture is sufficiently critical that it’s worth the resulting press questions. I’m not sure how that’s grandstanding.

DBL: At the recent Yale event, you said your goal is to stop the cancellation of conservatives at Yale Law and return to what you referred to as “regular order,” presumably an environment of toleration for many different viewpoints. You don’t want the boycott to continue indefinitely.

We have recently seen—in the wake of your boycott announcement, and perhaps not coincidentally—some positive steps for free speech at YLS. What would it take for you to “declare victory” and lift the boycott?

ELB: As I said in my remarks at Yale, “we’ll see.”

The boycott has not yet gone into effect, and Jim and I have said that we would be thrilled if it never does. And it is true that we have seen encouraging changes. We have been told by a number of sources—professors and students—that improvements have been made. But those same sources say a lot of work remains to be done.

I will be watching next semester as controversial speakers come to campus. YLS has a free speech policy. If it is enforced, and if the speakers are allowed to deliver their remarks, Jim and I will revisit the issue. If not, the disrupters will have proved our point.

I cannot imagine that it is in anyone’s best interests for the disruptions to continue. I think the students embarrassed YLS and themselves. I remain hopeful everyone will try to distance themselves from that unfortunate event.

JCH: As I’ve said, I don’t want to cancel Yale. I want Yale to stop cancelling everyone else.

I’ll repeat the same note of hopefulness that I sounded last week. We are starting to see evidence of change. Jonathan Mitchell recently spoke at Yale, where I’m told he was met with rigorous but respectful questions, not disrupted or prevented from speaking. I’m told that Kristen Waggoner will be coming back as well, to address a topic of her choosing. Hopefully that will go smoothly, too.

I’ve also heard from multiple sources that law school deans all across the country are engaging with their students and cautioning them that “we don’t want to become Yale.”

These are all good developments. The goal is not to boycott—it’s to restore freedom of speech and respect for diverse viewpoints, and to stop viewpoint discrimination.

Some students have asked me to expand the boycott—to make clear that we need a diverse faculty. I have to admit that it’s a valid point. If the goal is freedom of speech and debate and nondiscrimination based on viewpoint, it’s hard to imagine how a school delivers on that goal without diversity of viewpoint in the faculty as well as the student body.

Large institutions are always comprised of people with different priorities and motives. I first met Dean Gerken when I judged the Yale moot court years ago. She was gracious and impressive. And of course I already knew she’s a respected scholar—which is why I’ve cited her work in some of my opinions. Judge Branch and I have told her that we want her deanship to be successful. We just think that restoring speech and debate is essential to her success. And we’ve gotten various signals that she strongly agrees with these principles.

I understand that she’s having to manage various dynamics. The cancel-culture crowd is very loud. Defenders of cancel culture are pushing back hard. These are difficult times for law school leaders. But we’ve gotten some indication that what we’re doing may help them steer through this and get us back on track. I like how Lisa put it: The balance of power may be shifting.

DBL: Conservatives at a place like Yale Law have it hard enough as it is. They face real and serious consequences, ranging from social ostracism by their peers and bad grades from their professors, if they articulate unpopular viewpoints. What advice would you give conservatives who are trying to navigate intolerant environments? Isn’t it smarter to just keep quiet, go along with the liberal orthodoxy, and speak their minds after they’ve graduated?

ELB: I certainly don’t fault students for self-censorship these days. Cancel culture can strike any of us.

But there’s a limit to what we should tolerate. While we should certainly be mindful of the feelings of others, we nonetheless are entitled to our beliefs and to express them. The targeting of contrary opinions needs to stop. But how?

As I urged in my remarks, please do not cave to the bullying tactics of the mob. You do not gain anyone’s respect by bending a knee to their demands; they see your concession as weakness. Stand up. Hold firm. It won’t be easy. But I promise you, you are not alone. And your strength will provide inspiration for those more fearful than you. And, at the end of the day, standing up for your principles is the only way you will respect yourself.

JCH: It’s a poignant and profoundly important question, which a student also asked us last week. It’s the same question I keep hearing every time I’m on campus these past few years. My heart goes out to all of them. They’re the reason for the boycott.

These kids deserve better. Much, much better. I love what my wife Allyson told me recently: We’re the opposite of the Greatest Generation. She’s exactly right. Through their bravery, the Greatest Generation made the world a better place for the next generation. We’re the exact opposite. Through our timidity, we’ve made life harder for the next generation.

We don’t teach kids how to tolerate one another, how to agree to disagree. If anything, we’re doing the opposite. Why? Because we’re afraid of them. We’re afraid of being criticized by them. And you see the results of our timidity in every institution in America today.

Students shouldn’t have to deal with this. It should be on us to take care of this. And that’s what Lisa and I are trying to do with the boycott. This should be on us.

Hopefully change is coming. But in the meantime, let me address your question directly. What advice do I have for students today?

Here’s the only advice I’ve been able to come up with. And I fully admit that it’s inadequate.

Let me start with a note of candor. I’m sure it seems awfully smug for life-tenured professors and judges to tell students: Just be brave! Just speak up! I get that the pressure to conform and self-censor is enormous. You’re surrounded by students and professors who are ready to destroy you if you disagree. You don’t want to end your professional lives and careers before they’ve even begun. It’s easier just to say nothing, get good grades, graduate, and get good jobs. I get it. I really do.

So let me just say this. If you can be the first person to speak up, that’s the ideal. It’s okay to be careful. But know that there may be others who share your views, whom you can embolden with your voice. Silence is contagious. But so is courage.

That said, if you can’t be the first voice, at least try to be the second. If someone else stands up first, try to support them. Even if you don’t necessarily agree with them, try to acknowledge that that was hard, that they’ve raised good points that everyone should think about. And if you do agree, say that you do, if you can.

One of my favorite movie speeches comes from the food critic at the end of Ratatouille. As he puts it: “The new needs friends.”

1Ed. note: Please note the correction I’ve added to that post. I was referring to Munger Tolles & Olson, whose website quotes an American Lawyer article describing the firm as “progressive—perhaps radically progressive,” and I said I wouldn’t have a problem with Munger dismissing conservative lawyers after making clear that it’s a “progressive” firm. But Munger’s chair, leading trial lawyer Brad Brian, reached out to me to clarify that the comment referred to the firm’s governance structure, diversity, and support for work-life integration; it is not a reference to the politics of its lawyers. As he explained to me, “We are proud that our firm is made up of lawyers with a variety of political perspectives. Diversity has always been a cornerstone of our organization, and we strongly believe that a diverse and inclusive workforce—including respect for differing political viewpoints—allows us to better serve our clients and support one another.”

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Skadden Arps Slate Meagher & Flom (photo by David Lat).Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

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Different people go to law school for different reasons, which is one common critique of the one-size-fits-all approach of U.S. News. If I controlled law school rankings, I would have interactive rankings: you would weight different criteria—e.g., Biglaw placement, clerkship placement, debt upon graduation, strength in a particular area of law—and you would get a customized ranking of the schools that best fit your needs.

Which law schools excel at sending their graduates into public-interest law? It’s more difficult to measure than Biglaw or clerkship placement. It’s not easy to get hired by a prominent public-interest organization straight out of law school, and it’s harder for law schools to track their alumni after they’ve been out of school for a while.

One of the few ways to get into public-interest work immediately or shortly after graduating from law school is to snag a Skadden Fellowship. These prestigious fellowships, the public-interest version of Supreme Court clerkships, allow law school graduates and outgoing judicial law clerks to spend two years working full-time in the public interest. Since the program launched in 1988, the Skadden Arps law firm, for which the Skadden Fellowships are named, has funded 962 Fellows.

As I previously explained, each year hundreds of law students and clerks apply for the 28 fellowships. The application process is demanding because it requires much more than just your résumé and transcript:

The applicants are a self-selecting group, because each applicant must propose a public interest project and find a sponsoring organization willing to host the aspiring fellow and her work (the grant actually goes to the organization, not the individual). The sponsoring organization must be a 501(c)(3) nonprofit that provides civil legal services to the poor, including the working poor, the elderly, the disabled, or those deprived of their civil or human rights.

I have been tracking Skadden Fellowships, just as I track SCOTUS clerkships and Bristow Fellowships, for years. I missed last year’s Skadden Fellows, so this story features the 56 impressive young lawyers who represent the 2022 and 2023 Skadden Fellowship classes. I have listed them, plus their law schools, sponsoring organizations, and projects, at the end of this post, along with all schools that have produced Skadden Fellows in the past 15 years (fellowship classes 2009 to 2023).

Which law schools have produced the most Skadden Fellows over the past 15 years? Here are the top 10:

Harvard – 74
Yale – 58
NYU – 39
UCLA – 24
Stanford – 23
U. Penn. – 19
UC Berkeley – 18
University of Michigan – 17
Columbia and Georgetown (tie) – 14

It’s not surprising to see Harvard and Yale, two of the nation’s most prestigious law schools, at the top of the list. On a per capita basis—adjusting for Yale’s much smaller class size, around 200 graduates versus Harvard’s 550 or so—Yale is the #1 school when it comes to Skadden Fellowship placement.

It makes sense to see NYU Law as #3. It’s an elite school like Harvard and Yale, and it’s also well-known for its commitment to public-interest work. It offers extensive support to law students committed to public interest—most famously the 20 Root-Tilden-Kern scholarships it offers each year, but several other scholarships as well. NYU is often compared to its uptown rival, Columbia, and the schools are close on many metrics—but when it comes to Skadden Fellows, NYU is the clear winner.

Similarly, the #4 school, UCLA—the only school outside the top 14 to make the list— has a high-profile and longstanding commitment to public-interest careers. The David J. Epstein Program in Public Interest Law & Policy, one of legal academia’s most robust public-interest programs, celebrated its 25th anniversary this year.

Congratulations to the 2022 and 2023 Skadden Fellows, their law schools, and their sponsoring organizations, and good luck to the Fellows as they work on their worthy projects. And thank you to all Skadden Fellows—past, present, and future—for their work to advance the public interest.

LAW SCHOOLS WITH SKADDEN FELLOWS (2009-2023 FELLOWSHIP CLASSES)

American University – 4
Boston College – 2
Boston University – 2
Chicago – Kent – 1
City University of New York – 10
Cornell – 1
Columbia – 14
Denver – 1
DePaul – 3
Duke – 4
Florida International University – 1
Fordham – 6
Georgetown – 14
GW – 2
Harvard – 74
Howard – 1
Indiana – 2
John Marshall (Chicago) – 1
Loyola (Los Angeles) – 3
Michigan State – 3
Northeastern – 10
Northwestern – 6
NYU – 39
Roger Williams – 1
Rutgers – 3
Seattle – 1
Stanford – 23
Suffolk – 1
Tulane – 1
University of Arkansas – 1
UC Berkeley – 18
UC Davis – 2
UC Irvine – 4
UCLA – 24
U. Chicago – 8
University of Connecticut – 2
University of Illinois – 1
University of Kansas – 2
University of Maryland – 3
University of Miami – 1
University of Michigan – 17
University of Oklahoma – 1
U. Penn. – 19
University of South Carolina – 1
University of Texas – 4
University of Tulsa – 1
UVA – 6
University of Washington – 1
University of Wisconsin – 1
Valparaiso – 1
Vanderbilt – 4
Villanova – 1
Washington & Lee – 2
Wash U. – 4
Wayne State – 1
West Virginia – 1
Widener – 1
William & Mary – 1
William Mitchell – 1
Yale – 58

TOTAL: 426

SKADDEN FOUNDATION — 2022 SKADDEN FELLOWS

Jill Applegate
University of Texas School of Law
Neighborhood Defender Service of Harlem
New York, NY
Will provide direct representation in immigration proceedings for immigrants who have received deportation orders due to prior criminal convictions, but who have the right to remain in the US.

Nola Booth
Cornell Law School
Legal Assistance of Western New York
Ithaca, NY
Will expand an existing medical-legal partnership to Tompkins County, New York to serve low-income families, especially single mothers and pregnant or postnatal parents, providing representation in family court and securing benefits.

Ekaterina Botchkareva
Columbia University School of Law
Capital Area Immigrants' Rights (CAIR) Coalition
Washington, DC
Will provide immigration representation and medical advocacy to low-income immigrants experiencing health-harming conditions in immigration detention through a medical-legal partnership.

Nicole Cabañez
Yale Law School
Prospective Fellow
National Consumer Law Center
Washington, DC
Will provide direct representation using various consumer protection laws, community education, and policy reform for non-English speaking consumers to advance their rights to participate in the American financial system.

Grace Carson
University of California, Los Angeles School of Law
Tribal Law and Policy Institute
West Hollywood, CA
Will establish and institutionalize a comprehensive restorative justice system for tribal nations in order to rehabilitate drug users and address harm caused on reservations.

Ava Cilia
Harvard Law School
Brooklyn Defender Services
Brooklyn, NY
Will address the harmful impacts of the New York State Central Registry of Child Abuse and Neglect (SCR), representing individuals challenging their erroneous inclusion on the registry or seeking employment unrelated to their registration. Will also provide training and support policy advocacy by a coalition of impacted parents.

Anthony Damelio
Fordham University School of Law
Catholic Migration Services
Sunnyside, NY
Will provide direct representation for low-wage immigrant workers in New York City who experience workplace health and safety and other employment law violations in partnership with two worker centers.

Drake Darrah
Georgetown University Law Center
Prospective Fellow
National Association of the Deaf
Silver Spring, MD
Will advocate for access to programs and services for deaf families and deaf children in the child welfare system. Will provide direct representation in Washington, D.C. and Maryland, train families and professionals, and advocate nationally to ensure qualified deaf parents are not discriminated against in becoming foster and/or adoptive parents.

Liza Davis
University of Michigan Law School
American Civil Liberties Union - Women's Rights Project
New York, NY
Will provide direct legal representation, outreach and education, and advocacy to disabled Black girls in Michigan and across the country to combat discriminatory exclusionary school discipline policies and practices.

Laura Flores
University of California, Irvine School of Law
Justice Action Center
Los Angeles, CA
Uses advocacy and litigation strategies to challenge the federal agency practice of sharing and using information related to the trauma, mental health, and behavioral issues experienced by unaccompanied immigrant children in ways that exacerbate their trauma and undermine their ability to secure immigration relief.

Paula Garcia-Salazar
Yale Law School
The Legal Aid Society
New York, NY
Provides direct legal services to low-income people to secure the release of cellphones that have been seized by police while simultaneously seeking systemic reforms to New York's unjust property seizure system through impact litigation and the implementation of Due Process hearings.

Glynnis Hagins
University of South Carolina School of Law
NAACP
Columbia, SC
Will challenge housing discrimination through affirmative litigation, onsite at a local housing navigator program created during the pandemic. Will develop training and Know Your Rights manuals, and will create an education clinic in partnership with local school districts to provide school-based housing assistance.

D.C. Hiegert
University of Kansas School of Law
ACLU of Kansas
Mission, KS
Provides direct representation, community education, and policy advocacy for LGBTQ+ Kansans to enforce, strengthen, and expand existing state and federal legal protections and increase awareness of these protections.

Diana Howat
Northeastern University School of Law
Youth Advocacy Foundation - The EdLaw Project
Boston, MA
Will provide direct representation of court-involved youth and young adults with disabilities in the Boston area to enforce their education rights and support young people in self-advocacy.

Jack Hsia
Georgetown University Law Center
Communities Resist
Brooklyn, NY
Will provide low-income Asian American immigrants housing legal services and wraparound immigration legal services that include access to housing benefits. Will also provide Know Your Rights and community education.

Emma Hulse
University of California, Los Angeles School of Law
New York Civil Liberties Union
New York, NY
Will provide direct representation, impact litigation, and policy advocacy to address the overrepresentation of students of color, immigrant youth, and emergent bilingual students in special education in Westchester County.

Nevah Jones
University of Virginia School of Law
Charlotte Center for Legal Advocacy
Charlotte, NC
Will expand the existing medical-legal partnership between the Charlotte Center for Legal Advocacy and Atrium Health to ensure veterans have effective medical evidence for disability and discharge upgrade claims.

Wafa Junaid
Northwestern University School of Law
American Civil Liberties Union - Immigrants' Rights Project
New York, NY
Will provide direct representation, impact litigation, public education, and policy advocacy to challenge Immigration and Customs Enforcement’s (“ICE”) Intensive Supervision Appearance Program a highly invasive monitoring program used to expand ICE's surveillance and control of immigrant communities.

Shariful Khan
Yale Law School
Public Justice - Students' Civil Rights Project
Washington, DC
Will provide direct representation and systemic advocacy on behalf of low-income students of color in the Washington, D.C., Maryland, and Virginia area facing racially hostile school environments, both harassment and inappropriate discipline.

Kaitlynn Milvert
Harvard Law School
Equip for Equality
Chicago, IL
Provides direct representation to address the long-term and collateral consequences of guardianship for adults with disabilities in Illinois. Will expand access to less restrictive alternatives through outreach, training, and resource development.

Cristina Moreno
Boston University School of Law
Asylum Seeker Advocacy Project
Washington, DC
Is protecting and expanding asylum-seekers’ rights by directly representing the host’s member-leaders in their immigration matters, supporting member-led advocacy, and challenging practices that limit access to asylum, through impact litigation.

Jacquelyn Oesterblad
Yale Law School
Public Justice - Debtors' Prison Project
Oakland, CA
Will provide direct representation and impact litigation on behalf of unhoused people in Arizona challenging the collection of fines, fees, surcharges, and court debts arising from homelessness-related offenses.

Kavya Parthiban
University of California, Los Angeles School of Law
Disability Rights Education and Defense Fund (DREDF)
Berkeley, CA
Will provide advocacy for low-income disabled parents in dependency proceedings, enforcing non-discrimination rights and ensuring access to responsive services and accommodations. Will also provide direct representation and co-counsel cases with family defense attorneys, along with systemic advocacy, and community education.

Eliza Quander
Northwestern University School of Law
Legal Aid Chicago
Chicago, IL
Will provide direct representation and community education for students who have dropped out of school or are at risk of dropping out, in school discipline, special education, and enrollment disputes to enforce their educational rights.

Andrea Reyes Corena
University of California, Davis School of Law
Dolores Street Community Services
San Francisco, CA
Will provide direct immigration representation of undocumented workers in the informal economy in the greater San Francisco Bay Area. Will engage in a mutual-aid model of community education alongside partner organizations to expand access to immigration legal information.

Diana Sanchez
Stanford Law School
Immigrant Defenders Law Center
Los Angeles, CA
Will challenge the detention and surveillance of immigrants with disabilities through impact litigation asserting their rights under disability laws and the federal Constitution, direct representation in habeas and bond proceedings, and the formation of a working group of advocates on these issues.

Delaram Takyar
Yale Law School
Tennessee Justice Center
Nashville, TN
Will establish a medical-legal partnership between Tennessee Justice Center and the Matthew Walker Comprehensive Health Center to provide legal services, for low-income women living in rural Tennessee. The project will focus on clients' access to healthcare and nutrition benefits, in an effort to improve maternal and child health outcomes.

Katie Whitley
Indiana University Robert H McKinney School of Law
Indiana Legal Services
Indianapolis, IN
Will create the first school-based civil legal aid initiative in the Indianapolis region designed to serve low-income families with school-aged children experiencing housing and economic instability. Will also engage students in creating Know Your Rights educational materials in housing law and public benefits.

SKADDEN FOUNDATION — 2023 SKADDEN FELLOWS

Megan Carr
City University of New York School of Law
New York Lawyers for the Public Interest
New York, NY
Enforce New York’s recently enacted Environmental Rights Amendment and provide training and resources for community advocates in areas coping with detrimental environmental and health burdens.

Jessica Cianci
Harvard Law School
Mental Health Advocacy Services
Los Angeles, CA
Legal advice to self-represented litigants, direct representation, and strategic representation for people with disabilities in Los Angeles County’s Mental Health Court and the planned CARE Court system.

Rubin Danberg Biggs
Yale Law School
New York Civil Liberties Union
New York, NY
Increase access to affordable housing by addressing housing discrimination against Section 8 voucher recipients through direct representation and community education, as well as challenging municipalities' exclusionary zoning laws through impact litigation.

Matthew Escalante
New York University School of Law
Legal Aid Chicago
Chicago, IL
Holistic representation of undocumented immigrant youth in the areas of immigration, education, and public benefits.

Raymond Fang
Yale Law School
Legal Aid Foundation of Los Angeles
Los Angeles, CA
Transactional legal services fostering community control and collective ownership of permanently affordable housing, representing community land trusts, tenants’ unions and housing cooperatives.

Isabel Flores-Ganley
University of California, Los Angeles School of Law
Raise the Floor Alliance
Chicago, IL
Direct representation, administrative advocacy, and community education through worker centers to support undocumented workers' organizing to address working conditions, utilizing new federal policies to secure immigration relief for all workers on a site where employers engage in immigration-related retaliation.

Michelle Fraling
Yale Law School
ACLU Center for Liberty
Washington, DC
Individual and strategic litigation on behalf of low-income veterans and servicemembers to ensure equitable access to gender-specific healthcare.

Makayla Harrison
University of Pennsylvania Law School
Education Law Center
Philadelphia, PA
Legal representation of students in psychiatric hospitals and other residential treatment facilities to ensure access to educational services, with an initial focus on students in foster care in Philadelphia.

Adam Hines
University of Oklahoma Law School
ACLU of Oklahoma
Oklahoma City, OK
Expand procedural due process protections for tenants in eviction proceedings.

Jordan Hoffman Kahle
Washington University in St. Louis School of Law
Heartland Center for Jobs & Freedom
Kansas City, MO
Direct representation on workplace legal issues including wage-and-hour, unemployment, and safety violations. Collaborate with local organizing groups to empower workers to understand and assert their rights to fair wages and safe workplaces.

Liz Jacob
Yale Law School
Sugar Law Center for Social and Economic Justice
Detroit, MI
Direct legal service for clients experiencing energy insecurity, including utility debt and power shutoffs. Legal support for community-led policy change challenging inequitable energy burdens.

Ricardo Jimenez Solis
Harvard Law School
Northeast Justice Center
Lawrence, MA
Representation to secure release from detention and immigration relief for eligible immigrants whose cases have been placed in DOJ's Dedicated Docket.

Bridget Lavender
University of Pennsylvania Law School
ACLU National Legal Department
New York, NY
Litigation in multiple state courts challenging laws that criminalize the life-sustaining behavior of the unhoused, as well as advocacy for an unhoused bill of rights.

Zakiya Lewis
New York University School of Law
Incoming Fellow
Lawyers' Committee for Civil Rights Under Law
Washington, DC
Develop litigation challenging anti-diversity and inclusion laws, to support low-income students with marginalized, intersectional identities who benefit most from culturally responsive and inclusive learning environments.

Annie Lo
New York University School of Law
Asian American Legal Defense and Education Fund
New York, NY
Prevent displacement of low-income Asian American communities through a combination of individual representation to help tenants affirmatively secure safe living conditions, and representation of community-based organizations seeking community control over land use and affordable housing.

MaryGrace Longoria
Florida International University College of Law
Legal Services of Greater Miami
Miami, FL
Representation of students with disabilities addressing special education and related needs, with community education and pro bono engagement.

Sarah Lucero
Loyola Law School, Loyola Marymount University
Disability Rights California
Los Angeles, CA
Representation of Native youth with disabilities facing school discipline. In partnership with Native organizers, challenge disproportionality in school discipline and require schools to meet students' academic and cultural needs.

Dana Matsunami
University of California, Irvine School of Law
National Center for Youth Law
Honolulu, HI
Establish a right to counsel for youth in the child welfare system in Hawai’i, through strategic litigation and youth-led coalition advocacy to develop a culturally responsive and youth-centered representation model.

Lily Novak
Yale Law School
Rights Behind Bars
Washington, DC
Represent noncitizens with psychiatric disabilities in ICE detention to secure their release, so that they can seek appropriate care and participate in their immigration defense in their community.

Laura Petty
Fordham University School of Law
Advancement Project
Washington, DC
In partnership with youth and parent-led grassroots organizations in low-income communities of color, challenge school closures and the privatization and funding policies that cause them.

Amy Reavis
University of California, Berkeley School of Law
Montana Legal Services Association
Helena, MT
Holistic representation to survivors of domestic violence, including misdemeanor expungement, public benefits assistance, and advocacy to ensure that survivors secure and retain employment and safe housing.

Sarah Rosenkrantz
Harvard Law School
Greater Boston Legal Services
Boston, MA
Direct representation, community organizing and training, pro se materials, and policy advocacy on behalf of tenants who are Section 8 voucher-holders facing eviction or termination of their vouchers.

Bex Rothenberg-Montz
New York University School of Law
Housing Works
Brooklyn, NY
Affirmative litigation to combat rampant source of income discrimination, and representation on related housing matters and access to public benefits.

Michaela Shuchman
New York University School of Law
Bronx Legal Services
Bronx, NY
Implement a trauma-sensitive and healing-centered approach to school discipline through direct representation of students at suspension hearings, community education, and the creation of a best-practices resource guide.

Noelle Smith
Stanford Law School
ACLU Foundation - Immigrants' Rights Project
San Francisco, CA
Advocate for farmworkers asserting wage-and-hour rights, through direct representation under California law and state constitutional litigation in New Mexico, where farmworkers are excluded from basic wage-and-hour protections.

David Sunshine Hamburger
New York University School of Law
Georgia Legal Services Program
Savannah, GA
Legal representation for public housing residents challenging uninhabitable conditions, opposing plans to demolish developments, and enforcing tenants' rights in the event of displacement by any demolition.

Cathy Zhang
Harvard Law School
Transgender Legal Defense & Education Fund
New York, NY
Litigation, administrative advocacy, coalition building, and public education challenging state-implemented barriers to transgender individuals’ gender-affirming healthcare.

Heather Zimmerman
Yale Law School
ACLU of Maine
Portland, ME
Direct civil representation, potential impact litigation, and policy advocacy to challenge the policies and practices that punish unhoused people, including trespass orders that bar individuals from accessing shelters.

Earlier:

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The Eleventh Circuit benchslaps Trump, a Biglaw firm announces layoffs, and other legal news from the week that was.

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Is expressing support for the SCOTUS decision in Dobbs now a firing offense?

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After a pandemic-driven dip in 2020, GC and CLO salaries bounced back in 2021.

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Please note the UPDATES to this evolving story.

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