On Wednesday, May 6, I had the pleasure of moderating an excellent panel discussion dedicated to exploring these developments. It featured three great experts: Eva Cole, co-chair of the antitrust and competition practice at Winston Taylor; Evan Meyerson, managing director at Burford Capital; and Avi Weitzman, co-chair of the complex litigation and arbitration practice at Paul Hastings.

I’m now pleased to share our conversation with you as a special episode of the Original Jurisdiction podcast. You can listen using the embed above, or you can read the transcript below.

Thanks to the panelists for the time and insight, and thanks to Burford Capital for organizing this great event.

Show Notes:

• Defense-Focused Biglaw Moves Into Plaintiff-Side Work, by David Lat for Original Jurisdiction

• Turning In-House Legal Departments Into Revenue Generators, by David Lat for Original Jurisdiction

• Survey of in-house counsel on commercial opt-out claims, by Burford Capital

• Litigation economics: CFOs and GCs weigh in on best practices in optimizing legal department value, by Burford Capital

Sponsored by:

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

Three quick notes about this transcript. First, it 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. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, 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.

Avi Weitzman: There’s a lot of tunnel vision when you’re the lawyer. There’s a lot of risk that you are so bought in to your client’s case that you’re not seeing the other side. The litigation funders who do due diligence think about the cases in a very sophisticated way.

Evan Meyerson: Leaving this value on the table is not in the interest of your shareholders if you’re a public company or private owners, if you’re not.

Avi Weitzman: The clients increasingly have become much more sophisticated to see the power of affirmative litigation.

Eva Cole: What funding offers is a way to mitigate some of that risk.

Evan Meyerson: If you have a meritorious legal claim, that is an asset. It is an uncertain asset. We don’t know how much you’ll make from it at the end of the day. We don’t know how valuable it will be. But it is an asset nonetheless that you can finance.

Eva Cole: A lot of companies are becoming more sophisticated in looking at potential affirmative cases from a business perspective and thinking about how it can impact business strategy from a larger perspective.

Evan Meyerson: Whether or not we can finance a case, at the end of the day, it’s a math problem.

David Lat: 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 at davidlat.substack.com. You’re listening to a special edition of this podcast, sponsored by Burford Capital.

The economics of legal services are changing. As affirmative litigation opportunities and alternative fee arrangements gain traction among corporate clients, traditionally defense-oriented global law firms are expanding into plaintiff-side and contingency work to differentiate their practices and drive growth. Legal finance is playing an increasingly important role in enabling firms to manage risk and scale these efforts.

To explore these developments, I moderated a panel on Wednesday, May 6, at the Harvard Club of New York. Titled “Biglaw’s Embrace of Contingency Litigation,” it featured three experts: Eva Cole, a litigation partner at Winston Taylor; Evan Meyerson, a managing director at Burford Capital; and Avi Weitzman, co-chair of the complex litigation and arbitration practice at Paul Hastings.

Without further ado, here’s my conversation with Eva Cole, Evan Meyerson, and Avi Weitzman.

Good morning. On behalf of myself and Burford Capital, I’d like to welcome you to this morning’s Burford Briefing. Our topic today is Biglaw’s Embrace of Contingency Litigation, which I actually wrote about for Original Jurisdiction last month. As affirmative litigation opportunities and alternative fee arrangements gain traction among corporate clients, traditionally defense-oriented firms are expanding into plaintiff-side and contingency litigation, enabling them to differentiate their practices and drive growth. Certainly legal finance has been a very important part of that development, and we’re going to learn about that in today’s discussion.

Today we have a fantastic group of panelists to explore this topic. I have to apologize in advance if I keep on confusing their names because we have Avi, Eva, and Evan, and I’m David. So between four panelists, our names use all of six letters of the alphabet. So again, apologies if I keep stumbling. I’m going to introduce them only briefly, because you’re going to learn about them and their practices in the course of our conversation.

Starting to my immediate left, Avi Weitzman is the co-chair of complex litigation and arbitration at Paul Hastings here in New York. He is a former federal prosecutor here in the Southern District of New York, and he has, over the course of his 25-plus year career, handled more than 20 trials and arbitrations.

To Avi’s left is Eva Cole. She is co-chair of the antitrust and competition practice at Winston, also based out of New York. She focuses her practice on civil antitrust litigation, class actions, and international cartel investigations.

And then to Eva’s left is Evan Meyerson. Evan is a managing director at Burford Capital, where he oversees the underwriting, origination, and portfolio-management functions. He previously practiced at Sullivan & Cromwell and Paul Weiss.

So, Eva, as a litigation partner at a major firm, what have you or your firm handled in terms of plaintiff-side or contingency work? You certainly had one very interesting plaintiff-side matter in the news recently—maybe you can talk about that too.

Eva Cole: Yes, I’m happy to start with that one. Most recently, we were brought in to represent the state AGs in the monopolization trial against Live Nation and Ticketmaster. So I would say that’s probably one of the more recent and high-profile plaintiff-side cases that we have handled. I will say that historically, at least at Winston, we have always had a small bucket of plaintiff-side work. Some of that has grown out of our sports practice; we do a lot of work on behalf of the players’ associations and sports players. So a lot of that has been plaintiff-side. But we’ve also historically represented sophisticated commercial clients that have affirmative antitrust claims against their competitors, against their customers in some instances. And so we’ve always handled a little piece of that as well.

David Lat: Avi, what about yourself? What have you or your firm handled in terms of plaintiff’s side or contingency litigation?

Avi Weitzman: My firm has always handled some level of plaintiff-side work because we have a thriving patent practice—and when you have a thriving patent practice, you often will bring affirmative litigation. That said, we’ve expanded our plaintiff-side work considerably in the four years that I’ve been at Paul Hastings. And we’ve done that in part by accepting more litigation finance and also sometimes just contingency work.

So we represent, for example, the largest group of opt-outs in the Blue Cross Blue Shield antitrust litigation. We represent plaintiffs in founder’s disputes; for example, I’m representing a founder of a large unicorn AI company who was cheated out of shares worth $150 million. We represent plaintiff-side clients in trade secret cases. One of the plaintiff-side cases that my firm brought about a year and a half ago involved a founder who developed a technology that Coca-Cola stole—and so he has a large dispute, a billion-dollar dispute, against Coca-Cola.

There’s a range of disputes. Sometimes they are small or smaller companies who can’t afford large firms and will bring in litigation financing for that, or sometimes they are bigger companies who can afford our fees and either want to do a contingency fee arrangement or want to bring in financing and pay hourly.

David Lat: Avi, have you noticed a change in the mindset of clients when it comes to being the plaintiff? Because historically people might think that large corporations don’t like to be in the headlines for litigation—and when you’re the plaintiff, you’re the one who’s generating the headlines in a way. Have you noticed a change in client attitudes about that?

Avi Weitzman: Clients have become much more sophisticated. Typically, large corporations are fairly conservative: they’re on the defense side, they don’t want to get sued, they’re trying to avoid lawsuits, and they’re not trying to bring lawsuits or develop law that can hurt them later. But clients are increasingly seeing that affirmative litigation can have positive business effects—not just positive bottom-line financial effects, but also positive business effects: it can be a way to develop technology, or address anti-competitive conduct, or whatever it may be. It can have a real positive effect, not just be a distraction.

There are still lots of clients with concerns. We went around to dozens and dozens of hospitals when we were doing the Blue Cross Blue Shield recruiting process, and lots of them said, “Wait, you want us to sue our insurance provider?” And we said, “You already sued the insurance provider; you just didn’t know it. So yes, we want you to opt out now, because the settlement was a bad settlement.” There’s a lot of reluctance sometimes to being adverse to business partners. And so with clients, it takes some coaching, it takes some cajoling at times—but clients increasingly have become much more sophisticated to see the power of affirmative litigation.

David Lat: Eva, what about from where you sit? Have you had issues or challenges in terms of convincing clients? Or have clients been coming to you asking for help, asking how to negotiate or navigate some of the trickier aspects that Avi described?

Eva Cole: I’d agree with Avi that at least from my perspective, a lot of companies are becoming more sophisticated in looking at potential affirmative cases from a business perspective and thinking about how it can impact business strategy from a larger perspective. And particularly in the antitrust space where I practice, because there’s been so much regulatory activity that has been favorable to a lot of big companies going up against other big companies, these companies don’t want to get left behind, in terms of being able to take advantage of the benefits of some of those regulatory outcomes. So they’ve been much more open to exploring avenues to be plaintiffs—and what litigation financing offers them is a way to manage their litigation budgets. There’s a whole host of things that they have to be dealing with when they are defendants. So it’s certainly a little bit more challenging for a business to take on an affirmative case, where they’re unilaterally deciding to bring a lawsuit that’s going to be expensive and that’s going to potentially take a lot of years, especially in the antitrust space. What funding offers is a way to mitigate some of that risk.

David Lat: So I have an interesting follow-up question for you, Avi. You mentioned the Blue Cross Blue Shield litigation, which was actually an antitrust litigation, and of course antitrust law sometimes involves the government. You were a former federal prosecutor. Is the antitrust space affected by the eagerness or not-eagerness of government to be involved? Or more generally, is some of this plaintiff-side activity being driven by government perhaps stepping back?

The Live Nation case is interesting, Eva... this is a fascinating case, by the way, people should look it up if they haven’t followed it. Basically, the federal government was suing Live Nation for antitrust violations—and in the middle of a trial, with a jury already seated, the feds basically settled and were like, “Good luck!” But there were all these plaintiff states that wanted to continue litigating. So they tapped Eva and Jeff Kessler and Winston to basically step in, on a week’s notice or something, to handle this giant case.

Eva Cole: Eight days. Lots of time!

David Lat: Eight days….

Eva Cole: Plenty of time!

David Lat: Okay, more than a week—they had eight days—so that was just a crazy case. But, yes, I guess my question is about government and the role of regulation: is government action—or inaction—playing any role in that?

Avi Weitzman: I do think that there is always interest in government investigations that can help cajole defendants, frankly, into settling. If you can get the government involved as a plaintiff, you’re halfway there, because the last thing companies want is civil or criminal investigations, and when government gets involved, suddenly they see the wisdom of settling with the plaintiffs. That said, you lose a lot of control over a lawsuit when the government comes in—you could lose control over the False Claims Act claims, whatever it may be. So you have to measure what your litigation strategy is and decide whether government is helpful or not. The wheels of government sometimes turn very slowly, in every administration—and you as a plaintiff may want to go a lot faster, especially if you have litigation financing, where the payout to the litigation-finance company or funder sometimes increases as time elapses.

David Lat: Actually, that’s a good note on which to bring in Evan. Evan, I would be curious about what role legal finance playing in all of this. How is it contributing to the increased interest of defense-oriented firms to venture into the plaintiff space?

Evan Meyerson: I wouldn’t call it a full-scale evolution over the last half decade. But when you imagine the transition in thinking among what are naturally very conservative organizations, both law firms and corporate entities, I would like to think that much of that is driven by the idea that Burford pushes into the market every day, which is if you have a meritorious legal claim, that is an asset.

It is an uncertain asset. We don’t know how much you will make from it at the end of the day. We don’t know how valuable it will be. But it is an asset nonetheless that you can finance, just like you can finance your real estate or cash, and what we do should be a familiar form of corporate finance at the end of the day. Now, that’s easier said than done, when you are effectively selling into what has traditionally been the most risk-averse audience you can possibly sell into, which are in-house legal departments and major law firms who have, in fairness, done very, very well with the billable hour in the last many decades.

Nonetheless, when you’re thinking about a pie-expansion opportunity, we’ve found a lot of interested minds and even success in talking to companies. So let’s start there, with the idea that leaving this value on the table is not in the interest of your shareholders, if you’re a public company, or your private owners, if you’re not. And there’s a symbiosis between what a corporate entity could do to bring those claims and the interest of the law firms in retaining those institutional clients.

So if you think about corporate entities that 10 years ago would be on the rare side of the spectrum in terms of pursuing affirmative litigation, there were often the same few law firms that would be willing to represent those corporate entities—and it wasn’t Paul Hastings, and it wasn’t Winston. So what we allow is a smoothing of the path to corporate entities, thinking about a world of opportunity costs where we don’t have to have hard conversations with our CFO or C-suite about building budget in for affirmative claims, we can have places like Burford help us, and law firms saying, “I don’t want to lose Fortune 500 client X to the Quinn Emanuels of the world. I want to retain them within the blanket of the firm. And to do so, I have to be able to compete with the economics offered by contingency-driven law firms.” But as a partner, I can’t go to firm management tomorrow and say, “We are suddenly a contingency law firm.” So how do I do that? I go to a funding source to allow some smoothing of our path to taking on more risk, but not taking all of that risk. And so that combines for an ecosystem that allows litigation finance to play a role.

David Lat: A lot of our audience is familiar with the general mechanics of litigation finance. Evan, can you just briefly describe how it might work sort of at a pretty general level, but then also for the folks who are already somewhat familiar with just, say, how it might work in a straightforward, single-case kind of funding, what are some of the things that are emerging more recently in the market in terms of, I guess you could say, innovations in finance?

Evan Meyerson: Sure. So the memory tool I use, which my team will roll its eyes at because I’m really trying to make it happen, is “two-two-two.” Burford does a lot of things. The vast majority of what we do falls into a bucket that you can describe as two potential counterparties to our deals, either a law firm or its clients; two potential sources of what we’d call collateral or things we’re investing in, either a single case, one single piece of litigation, or a group of litigations packaged together, which we call a portfolio; and two forms that our financing can take.

The most vanilla traditional version is funding the costs of a litigation, the fees and expenses that go into pursuing that. And the other is what we call monetization deals, where unrelated to how expensive or not a given litigation will be, if you have a claim that is advanced or more valuable than others in the funder’s view, we might write you—and you again can be a client, the corporate entity, or a law firm—a check. And those funds might be paid all upfront or over time, but basically in advance of either the damages you’ll get later in time or the contingency fee that you’ve agreed upon with your client. So that sort of forms the universe in which we typically operate.

In terms of innovations, a lot of that is driven by the same thing we just talked about, which is some realization that this really is just a familiar form of corporate finance in a less familiar asset class, which is legal claims (and not in bankruptcy, because this has existed in some way in the bankruptcy space for decades). A healthy company that otherwise could afford pursuing litigation might actually seek outside financing in order to keep budgets and resources focused on the thing that company does best, which is almost always not litigation.

That is a surprisingly novel thought: the idea that I could take my advanced antitrust opt-out that has various indicators of success, from the class action proceeding or from government involvement, and say, “Instead of taking out a mortgage on this real estate my company owns, let me use this legal claim to find some non-dilutive financing solution to inject capital into my company.” It seems obvious to Burford—we pound the pavement on that all the time—but that is a novel thought for most corporate entities. So we’re seeing that change happen in real time. It may not be happening as fast as we want it to, but getting people in a room like this to think about it goes a long way.

David Lat: Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. To learn more, please visit burfordcapital.com.

I can definitely see the argument for working with a legal-finance firm from the corporate perspective. You have duties to shareholders to maximize shareholder value, and if you have a valid litigation claim, that’s an asset, and if you just leave it there, not doing anything with it, you could perhaps be breaching duties to your shareholders. And certainly companies have core businesses, and they want to focus on their core businesses; they don’t necessarily want to spend large amounts of money on a litigation, since that’s not the business they’re in. So I understand from the corporate perspective why working with a company like Burford could be advantageous.

Avi, from where you sit at a law firm, and also as someone who’s involved in firm leadership and administration, what are the considerations and perhaps advantages that you see for firms in terms of working with legal-finance firms?

Avi Weitzman: So they’re twofold. One Eva already mentioned, which is it really smooths out the economics of the dispute. Most disputes will take years if they don’t settle early. And the law firm model is one where you bill every 30 days and you collect hopefully within 30 or 60 or 90. That’s how lawyers get paid. That’s how law firms count their receivables and their profits per equity partner. And it becomes a bit harder to do that where you’re not getting any money for years down the road. It does smooth out the downside risk and also the economics for the law firm.

The second benefit, and I cannot overstate this, is that you have an incredibly sophisticated legal team at the litigation funders who are evaluating the claims alongside you. There’s a lot of tunnel vision when you’re the lawyer. There’s a lot of risk that you are so bought in to your client’s case that you’re not seeing the other side. The litigation funders who do due diligence think about the cases in a very sophisticated way. They’re familiar with the judges, they’re familiar with the courts, they’re familiar with the defenses, and they’re really thinking, “Is this going to be a winnable claim, and how are you going to win it?” And they’re really a partner often to the law firm and to the lawyers in thinking about the claims and how to monetize them.

And so getting the buy-in from the litigation funder is a vote of approval to your management that we should bring these claims. But it also increases the level of sophistication to your claims and to your legal strategy.

Eva Cole: Avi really hit the nail on the head. From a firm management perspective, it really is managing the risk of the dollars coming in the door, particularly for long-term cases. So it’s a much easier sell to management in some ways if you can come in and say, “Look, the client really wants to do this. They’d like to do it on some kind of contingency. This is a very important relationship to the firm. However, we’re going to have a way, by using a funder, to have dollars coming in the door throughout the lifetime of the case.”

David Lat: As opposed to just a full contingency, where your partners on the transactional side are like, “Wait, we’re not getting paid?” So I guess I can kind of see that.

Eva Cole: Yes.

David Lat: And going to your point, Avi, it seems that in an age where everyone’s talking about lawyers charging $3,500 an hour, or someday a $10,000 an hour rate, the rates also make working with a legal-finance firm more attractive, it seems.

Avi Weitzman: Yes, when you sit in Eva’s position or my position at a law firm, we have to think, “Well, is this case worth my time?” Because if I’m not working on this case, I might be working on a different case, where a client is paying our rack rates. And we really have to evaluate what’s worth our time and what’s worth the law firm associates’ time and the counsel’s time. And so it’s really quite important to do that evaluation and to think about it in a long-term way.

I haven’t heard about a $10,000 rate—I hope we do not get there, I really do. That would be shocking to me. But we’ll see.

David Lat: I went to a breakfast event with a bunch of legal technologists, and they were talking about how AI is going to disrupt anything. And there was sort of a betting pool on when are we going to get to $10,000 an hour. And the argument was, “Look, as AI just takes over a lot of very rote tasks, there will be fewer human lawyers. But the lawyers who are there, who have the ability to do the things that the AI can’t, like stand up and argue in front of a jury or exercise judgment over all of this stuff that the AI has processed in hours or days, which used to take weeks or months—that person will be extremely valuable.” And so people have been asking, “Is it going to be alternative fee arrangements, or is it going to just be very high billable-hour rates?” But we’ll see.

Avi Weitzman: You raise a good point, which is how AI’s disruption of the legal industry will help the Burfords of this world and plaintiff-side law firms. Because the challenge is, how do you control the cost and expense of a plaintiff-side case? Because you can blow your budget so quickly when the defendants, they’re paying hourly or every six minutes, whatever it is, and they’re just throwing everything at you, and you’ve got to figure out a way to deal with that as a plaintiff, in an efficient and economical way. We’re not there yet entirely, but I do think that AI is going to make it much more attractive to bring plaintiff-side cases.

David Lat: Actually, I want to pick up on that in a sec, but what you just mentioned, Avi, actually goes to a question that was submitted by an audience member in advance. In addition to the Q&A we’ll have at the end live, we did solicit questions from you when people registered, and there were a couple of interesting questions.

And I guess I’ll pose this question to Eva. If you’re doing something on a contingency, whether full or partial because of help from legal finance, how do you manage your budget? When you are billing by the hour, it’s easy because it’s sort of a cost-plus arrangement. It’s just, “Well, the hour costs this much, and we bill it out at that much, and there’s just that built-in profit.” Do you have thoughts on how to manage a budget in a case that is on full or partial contingency?

Eva Cole: It’s a great question, and it is one of the big challenges for traditionally defense-side firms to handle these cases. I would also say that very sophisticated companies who are thinking about these cases in a lot of ways still expect a defense-side firm to provide the same kind of quality and level of detail and attention on a plaintiff-side case as they would on a defense-side case. So you really have the pressure coming from both aspects.

So there are a few things, and I’ve seen different partners handle this differently. I’ve practiced with some partners whose philosophy actually is, “It doesn’t matter. Do the case exactly the way that you would do the defense-side case. Have confidence in that. Know that you’re ultimately going to get the win and that you will recoup that investment.” It takes a lot of confidence to take that position.

The more balanced approach is really thinking about budgeting in a way that defense-side lawyers usually don’t. And so I’ve seen all kinds of things. For example, we have a pricing department at Winston that’s terrific, and they can help you put together a budget on a per-project basis where you can really break it down and tell associate X, “You have X number of hours to work on this particular project. Do your best within that amount of time, and then let’s revisit and see where you are.”

So you just have to take a much more affirmative approach on the front end, in terms of organizing the time and prioritizing—that’s a big piece of it too. What needs to get done now? What’s an optional project that you might be able to wait a little bit longer to do, when the things that are higher priorities are finished? That’s how we tend to look at it, just being much more rigorous about setting the budget on the front end.

David Lat: Avi, anything you’d add to that?

Avi Weitzman: No, that’s right. I’ve taken the approach in some of my cases where I say, “Guys, don’t let efficiency be the enemy here. Because we could litigate this case on the cheap and we might lose as a result, and so losing however many X millions of dollars is worse than winning and spending a lot more.” So I take an approach on every decision, “Is this going to make the difference between potentially winning the case and potentially losing the case?” And if it could make the difference, then I say invest the resources.

David Lat: So this is really interesting. It actually goes to a comment that you made to me, Evan, when I was reporting my piece on this, where you said something like, “Look, even if a defense-side firm starts to do some plaintiff’s work, they’re not going to transform themselves into a traditional plaintiff-side, contingency-fee-oriented firm overnight. They’re still going to have a certain kind of mindset and orientation towards the billable hour.” And the column I published in Bloomberg Law today was actually about plaintiff’s lawyers and just how they think of things differently.

And one of the plaintiff’s lawyers I interviewed, Alex Walsh—she had her own firm, now she’s at Anapol Weiss—was saying that it’s a different way of thinking of things. Because when you are in Biglaw and at a defense-side firm, you can explore every legal issue. You have an economic incentive to review every document or take every deposition because you’re being paid by the hour. Whereas plaintiff’s firms that are handling a range of cases, if you’re at a Susman or a Quinn or a plaintiff-side firm, your time is not limitless. And so you have to prioritize. “Do we really need that witness? Do we really need that depo? Do we really need that tranche of documents?”

So I guess, Evan, can you say more about what you meant when you said, “Look, the mindset is not going to change overnight”?

Evan Meyerson: Yes. Going to Eva’s point, a lot of this comes down to client interest, and I can talk about how the financing world intersects with client interest. If your client is interested in a non-monetary outcome that may require a scorched-earth affirmative-side approach, then you do what your client asks, so long as they’re willing to pay for your time.

For Burford, and we try to instill this in our law firm partners as well, whether or not we can finance a case, at the end of the day, it’s a math problem. On the one hand, it will not make sense for a firm to take on a contingency fee if the more likely outcome is you will spend so much time on this case that you actually would have been better off getting paid your hours than the percent of the case you negotiated. That defeats the purpose of this pie-expansion idea of taking risk. And on the other hand, this is an anecdote that is very true at Burford, we will say no to a dead-to-rights liability case where the damages are insufficient to make our funding make sense. You are going to win this case. It is very, very likely you win this case. The damages are not sufficient to justify a $10 million commitment from Burford, because of the return we’ll need intersecting with the amount of damages you’ll get. We will say no to that case because the spending on it doesn’t make sense for the value.

And so that is key, right? No matter what your client’s interest is, it is incumbent on firms to figure out the math, and we can help here. This goes to Avi’s point: we want to be a resource. It is incumbent on the firms advising these clients to show people that the idea of spending $60 million for a case where if we go all the way through trial, maybe it’ll generate $100 million, but more likely you’ll settle for $40 million—that makes no sense. And so that does require some change in thinking among the Biglaw firm advisors who did spend most of their careers perhaps thinking about defense. To be clear, that does not mean that we want lower quality.

The other most important thing to Burford is the team that we are backing. We talk about that all the time, right? The facts are the facts and more times than not, litigation will be determined by the quality of the lawyering involved in that litigation. And it’s immensely important to us that we back teams that we have faith can be good stewards of our own capital. So we’re surely not looking for less quality representation, but it does require a bit of a different mindset in making the economics work when you’re on the plaintiff’s side versus the defense side.

David Lat: In terms of the aspect of counseling and advising clients, Avi, are you seeing clients asking you about the possibility of legal finance, or is this something you are raising with them on your own, or is it something that’s not really quite on people’s radar yet on the client side? How would you describe that?

Avi Weitzman: It depends on who the client is, and it will come in either direction. Lots of smaller companies and individual clients will absolutely raise the issue of litigation financing in the first instance. The larger companies are not as used to it. They have not had to dip into it. And so sometimes we’ll raise litigation funding as an ability, an opportunity to offset their risk and enhance their own budget.

One of the things that I say to clients when we’re trying to bring them in as plaintiffs, for example, is there’s an advantage to hiring a traditional defense-side firm as opposed to the traditional plaintiff-side firm (and I’m not really talking about a firm like Quinn Emanuel, which I really think of as an Am Law 10 firm). It’s not really the plaintiff-side firms that we think about in a traditional sense, whether it’s a Bernstein Litowitz or whatever it may be.

In a way, at a firm like ours, we know what the defense bar will do in a case better than many plaintiff-side firms. But the fear that a lot of companies have is that if they hire a traditional plaintiff-side firm, they’re going to get this scorched-earth approach, and it’s going to disrupt relationships with vendors, partners, or others. And boards—especially at public companies, but also at private companies—are worried about that type of disruption to business relationships.

And so what a defense-side firm can do is give them the comfort that we know how to litigate without that scorched-earth approach. We understand where the levers are and where the pressure points are, but we’ll also be sensitive to their business needs, because we interact with boards all the time. We understand what the boards really care about. And so we want to moderate sometimes our positions to the client’s advantage, not disadvantage. And that’s a very different approach, comparing what a traditional defense-side firm can do when it handles a plaintiff-side case versus what the traditional plaintiff-side, class-action law firm might do.

Eva Cole: I agree with that wholeheartedly. And clients very much understand that, and that’s what makes hiring a defense-side firm for an affirmative case very attractive to them, particularly for the larger claims, particularly when it comes to litigating cases against their business partners. They want that sensitivity brought to bear, and they want kind of a broader business strategy as part of the overall litigation picture to be contemplated.

Also, picking up on another point that Avi made, there is a huge advantage because the defense-side firms know what’s coming around the corner from the actual defense in a plaintiff’s side case, because we’re on that side all the time. So when it comes to drafting a complaint that can withstand a motion to dismiss, we are equipped in a very different way from some of the plaintiff-side firms to do that, and we’re equipped to anticipate some of the more nuanced arguments that the defense-side litigators are going to make in any given matter.

David Lat: Let’s turn to the other side. What are some of the challenges you face as lawyers who do a lot of defense work moving over to the plaintiff-side? Are there challenges in terms of your partners and associates understanding a certain mentality? Do you have a hard time shifting mindset? What are some of the things that might be more difficult or tricky about this?

Avi Weitzman: Probably the biggest challenge is it’s not so much our partners, it’s more so our associates. I always say to the team, “Guys, we’re the plaintiff here. Stop playing defense. Let’s play offense.” I say that all the time to the team. “What’s our strategy? What are we doing? Let’s look ahead. Let’s carry the ball forward 10 yards every day, and let’s figure out how to get into the end zone.” (I fortunately did not mix up my sports metaphors; maybe I should have gone with the Knicks on that one, “Let’s figure out how to get 140 points.”)

But I always say, “We’ve got to think like a plaintiff. What is our strategy here? How do we get them to settle? How do we press the pressure points to bring them to their knees? How do we get to the board, get them to change their mindset?” Whatever it may be, I tell my associates, “We’ve got to think like plaintiffs.” It is very different than thinking like a defendant.

Eva Cole: To that point, I will share an amusing anecdote. So I had a plaintiff-side case that I handled a few years ago. And again, it’s always been kind of a piece of my practice, but a small piece. So we got a proposed pretrial schedule from the other side, the defendants in the case. And I opened it. It’s in the middle of my day. I’m looking at a bunch of other emails. I open it, I scan it, and my first instinct is, “Oh, this seems like an extremely reasonable schedule.” And then I stopped and said, “Oh no, wait a minute. This is a case where I’m the plaintiff. This is a terrible schedule. This is going to take way too long.” So there is a mind shift that you have to have: you have to think like a plaintiff and you have to be a little bit more aggressive, which is fun.

Another fun but also challenging aspect is that as a plaintiff, you are thinking a little bit more about the PR piece in a way than on the defense side, where it’s very much damage control when you’re thinking about PR. On the plaintiff-side, you’re thinking about how PR can help advance your positions and your claims and the way that your case is viewed in the marketplace more broadly. And that’s a piece of it that adds a very interesting strategic layer, when you’re working often with PR firms and thinking about how to shape the public-facing story of a particular case.

Evan Meyerson: Eva’s point about schedule is enormously important. And there’s two sides to that coin. On the one hand, when we are in the market talking about what Burford does, again, to what can be one of the most conservative audiences one can have in any market, the mindset often of the people we’re speaking to are, “How do I prevent a loss? How do I not lose money?”

Eva Cole: Definitely.

Evan Meyerson: And the thing that we want people to think a little bit more about is, “Obviously we don’t want you to lose. That is bad for everyone, no question about it. But the thing that our capital can help with is also duration.” Burford is exceptionally good at many things, and we’ve told the market this many times. The thing that we, even as the experts in our space, admittedly continue to struggle with—and this will probably resonate with some in this room—is predicting with much certainty the schedule for how a litigation will resolve. There are so many unknowns in the various inflection points that get you from the start of filing a claim to resolving that claim that the duration of litigation weighs very, very heavily on every financing decision.

And so to Eva’s very well taken point, the thing that Burford is constantly talking to our law firm partners about is, don’t blindly accept every extension request on your litigation schedule, even if you would have sought the same extension as a defendant. Time is money, and letting these litigations go on for three, four, five, seven years, it is in no one’s interest, least of all your client’s, certainly not in Burford’s. So pushing the schedule and trying to overcome the duration uncertainty that’s attendant on every litigation is enormously important when thinking about being on the plaintiff-side.

David Lat: The duration point is actually very interesting to me. This is perhaps a little bit of a digression, but Evan, I had a very interesting conversation with one of your colleagues, Aviva Will, about this—and maybe this is a little bit of a plug for Burford—but Burford is a public company.

Evan Meyerson: We love those. Aviva’s right there, too.

David Lat: Burford’s a public company. It has its own capital. And so if a case does take longer than expected, Burford actually has the financial wherewithal to stick it out. A lot of other litigation finance firms operate on a kind of fund model, where there’s a particular period of time, a particular duration, there’s a window for the investors to get their capital back. And so at a certain point, a funder other than Burford might kind of get a little antsy, and they may have reasons or incentives to do certain things that maybe are not in the interest of the litigation. I don’t know if you agree with Aviva on that.

Evan Meyerson: Well, I agree with Aviva on everything, and certainly that. That is, of course, true about Burford. And I would say two things. One is it is certainly right that one of the distinguishing features for us as a business, Burford specifically as a business, is that we are a public company. And that means a couple of things for every counterparty or potential counterparty to one of our deals. One is you can see into our business in a way you can’t with a private fund. We have quarterly and annual reporting obligations, and we put out 10-Qs and 10-Ks, and you can read all about us. And that level of transparency is very unique in our market.

It also means that you can have a greater level of certainty because of that transparency in knowing that Burford’s ability to fund what can end up being pretty long-duration events won’t be dictated by our ability to raise the next fund. Oftentimes in any litigation funding deal, we are committing to a multi-year event. We’re saying, “We will give you up to $10 million towards your litigation that may take four years.” And when we make that commitment, Burford is a bit unique in being able to say, “You can look at our balance sheet and see that we’ll be able to fund it,” as opposed to, “You’ll have to take a leap of faith that we’ll be able to raise a new fund in two years to actually be able to afford doing it.”

The second big point—one that Avi made earlier, which applies to our industry as well—is comfort and trust. One of the big sales points for why a client should stay with the law firm that does their defense work is that the firm knows the client in and out better than any other firm on the planet. And that goes a long way to being an effective representative in a plaintiff-side litigation. The same can be true of your litigation funder.

What I tell people all the time, and this is often the most eyeroll-worthy part of our pitch, is that we are genuinely smart money, and we are a partner. And then oftentimes we get the response, “Yes, but what does it cost?” There’s a certain level of dismissiveness that I get when we make that pitch. But what I try to tell people—and it’s always a little bit hard—but those who have worked with us get it, and it’s that you can always figure out who can you negotiate with that you can make cheaper at the margins. That tiny amount of money you saved upfront is going to mean nothing when you have to have the hard conversation about a budget overrun or litigation taking too long or whether to settle a case. And so what you should be thinking about at the outset is, “Who do I want to have the hard conversations with?” Not, “Who do I want the cheapest capital from?” And that is something our repeat counterparties have experienced with Burford more times than not.

David Lat: Eva or Avi, any final observations you wanted to make?

Eva Cole: What I would say is that litigation funding really offers a new way for longstanding firm clients to think about taking advantage of potential affirmative claims. I would say from the firm perspective, having a process in place for how to think about litigation funding, contingency funding, what cases you’re going to take, having somebody who understands how the process works is really helpful because so many of our partners are not familiar. So I would say if it’s something that your firm is interested in, I would take the time to invest on the front end in terms of getting your ducks in a row, thinking about the process, thinking about who’s going to become the expert on this particular subject, because it will make all the other cases that you fold in under the umbrella go along much more smoothly.

Avi Weitzman: We’re talking about dollars and cents, and fundamentally litigation funding does provide the opportunity to become a plaintiff. I want to talk about something else, which is how much fun it is to be the plaintiff. I was a federal prosecutor for many years in the Southern District of New York, and it was the privilege of a lifetime. I got to be the plaintiff over and over again, standing up in court and saying, “It’s a privilege and an honor to represent the United States of America in this criminal case,” or whatever it was.

And every case, whether it’s a trade-secret dispute or an antitrust dispute, is about prosecuting wrongdoing. It’s about prosecuting wrongdoers. And there’s always a narrative of wrongdoing that you get to stand behind and say, “It’s a privilege and an honor to represent this client as they’re trying to remedy this evil scourge of this wrongdoing,” whatever it may be. And I love that. I love standing up and saying that I’m doing something that’s important for society as the plaintiff or important for my client. There’s always something bigger than just my client.

And I thank litigation funding for giving me that opportunity because normally I’m playing defense, and it’s a very different narrative when you’re on the defense. You’re going second, you’re not going first, you’re not able to persuade the jury in the same way or the judge in the same way. It’s very hard on the defensive side as a result. It’s a lot of fun, but it’s also a bigger challenge on the plaintiff’s side. A defendant sometimes can throw up 10 arguments and has to win just one. We have to run the table on the plaintiff’s side in order to win: we have to run the table on liability, we need to run the table on damages, and that’s very challenging and very strategic. And I just think it’s a blast to be a plaintiff.

David Lat: Thanks so much to Eva, Evan, and Avi for joining me. I enjoyed and learned a great deal from our conversation, and I hope my listeners did as well.

Thanks to Burford Capital for sponsoring this special edition of the Original Jurisdiction podcast. Burford helps companies and law firms unlock the value of their legal assets. To learn more, please visit burfordcapital.com.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about August 19, 2026. Until then, may your thinking be original and your jurisdiction free of defects.

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.

Share

Subscribe now

This week’s Judicial Notice is sponsored by

With a presence in over a dozen cities across the United States and Asia, Lateral Link boasts an expert recruiting team of former practicing attorneys dedicated to sourcing top-tier legal talent for a diverse clientele, including major international law firms and Fortune 500 companies. To learn more about Lateral Link, please visit our website.

Greetings from the Garden State. Zach and I returned home to New Jersey last night, after spending a week up in Provincetown with our boys. We had a great vacation, which even some midweek rain couldn’t ruin.

The drive back from Massachusetts wasn’t fun, taking much longer than it should have—which partly explains this somewhat delayed edition of Judicial Notice. As usual when I publish JN on a Monday, this news roundup reflects developments through Sunday night, but not Monday (and, as usual, it bears Sunday’s date).

Now, on to the news.

Lawyers of the Week: William “Bill” Savitt and Sarah Eddy.

Star litigators William “Bill” Savitt and Sarah Eddy are having an exciting year. In May, they scored a huge victory for OpenAI and its CEO Sam Altman in Musk v. Altman, successfully trying the case before a jury in Oakland (N.D. Cal.)—and, in Bill Savitt’s case, skillfully cross-examining Elon Musk. This was Savitt’s second major win over Musk; he previously led the Wachtell Lipton Rosen & Katz team that forced Musk to close his $44 billion acquisition of Twitter. (Disclosure: I once worked at WLRK, and I’m friendly with Savitt.)

Now Savitt and Eddy are in the news again. Along with four other litigation partners—Randall Jackson, Ryan McLeod, Anitha Reddy, and Brad Wilson—they left Wachtell Lipton and joined the New York office of Gibson Dunn & Crutcher, where Savitt is now a co-chair of the litigation practice group. Savitt’s move was especially notable because he had been a co-chair of WLRK’s executive committee since 2023 and had worked at the firm since 2000, joining not long after clerking for the late Justice Ruth Bader Ginsburg. First reported by Oliver Barnes and Sujeet Indap of the Financial Times, Savitt’s move garnered coverage well beyond legal outlets—from the likes of Andrew Ross Sorkin and Lauren Hirsch of The New York Times and Erin Mulvaney of The Wall Street Journal (gift links).

The FT reported an interesting additional tidbit: “The group of defectors would have included Wachtell partner Nathaniel Cullerton, but his hiring was scrapped after he was filmed in a viral TikTok video in an apparent romantic embrace” with an associate in Central Park. According to the New York Post, Cullerton’s partner in the so-called “Wachtell lip-lock” was a junior associate who worked directly under him, on the same team—and having a relationship with someone who reported to him might have led to him losing his Gibson Dunn offer (and being placed on leave at WLRK).

And wait, there’s more: per the Post, Bill Savitt and Sarah Eddy were also in a relationship at one point. But this was less problematic than Cullerton’s situation, for a few reasons: (1) Savitt and Eddy are both partners; (2) Savitt was separated from his (soon-to-be-ex) wife when the relationship began, and Eddy, a divorcée, is single (Cullerton is married); (3) Savitt and Eddy are no longer together; and (4) Wachtell doesn’t have a non-fraternization policy, so their romance didn’t violate any firm rules. (A certain very senior partner at WLRK has married at least two former colleagues.)1

Here’s the other thing inquiring minds want to know: how much is Gibson paying Bill Savitt? The Post cited sources who tossed out the figure of $32 million a year, guaranteed for three years—but then quoted another source who said this wasn’t “even in the ballpark of close.” The WSJ was less specific, reporting simply that Savitt will earn “at least $20 million a year” at his new firm. According to The American Lawyer, the top of GDC’s partner compensation scale is just above $20 million (but that’s not dispositive, since sometimes laterals receive short-term guarantees that diverge from—and exceed—the hiring firm’s standard compensation scheme).

I have much more to say about this move, which raises broader issues for Wachtell Lipton, Gibson Dunn, and Biglaw. But I’ll stop here for now, saving my remaining observations for Law Firm of the Week and Move of the Week (see below).

Other lawyers in the news:

• Last Wednesday, Dr. Anthony Fauci, former head of the National Institute of Allergy and Infectious Diseases, testified before the Senate Homeland Security and Governmental Affairs Committee. After he invoked the Fifth Amendment more than 100 times, Senator Rand Paul (R-Ky.), a longtime Fauci foe, said he would call for a vote to hold Fauci in contempt of Congress. At one point in the proceedings, Fauci’s lawyer, David Schertler, tried to jump in to explain his client’s invocation of the privilege—but Senator Paul wouldn’t let him speak, ultimately ordering security to remove Schertler from the committee room. (Was Dr. Fauci justified in taking the Fifth as much as he did? Professor Michael Dorf, a leading liberal law professor, expressed some doubts.)

• Speaking of Senate drama, what’s the latest in the confirmation process of Acting Attorney General Todd Blanche, nominated by Donald Trump to serve as the permanent AG? It’s unclear. Senators John Cornyn (R-Tex.) and Thom Tillis (R-N.C.), who must vote for Blanche in order for his nomination to make it out of the Senate Judiciary Committee, didn’t immediately declare their support, citing concerns over (1) Trump’s Anti-Weaponization Fund and (2) the scope of an additional agreement to shield Trump and his associates from tax audits. In response, Trump dug in his heels, threatening on Saturday to revive the fund if Blanche isn’t confirmed. But on Sunday night, Blanche posted two documents on social media, which appear to provide written assurances that (1) the $1.8 billion fund “is rescinded and shall have no force or effect,” and (2) only Trump, two of his sons, and the Trump Organization would be immune from tax audits. [UPDATE (4:43 p.m.): Earlier today, Senators Cornyn and Tillis announced their support for Blanche, based on his written assurances “addressing concerns that multiple of our Republican colleagues share.”]

• In more positive news for the Trump administration, the Senate confirmed Jay Clayton as Director of National Intelligence, by a vote of 51-47. And the judges of the Southern District of New York appointed James M. McDonald to succeed Clayton as U.S. attorney (S.D.N.Y.). Because Jamie McDonald was Trump’s pick for the role, having represented Trump while practicing at Sullivan & Cromwell, he wasn’t immediately fired (which is what has happened when judges have selected U.S. attorneys not in line with Trump’s wishes).

• As expected, former Supreme Court advocate Tom Goldstein filed a notice of appeal in his criminal case. Last week, he was sentenced to six years in federal prison for tax and false-statement offenses.

Judges of the Week: Judges Joan Ericksen, Timothy DeGiusti, Karin Immergut, Kenneth Karas, and Sara Lioi.

Judges Joan Ericksen (D. Minn.), Timothy DeGiusti (W.D. Okla.), Karin Immergut (D. Or.), Kenneth Karas (S.D.N.Y.), and Sara Lioi (N.D. Ohio) serve in judicial districts across the country. What do they share in common? They’re all members of the Alien Terrorist Removal Court, with Ericksen serving as its chief judge.

The what? As explained on the ATRC’s website, “In 1996 Congress created the Alien Terrorist Removal Court as a specialized court and authorized the Chief Justice of the United States to designate five U.S. district court judges to review applications for the removal from the United States of alien terrorists.”

It’s understandable if the ATRC doesn’t ring a bell. As noted by Adam Liptak in The Docket (via Howard Bashman’s How Appealing), until last month the court hadn’t heard a case since it was established three decades ago, in the wake of the Oklahoma City bombing. But as reported by Josh Gerstein of Politico, that just changed: the Trump administration has turned to the court to try to deport Haji Zada, a 47-year-old mother of seven from Afghanistan. The government alleges that Zada is “the matriarch of an ISIS-sympathizing family aiding in a plot to launch a mass casualty attack on American voters on Election Day.” (Zada’s son and son-in-law, arrested before the scheme was carried out, both pleaded guilty to terrorism-related offenses.)

Why has the Trump administration decided to resurrect what some have called a “zombie court”? The procedures of the ATRC allow the government to do things it can’t normally do, such as rely upon unlawfully obtained evidence or not share all of its evidence with the defendant. But are these procedures constitutional? At a hearing last Thursday before Chief Judge Ericksen, assistant federal defender Matthew Farley, counsel to Haji Zada, argued that “[t]his entire scheme is a violation of due process and unconstitutional.”

Will judges agree? We shall see. Litigants who lose before the ATRC can appeal to the D.C. Circuit—and, ultimately, to the U.S. Supreme Court.

In other news about judges and the judiciary:

• The Ninth Circuit isn’t the liberal bastion it once was. It’s now split 16-13, in terms of Democratic versus Republican appointees. Of the 13 Republican appointees, 11 were appointed by Trump—and the Trump appointees are quite prolific, writing separate opinions more frequently than those of other presidents.

• Judge Thomas Ludington (E.D. Mich.), who pleaded no contest earlier this year to a misdemeanor drunken-driving charge, was accused of violating the conditions of his probation by not completing court-ordered drug testing during his probation’s first week. But it appears that Judge Ludington is now compliant, so the probation-violation charge against him was dismissed last week.

In memoriam: Judge Rya Zobel, the first woman to serve as a federal judge in the District of Massachusetts, passed away at 94. May she rest in peace.

Job of the Week: an opportunity for a litigation associate in Los Angeles.

Lateral Link is leading the search for an Am Law 100 firm seeking a litigation associate (2nd-4th year) for its Los Angeles office. This role offers broad litigation exposure, including hands-on experience with written discovery, motion practice, and briefing, as well as strong mentorship and professional development. The firm is open to candidates from firms of any size; what matters is litigation experience, writing and analytical skills, and the ability to juggle deadlines—not a specific pedigree. Clerkship experience is a plus, but not required. The firm offers highly competitive compensation and flexible-hours tracks. For immediate consideration, please email Ata Farhadi at afarhadi@laterallink.com or Jon Dunn at jdunn@laterallink.com.

Read more

This week’s Judicial Notice is sponsored by

BriefCatch is trusted by over 22,000 legal professionals, 50 Am Law 200 firms, and 70+ courts. Built directly into Microsoft Word, it delivers real-time insights to help you write with precision, clarity, and confidence. And with RealityCheck, BriefCatch now verifies that citations are accurate and authorities are used correctly. To learn more, schedule a meeting with an expert—or try it out for free with BriefCatch Express.

Greetings from Provincetown, Massachusetts. I’ll be here with Zach and our two boys for the next week or so, attending LGBTQ Family Week. I’ll be following the news and checking email and social media while on vacation—but if I’m even slower than my usual slow self in responding, it’s because we’re at the beach.

Speaking of children, if you have kids in middle school or high school who’d like to learn more about law or journalism, feel free to share with them my recent appearance on Edutainment Learning. It’s a nice program that features speakers from a wide range of fields and lets students ask us about our careers.

Now, on to the news.

Lawyer of the Week: Tom Goldstein.

In January 2025, former Supreme Court advocate and SCOTUSblog co-founder Tom Goldstein was indicted on 22 tax and false-statement charges. Federal prosecutors claimed that Goldstein earned millions from playing high-stakes poker games against celebrities and business tycoons—and that he didn’t pay taxes on his winnings.

Over the next year, Goldstein’s battle with federal prosecutors transfixed the legal elite. It culminated in a dramatic jury trial that began in January 2026, featuring testimony from Hollywood actor Tobey Maguire, with whom Goldstein played poker (and also represented as a client), plus Goldstein himself. In the end, Goldstein’s biggest gamble didn’t pay off: he was convicted on 12 of 16 counts.

Last Friday, Judge Lydia Kay Griggsby (D. Md.) sentenced Goldstein to six years in prison and ordered him to pay $3.1 million in restitution. At the end of the sentencing hearing, which lasted more than six hours, Goldstein was taken into custody—asked to remove his necktie and shoelaces, then led out of the courtroom in handcuffs.

The six-year sentence was less than the eight years sought by the prosecution, but more than the zero years requested by the defense (which instead asked for a lengthy period of supervision or home confinement). It was also more than the five years the prosecution proposed when it engaged in plea discussions with Goldstein (at least according to what Goldstein told Jeffrey Toobin of The New York Times (gift link)).

I think most observers would agree with what one reader of mine opined on X: it’s a sad turn of events for someone who, despite his personal weaknesses and misdeeds, also did a lot of good. Goldstein devoted about a third of his practice to pro bono work, mentored law students and young lawyers, and founded SCOTUSblog—which Judge Griggsby praised as a “groundbreaking” resource that “has really reshaped our legal community and how we talk about the law.” As someone whose entry into legal blogging and journalism was inspired in part by SCOTUSblog—as well as other early blogs that are still going strong today, like Howard Bashman’s How Appealing and Eugene Volokh’s Volokh Conspiracy—I certainly owe Goldstein a debt of gratitude.

Other lawyers in the news:

• In other news about SCOTUS advocates, Jeremy Feigenbaum is stepping down as solicitor general of New Jersey after six successful—and eventful—years in the role. For a retrospective of his tenure, see David Wildstein’s New Jersey Globe piece. Feigenbaum hasn’t announced his next job, but he’s expected to enter private practice—and his timing is good, given the active market for appellate talent (reflected in the latest Move of the Week, discussed below).

• Sigh. It’s my job to let my readers know about what people in the legal world are talking about—so I feel obliged to flag the viral video purporting to show a make-out session in Central Park between a Wachtell Lipton partner and associate (“purporting” because in the age of AI, I can’t vouch for what’s real and what’s a deepfake). I’m troubled by the idea of filming and disseminating encounters like this one, and I don’t want to join the pile-on, so I’m intentionally not naming them. Further affiant sayeth naught. (If you want to watch the video for yourself or read more about the participants, I can’t stop you from visiting the many outlets with circulations far larger than this humble newsletter’s that have picked up the story.) [UPDATE (7/28/2026, 11:17 p.m.): This scandal has now transcended TikTok and the tabloids, making it into the Financial Times. The FT broke the news of six litigation partners leaving Wachtell Lipton, including firm co-chair William “Bill” Savitt, for Gibson Dunn—and its story about the move included this detail: “The group of defectors would have included Wachtell partner Nathaniel Cullerton, but his hiring was scrapped after he was filmed in a viral TikTok video in an apparent romantic embrace with a colleague last week, the people said. Cullerton had been placed on a leave of absence from Wachtell pending further investigation, some of the people added.”]

• In a series of X posts titled “Worst of the Worst, District Judge Edition,” James Percival, general counsel to the Department of Homeland Security, criticized four federal district judges who ruled against the Trump administration. Philip Pro, a retired Nevada federal judge, called Percival’s posts “terribly disappointing”—as well as “irresponsible,” coming from a high-level government lawyer.

• If you follow professional cycling, IP litigation, or both, you might be interested in Michael Shapiro’s piece for Bloomberg Law, A Cycling Icon Took on a Prolific Lawyer—The Dude Got Personal (referring to Floyd Landis and IP litigator Isaac Rabicoff, respectively).

• Congratulations to Jeff Wall of Gibson Dunn and Rick Pepperman of Sullivan & Cromwell, recognized as Litigators of the Week by Ross Todd of Am Law Litigation Daily. They scored a nice win for their client Boeing in a securities litigation, which the Fourth Circuit held can’t proceed as a class action.

In memoriam: R. James Woolsey—a graduate of Yale Law and former partner at Shea & Gardner (now part of Goodwin), but most well-known for his (rocky) tenure as director of central intelligence in the Clinton administration—passed away at 84. May he rest in peace.

Judge of the Week: Judge Arun Subramanian.

If you’ll allow me to invoke Judge Judy, don’t pee on Judge Arun Subramanian’s leg and tell him it’s raining. A former law clerk to the late Justice Ginsburg and former partner at the litigation powerhouse Susman Godfrey (discussed below under Law Firm of the Week), Judge Subramanian isn’t someone you can pull a fast one on.

Shortly after The New York Times reported on security concerns related to the Air Force One jet that Qatar gifted to Donald Trump, the Trump administration issued subpoenas to five Times journalists, seeking to find out the identities of the reporters’ sources. Condemning the subpoenas as “a brazen effort to intimidate the press,” The Times, represented by Debevoise & Plimpton, filed a motion to quash the subpoenas.

Last Thursday, Judge Subramanian (S.D.N.Y.) held a hearing on the motion to quash—and it wasn’t fun for the government. As Erik Uebelacker of Courthouse News tweeted, Judge Subramanian “is absolutely cooking the DOJ right now for their subpoenas of NYT reporters,” stating that “under normal circumstances, he’d start asking about sanctions for this.” Or as reported by The Times (gift link):

The hearing had just started and Judge Arun Subramanian was no longer allowing Manhattan federal prosecutors to finish their sentences.

Instead, he pressed a top prosecutor, Sean Buckley, for an explanation: Why had the U.S. attorney’s office issued subpoenas to New York Times reporters—typically the final step in a leak investigation—just two days after the publication of an article about the security concerns of the president’s plane?

“Doesn’t that turn the law and the regulations on their head?” Judge Subramanian asked.

Alas, the administration lawyers didn’t come up with great answers for why they so quickly moved to issue subpoenas to journalists—a highly disfavored method for investigating leaks, given its potential to chill protected First Amendment activity.

And the longer the hearing went on, the worse it got. Under grilling from Judge Subramanian, the assistant U.S. attorneys acknowledged multiple “errors” in the investigation, including a second round of subpoenas that should never have gone out (because they inadvertently sought the phone records not of Times reporters, but of the mother of one reporter and the spouses of two others). For more about the hearing—and how painful it was for the poor AUSAs who had to cover it—see Courthouse News, Law Dork, or Above the Law.

By the end of the hearing, the prosecutors agreed to withdraw the subpoenas. That was the right call; if the subpoenas hadn’t been withdrawn, they were going to get quashed. After the hearing was over, the DOJ issued a statement criticizing Judge Subramanian, complaining that his “conduct overrides clear longstanding principles and common sense,” and declaring that the leak investigation “remains ongoing.”

The investigation might be “ongoing,” but you know what else is “ongoing”? Judge Subramanian’s oversight. Later on Thursday, he issued an order declaring that he will retain jurisdiction over “any related matters in this investigation”—and if the government wants to reissue the subpoenas, it must “come to the Court in advance of issuance.” So if the Trump administration wants to return to The Times while investigating this particular set of alleged leaks, it will have to get past Judge Subramanian first—which strikes me as no easy feat.

In other news about judges and the judiciary:

• Speaking at the Ninth Circuit Judicial Conference, Justice Elena Kagan rejected the view that the Supreme Court is “kind of a puppet for the current administration,” calling that accusation “a bad rap” (as reported by Abbie VanSickle of The New York Times (gift link), who attended the conference).

• Speaking of Justice Kagan, Amy Howe wrote an interesting piece for SCOTUSblog, “Is Elena Kagan the stare decisis justice?” According to Howe, over the past decade, “Kagan has been perhaps the staunchest defender of precedent on the Court.”

• Speaking of SCOTUS justices, Chief Justice John Roberts is selling his home in Chevy Chase, Maryland. The seven-bedroom, five-bathroom residence hit the market on June 26, asking $3.2 million, and went into contract four days later.

• Turning to the state courts, Justice Karen Valihura retired from the Delaware Supreme Court as of July 25, as reported by Bloomberg Law (via How Appealing).

In nominations news:

• The Senate confirmed two circuit-court nominees: former Ohio solicitor general Benjamin Flowers, confirmed to the Sixth Circuit by a vote of 49-46, and Judge Daniel Traynor (D.N.D.), confirmed to the Eighth Circuit by a vote of 48-47. (Ben Flowers clerked for the late Justice Antonin Scalia in October Term 2014, and 21 clerks from that Term signed a letter supporting his nomination—including clerks to Justices Ruth Bader Ginsburg and Elena Kagan.)

• The Senate also confirmed three trial-court picks: assistant U.S. attorney Michael Martin (E.D. Mich.), Faegre Drinker partner Antonio Pozos (E.D. Pa.), and associate White House counsel Kara Westercamp (C.I.T.).

• Judge Bobby Shepherd (8th Cir.) announced that he’ll take senior status upon confirmation of his successor. After Donald Trump appoints that successor, Trump appointees will make up a majority of that court (six out of 11 judges), and Republican appointees will (still) outnumber Democratic ones, 10-1.

• Who might Judge Shepherd’s successor be? Per Mike Fragoso of National Review, possibilities include Justices Nicholas Bronni and Cody Hiland of the Arkansas Supreme Court, as well as Judge Lee Rudofsky (E.D. Ark.). I might give the edge to Judge Rudofsky, whose elevation would free up a district-court seat for Trump to fill—assuming Trump and Senate Republicans can move fast enough.

In memoriam:

• Judge John Steele (M.D. Fla.)—who served on the federal bench for more than three decades, as a magistrate and then district judge—passed away at 77. As noted by Sarah Isgur on Advisory Opinions, Judge Steele’s death came shortly after he issued a ruling that ordered the release from ICE custody of a Cuban national convicted of hijacking an aircraft. (Steele received extensive criticism from Republicans for that decision—but there’s no indication, at least as of now, that his passing was connected to the controversy.)

• Justice Ruby Sondock, the first woman to serve on the Texas Supreme Court, passed away at 100. According to Professor Nancy Rapoport, Justice Sondock was “[a] force of nature and a legal legend—and an inspiration.”

May they rest in peace.

Job of the Week: an opportunity for a communications associate in Washington, D.C.

Lateral Link is spearheading an exclusive, unposted search for a repeat client and Am Law firm seeking a communications associate for the firm’s D.C. office. The associate will work on sophisticated regulatory, transactional, and counseling matters involving satellite and space technologies, broadcast and media regulation, telecom, emerging technologies, and commercial agreements. The firm boasts a stellar culture, partners committed to mentorship, an excellent retention rate, and a three-day office requirement. The ideal candidate will possess 2-3 years of relevant experience and an interest in developing broad expertise in communications law. For immediate consideration, please email your résumé to Vered Krasna at vkrasna@laterallink.com.

Read more

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.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

The number of AI-native law firms is exploding, many of them founded by associates frustrated with Biglaw’s pace on artificial intelligence. But partners are also leaving, drawn by AI’s potential to be what Cravath partner turned boutique founder Benjamin Gruenstein called a “force multiplier.”1

The latest leading litigator to depart from a storied firm is Chris Kercher. After more than 17 years at Quinn Emanuel, where he represented clients such as Elon Musk and Ken Griffin, Kercher left to launch his own boutique, Kercher Law.

Why did Kercher leave Quinn Emanuel—one of the world’s most prestigious and profitable law firms, with more than $9 million in profits per equity partner—to hang a shingle?

The short version of his answer can be summed up in a word: AI. The long version rests on certain timeless aspects of law and the legal profession—which make Kercher confident that lawyers aren’t going anywhere.

‘The same job Abraham Lincoln had’

Kercher has spent the past three years exploring possible applications of AI in his practice as a commercial litigator, making him an early adopter in Biglaw. He founded the AI and Data Analytics Group at Quinn Emanuel, as a laboratory of sorts to explore how the firm’s lawyers could better leverage AI. He has taught classes about AI at Stanford Law and NYU Law, his alma mater.

These experiences led Kercher to reflect on the direction of his legal career. As he told me in an interview, “I’m around 25 years into my legal career, and I started asking myself: What do I want to do for the next 25 years?”

And his deep understanding of AI caused him to ask fundamental questions about the practice of law and the role of lawyers: “Where does a human fit in? Clients have Claude; clients have ChatGPT. Why are they coming to lawyers?”

“And the answer is, they have a dispute,” he said. “It’s the same job, in many ways, that Abraham Lincoln probably had: Clients come in with a problem, you advise them, you counsel them, you strategize, maybe you negotiate.”

“But at the end of the day, if you have to walk into court and advocate for them, that’s why they build courthouses. And much of that work in the middle, between the client coming in and advocating for the client in court, can be assisted and augmented by AI.”

Returning to first principles

As much as he loved his time at Quinn Emanuel, Kercher felt that starting his own firm would best allow him to explore AI’s full potential.

“To really understand what you can do with this new technology, you have to get closer to the work,” he explained. “I want to understand, as matters come in, what help do I really need? What is the right role for an associate, for a paralegal, for software or AI?”

“When you’re in a system and you’re in a process, that is the system, that is the process, and it’s difficult to reinvent from first principles,” he said. “Launching my own firm presented the rare opportunity to start with a blank slate, with something brand-new and unconstrained.”

Historically speaking, much of what clients paid for was what Kercher called “context assembly.” In a big-ticket litigation or transaction, “you had all these documents, all these facts, all these memos, all this legal research”—and clients paid for a large number of (very expensive) lawyers to put it all together.

Today, AI can handle much of this context assembly, such as document review or due diligence. This shift has profound implications for the architecture of a law firm: how matters are staffed, how work flows, how young lawyers are trained, and how clients are billed. And in Kercher’s view, building a new firm from the bottom up is the best way to integrate AI into every aspect of running a law firm and serving one’s clients.

“If you look at electrification and early industrial work, factory owners would take their factories and add a light bulb here, a motor there,” he said. “But Henry Ford designed the Highland Park plant by asking, ‘What if we build electricity throughout the factory? What if we just assume that electricity exists, so we can get its benefit in everything we do?’ And that’s how I’m looking at building, from day one, the systems to bring this all together.”

Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk management, asset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR) and works with companies and law firms around the world from its global network of offices. For more information, please visit www.burfordcapital.com.

‘Flipping the risk’

One area where AI should bring major transformation is billing, according to Kercher.

When context assembly had to be done by associates, billing by the hour made sense for law firms because it insulated them against downside risk. If a matter turned out to be more complex or difficult than originally expected—making it more expensive to service, by requiring more associates—the firm was protected, since it was getting paid for the additional billable hours. The client bore most of the risk.

But now, in Kercher’s words, context assembly “has been largely de-risked,” since it can be done primarily—and far more cheaply—by AI.

“So one simple change I’m making is just ‘flipping the risk,’” Kercher said. “I’m leaning hard into ‘fixed fee by phase’ billing, so clients can always understand the cost to get to the next level—while also knowing that they can always step off the treadmill at any time.”

Fixed-fee billing—whether by phase or by matter, which Kercher said he’s also open to discussing—limits the client’s risk (which is why clients like it), while exposing the firm to more risk. But if a case “blows up,” the impact to the firm is now limited thanks to AI, since much of the extra work “can be handled by compute, rather than associates.”2

By capping the client’s risk, fixed-fee billing provides the client with more certainty and comfort. This could make clients more willing to litigate, based on the greater predictability about what it might cost—in turn generating more work for firms.3

So as some work goes away thanks to AI, new work will emerge—which is one of the reasons that Kercher isn’t worried about the long-term future of lawyers and the legal profession.

“If you think about legal as a percentage of GDP, I really don’t think it goes down,” he predicted. “What the transition to the future looks like, including the shape of the work, is an open question. But at the end of the day, the system will work it all out. Our goals—advocating for our clients, helping them achieve their objectives—haven’t changed.”

‘It’s just going to be called litigation’

Kercher has spoken publicly about using specific, cutting-edge tools to litigate cases, such as Claude to strategize and Syllo AI to review documents.4 But at the end of the day, he has an old-fashioned view of litigation.

“‘AI-native’ is a term you see thrown around a lot, especially on the transactional side,” he said. “On the litigation side, I think it’s much more interesting—and it’s just going to be called ‘litigation.’ It’s not ‘AI-native litigation,’ but litigation with an understanding of how we can use AI and technology more generally to get more out of our work and to really extend ourselves.”

“The robots are not coming—at least not for lawyers who can stand up in court and persuade a judge, persuade a jury, and win the case,” he said. “The most protected part in law is that endpoint: the person who’s doing the advocacy, conducting the negotiation, presenting to the board.”

In the end, Kercher described himself as “incredibly bullish” on how AI will affect lawyers and the legal profession. Noting that the practice of law is one of civilization’s most enduring professions, he predicted that “it’s never going away, because it’s how we mediate conflict.”

AI might eliminate certain tasks—or, to be more precise, the ability of lawyers to make money from performing those tasks. But Kercher is confident it won’t eliminate clients’ underlying needs.

As Kercher put it, “What’s left? What’s left is human disputes. Human disputes are not going anywhere.”

And now, the time has come. In our conversation, Ben discussed three topics in the news: (1) his departure from Cravath, which has seen higher-than-usual partner turnover this year, and why he wanted to launch his own firm; (2) Fernandez v. United States, a noteworthy case that was recently decided by the U.S. Supreme Court, which Ben argued before the justices; and (3) how AI is transforming the practice of law—and the role it played in Ben’s decision to leave Biglaw.

Thanks to Ben for his insights—in our interview and more generally—and good luck to him and his colleagues at Gruenstein Law.

Show Notes:

• Benjamin Gruenstein bio, Gruenstein Law

• Cravath Partner Gruenstein Launches Boutique Firm in New York, by Meghan Tribe for Bloomberg Law

• Cravath Investigations Partner Launches His Own Boutique, by Ryan Harroff for Law.com

• Cravath Partner Launches Corporate Investigations Boutique, by Daniel Connolly for Law360

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.

Three quick notes about this transcript. First, it 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. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, 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: 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 at davidlat.substack.com. You’re listening to the 102nd episode of this podcast, recorded on Thursday, July 16.

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. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

As I’ve covered in the pages of Original Jurisdiction, Cravath Swaine & Moore, one of the nation’s most prestigious law firms, has witnessed a fair number of partner departures this year. Some went to other firms, some went in-house—and one decided to start his own firm.

Meet Benjamin Gruenstein—who is, upon information and belief, the first partner to leave Cravath to launch his own boutique since David Boies almost 30 years ago. A former federal prosecutor and Chambers-ranked practitioner for white-collar litigation and government investigations, Ben spent around 18 years at Cravath, where he was a founding member of the firm’s investigations and regulatory enforcement practice. Why did he decide to depart from a legendary firm to hang a shingle? That’s one of the topics we tackled in our podcast conversation—along with AI, which makes now an exciting time to strike out on one’s own.

I also wanted to have Ben on the podcast for another reason. A few weeks ago, the U.S. Supreme Court decided Fernandez v. United States—in my opinion, one of the most interesting cases of October Term 2025, even if it didn’t get as much press as some others—and Ben represented the petitioner in that case. So I wanted to talk to Ben—who clerked for the Supreme Court, but never argued before it—about what it was like to argue before the high court for the first time. Without further ado, here’s my conversation with Ben Gruenstein.

Ben, thank you so much for joining me.

Benjamin Gruenstein: Thank you, David. It’s an absolute pleasure to be here.

DL: So tell us about your background and upbringing. Where did you grow up?

BG: Sure. I grew up right here in New York City, in the Yorkville section of the Upper East Side. My father was a refugee from Nazi Germany. He came here in 1938 when he was 14 years old. My mother was the daughter of Russian Jewish immigrants. I went to Ramaz, a Jewish private school, through high school, and then once I graduated from there, I went to Harvard College and then Harvard Law School.

DL: And I actually know the answer to this question, but for the benefit of my listeners, did you have any lawyers in the family or any early exposure to law?

BG: I did, and you certainly know this all too well. I am the youngest of three boys. I have two much older brothers. My oldest brother is a hematologist-oncologist on the Upper East Side; he’s 21 years older than I am. And the brother that you are referring to cryptically is my brother David, who is 17 years older than I. He was a longtime partner at Wachtell Lipton, and I believe that he was someone that you had the pleasure of working with.

DL: Yes, that’s right. Given the age gap, though, did his being a lawyer affect your decision to go to law school? I don’t know how exposed you were to what he was doing.

BG: Well, certainly David and I have always been very close. There are 17 years separating us. What he and my other brother would tell me whenever I misbehaved is that if I continued to misbehave, they would do to me what they did to all the other brothers that were in between us. But David and I have always been very close, and I certainly was exposed to his practice of law and learned a lot from him. But in truth, it’s not clear to me that he always loved the idea of me becoming a lawyer. He had a fantastic career; he practiced at the pinnacle of the profession at Wachtell Lipton, and he found his career very satisfying and happy. But he certainly knew a lot of lawyers who weren’t, and I think he was concerned about me, as his baby brother, and whether I would find a legal career as satisfying as he did.

DL: I did have the pleasure of working with your older brother at Wachtell. He was a great mentor and supervising lawyer, and so I really do think he had a wonderful career practicing at the pinnacle, as you were saying.

What inspired your decision to go to law school? When you went to HLS, what kind of career did you have in mind for yourself?

BG: Well, with one older brother who was a doctor and one older brother who was a lawyer, it was a fun parlor game at family events for people to speculate in whose footsteps I would follow. When I went to Harvard, I took the pre-med classes for the first year and was thinking about going to medical school. In my second year, I started to take philosophy classes, in addition to the math classes I had taken my first year, and ultimately I decided to major in philosophy and math. So for me, I saw law school as a natural intellectual extension of the coursework I had done. My major as an undergrad was in logic. The topic was the liar’s paradox, which is, “This sentence is false”—which if it’s false, then it’s true, and if it’s true, then it’s false. And thinking through those sort of logical problems led me to think that law school would be something that I would intellectually enjoy and also that I would enjoy ultimately practicing law.

DL: Well, it’s interesting—I’m guessing you did very well in the logic games, which for better or worse are no longer part of the LSAT. When you went to law school, did you have a sense of what your practice might entail? Or what kind of practice environment you might prefer?

BG: No, not really. I went to Cravath as a summer associate for my second summer, and one of the reasons I went there is because I thought it would give me the truest idea of what it would be like to practice as a litigator in New York. And I certainly did get a very good sense of that from my time there. I knew that I wanted to be a litigator—I was interested in the argumentative side of law—but I didn’t really know much more than that. But I had a great time at Cravath, and it led me to think that I could see myself one day practicing law at a law firm in New York City.

DL: So you did eventually return to Cravath, but we’re getting ahead of ourselves. What was your first job out of HLS?

BG: So when I graduated in 1999, I had the pleasure of clerking for Judge Stephen Williams on the D.C. Circuit. Judge Williams was a great mentor to me. He was well-known in the law-and-economics circles for many of his opinions, and I really learned a ton from him and enjoyed the year immensely.

DL: And then after that, you did what many former law clerks to Judge Williams did and went to the Supreme Court.

BG: That’s correct. I went to clerk for Justice Souter, who also, like Judge Williams, was a great mentor to me. Really, it was the honor of a lifetime to clerk for him. He passed away in the last year and a lot has been written on him, but he truly was the most gracious, humble, smart, funny person I’ve ever had the pleasure of being in touch with.

DL: That is definitely what I’ve heard from people who knew him—he seems like a true mensch—so I’m sure that was an amazing experience. Where did you go after your clerkship with Justice Souter?

BG: After clerking with Justice Souter, I knew I wanted to come to New York, and while I was clerking, some AUSAs from the Southern District came down to the Supreme Court to recruit, and I took the bait. I was very excited about becoming a prosecutor. So I went to the U.S. Attorney’s Office for the Southern District where I became a criminal prosecutor for roughly the next five years. Most of that time I spent in the organized crime unit.

DL: It’s interesting you went straight from a clerkship to the Southern District, which at least back then was unusual. Was that through the DOJ Honors Program, or was that just through a regular career hiring?

BG: At the time, they would hire straight out of Supreme Court clerkships—and I think they still do.

DL: Yes, there are definitely exceptions to their practice of hiring experienced lawyers. Sometimes judges who were well-connected to the office would have a clerk go directly, after not that much experience. And as we have been hearing in the news, the DOJ is now willing, in theory, to hire any lawyer directly out of law school. You don’t need a SCOTUS clerkship—they are a little hard up for personnel—but again, we’re getting ahead of ourselves.

So tell us about that experience in the Southern District of New York. It’s a renowned office. There have been amazing alumni, including many I’ve had on this podcast. Tell me about your five or so years in the office.

BG: It really was a wonderful job. For me, I came into that job thinking that I was somewhat of a law guy, having done two appellate clerkships, and when I started, I learned how important it was to be a facts guy, both in the investigations and in trying cases. And one thing that I found very gratifying about trial work at the Southern District, especially because you’re trying cases before such an esteemed bench, is that you really need to bring both the facts and the law to bear. And while I certainly did focus a great deal on facts, both developing them in investigations and presenting them in trial, I felt that my focus on law and my ability to make legal arguments—not only in appellate arguments to the Second Circuit, but also to district judges, even in the midst of trial when I was dealing with, say, evidentiary objections—was very helpful. And I really loved trying cases at the Southern District. It was immensely challenging as well as immensely gratifying.

DL: So it’s interesting what you were saying about having both the law and facts in terms of the ability to argue both. That makes sense to me because the Southern District gets a lot of cutting-edge cases, including some brought under novel theories, and so I could understand why even as a trial lawyer, you would need to be on top of the law. Did you have a particular case or trial or investigation that jumps out to you as a highlight from your time at the S.D.N.Y.?

BG: I would say towards the end of my time, I did an organized crime case against the Genovese organized crime family, or members of the Genovese family—in particular, one captain who was 86 years old when we prosecuted him. He had never done any time in jail, but we prosecuted him for racketeering, extortion, and other related crimes. Ultimately, we convicted him, but that case actually came out of an investigation that we had done of the school bus union, the yellow school bus union in New York, where both the president and the treasurer were connected to organized crime, and ultimately that led to the prosecution of this captain in the Genovese crime family.

DL: Did that matter go to trial, then?

BG: It did go to trial. Another legal media giant, Elie Honig, and I tried the case together, and this captain was convicted. Unfortunately, he died a few years later in jail, but we had a very interesting rapport during trial. Usually the prosecutors and the defendants don’t talk very much to each other during trial, but he took a different approach. And I remember after I had done the summation, which I thought was a pretty hard-hitting summation, and when the jury went out, the defendant turned to me and said, “You couldn’t say one nice thing about me?” And then he said, “Even Meatballs said I was a nice guy.” He was referring to “Sammy Meatballs” Aparo, who was also a captain in the Genovese crime family, and we had played a recording of Aparo saying that this defendant was a nice guy and that he had just become a captain in the Genovese crime family. So we got along well at trial. He was a gentleman, and he certainly treated the prosecutors and the FBI agents with respect.

DL: Oh my gosh, that’s great—I love that. Elie, of course, was a guest on this podcast too, a little while ago. So tell me, then—where did you go after the Southern District?

BG: So when it came time to leave the Southern District, I reached out to Cravath, where I had been. I called Bob Joffe, who was the partner that I was assigned to as a summer associate—he had been the head of the firm—and I called him and said, “Do you have any interest in developing a white-collar practice at Cravath?” Because at the time Cravath did not have a dedicated investigations practice. And he said he would get back to me. He got back to me very soon after that and set up an interview, and I interviewed with several of the partners and then ended up going to Cravath.

DL: You then essentially founded what would turn into their white-collar defense and enforcement practice?

BG: So I started as an associate doing litigation and investigations, and when I made partner, I was the first partner who would have a dedicated white-collar investigations practice, and I worked with another partner who also did a lot of that sort of work and litigation as well. And we dubbed ourselves the investigations group because I thought it was important—both externally facing, to clients, as well as internally—that we be a dedicated practice group. Even though Cravath typically and historically has been a generalist litigation practice, I thought it was valuable to have that specialized practice and to promote that to the outside world.

DL: You’re totally right about that. That is just the way of the world, and you were picking up on a trend that has continued to this day. Did that practice end up expanding over the years, beyond you and the one other partner or colleague you mentioned you worked with?

BG: It did. We brought in some additional partners, one of whom had been an associate before he went off to DOJ. We brought in additional partners from DOJ, as well as from the SEC. So it did grow significantly.

DL: And so tell us, big picture, about your time at Cravath, as both an associate and then later a partner. How many years were you there, and what would you say was a highlight, or what were some of the highlights, of your time there?

BG: So I was there from 2008 until I left earlier this year, four months ago. I became a partner in 2012, and my practice generally was a corporate investigations practice focused on government and internal investigations, but I also did litigation. As far as the highlight, I think certainly the overall highlight was helping to develop the practice. We took the practice from the work of a few partners who would do this sort of work on a one-off basis, and we developed it into a coherent investigations practice. And certainly by the end of my time there, we were handling some very significant matters, really just as we’ve been handling throughout, and that was very gratifying.

One of the matters that I spent a fair amount of time on was the Avon FCPA investigation, which was an investigation of Avon Products related to work they had done in China. Evan Chesler and I were brought in towards the end of the investigation and ultimately helped settle that investigation, and that was a very professionally gratifying event that also led to many of the professional connections that I have today. I can trace many of my clients back to their time at Avon. They’ve since dispersed, and I’ve worked for many companies because their general counsels and the like started off at Avon.

DL: That’s interesting. I actually worked on an Avon matter at Wachtell, Lipton, although it was a civil litigation involving a large commercial lease. But anyway, small world.

So I’m curious: when you were at Cravath over those 18 or so years, what changes did you observe in the practice or the profession? Is there a particular thing that jumps out at you, in terms of what changed over that almost two-decade span?

BG: Well, there certainly were changes over time. In the litigation department, something that we saw was increased specialization. One of the great things about Cravath litigation partners is that they are primarily generalists. They can try any case. And while that does remain true, there was increased specialization. There is a very robust antitrust practice that Christine Varney, who came out of the DOJ Antitrust Division, led for a number of years. We had our investigations practice. We had a specialized IP practice. And not to say that all of these people didn’t work on other things—they all did, and many of them were generalists—but there was increased specialization within the litigation department.

DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It’s not easy, especially if your benefits don’t match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.

In that spirit of being a generalist and being able to do things that are a bit of a stretch, or that perhaps test different talents or cause you to explore something that maybe you hadn’t explored before, one of the reasons I wanted to have you on the podcast is that you argued a case before the Supreme Court in the last term, Fernandez v. United States, which the Court decided fairly late—so the opinion was actually issued not that long ago. Your practice at Cravath, as you mentioned, was primarily an investigations and enforcement-type practice, not a Supreme Court and appellate practice. Did you ever think, perhaps when you were clerking for Justice Souter, that you might want to someday argue before the Court?

BG: Well, certainly when I was there, that was a dream that I had that I would one day be able to argue. During the Term that I was there, Ted Olson had been the solicitor general, he was coming off the job, Seth Waxman was going into the job, and those were really two giants of the Supreme Court Bar—and Seth Waxman still is, of course. So seeing them argue certainly led me to think that this would be a dream come true. Although as you mentioned, my career did go down a different path in that I became a trial lawyer at the U.S. Attorney’s Office, and then when I went to Cravath, I was really more of a corporate investigations lawyer, and the goal of every investigation is to stay as far away from the courtroom as possible, and certainly from the Supreme Court. So yes, it was a dream, but not one that I really spent a lot of time thinking was ever going to happen.

DL: How many appellate arguments did you have under your belt by the time you stepped up to the podium at One First Street?

BG: I’d probably done around 20 at that point—mostly in the Second Circuit, from the time that I had been at the U.S. Attorney’s Office, as well as when I left the U.S. Attorney’s Office, I went on the Criminal Justice Act panel for the Second Circuit and was appointed to represent indigent defendants in their cases in front of the Second Circuit.

DL: So actually mentioning that you were on the Criminal Justice Act or CJA panel ties us into Fernandez. That was a criminal case, and it was not a white-collar case but a murder case—that’s not usually Cravath’s bread and butter. So did you receive that as a CJA case initially, I’m guessing?

BG: That’s correct. So in addition to being on the CJA panel in the Second Circuit, I’m also on the CJA habeas panel in the Southern District, and that involves assignments related to habeas and other post-conviction proceedings. In the Fernandez case, it was a motion for compassionate release. Judge Alvin Hellerstein appointed me to represent Joe Fernandez.

DL: I have written about Fernandez a little bit in Original Jurisdiction, but for folks who might not recall, what was the key issue in the case, or at least the issue that went to the Supreme Court?

BG: So the issue that went to the Supreme Court is whether, in a motion for compassionate release, one of the “extraordinary and compelling reasons” to warrant a sentence reduction, i.e., compassionate release, can include an attack on the conviction or sentence. So in Fernandez’s case, we argued for compassionate release because the judge had expressed in other proceedings, including on habeas, the view that Mr. Fernandez might actually be innocent (he has always maintained his innocence).

And we also argued that there were significant disparities between his sentence, which was life in prison because he went to trial, and the sentences of other of his co-defendants, including the alleged getaway driver who received a two-year sentence to a lesser narcotics offense, which actually was one of the key facts that led Judge Hellerstein to have significant concern that Joe Fernandez may have been innocent. And the reason was that the key cooperating witness who had testified against Joe Fernandez, and on which basis his conviction was obtained, also said that this other fellow was the getaway driver, and the fact that the government pled the alleged getaway driver down to a two-year count led Judge Hellerstein to wonder whether the government itself had doubts about the veracity of the cooperating witness and in turn the guilt of Joe Fernandez.

DL: You actually prevailed in the district court. Tell us how the case made its way to the Supreme Court.

BG: So after we prevailed in front of Judge Hellerstein, the government took an appeal. They also sought a stay of Judge Hellerstein’s ruling, which was denied. So Joe Fernandez was out of jail for around a year and a half before the Second Circuit ruled on his case. I argued the case to the Second Circuit, and then ultimately the Second Circuit reversed Judge Hellerstein’s ruling and said that questions about innocence or about sentencing disparities are really criticisms of the verdict, the conviction, and the sentence that should be raised on habeas and should not be raised through a motion for compassionate release.

DL: Just a reminder: there are actual human beings behind the captions of these cases. So your client, Mr. Fernandez, was out for a time. After the Second Circuit reversed, was he taken back into custody then?

BG: Immediately, yes—the very day.

DL: Wow. Okay. Interesting. So then the case goes up to the Supreme Court. What was it like to argue before the Court? Were you nervous?

BG: I was nervous for months before the argument, but it was really the good kind of nervousness, the type of nervousness that led me to prepare a ton for the argument. When I would have free time, I would sit on my couch at home and have Gemini ask me questions that I might receive as the lawyer for Joe Fernandez, and I thought Gemini did a tremendous job in doing that and I would practice with Gemini. Then on the actual day of the argument, I remember being in the lawyer’s lounge and thinking to myself, “I don’t feel all that nervous. I feel the same level of nerves that I do when I argue in front of the Second Circuit or appear before a district court.” And then that led me to think, “Well, what’s wrong with me? I should really be more nervous.” And that itself led me to become slightly more nervous. And then as I was talking to my other colleagues who were arguing that day, one of them told me that it was his 62nd argument in the Supreme Court, which led my blood pressure to go up a little bit. But I did feel very well-prepared and it probably was because of all the preparation, including with Gemini.

DL: So who was that lawyer on his 60-somethingth argument? I could probably just look it up on the day calendar, but I’m curious.

BG: It was David Frederick from Kellogg Huber.

DL: Oh, yes. Or Kellogg Hansen now, I guess. But go ahead.

BG: Yes, from Kellogg Hansen. He was arguing a related case to mine, and he split time with Dave O’Neil from Debevoise, and Dave had been in law school with me and clerked the same year I had. He clerked for Justice Ginsburg, and he was also at the U.S. Attorney’s Office with me. So it was nice to be there and to go through that with an old friend.

DL: So when my husband Zach Shemtob interviewed Cecillia Wang, who argued the birthright citizenship case, she said that she was nervous beforehand, but once you’re in the moment fielding those questions from those nine very engaged justices, you kind of almost don’t have time to be nervous; you’re just really in the moment, focused on their questions. Did you feel that way?

BG: Well, certainly. And you really end up having a conversation with nine different people at the same time, and your neck keeps swiveling around as you talk to the different justices. But I found it to be incredibly exciting and fun to be doing it, and very quickly the nerves went away.

DL: How many moots did you do—as in standing up with human beings, rather than Gemini?

BG: I did three moots. I did one at Georgetown, I did one at Northwestern—both at their law schools—and then I did one with a bunch of former Southern District AUSAs that are in my network, friends of mine. They all came to Cravath, and we did a moot around a conference table. All of the moots were fantastic, and that moot in particular was probably the most predictive of what the actual argument was.

DL: You and I had coffee while the case was pending before the Court, and you were not super optimistic about the bottom-line outcome. Were you surprised by the outcome of the case? And maybe you can also explain to my listeners what the court did hold in Fernandez.

BG: Sure. So ultimately what the Court held was my argument that Fernandez might be innocent really is an attack on the conviction and that had to be brought on habeas and could not have been brought on a motion for compassionate release. While I was disappointed in the ruling, I’m not sure I was surprised. During the argument, it was very clear that the Court had concerns about the “floodgates” problem, which is that if they allowed this case to go forward on compassionate release, then it is likely that the floodgates would open and that all sorts of motions for compassionate release would be made.

I was disappointed, however, for a few reasons. One, I had pitched this case very much as a textualist case, and I thought it would appeal to a textualist court. The question was whether the phrase “extraordinary and compelling reasons” could capture really anything that could be found to be extraordinary and compelling. And I was very frank with the Court during argument that I thought it would be rare that an attack on a conviction would be extraordinary and compelling in a case like this (which frankly wasn’t really an attack on the conviction because we never said there was insufficient evidence, we just said that he very well could be innocent and because of that, he had already served enough time). So it was disappointing that the Court interpreted the words “extraordinary and compelling”—which, while they do set a high bar, are very broad words—to establish what I refer to as an atextual limitation on those words.

And I was also disappointed because I really do feel strongly that judges should have the discretion, certainly in very rare cases, to exercise justice when they feel that an injustice has been done, and that’s what Judge Hellerstein did here. And while I do understand the floodgates problem, it’s unfortunate that the floodgates problem eclipsed what is another problem: in some number of cases, hopefully very rare, there is a real injustice, and the judge should be able to reduce a sentence. Here, Judge Hellerstein couldn’t after trial because it was a mandatory life sentence, but it was certainly my view that he should have the discretion to do justice down the road.

DL: The Court ultimately split 8-1, although Justice Sotomayor wrote a concurrence in the judgment, which was joined by Justice Kagan. Justice Jackson filed a dissent. And I think some of the arguments you just outlined to me, including your point about how to read the statutory text, really were very important to Jackson’s dissent.

BG: Absolutely. So Justices Sotomayor and Kagan agreed with me on the question that was presented—that an attack on the conviction or a criticism of the conviction can be extraordinary and compelling—but what they said is, “But there need to be some changed circumstances,” which there weren’t in this case. Justice Jackson agreed with us on the question, but also on the application to this case, which is whether the potential innocence of Joe Fernandez could be extraordinary and compelling. And she basically said, “Well, what could be more extraordinary and compelling than a judge being concerned that an innocent man was sentenced to life in prison? And shouldn’t the judge be able to do mercy as a matter of statutory language?” Because Congress said extraordinary and compelling. And while there was no evidence in the legislative history that they had this case in mind, Congress did refer to the statute as a safety valve, that it should be kind of a last-ditch opportunity for a judge to reduce a sentence, and Justice Jackson really did make that textual argument that the words should be read as they are understood in a dictionary. And that understanding does not allow for a categorical limitation for arguments that could have been raised on habeas.

DL: Yes, I do think that was actually one of the strongest points of her dissent. One last question about Fernandez. It’s interesting: the case was argued in November, but the opinion didn’t come down until the end of May, practically June. You’ve been on the inside of this, as a former Supreme Court clerk. Did you have any thoughts on the delay?

BG: So what I thought was going on, as I was speculating and waiting for the decision to come down, is that there would be one justice who would write both majority opinions, and that could slow things down and that they would have to be coordinated because there was another case that came down, the Rutherford and Carter decision, and it raised a very similar issue. So Justice Barrett ended up writing both of those majority opinions, and then Justice Jackson wrote the dissenting opinion in Fernandez and Justice Sotomayor wrote the dissenting opinion in the Carter/Rutherford case. So my guess is that there was some cross-case thinking that kind of took a little bit longer to get the two opinions out.

DL: Okay, fair enough. And I would urge my listeners to go and check these cases out. They’re quite interesting, even if they didn’t generate as many headlines as birthright citizenship or tariffs.

Now let’s turn to another reason I wanted to have you on the show: your recent departure from Cravath to launch Gruenstein Law. I believe you’re the first Cravath partner since David Boies left Cravath to leave the firm to go hang a shingle, so to speak. What led you to leave such a storied firm and strike out on your own?

BG: I think what you just said about David Boies is right, certainly in my memory. And you’re right that Cravath is a storied firm. It is a fantastic firm, and I had an amazing experience there. I learned a tremendous amount. I mentioned Evan Chesler earlier: he was the head of the firm for a long time, and he really taught me to be a corporate litigator. I very much valued my time as one of the founders of the white-collar practice and ultimately a senior partner in that group. And then I was also the hiring partner for the litigation department for four years before I left. So all in all, I had a wonderful experience.

Ultimately, however, starting my own firm is something that I’ve dreamed about for a long time. I very much want—and I’ve always wanted—to practice law in precisely the sort of way that I want to practice law, to take on the matters that I want to take on and the clients that I want to take on without certain constraints, to have flexibility around things like rates and conflicts, and to join forces with friends and other like-minded people who want to practice law in exactly the same way that I do.

DL: Cravath has experienced an unusually high number of partner departures this year. When I was working in private practice, I think the only way people left Cravath was in a box. Any thoughts on that?

BG: Well, I certainly wouldn’t draw any conclusions from the recent departures. Cravath is a fantastic firm, it’s doing extremely well, and everyone I’m sure has their own reasons for why they left. I certainly can speak to the reasons that I left, and certainly it has nothing to do with how the firm is doing; as I said, it’s doing great.

DL: So it’s interesting what you were talking about in terms of moving toward this opportunity to practice law in the way that you would like. One thing about Cravath is it’s a very storied firm, and it’s very traditional. People would even say—I don’t know if it was a joke or not—that they had firm conventions for how you would do a letter and where the indents would go and all of this. It’s a very traditional firm, and things have to be done “the Cravath way.”

Tell us more about why you decided to launch your firm. What are some of the things that you can do now at Gruenstein Law that you couldn’t do at Cravath—not through any fault of the firm, but just because it wasn’t the Cravath way?

BG: Well, I’m not sure I would say it wasn’t the Cravath way and that I’m looking to do anything differently. In fact, for me, Cravath was a very transformative time and led me to be the lawyer that I am today. Really what I’m talking about is having the flexibility—primarily through rates, but also avoiding conflicts—to take on any matter that I want to take on, regardless of things like whether it’s a big client or a small client, or what the rate structures or the fees might be. If there is a matter that I want to take on, I want to have the flexibility to do it.

Also, there are areas of my practice that I want to develop and hopefully will, which I was not able to do at Cravath for understandable reasons. For example, I would like to do more of a white-collar criminal defense practice in addition to the corporate investigation, to represent people in their white-collar trials. I also want to develop a criminal appellate practice, which is something that I got much more of a taste of during my Supreme Court argument, and I would love to be able to do more of that sort of work. So those are all things that I have in mind and that I look forward to doing.

DL: What’s your vision for the firm? If I check in with you five years from now, where would you like to be?

BG: Well, I don’t really have a particular vision for where I’ll be in terms of the size of the firm or the like. My number one goal is to continue doing the sort of high-quality work that I did at Cravath, to continue doing it at this firm, and to do it with the best lawyers that I can find who would be willing to join me, whether it’s associates or partners, and together we’ll serve our clients extraordinarily well. And if I’m still doing that five years from now, I will be extremely happy. I don’t expect that this firm will grow as large as Boies Schiller did in its first five years, but I would certainly expect growth. I am looking to grow, but I’m also looking to really focus on the quality of the work and the quality of the people who join me.

DL: So Boies Schiller did grow very quickly. I interviewed David about that a number of years ago, and I don’t know, they initially set up in some kind of barn or stable or something, which they very rapidly outgrew. [Ed. note: it wasn’t a barn or stable but a loft, about four miles from where David and Mary Boies lived.]

How big is your current team?

BG: Currently, we have an associate as well as a law clerk. The law clerk is a lawyer from Israel who is now studying for the bar, and she principally handles everything related to AI for the firm, and it’s great to have someone of her background. She’s very technical and can really help navigate the firm’s AI tools.

DL: That actually leads me to an additional reason I wanted to have you on the show: over the past few months, you and I have had some interesting conversations about AI and the practice of law. Besides what you mentioned earlier about helping prepare for oral argument with Gemini, are you using AI in your own practice, and if so, how?

BG: Yeah, absolutely. When I started the firm, I started completely on my own. I didn’t hire my first employee for two months. So I was using AI extensively at the beginning myself. When I had to do interrogatories and document requests, I would use Claude to help me draft it. I didn’t like using Claude to draft things start to finish—I feel like I lose too much control over the document if I ask Claude to just draft—but I would do one interrogatory at a time. I would tell Claude I want an interrogatory about X, and Claude would write it, and then I would edit it, and I would go one to 20 that way. So I was using it extensively.

Right now we are using it extensively. We’re demoing a few products to see which we like best. And ultimately, I actually think it’s going to be very similar to how firms use both Westlaw and Lexis: people have different preferences, there will be different AI tools that will appeal to different people, and firms may offer several of them. And that’s what I aspire to do—to have the right tools for anyone who joins me.

DL: That’s really interesting. I’ve been talking to a lot of lawyers about that, and that’s exactly what people are saying: the different tools often have different things that they’re especially good at, and it’s your job as a lawyer to figure that out.

Taking more of a 30,000-foot view, what do you think AI will mean for the legal industry or the business of law? And, of course, the question everyone’s wondering about is: are lawyers going to be out of jobs?

BG: Well, I think AI is going to have and already is having a profound impact on the legal industry. On the business side of law, you have to imagine that as law firms can use AI to engage in certain low-level or menial or repeated tasks, they won’t need as many human associates to do it. It just seems natural that that is going to be the outcome. Now, whether law firms can redeploy associates, whether they can use associates to do different things... I’ve always thought that associates don’t spend enough time when they’re writing briefs actually reading the cases, as opposed to just pulling out snippets to quote. So hopefully associates will find more time to think deeply about cases and read the case law. So in that way, certainly associates can do other things. But I certainly think some of the work, or even a lot of the work, that junior associates are doing can be replaced by AI, at least in part.

And for law firms, I think the question is going to be, well, how do you bill clients when it doesn’t really seem to make a lot of sense anymore to bill clients on an hourly basis, because the value you may be giving to clients may really not relate to the hours that are being worked because the AI time is really saving a lot of work. So I think those are ways in which the business can be changed.

There’s another way that I think that AI is really going to change the legal industry, which is the question of how associates are going to learn how to be lawyers at law firms. Historically, and even today, the way associates learn how to do something like document requests is that they’re told go find some templates or some samples and adapt them to the case that we’re working on. Now, that’s something that AI can do really well; AI is great at pattern recognition. So you really shouldn’t have an associate doing that from scratch. The associates should use AI.

And in my view, the way associates are going to learn is not through the 10 hours of drafting document requests, but rather in having AI do it and then going over it with the partner and the partner saying, “These are the things I like about this draft, and these are the things that I don’t like.” And what that starts to look a lot more like is the apprenticeship model, and it’s interesting to think that as technology advances, we’re actually going to go back to the apprenticeship model. But that certainly strikes me as a good thing, and it strikes me as a way in which smaller firms or boutique firms or firms with far lower leverage, a much lower associate-to-partner ratio, will be very well-equipped to work because with fewer associates per partner, it’s much easier to have that apprenticeship model.

DL: That’s such an interesting point, and it was certainly the way that I learned in many ways. If I would draft something and your brother would edit it, I might sit down with David and he would go through and explain why he made each change, and that was tremendously educational for me.

You mentioned earlier the billable hour. Your former partner, Evan Chesler, famously wrote an article years ago predicting the demise of the billable hour, and I think it has lasted longer than he expected. And I think it is still, when I talk to lawyers, the dominant method of billing for many people in so-called Biglaw. What is your own approach at Gruenstein Law to fees and to billing arrangements? How much of your work is still on the billable hour, and how much of it is on alternative fees? What can you say about that?

BG: Some of my work is still on the billable model because it’s just really too hard to predict at the beginning of a matter how long something’s going to take, but on several of my matters, I’m using alternative fee arrangements and doing flat fees because my goal is to bill clients according to the value that I provide them, and the number of hours that I work or that anyone on my team works is not necessarily correlated with the value that they’re getting out of it. So what I like to do is to hear from a client about what the problem is, what the matter is, if it’s an actual case or if it’s just advice, and to think what is the value that I can add, and then to suggest a fee that I think is appropriate.

So I think currently I’m probably doing flat fees in around a third of my matters, but I really would like that to increase as I get a better sense of the matters and how they’re going to go in the future, and I’m better able to assess the value that I’m going to be able to provide to clients. But I very much would like to work as much as possible on a flat-fee model because I want to align my interests completely with the client’s.

DL: And that’s a great point about perhaps being able to do more on alternative fee arrangements once you have more experience, because one thing that firms that are very good with AFAs have is a lot of data. They have a lot of historical data about how long a matter of this type took us. So when you’re just starting out on your own, it’s probably harder—but I’m guessing that over time, your work done pursuant to AFAs is going to increase.

BG: I think that’s right, and it really is very consistent with my overall approach, which is that I want to do the best work for the clients whose matters I want to handle, and while sometimes it’s hard to justify very high fees simply because that’s what it takes to do the work, I think it is possible to justify fees based on the value that I’m providing. And if I can bill on that basis, I think that’s something that clients would appreciate, and that’s certainly a way that I would appreciate working.

DL: Let’s now turn to my speed round. These are four standard questions, which are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

BG: On this one, the issue really relates to my corporate investigations practice, and there companies feel a very strong pressure to settle with the government when they’re undergoing investigations, and I find it frustrating that there’s such a trial penalty in the corporate space. I don’t think it’s good for companies, I don’t think it’s good for shareholders, and frankly, I don’t think it’s great for the justice system. So I wish companies would be willing to fight a little bit more when they’re under investigation.

DL: That’s a great point, and you’re not alone in that. I would refer my listeners to the writings of one of my past podcast guests, Judge Jed Rakoff.

My second question is, what would you be if you were not a lawyer?

BG: Well, I’m not sure what I would be, but I do know that if I do retire or start to slow down in the future, I really would love to open a kosher deli.

DL: Okay, that’s a good one. I had a meal today from a deli—not a kosher one, but a very good deli.

My third question is, how much sleep do you get each night?

BG: I get around seven to eight hours and often will sleep in on the weekends a bit.

DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

BG: I certainly made a big career change in the last few months, and what I would encourage your listeners to do is to enjoy their career and to try to get the most out of it. This is a very exciting profession, but they should spend time every now and then assessing what it is that they enjoy and what it is that they find satisfying and to make tweaks along the way.

DL: Well, I totally agree with that. And as someone who enjoys my career, including speaking to folks like you, thanks so much for joining me, Ben.

BG: My pleasure. It’s great seeing you, David. Thank you.

DL: Thanks so much to Ben for joining me, and congratulations to him on the launch of his firm.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please 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. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, August 5. Until then, may your thinking be original and your jurisdiction free of defects.

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.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. The footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

The U.S. Supreme Court has an image problem. Last summer, the Court’s approval rating dipped below 40% for the first time. Since then, it has climbed slightly, to 42%—but it’s still well below the 60% or so that was typical in the early 2000s.1

There’s a big partisan gap in the Court’s approval rating. Democrats are especially unhappy with the Court—and some of their candidates are even campaigning on the issue.

It’s possible, however, that the Court’s unpopularity is partly—or even primarily—an optics problem. According to Professors Jack Goldsmith and Will Baude, who aren’t shy about criticizing President Donald Trump, the Court—including its three Trump appointees—has demonstrated some amount of independence from the Trump administration. Noting how the justices ruled against Trump in major cases involving tariffs, birthright citizenship, and the Federal Reserve, Goldsmith dubbed the institution the “powerful, resilient, independent Supreme Court.”

So what can the Court do to address its image problem? With all due respect to Chief Justice John Roberts—who usually assumes the role of statesman and spokesperson, especially in his year-end reports on the federal judiciary—the Court needs new “faces” for its “brand.”

Who might replace Chief Justice Roberts as the Court’s principal communicator? I hereby nominate Justices Elena Kagan and Amy Coney Barrett.2

Last Tuesday, Justices Kagan and Barrett testified before panels of the House and Senate Appropriations Committees. It was the first appearance by Supreme Court justices before Congress in seven years. But given that the two justices hit it out of the park, hopefully such testimony will become an annual tradition, as it used to be.

The official reason for the justices’ appearance was to explain and advocate for the Court’s $228 million budget request, including $14.6 million for hiring additional agents to protect the justices amid growing threats aimed at the judiciary. But the lawmakers ventured beyond the topic at hand, posing questions about controversial topics such as the Court’s emergency docket, public reputation, and ethics code—which Justices Kagan and Barrett answered with alacrity and adroitness.

Both the House and Senate hearings got off on the right foot when Justice Kagan opened with a heartfelt tribute to the late Sen. Lindsey Graham (R-S.C.), who died unexpectedly over the preceding weekend. That set a personal tone for the proceedings—a helpful reminder that the subject of security for the justices involves the safety of real people and their families.

It was reinforced when Justice Barrett, early in her testimony, recounted a recent swatting incident at her home, as well as having to explain the bulletproof vest she received at work to her 12-year-old son. “I didn’t expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one,” she said.

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

The justices presented a unified front on security. But they parted ways on other topics in their testimony, including whether the Supreme Court’s code of conduct should have an enforcement mechanism. Justice Kagan reiterated her support for having the chief justice appoint a committee of lower-court judges to enforce the code; Justice Barrett described her own position as “less certain,” in light of the complexities involved.

But even when they disagreed, the justices did so in a constructive and collegial fashion. As Justice Barrett said near the end of her House testimony, “We work hard to disagree well, when we disagree—and we agree a lot of the time. And I think that kind of constructive engagement—not just throwing your hands up and saying, ‘I’m not going to deal with people with whom I disagree’—is what we need to move forward.”

And you know what else would be helpful moving forward? More regular congressional testimony from members of the Supreme Court.

Because justices hadn’t appeared before Congress since 2019, the prospect of their doing so this year was “treated as something of a novelty,” as Professor Steve Vladeck wrote. “But for most of the Supreme Court’s modern history, it was anything but,” he explained—with justices “regularly trekk[ing] across First Street to testify before Congress” on a wide range of subjects.

That was a good thing, in Vladeck’s view—and mine—because it “created a setting in which justices could be asked difficult questions,” showing their “willingness to engage with the political branches on terms beyond the court’s own choosing.” By contrast, when the justices shun appearing before Congress, it does a disservice to our democracy, which requires healthy engagement between the three branches of government.

If the Court does decide to send its members to Capitol Hill more regularly, as it did on an annual basis from 1960 through 2011, it should stick with Justices Kagan and Barrett.3 Their appearance last week demonstrated that they are superb ambassadors for the Court—especially as a team.4

First, as former professors, they excel at explaining the Court’s complex work, including to people who might not have much legal knowledge—with legislators and journalists replacing 1Ls as the audience. Second, they’re funny and charming, blessed with high EQ, people skills, and patience—perhaps honed while serving as dean of Harvard Law School (Kagan) or parenting seven children (Barrett).

Third, because they come from opposite wings of the Court—Justice Kagan was appointed by President Barack Obama in 2010, while Justice Barrett was appointed by President Trump in 2020—they can appeal to both sides of the aisle when testifying before Congress. They can show, as they did on Tuesday, that it’s possible to disagree without being disagreeable (and it probably helps that they sit at the ideological center of the Court).

[UPDATE (7/22/2026, 12:02 p.m.): On this point, Professor Josh Blackman raised an interesting possibility at The Volokh Conspiracy: Justice Kagan wearing red and Justice Barrett wearing blue—the traditional colors of the Republican and Democratic parties, respectively—“was a subliminal attempt at bipartisanship.” I wouldn’t be surprised if the justices coordinated sartorially; they did sport matching handbags, after all.]

Separation-of-powers concerns could arise if Supreme Court justices, while “singing for their supper” on Capitol Hill, wind up pandering to legislators or opining on substantive legal issues. But Justices Kagan and Barrett came nowhere close to that in their testimony—and they are, as two of the most judicious of the justices, especially well situated to avoid impropriety.

Yes, the separation of powers is critically important, and so is judicial independence. But judicial independence isn’t the same as judicial isolation. When the justices emerge from their marble palace to engage with the American people and their elected representatives, good things can happen.

This week’s Judicial Notice is sponsored by

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

We live in northern New Jersey, 45 minutes outside New York City (and half an hour from where the World Cup final took place), and last week was… not very pleasant here. It was hot and humid, and our air quality was pretty terrible as a result of the Canadian wildfires. If you’re dealing with similar conditions, I feel your pain.

On a happier note, Chase celebrated his third birthday. His grandparents got him way too many gifts—because grandparents gonna grandparent—and we also had a nice pizza-and-cupcake party for him at school.

In terms of writing, I wasn’t as prolific as I had hoped. I published the Original Jurisdiction version of my recent Bloomberg Law column about Cooley’s big push into litigation—with the usual supplemental footnotes, including one posing a question about Supreme Court clerkship bonuses that perhaps some of you can answer—but I had planned to publish more. I’m hoping to make it up to you in the coming week, with three posts in the hopper (in addition to next weekend’s Judicial Notice).

Lat’s Lifehack of the Week: get a banana stand. Our two boys enjoy bananas, but they would often go bad on us. My new best friend Claude informed me that you’re supposed to hang bananas, just as they do in supermarkets. So we hopped online, coughed up $16, and acquired a handsome banana stand. Problem solved!

Now, on to the news.

Lawyer of the Week: Todd Blanche.

Last Wednesday, Acting Attorney General Todd Blanche, 51, appeared before the Senate Judiciary Committee for his confirmation hearings to serve as U.S. Attorney General. There weren’t many surprises: the Democrats harshly criticized Blanche and Donald Trump—whom Blanche represented as a criminal defense attorney before Trump’s return to the White House, and whose bidding he has done during his time at the Department of Justice (e.g., by authorizing the prosecutions of Trump’s political enemies)—while Republicans gave Blanche a warmer reception. For collected coverage, see Howard Bashman’s How Appealing.

But it wasn’t a total cakewalk for Blanche with the Republican senators—who must unanimously support his nomination in order for it to get out of committee, given the unified Democratic opposition. Senator John Kennedy (R-La.) pressed Blanche on the closeness of his relationship with Trump, asking the nominee whether he considered the president to be his friend. This led to what Professor Barbara McQuade described as “[p]erhaps the most revealing moment” of the hearing, in which Blanche responded, “I’m his lawyer”—oops—before immediately correcting himself and saying, “[I] was his lawyer.”

Senators John Cornyn (R-Tex.) and Thom Tillis (R-N.C.), who haven’t committed to vote for Blanche, asked tough questions about the $1.8 billion “Anti-Weaponization Fund,” Trump’s mass clemency for January 6 participants, and the Justice Department’s handling of the Jeffrey Epstein files. Tillis asked Blanche to meet with Epstein victims, which Blanche had declined to do up to that point—and the next day, Blanche met with Epstein victims for about an hour.

I suspect that on one level, Senators Cornyn and Tillis, who have had rocky relationships with Trump over the years, would love to “stick it to him” and torpedo the Blanche nomination. But in the end, I’m guessing they’ll vote for him (and Tillis is already telegraphing that, describing himself as leaning yes).

Why? Here’s the case for confirming Blanche, as made by former attorney general Bill Barr and former Senate Judiciary Committee lawyer Michael Fragoso: (1) Blanche is smart, competent, and experienced (not always the case with Trump nominees); (2) he’s doing the best that can be reasonably expected, given Trump’s view of the DOJ; (3) there’s no guarantee that any future AG nominee would be better than Blanche; and (4) as acting AG, Blanche can discharge the duties of AG pretty much indefinitely, so there’s not much practical point to voting against him. And so, in the words of the Wall Street Journal editorial board (gift link), Blanche is simply “a lawyer doing his best to deal with an impossible client”—and “a permanent Attorney General might have more stature to reject the wild ideas that are sure to come.” [UPDATE (7/20/2026, 3:48 p.m.): For the case against confirming Blanche, see Bill Dyer’s post in the comments.]

Other lawyers in the news:

• Former SEC chair and current U.S. Attorney Jay Clayton (S.D.N.Y.), nominated to serve as Director of National Intelligence, had a similarly contentious confirmation hearing on Wednesday. But I’m guessing that he will be confirmed in the end as well, since one could do a lot worse. (The acting DNI is Bill Pulte, director of the Federal Housing Finance Agency, whom the Associated Press described as “a housing official with no known intelligence experience… who used his previous administration perch to target perceived adversaries of the president.”)

• There continues to be upheaval among the ranks of U.S. attorneys. In the Eastern District of Virginia (Alexandria), the Trump administration named Theo Stamos, a longtime state and local prosecutor, as first assistant U.S. attorney—and the acting U.S. attorney, in the absence of a permanent U.S. attorney (whether Senate-confirmed or judicially picked). In the Western District of Washington (Seattle), the judges of that district selected former federal prosecutor Roger Rogoff as U.S. attorney—and Trump immediately fired him.

• Kathryn Ruemmler, former general counsel and chief legal officer of Goldman Sachs, testified at a closed-door hearing of the House Oversight Committee about her six years of interactions with the late Jeffrey Epstein—and described him as “a masterful liar.”

• If you were a reader of Gawker and/or Above the Law in the 2006-2008 period, you’ll want to click on this article from Town & Country (and if you weren’t… sorry, you just had to be there): “Julia Allison and Noah Feldman’s Wedding Brought Together Burning Man and Harvard.”

In memoriam:

• Johnny Brown—a longtime attorney for Miami-Dade County Public Schools, and the father of Justice Ketanji Brown Jackson—passed away at 80.

• Trial lawyer Arthur Shartsis, cofounder of the San Francisco-based law firm Shartsis Friese, passed away at 80.

May they rest in peace.

Judge of the Week: Justice Todd Eddins.

Meet Justice Todd Eddins, 62, of the Hawaii Supreme Court. Before joining the Aloha State’s five-member high court in 2020, he served as a trial judge for three years. Prior to taking the bench, he worked as a public defender and criminal defense lawyer in private practice, handling 125 jury trials and winning several notable acquittals.

As you might expect of a former public defender, Eddins is liberal—and not a fan of the conservative U.S. Supreme Court. In State of Hawaiʻi v. Wilson (2024), he wrote an opinion rejecting defendant Christopher Wilson’s constitutional challenge to his firearms prosecution—and laced into the high court’s Second Amendment jurisprudence, arguing that it “disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement.” In his view, “a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities” can’t be reconciled with Hawaii’s “spirit of Aloha.”

Eddins’s condemnation of the Court, especially his invocation of the “spirit of Aloha,” generated some criticism—from Sarah Isgur and David French of Advisory Opinions, Professor Jonathan Turley, and three SCOTUS justices. After losing before the Hawaii Supreme Court, Christopher Wilson asked the U.S. Supreme Court to step in—and although SCOTUS denied certiorari, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch issued statements respecting the cert denial that threw plenty of shade on Justice Eddins and his colleagues (while explaining that, for various procedural reasons, the Court shouldn’t get involved at this early stage of the proceedings).

It turns out that Wilson was just a warm-up act. In Granillo v. State of Hawaiʻi, Justice Eddins wrote an opinion granting a new trial to a defendant who had been convicted of kidnapping and sexual assault based on scientifically discredited forensic evidence—and Eddins devoted around nine pages of his 91-page opinion to attacking recent rulings of the U.S. Supreme Court.

Justice Eddins wrote a majority opinion for three justices, while Justice Lisa Ginoza wrote a concurrence in the judgment—in which she agreed a new trial was required, but based on different reasoning that cited certain federal cases. This led Eddins to assert that Ginoza was relying on the U.S. Supreme Court’s understanding of due process (a claim she denied, for the record). And so to delegitimize her position, Eddins sought to delegitimize SCOTUS:

We interpret the Hawaiʻi Constitution on its own terms. The United States Supreme Court’s construction of the federal Due Process Clause does not define the protections of our state’s due process clause. This court “reason[s] independently, untethered from the Supreme Court’s analysis of the United States Constitution.” State v. Wilson, 154 Hawaiʻi 8, 14 (2024).

The Court that now defines federal due process does not honor the work of 1954 [when Brown v. Board of Education was decided]. It revives the work of 1857 [when Dred Scott v. Sandford was decided]. The work of 1896 [when Plessy v. Ferguson was decided]. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405 (1857).

And he goes on—for another eight or so pages. As Justice Ginoza drolly noted in a footnote, “Although it is apparent, it is also worth noting that the majority voices disdain for recent United States Supreme Court rulings on issues that are not pertinent to this case.”

Not surprisingly, Justice Eddins’s opinion in Granillo generated blowback. Fox News collected comments from conservative commentators like Iowa Solicitor General Eric Wessan, who called it “an unhinged attack on the legitimacy of the Supreme Court,” and Jonathan Turley, who opined that it was “devoid of judicial restraint and decorum.” In National Review, Carrie Severino described it as “a nine-page broadside against the U.S. Supreme Court” that was “ugly” in tone—as well as “littered with negative parallelisms, a common hallmark of AI-generated text.”

But Justice Eddins had his defenders. In a story for Slate titled “One Judge Has the Guts to Put the Horror of This Supreme Court Term in Context,” Mark Joseph Stern praised the Granillo opinion as a “well-timed excoriation” of a Supreme Court that “has veered so far off track that even the harshest language can feel inadequate to capture the damage wrought by its most recent Term.” According to Stern, “It is a shame that so few are brave enough to speak candidly about the constitutional wreckage left by the Republican-appointed supermajority.”

What do you think? Read (or skim) the relevant section of the opinion (pp. 72-80), then take my reader poll:

In other news about judges and the judiciary:

• By issuing such a vociferous attack against the U.S. Supreme Court, which has the power to review decisions of the Hawaii Supreme Court, Justice Eddins was arguably asking to get benchslapped. Judge Lawrence VanDyke (9th Cir.) also requested some benchslaps—for his colleagues. Dissenting from the denial of rehearing en banc in Knife Rights, Inc. v. Bonta, in which the Ninth Circuit turned away a Second Amendment challenge to California’s switchblade regulations, LVD condemned his colleagues’ treatment of that amendment as “a second-class right”—then argued that to address the problem, “The Supreme Court should consider summarily reversing some of our wayward Second Amendment decisions. To put it more colloquially, it’s time for some benchslaps.”

• In their recent congressional testimony about the Supreme Court budget, Justices Elena Kagan and Amy Coney Barrett were asked about a proposal to transfer responsibility for the upkeep of certain federal courthouses from the General Services Administration, which is part of the executive branch, to the judiciary itself. They understandably declined to opine on the issue, which was outside the scope of their testimony. But I’m not so judicious, so I will offer my two cents: GSA should transfer control of all federal courthouses to the judiciary, and the judiciary should receive the funding it needs to bring crumbling courthouses up to code. First, it makes sense as a matter of separation of powers, as underscored by the controversy over Trump’s Biglaw executive orders (which could have been read as barring lawyers from the targeted firms from entering federal courthouses—property controlled by the executive branch, even though they’re where the judicial branch does its work). Second, GSA has been doing a terrible job as the federal judiciary’s landlord, at least based on the reporting of Mattathias Schwartz for The New York Times (gift link).

In nominations news:

• Last week, the Senate confirmed three judicial nominees: Sullivan & Cromwell partner Matthew Schwartz (2d Cir.), Florida Fourth District Court of Appeals Judge Jeffrey Kuntz (S.D. Fla.), and executive assistant U.S. attorney Arthur “Rob” Jones (S.D. Tex.). Schwartz represented Trump in two appeals, while Kuntz ruled in Trump’s favor on a jurisdictional issue in Trump’s lawsuit against the Pulitzer Prize Board.

• The Senate Judiciary Committee voted five nominees out of committee, sending their nominations to the Senate floor. Two of the nominees, assistant U.S. attorney Michael Martin (E.D. Mich.) and Faegre Drinker partner Antonio Pozos (E.D. Pa.), received support from some of the Democrats on the Committee.

• My fellow judiciary junkies might be interested in Judicial Finder. It’s a free, nonpartisan resource covering more than 20,000 judges, federal and state—including appointment histories, senator-by-senator roll calls for every recorded confirmation since 1989, and each seat’s succession chain, running back to 1789.

Job of the Week: an opportunity for a products-liability litigator in Atlanta.

Lateral Link is partnering with an Am Law 100 firm that is expanding its class-action and products-liability practice in Atlanta, seeking litigators with 3-5 years of experience. The ideal candidate will have significant complex litigation experience from a large law firm or reputable litigation boutique and strong analytical, research, writing, and oral advocacy skills. Prior class-action or products-liability/mass-tort litigation experience preferred. The firm welcomes interest from attorneys already in Atlanta as well as those looking to relocate to the area. To be considered, please send your résumé and law school transcript to Marion Wilson at mwilson@laterallink.com.

Read more

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.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

On June 29 and 30, the U.S. Supreme Court issued opinions in eight of the most high-profile cases of October Term 2025. One firm appeared as merits counsel in four of them: Cooley LLP.1

Founded in the 1920s in Northern California, the birthplace of many leading technology companies, Cooley is best known for handling the initial public offerings of tech giants such as Nvidia, Uber, and quite possibly OpenAI (which has retained Cooley, alongside Wachtell Lipton, for a possible IPO). A Silicon Valley stalwart, Cooley hasn’t historically been known for Supreme Court litigation, a Washington, D.C.-centric practice.

But since Elizabeth Prelogar returned to the firm in August 2025, after serving as solicitor general in the Biden administration, Cooley has hired 14 lawyers into its Supreme Court and appellate practice—including three former high-court clerks straight out of their clerkships. Today, the group has roughly 18 attorneys—and half of them have completed at least one Supreme Court clerkship.

Growing a national litigation practice

The expansion of Cooley’s appellate practice is part of the firm’s push into litigation more broadly. Over the past few years, as many peer firms have focused on transactional practice and deemphasized disputes, Cooley has invested in the space. Since late 2018, the litigation department’s headcount has grown by nearly 40%—and the practice’s revenue has doubled.

Ian Shapiro joined Cooley in 2003, made partner in 2010, and became chair of the litigation department early last year. He told me in an interview that Cooley aspires to be “one of a handful of elite litigation firms—and the premier litigation practice for representing technology, life sciences, and other innovative companies.”

Shapiro dates the start of the firm’s expansion in litigation to late 2018, when the practice was led by Michael Attanasio. Back then, the firm had roughly twice as many litigators on the West Coast compared to the East Coast, so it started growing its litigation practices in New York and D.C. to achieve greater balance.

Around the same time, the tech companies that make up a large portion of Cooley’s client base began facing greater government scrutiny. To help meet these clients’ needs, the firm began growing its white-collar and enforcement defense practice, adding prominent ex-prosecutors such as Andrew Goldstein—former chief of the public corruption unit at the Southern District of New York, former member of Robert Mueller’s team investigating Russian election interference, and current head of Cooley’s white-collar defense and investigations group.2

“Over time,” Shapiro explained, “these two imperatives—growing our East Coast litigation practice, and expanding our white-collar capability—evolved into a broader belief that we could emerge as one of the best litigation firms in the country.”

A go-to litigation practice for lawyers and law firms

Cooley’s increased emphasis on litigation has not gone unnoticed—by other attorneys. I’ve been struck by how many lawyers and law firms, sophisticated consumers of legal services, have hired Cooley for their most high-profile, high-stakes matters.

Last fall, after he was indicted on false-statement and obstruction charges, former FBI director James Comey hired Cooley to defend him. The Cooley team—working with Jessica Carmichael, former deputy solicitor general Michael Dreeben, and former U.S. attorney Patrick Fitzgerald—won dismissal of the charges last November. (The Trump administration is appealing.)

Following conviction at trial of federal tax and other crimes, former Supreme Court advocate Tom Goldstein added Prelogar to his legal team. She argued some of his post-trial motions (which the judge denied), and she will handle his appeals—to the Fourth Circuit and, perhaps, to the Supreme Court.

Taking on the Trump administration

As a general matter, the nine firms that settled last year with the Trump administration are focused on transactional practice, while the four firms that challenged the executive orders issued against them are more litigation-oriented. And this makes sense. Firms in the first group are under pressure to play well with the federal government to secure the many agency approvals needed for the billion-dollar deals they’re trying to close, while firms in the second group have no problem being adverse to the administration—which they do on behalf of their clients all the time.

The fighting firms hired top-flight litigation practices to represent them—so far, successfully—against the Trump administration. Perkins Coie, WilmerHale, and Susman Godfrey are represented by, respectively, Williams & Connolly, Clement & Murphy, and Munger Tolles & Olson. Williams & Connolly and Clement & Murphy are litigation-only firms, and Munger Tolles is largely a litigation firm.

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

So I was struck by the fact that Jenner & Block hired Cooley for its executive-order litigation—and that Cooley took the case. Given the size and scope of its transactional practice, involving deals that require sign-offs from an alphabet soup of federal agencies, Cooley is far more exposed to possible retribution from the Trump administration than Williams & Connolly, Clement & Murphy, or Munger Tolles.

Was Cooley worried about the potential consequences for its corporate practice if it antagonized the Trump administration by representing Jenner?

“We believe a great litigation practice has to be fearless in every kind of case,” Shapiro said. “Sometimes that fearlessness involves standing up to the government or taking a difficult case for an unpopular client. That is a value that my predecessor as chair, Mike Attanasio, emphasized—and one that I have especially come to appreciate during the year and a half that I have been chair.” (Attanasio led the Cooley team that won a permanent injunction for Jenner in district court.)

I asked Shapiro whether it was difficult for Cooley’s litigators to get buy-in from their corporate colleagues before taking on Jenner as a client. He declined to discuss internal deliberations, but he did say this: “The entire firm is very proud of our representation.”

Welcoming a team from Willkie

Cooley’s willingness to take on the Jenner matter had a business benefit for Cooley. It played a key role in the decision of seven litigation partners at Willkie Farr & Gallagher—one of the nine firms that settled with the Trump administration—to bring their thriving practice to Cooley.

“Cooley’s representation of Jenner in its litigation against the executive orders was an important factor in our decision to come here,” said Simona Agnolucci, who along with Benedict Hur led the Willkie group to Cooley. “The issuance of the orders was an existential moment in our profession—one that went to the essence of the oath we take as attorneys and our greater role in society—and I was moved by Cooley’s willingness to represent Jenner.”

Agnolucci and Hur had been co-managing partners of Willkie’s San Francisco office, which they launched in 2019, and Agnolucci also served on Willkie’s executive committee. Along with five other partners, they joined Cooley in June 2025—a move covered not just by legal outlets, but by The New York Times and The Wall Street Journal. Agnolucci and Hur were eventually followed by more than a dozen associates and several staff professionals, for a total of around 25 people—and by nearly all of their clients.

“When we were thinking about moving, firms were trying to weigh two factors: the cost of standing up and potentially losing business, and the cost of not standing up and potentially losing business,” Agnolucci told me. “At the time, you couldn’t really know how the scales were going to tip at many firms; it wasn’t a knowable factor. But with Cooley, because of its defense of Jenner, we didn’t have to ask what it would do—we already knew the answer.”

A firm with ‘momentum’

Like the litigators from Willkie, Elizabeth Prelogar had many options to choose from. After serving as U.S. solicitor general, she could have gone to any number of firms—especially given the active market for appellate talent.

But after conducting a broad search—which she told me she did “in the interest of due diligence,” and also because she thought she could be picking a firm that might be her “forever home”—Prelogar returned to Cooley, where she had worked for a year before departing to serve as solicitor general.3

“I felt strongly that Cooley matched my values and wasn’t afraid to stand up for the rule of law,” Prelogar said. “The firm demonstrated that through the cases it was willing to take on.”

“What Cooley is building in the litigation space is one of the reasons I decided to come back,” she added. “It’s exciting to be at a firm with this kind of momentum.”

[UPDATE (7/16/2026, 6:03 p.m.): The third paragraph of this story was revised as follows (added text in italics): “But since Elizabeth Prelogar returned to the firm in August 2025, after serving as solicitor general in the Biden administration, Cooley has hired 14 lawyers into its Supreme Court and appellate practice—including three former high-court clerks straight out of their clerkships.”]

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.

What can I say? I’m a swamp creature. Whenever I visit Washington, D.C., I almost always have a great time—and my latest trip was no exception.

Last week, Zach and I traveled down to the nation’s capital for SCOTUSblog’s Supreme Court Term in Review, which took place on Wednesday. The proceedings kicked off with Zach’s interview of Cecillia Wang, national legal director of the American Civil Liberties Union (ACLU). They discussed Trump v. Barbara, the history-making case about birthright citizenship that Wang argued successfully before the Supreme Court, and tackled other topics as well—including the ACLU’s other big win from last Term, the Second Amendment case of United States v. Hemani.

I then took the stage for a live recording of Advisory Opinions, joining Professor Akhil Amar, Sarah Isgur, and David French for a lively discussion of October Term 2025. I tend to agree a lot with my co-panelists when it comes to the Court—but this time around, I decided to pick some fights, in an effort to keep things entertaining. Did I succeed? I invite you to listen or watch the debate, then render your verdict.

Then on Thursday night, Zach and I attended a cocktail reception hosted at the National Archives by the Pacific Legal Foundation, to celebrate America’s 250th anniversary. It featured remarks by Professor Arthur C. Brooks, author of multiple bestselling books, and Anastasia Boden, host of PLF’s new podcast In Dissent. (I was “spotted” at the event by Politico Playbook—because D.C. really is that nerdy.)

Now, on to the news.

Lawyer of the Week: Andrew Boutros.

On July 1, U.S. Attorney Andrew Boutros (N.D. Ill.) traveled from Chicago to Washington, D.C., to appear alongside Acting Attorney General Todd Blanche at a press conference. Along with other top officials of the U.S. Department of Justice (DOJ), they would announce criminal charges against alleged members of the notorious Tren de Aragua gang of Venezuela, including some from the Chicago area.

Alas, there was a minor problem, at least as to three defendants being investigated by Boutros’s office: the criminal case against them was still under seal, i.e., not supposed to be disclosed publicly. Belatedly realizing the problem, with less than 30 minutes before the DOJ news conference was scheduled to begin, prosecutors from Boutros’s office contacted Magistrate Judge Laura McNally’s (N.D. Ill.) chambers to orally request that the case be unsealed—and asked for a response in 15 minutes.

That was… less than ideal. As Ken White told Josh Barro on Serious Trouble, “There’s no circumstance in which you can tell a federal judge ‘you have to do this within 15 minutes,’ unless it’s regarding a bomb that is in the judge’s chambers.”

Not surprisingly, Judge McNally was tied up with other matters that morning, with hours of back-to-back hearings in unrelated cases. So she was unable to unseal the case that quickly—and even though the charges were still under seal, the news conference went forward. Oops.

This sequence of events left Judge McNally “unamused,” per The New York Times. Last Thursday, she required Boutros to appear before her personally—and benchslapped him in open court, as reported by Bloomberg Law and Law360. Castigating him for “a clear violation of the sealing order,” she reminded him that her orders, “in this independent branch of government, are effective until they terminate on their terms or are rescinded—and neither of those things happened here.” In response, Boutros acknowledged that the situation involving the sealing order was “all very regrettable and very unfortunate,” adding that his office would “go back and look at this from a root-cause perspective to see how we can do better.”

Fortunately for Boutros, Judge McNally didn’t sanction him or his office. But she did use the hearing as an occasion “to emphasize the critical nature of sealing orders,” which are issued to protect the integrity of investigations (among other reasons).

According to The Times, this isn’t the first time that Boutros and his office have been in hot water over the past few months:

The dispute over the sealing order was the latest in a series of incidents that have raised questions about Mr. Boutros’s stewardship of the U.S. attorney’s office in Chicago, especially on cases that have attracted attention from top Trump administration officials.

Last fall, prosecutors dropped charges against a woman who had been shot by a Border Patrol agent during an immigration crackdown amid concerns about preservation of evidence. In another high-profile case, conspiracy charges against local Democratic politicians and operatives unraveled this year after a judge called out errors in the grand jury process.

“Your sole goal is to do justice,” Judge April M. Perry (N.D. Ill.) told Mr. Boutros in a hearing over that matter. She added later, “That trust has been broken.”

Can Boutros and his colleagues regain that trust? Time will tell.

Other lawyers in the news:

• Yale University is in talks with the Trump administration, in an effort to reach a settlement that would resolve Justice Department investigations into Yale’s admissions practices for its undergraduate programs, medical school, and law school. But behind the scenes, Yale Law School Dean Cristina Rodríguez and other YLS faculty members are urging the university’s leadership not to cut a deal, according to The New York Times (gift link).

• Who’s in charge of the legal team representing Donald Trump in his personal litigation? Despite an attempt by White House Counsel David Warrington to banish Boris Epshteyn from Trumpworld—after Warrington investigated Epshteyn and concluded that he was “using his proximity to President Trump for personal financial gain”—Epshteyn today functions as Trump’s de facto general counsel, according to The Washington Post (gift link).

• Richard Rollo’s bio on the website of Richards Layton & Finger describes him as “a seasoned and tech-savvy litigator,” and RLF is one of Delaware’s top corporate law firms. So it’s surprising to see Rollo and Richard Layton on the receiving end of an order to show cause from Vice Chancellor Lori Will of Delaware Chancery Court, requiring them to explain why they shouldn’t be sanctioned for submitting a brief that included AI hallucinations.

• Congratulations to Paul Grewal, who is stepping down on July 31 after six successful years as chief legal officer of Coinbase. He helped lead the cryptocurrency exchange through the pandemic, steered its IPO in 2021, prevailed over the SEC in a fight over crypto regulation—and was paid handsomely for his work.1 Congrats also to Coinbase’s new legal leaders: Molly Abraham, who will become general counsel and secretary, and Ryan VanGrack, who will assume a newly created role as vice chairman (in which he’ll oversee compliance and corporate affairs).

• And kudos to the 25 honorees of Bloomberg Law’s Unrivaled, the outlet’s second annual list of litigators who secured major wins at trial or favorable settlements.

In memoriam:

• Senator Lindsey Graham (R-S.C.)—a graduate of the University of South Carolina School of Law, former Air Force JAG Corps lawyer, and former chairman of the Senate Judiciary Committee—passed away at 71, apparently from an aortic dissection (per the D.C. medical examiner’s office).

• William D. Zabel—a founding partner of Schulte Roth & Zabel, now part of McDermott Will & Schulte, and a civil-rights litigator who wrote a critical amicus brief in Loving v. Virginia—passed away at 89.2

• George Hutchinson—the last crier of the U.S. Supreme Court, who opened its proceedings by shouting “oyez, oyez, oyez” (before this duty was transferred to the court marshal)—passed away at 102.

May they rest in peace.

Judge of the Week: Judge Britt Grant.

Last week, Judge Britt Grant (11th Cir.) wrote a powerful majority opinion in Pernell v. Florida Board of Governors (discussed in more detail below, under Ruling of the Week). For present purposes, what you need to know is that Judge Grant, a Trump appointee, and Judge Charles Wilson, a Clinton appointee, ruled against the Stop WOKE Act—a law pushed for and signed by Governor Ron DeSantis (R-Fl.), in an effort to stop the promotion of “woke” ideas in Florida’s public colleges and universities—on First Amendment grounds. Judge Barbara Lagoa, Judge Grant’s fellow Trump appointee, dissented.

Legal commentators like Chris Geidner and Michelle Olsen took note of Pernell—and the fact that the opinion was penned by Judge Grant. As Olsen tweeted, “Like Sutton on healthcare, Grant has to know that this will take her out of SCOTUS consideration (at least [under the] current administration). It’s the job, yes, but bravo to her for upholding the Constitution.” (Olsen’s reference to “Sutton on healthcare” is a shoutout to how Judge Jeffrey Sutton, a star of the conservative legal movement, doomed his once-bright Supreme Court prospects by voting to uphold the Affordable Care Act aka Obamacare in 2011.)

A former law clerk to then-Judge Brett Kavanaugh on the D.C. Circuit, former Georgia solicitor general, former justice of the Georgia Supreme Court, and Eleventh Circuit judge since 2018, Judge Grant, 48, is also a star in the conservative legal firmament. She’s a highly respected jurist—reflected in her status as a feeder judge to the Supreme Court—and she previously appeared on one of Trump’s SCOTUS shortlists (along with Judge Lagoa). Even if Judge Grant isn’t in the top tier of Trump picks today—perhaps because, back in 2022, she sat on a panel that overturned a pro-Trump ruling by Judge Aileen Cannon (S.D. Fla.)—she could be a SCOTUS possibility under a Republican president not named “Trump.”

Or perhaps I should revise that to “could have been”: I agree with Olsen that ruling against the Stop WOKE Act has probably removed Grant as a SCOTUS prospect under a non-Trump president (especially if he’s named “DeSantis”). The Republican Party of 2026 has allowed its opposition to wokeness to override its commitment to the First Amendment, and I don’t see that changing anytime soon. But I agree with Olsen on this as well: bravo to Judge Grant for upholding the Constitution.

Judge Grant also appeared in the news for another ruling: her opinion for a unanimous panel in Akerlund v. Atlas Air, Inc., in which she benchslapped a plaintiffs’ lawyer for filing “multiple briefs replete with fake and hallucinated citations. Even after being warned. ‘Always a bad idea.’ Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary, at 6 (2023).” And props to her for this quip, which I predict will be widely quoted in AI-related benchslaps going forward: “Whatever the merits of artificial intelligence, it is no substitute for actual intelligence.”

In other news about judges and the judiciary:

• Speaking of Trump appointees making MAGA mad, Judge Timothy Kelly (D.D.C.) dismissed a January 6-related criminal case against four Proud Boys, in response to a DOJ motion—but before doing so, he called the attack on the Capitol “a perilous event,” writing that “no one should mistake the Court’s granting of the Government’s motion for its agreement” with the decision to dismiss.

• Former Milwaukee County judge Hannah Dugan—whom a jury found guilty of obstruction, after she was accused of helping an undocumented immigrant evade ICE agents—was sentenced by Judge Lynn Adelman (E.D. Wis.). She was fined $5,000, but given no prison time.

• Speaking of judges in trouble, after a parking-lot altercation in April led Judge Ryan Nelson (9th Cir.) to be charged with two misdemeanors, a pair of judicial misconduct complaints were initiated against him—one by Chief Judge Mary Murguia, and the other by the watchdog group Fix the Court. Both complaints have now been transferred to the Fourth Circuit.

• As he approaches his one-year anniversary on the bench (in September), Judge Emil Bove (3d Cir.) was profiled by Mattathias Schwartz for The New York Times (gift link). Per Schwartz, Judge Bove’s “acerbic solo dissents have irritated some judges and lawyers”—but “he has also shown a knack for persuading others,” and “some who have worked closely with Judge Bove praised his work ethic and polite manner with other judges.”3

• Speaking of judicial profiles, James Romoser wrote a piece about Justice Samuel Alito for The Wall Street Journal (gift link), arguing that Alito “is fusing establishment conservatism and the Trump movement into a new legal doctrine”—and “[h]is approach to the law may outlast them both.”

• Speaking of SCOTUS justices, I have a minor correction to last week’s Judicial Notice. I erroneously reported that the justices most often in the majority in October Term 2025 were Chief Justice John Roberts at 95%, Justice Brett Kavanaugh at 92%, and Justice Amy Coney Barrett at 89%—but those were the stats from OT 2024. For OT 2025, according to SCOTUSblog’s handy Stat Pack, the Chief and Justice Kavanaugh were actually tied for #1, at 95%, and Justice Barrett was #3, at 92%.

Job of the Week: an opportunity for a midlevel to senior real estate associate in Texas.

Lateral Link is assisting an international Am Law firm with a confidential, unposted opportunity for a midlevel to senior real estate associate in Dallas, Houston, or Austin. A cornerstone of the firm’s platform, this real estate group represents a broad range of institutional clients—including developers, private equity funds, REITs, lenders, and investment managers—in complex acquisitions, dispositions, development deals, joint ventures, leases, and financings. Associates benefit from meaningful partner interaction, early client exposure, leanly staffed deals, and the opportunity to take on significant responsibility while working on sophisticated, high-profile transactions. To learn more about this exceptional opportunity to join one of the nation’s premier real estate practices, please email Wendy Boone at wendyboone@laterallink.com.

Read more

Last Tuesday, June 30, the U.S. Supreme Court issued its final opinions in argued cases for October Term 2025. So it’s an ideal time to review the Term that was—and to look ahead to what’s on the docket for OT 2026.

I could think of no better guest for this project than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology, where he focused on legal decision making.

Thanks to Zach for joining me—and thanks to him and the entire team at SCOTUSblog for their excellent work.

Show Notes:

• Zachary Shemtob author page, SCOTUSblog

• Zachary Baron Shemtob, personal website

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.

Three quick notes about this transcript. First, it 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. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, 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: 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 at davidlat.substack.com. You’re listening to the 101st episode of this podcast, recorded on Friday, July 3.

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. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

Last Tuesday, June 30, the Supreme Court of the United States released its final opinions in argued cases for October Term 2025, i.e., the 2025-2026 judicial year. I wanted to interview a guest who could help me make sense of the Term, in terms of both overarching themes and individual cases and justices—and I could think of no better guest than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology at Central Connecticut State University, where he focused on legal decision making. Without further ado, here’s my conversation with Zach Shemtob.

Zach, thank you so much for joining me.

Zachary Baron Shemtob: I’m thrilled to be here.

DL: Well, you didn’t really have a choice, but I’m glad to have you anyway. Tell us about your background and upbringing. Where did you grow up?

ZBS: I was born and raised in New Jersey—northern New Jersey, to be exact. I am a proud Jersey boy. I was born in Morristown, New Jersey. Then my family moved a few years later to Randolph, New Jersey, and then to Mendham, New Jersey, all of which are relatively close to each other and in northern Jersey. Those locations will mean nothing to most people, but anyone from those areas will know them very well. I have to say, I’m proud of my Jersey heritage—and we, of course, live there to this day in Summit, not far from where I grew up.

DL: Did you have any lawyers in the family growing up?

ZBS: In terms of the law and lawyers, not really. My Aunt Penny handled private-injury cases and a variety of other ones. My parents, though, were certainly both very interested in the law and all other intellectual subjects. So I definitely grew up in a law-like environment—but not a lot of folks in the family, besides Aunt Penny and my Aunt Lori, who’s in family law, were lawyers, and neither of my parents is.

DL: And it sounds like the backgrounds of your aunts didn’t really bring you to law school?

ZBS: No, because, to be fair, I came to law school a little late—which I’m happy to talk about.

DL: Yes, please do.

ZBS: After college back in the day, I got a Ph.D. in criminology and was an academic for a few years, where I taught theories of punishment and a number of other subjects, including judicial decision-making. My dissertation was on the Supreme Court’s approach to the death penalty in the 1970s, first in a case of Furman v. Georgia, where they abolished the death penalty as practiced, and then only four years later brought it back in a case called Gregg v. Georgia. And so my dissertation—which you can go and find, for the two or three people that are interested in it—was on why the Supreme Court did this. It actually became a book. My dissertation advisor, Evan Mandery, wrote a book about it called A Wild Justice, which is really fascinating. But anyway, even back then, I was very interested in Supreme Court decision-making or judicial decision-making.

At some point I decided that, since I was so interested in the law, it might make sense to go to law school. I’m happy to say that you did not discourage me, which was a little surprising, given some of the negativity from the Above the Law days. But regardless, I took the plunge, with support from you and several others, and went to Georgetown University Law Center (which they should just call “Georgetown Law School,” because this “GULC” thing is absurd). I went to GULC, I got my law degree, and I really enjoyed it. I was the EIC of the law review, which I loved—and which helped prepare me for my current job. And from there, I practiced law for a few years.

DL: Where did you go into practice?

ZBS: First, I was at Cooley, where I had a great experience. I did a combination of commercial and white-collar law, both of which I enjoyed—but given my background in criminology, I leaned a little more toward the criminal side. I was at Cooley for only a year and a half to two years, because then I clerked on the Second Circuit and S.D.N.Y.—wrong order but, as you know better than anyone else, increasingly common. Then I went back to practice law at Lankler Siffert & Wohl, doing a lot of white-collar criminal defense work, and I was there for six years.

DL: I actually don’t think you did the clerkships in the wrong order. First you clerked for Judge Robert Sack on the Second Circuit, and then you clerked for Judge Ronnie Abrams on the Southern District of New York. Whenever I’m advising law students or young lawyers about serial clerkships, I actually tell them I think it makes sense to do the court of appeals clerkship first, because it’s a better transition from law school to practice to go from the circuit court, which is more like law school, to the district court, which is more like practice.

ZBS: Well, I had two amazing judges, Judge Sack and Judge Abrams. Judge Sack always tempered me, but I think if I had a little better understanding of the district courts and what they were dealing with and how they worked, I may have been a little softer, kinder, and more understanding toward them. But again, Judge Sack, being the consummate professional he is, made sure to temper any issues I had there.

DL: In terms of after your district-court clerkship and seeing how difficult that job is, you would cut district courts more slack?

ZBS: Absolutely. Occasionally I’d be like, “Oh, I think this is clearly wrong. This doesn’t make any sense.” And then I’d think about it and go back and say, “Well, given not only what they’re dealing with, but how they’re supposed to approach the law in terms of these concrete details, as opposed to simply the law as an intellectual exercise”—which I think in academia and, to a certain extent, on the circuit court, you’re very used to—you get a better understanding, after actually clerking on the district court, of how to think and what it means on that level.

DL: Fair enough. Let’s delve a little bit more into your practice experience. You mentioned you had a great, although perhaps brief, experience at Cooley, where you focused on litigation. And by the time people are listening to this, they may have seen an article that I’m working on about Cooley’s amazing litigation practice. And then you went to Lankler Siffert & Wohl after your clerkships. Tell us about your experience at Lankler.

ZBS: It’s a fantastic firm. I have only great things to say about them. I deeply enjoyed the work, and I really enjoyed my colleagues. There was so much meaning in the work I did with clients. One of the funny things was when I went into law school, my thought was, “Oh, I’m going to leave law school, and then I’m going to become an academic. I was an academic before; the goal here is to become a law professor.” But I found that—and maybe part of it was the firms I ended up at—I really enjoyed practicing.

DL: You actually practiced for quite some time, longer than I did—almost a decade. And then you made the transition into journalism and media, because you are now the executive editor of SCOTUSblog. How did you make that jump?

ZBS: It’s my third career, from academia to law to journalism—although there is a connecting thread, and that was always judicial decision-making. I did it even while practicing law: focusing on how judges think, what you could write to capture their interest, and how to persuade them.

The SCOTUSblog opportunity presented itself through a friend, as you know all too well, David. At first I was pretty hesitant, because again, I was certainly enjoying myself practicing—but I thought this could be a really unique opportunity. I want to have as many experiences as possible, and I’m in a position where I’m blessed enough to have the ability to do that. So I said, “I’ll give it a go. SCOTUSblog is incredibly valuable. It has an amazing brand, and to be a part of bringing that into the future would be pretty neat.”

DL: We are speaking a little bit after the conclusion of the Supreme Court Term, and a few weeks after your one-year anniversary at SCOTUSblog. How have you been finding it?

ZBS: It’s great. Journalism was not a profession I was expecting to enter, but the importance and focus on the Supreme Court is obviously at a peak, and being part of SCOTUSblog allows me to be a part of that.

I’m especially proud because—even though some folks won’t believe it, based on the emails I get—we really try to be as independent, nonpartisan, and analytical as possible. By the way, that’s in our reporting itself. Amy Howe, our Supreme Court correspondent, is amazing, and we have our managing editor, Kelsey Dallas, who also writes articles very down the middle. Then at the same time, we brought in a lot of outside commentators, who are also wonderful—but they have their own opinions, and they bring their own views.

DL: So during your one year at SCOTUSblog, as you mentioned, you added a wide range of commentators, including some very distinguished scholars from both the left and right sides of the aisle. You brought back the beloved Stat Pack, a statistical analysis at the end of the Term of how things at the Supreme Court shook out. Are there other highlights you would mention, from what you’ve done at SCOTUSblog and the year-plus that you and your new colleagues have been there?

ZBS: We’ve introduced a lot of different features. We completely revamped and changed the website and made it a whole lot more accessible for users. We’ve also introduced different events, including an event last year with Justice Amy Coney Barrett. So we’ve hypercharged the thing. We’ve added a lot of people and contributors and made it as blown out as possible.

DL: Yes. And again, for any of my listeners who have not checked out SCOTUSblog recently (and I suspect that’s a very small number), you should definitely go check it out—because, though I’m admittedly biased, I think you and your colleagues have really done a great job of expanding it.

Speaking of the Supreme Court, let’s turn to that—because the focus of this episode is going to be a review of October Term 2025, essentially the Supreme Court’s judicial year 2025-2026.

My own personal feeling is that Supreme Court Terms alternate between blockbuster and quiet—or I guess I should say relatively quiet, because the Court has moved more and more to the center of importance in terms of American political and social life. OT 2025 was supposed to be a blockbuster year, and it certainly seems to me that it delivered. Would you agree?

ZBS: Oh, yes. This was one of the biggest years in the recent history of the Supreme Court.

DL: Is it perhaps the biggest term since, I don’t know, OT 2021, which was the Dobbs-Bruen Term?

ZBS: Yes. I’d say OT 2021 was slightly bigger. In OT 2021—I’ll just say 2021 because this OT thing drives me nuts—you had Bruen, which was about being able to conceal-carry outside the home. It was a major Second Amendment decision, which also introduced this “text, history, and tradition” test, which has come to define originalism in the Second Amendment area. The biggest case, of course, was Dobbs, which overturned Roe v. Wade. But you also had two other big ones, from what I recall. There was Kennedy v. Bremerton, the praying-coach case, which basically overturned Lemon v. Kurtzman and remodeled the Establishment Clause. And then you had West Virginia v. EPA, where the justices turbocharged the major questions doctrine or major questions theory—which, of course, came into play in the tariffs case this year. So that combination of four cases—Bruen, Dobbs, Bremerton, and West Virginia v. EPA—was pretty huge.

DL: I had forgotten West Virginia v. EPA; in terms of its actual effect on the Court’s jurisprudence going forward, it has been huge. And then, of course, I’m very familiar with Kennedy v. Bremerton, because my old boss, Judge O’Scannlain, was involved in that case in the Ninth Circuit.

If you had to identify a theme or two for OT 2025—I actually like the OT lingo—what jumps out at you?

ZBS: Oh, it’s the Trump term.

DL: Aren’t they all the Trump term?

ZBS: No, this one is in a league of its own. The fact is, if you go case by case, all or most of the major cases involve the president in some capacity. Birthright citizenship and the executive-order case. The tariffs case. Louisiana v. Callais, the Voting Rights Act case—even though it was the state, not the administration, as the litigant, it still has huge implications for the Republican Party and how things will shake out. So the president had a major interest in that one. Then, of course, you have the administrative-agency cases, Slaughter and Cook—and that’s just the tip of the iceberg. That alone makes pretty clear to me—not even counting the interim-docket or emergency-docket cases—that this truly was the Trump term.

DL: Based on your observation of the Court, just analytically, what observations do you have germane to the debate over whether the Supreme Court is independent of Trump or beholden to him?

ZBS: “Beholden” is a little too strong. I don’t entirely understand what one would mean by “beholden,” so I don’t know if I’d use that word.

Are they sympathetic to some of Trump’s priorities? Certain of them, if not a majority at times, absolutely are. As for the unitary-executive theory, though, that was in the air well before Trump. Of course, Trump pushed these things through his executive orders, but obviously the justices—Chief Justice Roberts, Gorsuch, etc.—were sympathetic to that from the get-go.

DL: Well, let me frame the question differently. Maybe “beholden” isn’t the right word, but I guess you could say there’s been this debate over whether, just to use a colloquialism, the Supreme Court or the conservative majority is “in the tank” for Trump—overly deferential to the president and his initiatives.

And I guess it depends on what your baseline is for “overly,” but here are some data points. Jack Goldsmith at Executive Functions wrote a great piece arguing that the Supreme Court is quite independent. But then there was an online conversation at The Times recently, featuring Kate Shaw, Will Baude, and Steve Vladeck, where—poor Will—it was two-on-one. I think Professors Shaw and Vladeck were arguing—well, I’ll quote the question Kate posed to Will and Steve: “Have the emphatic six in the 6-to-3 splits that have dominated the last few weeks of decisions made clear that this Court is one devoted—and increasingly nakedly so—to an ideological project?”

So I guess my question is: discuss.

ZBS: It’s a much more complicated picture than anyone wants to let on. I think that this is no doubt a conservative-leaning court, and therefore, on the whole, they are going to vote more often than not in line with a Republican president’s agenda, whether that’s Trump or George W. Bush or whomever; that is ultimately the way that’s going to go. But that certainly does not mean that it’s going to be that way in every case. And indeed, as we saw in two of the most important cases to President Trump—the birthright citizenship case and tariffs—they voted against the president. So again, as you said earlier, it depends on what your baseline is.

DL: I was recently listening to a Law.com podcast interview of Ilya Somin, with whom you recently shared some airtime on C-SPAN, I believe. Ilya made a very interesting point, which might be right in a way. He said that a lot of this Court’s rulings can be explained by saying that they’re the rulings that a pre-Trump Republican Party would approve of. Look at tariffs: the pre-Trump Republican Party was pro-free trade. Look at birthright citizenship: the Republican Party was certainly big on immigration enforcement, but it also had this colorblindness, “we can all be Americans” aspect to it. And certainly all the other things: the unitary executive dates back to the Reagan administration, but it endured through other Republican administrations, especially that of George W. Bush. Can we explain a lot of the Roberts Court rulings, especially the recent ones, by saying it’s just the pre-Trump Republican Party?

ZBS: It also helps explain the National Guard case, which you would have trouble seeing under a prior Republican president, and in the Court, Trump basically lost on that one. So that lines up.

I would still resist the idea that the Court is purely ideological, which that framing seems to imply—that they’re not a MAGA court but rather a George W. Bush court. And while I think there is certainly truth to that, I still think there is a divide on this Court, and in general, between law and politics, as much as folks want to deny it.

DL: Oh, I would agree with you, and I suspect Ilya probably would too, so I don’t want to misrepresent or overrepresent his thesis. I guess he was saying—and I think it’s probably right—that a lot of the outcomes correlate with desired policy outcomes of the pre-Trump Republican Party. But we all know that correlation is not causation. So these cases may be coming out this way not because the justices are consciously trying to implement a pre-Trump Republican Party agenda, but because many of them came of age as lawyers and legal scholars and judges in pre-Trump Republican circles and the pre-Trump Federalist Society, with an emphasis on free markets and liberty and federalism and limited government power and all of that.

So again, I agree with you. I would not argue that the justices are just doing politics and that their politics happen to be pre-Trump Republican politics. But I just thought that was an interesting observation.

ZBS: I think that there’s absolutely some truth to it. And to me, it certainly explains more than what I’ve heard from much of the left and the right.

DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It’s not easy, especially if your benefits don’t match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.

Let’s look at some of the justices—and a good way of doing that is through SCOTUSblog’s invaluable and beloved Stat Pack, which is such a great resource to scholars and journalists who follow the Court. So again, thanks to Jake Truscott and Adam Feldman for putting that together. What are some of the top-line findings of this year’s Stat Pack?

ZBS: I think the top-line finding that stands out is how often the Court decided along what we call ideological lines—which is ironic, given our prior conversation—meaning Republican- versus Democratic-appointed justices, the six-three split. That happened 24% of the time this Term, whereas last Term it was 15%.

Another big statistic was that the Court was dominated by Roberts and Kavanaugh around 95% of the time. I thought one of the most intriguing parts of it was that, if you look at the lineups in closely divided cases, Alito and Kagan agreed 0% of the time, which is absolutely remarkable. And then, of course, you had the overall agreement rates, and here we had this alignment—Roberts and Kavanaugh (the power couple), Thomas and Alito, Sotomayor and Kagan, and Sotomayor and Jackson—all agreeing 94% of the time, with Sotomayor and Jackson agreeing in closely divided cases 100% of the time.

DL: By the way, I also want to give a shout-out to this really nice video explainer that SCOTUSblog and Briefly put together, which captures some of the highlights of the Stat Pack, including things like the agreement rate and who was most often in the majority, which you just highlighted.

I know the answer to this next question because I read the Stat Pack and watched the video: which justice was most frequently in dissent last term?

ZBS: Last term, it was KBJ. She’s been pretty consistent about being the lead dissenter, but she’s followed not too far off by Sotomayor and then, I believe, Kagan. But yes, KBJ was in that position the most this Term—the opposite of, again, Roberts and Kavanaugh.

DL: Let me float another proposition by you and see what you think. After Justice Ginsburg passed away and was replaced by Justice Barrett, you had this conservative supermajority of six. And a lot of people before Justice Barrett’s confirmation said Roberts was the most powerful chief justice in decades—where he was the Chief, had the assigning power when he was in the majority, and was really the swing vote in these five-four cases. But then after Barrett’s confirmation, Roberts went from being extremely powerful to being, I guess you could say, the third wheel, if you were talking about a couple, but really the sixth wheel: the conservative five could do whatever they wanted without Roberts’s help. And we saw this in Dobbs, where, as to the issue of Mississippi’s specific limit on abortion, the Chief also wanted to uphold it, but without overruling Roe officially, etc. But he was no longer essential.

I feel that in this Term, Roberts has become super powerful again, because with various combinations—either Roberts and Barrett or Roberts and Kavanaugh—Roberts controls the outcome. In the case about what we mean by Election Day, he and Barrett joined with the liberals to form the five-justice majority. In birthright citizenship, the Chief and Barrett joined with the liberals to form the five-justice majority.

ZBS: And Justice Barrett is getting a lot of criticism, as we’ve seen in the past, from some right-wing circles.

DL: Yes.

So is it fair to say that the Roberts Court is once again Roberts’s Court?

ZBS: We have a great piece by Richard Re coming out on just this—the different phases of Chief Justice Roberts—and he maintains that point, and I think he makes it brilliantly. But I’m not entirely convinced. I think this has been the Roberts Court since he first sat on it. If you look at the raw numbers of him being in the majority, even during those days—the middle period—they were still really high.

Now, it is true that in certain cases, which everyone points to, like Dobbs, they say, “Well, what about that one?” But that was Roberts trying to be his gradualist self, trying to deal with institutional concerns. Yes, there are outliers, but overall, from the get-go, I do think this has been the Roberts Court.

DL: Fair enough. That is definitely interesting. And of course, the Chief, as he tends to do, also plays a very powerful role in writing some of the most important opinions. Once again, he had no separate opinions this Term, just as was the case last Term. And he wrote some biggies here. He wrote birthright citizenship, Barbara. He wrote the executive-power and independent-agency cases. What do you make of the Chief as a justice—not in his “chiefy” role, but in his role as justice, jurist, and legal writer?

ZBS: He’s a brilliant writer. He writes so cleanly. I do get a little frustrated, because sometimes I think there’s some obscurantism, in that he can brush over some major points and when you read it you’re like, “Oh, it sounds reasonable.” And then you think about it and you’re like, “Oh, well, what about this and this?” So it’s almost too clean, or occasionally too clever by half.

He certainly wants to at least create or maintain the institutional role. I don’t know if he’s been successful in that. We look at the polling of the Court, and they’re not in a great place. That said, given the polarization in our society, I don’t know if it would be possible for the Court to be in a good place, as folks have essentially turned on every major institution, and I don’t think they see the Court as any different.

DL: Your point on his writing style really reminded me of something that Will Baude said to Dan Epps on Divided Argument recently, where Will was also, like you, praising the Chief’s writing style, but said that sometimes it can be deployed very powerfully to make substantive points, and sometimes it can be deployed very successfully to, again, elide certain things that are messy.

So, overall, returning to the 30,000-foot level, I would say that this Term was pretty predictable in terms of outcomes. We thought they would not uphold tariffs. They didn’t. We thought that they would uphold birthright citizenship. They did. Would you agree this Term was pretty predictable, at least in terms of outcomes?

ZBS: Overall, yes. There were a few surprises. One was Watson v. RNC, the mail-in ballot case, where I think most folks thought the Court would not allow these state laws—allowing votes postmarked by Election Day and received five days later—to stand. And I think a lot of folks were predicting, “Oh, since it advantages the Republican Party to get rid of these laws, they’re going to vote that way.” They did not—which, again, shows you that you cannot always predict this Court, especially along ideological lines. So that case went a little differently than we were predicting.

Exact vote breakdowns weren’t as easy to predict. I know you kind of got it right in Trump v. Barbara, but I thought that was honestly going to be a 7-2 case, and I think a lot of Supreme Court watchers did as well.

DL: Yes, I will congratulate myself. I predicted the lineups and splits in both tariffs and birthright fairly clearly.

And then didn’t we have a little bit of a surprise with the transgender athletes case—another instance of, I guess you could say, the liberals not being as liberal as maybe some hoped?

ZBS: We did. And the surprise there, to a certain extent, was that we thought the liberals might find these state laws to be a violation of Title IX, when in fact they did not. As for the issue of whether it was constitutional to ban transgender athletes from girls’ and women’s school sports, they basically would’ve kicked it back to the lower court, unlike the majority. So there, the split was kind of how folks were predicting—but that’s right, it didn’t exactly break down as we would’ve thought.

DL: Turning from opinions to arguments—which have been over for a while now, but Court watchers still really do enjoy listening to them—are there some oral arguments that you would highlight as either some of the best or the most interesting of the past Term?

ZBS: I’ll just go into one: Paul Clement—who argued an astounding number of cases this Term—and his argument in Trump v. Cook. His strategy in that case was to throw as many things at the wall as he could and see what ultimately stuck. The question was whether Trump had the power to fire Federal Reserve Governor Lisa Cook for cause, based on allegations of mortgage fraud. Basically, Clement came before the Court very casually and said, “Well, this fails for this reason and this reason and this reason and this reason.” He was just giving them so many reasons, so many hooks for his side to win on. I think that, even though the opinion that came down didn’t fully embrace all of Clement’s theories, it was really impressive—just how much he threw at them with that method of argumentation.

Now, what’s interesting in that case is that, though Lisa Cook is protected for now—since it was a case about her not receiving the correct minimal procedure—that could certainly change in the future. So it doesn’t mean that it’s going to be a permanent win. But the way Paul Clement set it up was pretty impressive.

DL: I totally agree. I wrote a Bloomberg Law column titled “Paul Clement’s Cook Argument Is a Master Class in Oral Advocacy.” To quote a line from the argument, he had “backups to his backups to his backups.” He just had so many fallback positions, and I think it ended up being vindicated, because the Court did seize upon some of his arguments in terms of how they resolved the case.

ZBS: And anytime Lisa Blatt was up there—for example, in the Hunter case—you knew it was going to be a real ride. And the thing with Lisa Blatt, whom you’ve talked with on this podcast before, is that she’s so informative but also entertaining. And you could tell the justices—and I think especially Justice Alito—just love it, as a breath of fresh air from the sternness and unforgiving seriousness of so many of the oral advocates.

DL: Yes, I totally agree with you. I think there is an argument that Paul is the GOAT, or at least the GOOT, the Greatest of Our time. (I don’t know about all these dead people because I wasn’t around for them.) And I think Lisa is the FOAT—the Funniest of All Time. I don’t think John W. Davis or Francis Scott Key or anyone was generating as many laughs as Lisa does.

ZBS: On the GOAT argument, you could also go with Daniel Webster, who I know argued 150 cases before the Supreme Court and won some major ones. But I don’t think he is in the same category as Lisa Blatt in terms of humor and bringing something special to the Court. No offense to Daniel Webster—or Lisa Blatt.

DL: We’ve heard talk lately about the Supreme Court possibly changing the format of oral argument. At some recent judicial conferences, where they spoke in their capacity as circuit justices, both the Chief Justice and Justice Alito said, “Oh, it’s getting a little long.” Any thoughts on that, in terms of predictions or, normatively, what you—if you were Chief Justice or king—would want them to do?

ZBS: Well, oral argument is way too long. Right now there are separate rounds: a free-for-all and then a seriatim round, where the justices question the advocates, one justice after the other. And what ends up happening is they just repeat the same points over and over. The justices repeat the same points. The oral advocates repeat the same points. Then you have the other advocate repeating the same points. So these arguments are just stretching and stretching and stretching. Something needs to be done. And I think that maybe it’s reducing the seriatim round, or maybe it’s just having greater control over justices going in and out—because it’s not really the advocates; it’s often the justices. The advocates have very little power in that regard. But yes, I certainly agree that oral arguments need to be reformed. They’ve reached a point where we’re getting not much of value after a certain amount of time, and I do hope that changes are instituted sooner rather than later.

DL: Okay. Well, we’ll see what happens when October Term 2026 begins.

ZBS: I’m not convinced, given how quickly the Court moves in terms of its own institutional processes, that this is going to happen anytime soon.

DL: You know what? Sometimes I do this with Sarah Isgur on Advisory Opinions: I’ll make a wager with you. I think that by OT 2026—the first Monday of October 2026—we will have a new system in place, or maybe some tweaks. Maybe they won’t overhaul the entire system, but maybe they’ll do a pilot or an experiment.

ZBS: I doubt it, just because the Court really enjoys not listening to people about institutional changes like that until they wind down. And when the Court is convinced, “Oh, everyone has shut up”—then they’ll change it.

DL: Well, again, if I will pat myself on the back, the current format is something that I actually proposed in a post, I don’t know, a couple of years ago, where I said they should have a free-for-all and then a seriatim round, combining the pre- and during-pandemic approaches.

ZBS: Right. And it made a certain amount of sense during the pandemic. I also like that it brought out Justice Thomas: it made him more comfortable speaking, because he didn’t think it was just this nonsensical free-for-all. So it served its purpose, for sure. I just think now it’s time to change it, and I certainly hope you’re right that it happens before the next round of oral arguments in the now upcoming Term.

DL: Before we go to the speed round, let’s talk about the upcoming Term.

ZBS: By the way, one of the mistakes people naturally make is the idea that this Term just ended, but technically, the Term does not end until the instant before the gavel bangs on the next Term.

DL: So OT 2026 is still upcoming because it begins officially on the first Monday of October?

ZBS: Correct.

DL: Okay. So looking ahead to the upcoming Term, what are some of the biggest cases that have been granted so far?

ZBS: I personally think the biggest cases that have been granted are the AR-15 cases. These cases have been effectively pending before the Court for so long, and everyone was wondering, “When are they finally going to grant them?” And at the end of their oral arguments, right before their summer recess—during what’s called the “cleanup conference”—they finally granted two of these cases. And the question is whether the Second Amendment protects the right to possess AR-15s, or semi-automatic rifles in general.

What’s so fascinating about these cases is not only that they’re obviously very important to Second Amendment advocates, but how the Court is going to use them to define text, history, and tradition in the wake of Bruen and originalism.

It’s going to be really interesting to see what factors they look at here. One of them is common usage. There’s no doubt that semi-automatic rifles are among the most popular guns. On the other hand, you have the argument, which a number of lower courts have accepted, that these weapons are especially dangerous. So dangerousness factors may be taken into account. And then there’s, of course, finding a historical parallel—it doesn’t have to be a historical twin, but a historical analogue—meaning, what was equivalent to possession of these types of weapons? And of course, when it comes to semi-automatic rifles, there wasn’t anything quite like them at the time of the founding. So how they carve this out—not only in terms of the substantive issue, but how they get to their decision—is going to be really important.

DL: I tend to take something of a realpolitik view on some of these things, which I talked about in my birthright citizenship post. My theory is that the Court is only willing to spend its political capital or put its institutional legitimacy on the line to a certain extent or only up to a point. My main point here—and I think Justice Kavanaugh has pointed this out in past separate opinions on the AR-15 issue—is that millions of Americans own these guns. So because of the status quo, I can’t imagine the Court coming along and essentially “taking them away.” I put that in quotes because it’s not the Court doing it; it will be the Court upholding the law passed by a legislature in a particular state. But if you had to guess, don’t you think they’re going to say the Second Amendment does not allow a state to prohibit ownership of AR-15s?

ZBS: I think this is going to be a major win for Second Amendment advocates who strongly believe that semi-automatic rifles are protected under that amendment. So absolutely, I think this is going to be a huge win in that realm.

DL: One more question before the speed round. What about cases or issues that have not yet been granted or added to the list but that you think will wind up on the Court’s docket for the next Term? I have to think there are a bunch of Trump-related issues kicking around that we think are going to make it to the Court. And actually, let me ask you this—I guess I’ve posed a compound question—what’s pending on the emergency docket right now?

ZBS: Not much of anything. There is, I believe, only one case pending at the moment. This is Students Engaged in Advancing Texas v. Paxton. The question is whether the Supreme Court should vacate a ruling that allowed Texas to enforce a state law requiring parental and age verification for downloading apps from an app store. That’s before the Supreme Court, but it’s really the only major one on the emergency or interim dockets. [Ed. note: On Monday, the Court denied the applications for stays—i.e., Texas can go ahead and enforce its law.]

We may be seeing the Trump ballroom case coming up there—but unlike last year, which was absolutely chock-full of one emergency petition after another from the administration, so far, it’s crickets. And I’m sure the Supreme Court is very happy about that. And we at SCOTUSblog, even though we love our SCOTUS cases, are happy about the break.

DL: Well, one thing I would say is that a lot of the big merits cases this past Term were cases that had percolated or reared their heads on the interim or emergency docket. Are there cases from the past year or two that reared their heads on the emergency or interim docket that we expect to come down the pike as merits cases, à la birthright citizenship? Because remember, first we had the CASA case about universal injunctions, and then we had the main event, in Barbara. So are there cases where we’ve had the appetizer, but the entrée is on its way?

ZBS: Not like last year, and I don’t honestly see the ballroom case reaching that. I will say that with this administration and the executive orders it might issue, it’s entirely unpredictable. So a month or two from now, we might say, “Oh, my gosh, there is this major blockbuster that is about to hit—or has hit—the emergency or interim docket.” Then that’s going to become a merits case, and a huge case for next Term. But right now, there’s not much there, and there’s not a great indication of what that could be.

DL: Okay, fair enough. Now let’s turn to my speed round. These are four standard questions, and they are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

ZBS: One of the reasons—not the only reason, but one of the reasons—I ended up doing criminal defense work is that I could not stand the petty disputes in civil and commercial litigation. These fights I would be part of—where someone was sending the angriest missives, as if you had tortured and killed someone, about a petty document dispute, or one redaction that everyone knows didn’t matter—drove me absolutely nuts. And just that amount of grandstanding and mock outrage—while it was fun at first, when I was like, “Oh, you get to act and do all these things”—over time, it just wears on you, and people are not acting like adults. Whereas in the criminal-law realm, maybe because the stakes are sometimes so much bigger, everyone is often a lot nicer to each other and a lot more civil than you see in that other area.

DL: My second question is, what would you be if you were not a lawyer—or in your case, a legal journalist?

ZBS: Well, I guess I can’t say academic, since I was also that at some point. I would say—and this one might throw you for a loop—a rabbi. And I think it’s because I enjoy public speaking. I enjoy counseling people. That was indeed one of my favorite parts of practicing law. And I like talking about the big questions—the dorm-room conversations late at night where you’re going into the deep stuff—and that is all something rabbis or religious leaders do. On the other hand, I am not good with languages, so Hebrew would not be a real strength of mine, and I am not a deep believer—but in Judaism, you fake it until you make it.

DL: Fair enough. My third question—and I know about this, but I’ll ask for my listeners—how much sleep do you get each night?

ZBS: I’m one of the world’s worst sleepers. I have issues falling asleep. Then I wake up. I have sleep apnea, which is absolutely lovely. So I’d say I can generally get six to seven hours, but it’s a pretty light, unfulfilling sleep.

DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

ZBS: Yes: take risks. I think that lawyers, especially litigators, tend to be very risk-averse, and so they will find any excuse not to do something or not to jump into something new, whether career- or life-wise. If you are able to, take the risk. Be a little crazy—not too crazy, but a little crazy—and make that jump.

DL: Well, I can’t say I disagree with that advice. Zach, thank you so much for joining me and for everything else in life.

ZBS: Oh, that’s very nice of you to say. That’s probably the nicest thing you’ve ever said to me.

DL: Thanks so much to Zach for joining me, and congratulations and thanks to him and his colleagues for all their great work at SCOTUSblog.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please 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. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, July 22. Until then, may your thinking be original and your jurisdiction free of defects.

This week’s Judicial Notice is sponsored by

With a presence in over a dozen cities across the United States and Asia, Lateral Link boasts an expert recruiting team of former practicing attorneys dedicated to sourcing top-tier legal talent for a diverse clientele, including major international law firms and Fortune 500 companies. To learn more about Lateral Link, please visit our website.

I hope everyone had a wonderful Independence Day. As a birthright citizen of this great nation, I had something extra to celebrate this year: the U.S. Supreme Court’s decision in Trump v. Barbara, holding that the Fourteenth Amendment guarantees citizenship to all of us who are born in the United States, regardless of our parents’ citizenship when we were born.

Work kept me busy last week. I followed the issuance of the Court’s final opinions in argued cases from October Term 2025. I did a fair amount of reporting for an exciting Bloomberg Law column and recorded a fun podcast episode, which will both appear next week. And I published two posts, which you should check out if you haven’t already: Supreme Court Clerk Hiring Watch: Justice Alito’s Non-Retirement and 4 Takeaways From The Birthright Citizenship Decision (which was picked up by Andrew Sullivan’s Weekly Dish and SCOTUStoday—thanks to them for the links).

When readers meet me in person, they sometimes say, apologetically, that they don’t read everything I write. While writers can be vain creatures (and I include myself in this indictment), I don’t expect folks to read every story of mine. I’m unusual among legal journalists in the breadth of topics I cover; different people read me for different reasons, and the Biglaw readers aren’t necessarily interested in SCOTUS (and vice versa). But I do have a small request: even if you don’t read every post, please open my emails before archiving or deleting them, which keeps my open rate high and improves deliverability. (If you’d like to give me a belated birthday present, go back through your inbox and open a few old emails from me.)

I didn’t do much outside of work last week, other than try to stay cool. If your air conditioning isn’t working as well as expected, check the filters—and if they’re dirty, change them. I was embarrassed to discover that one of our filters hadn’t been changed in three years. How did I know this? Whenever I change the filters, I take a Sharpie pen and write the date on the filter’s edge. (Every now and then, I offer random practical advice in Judicial Notice—such as financial housekeeping tips or a recommendation to track down your unclaimed property.)

Now, on to the news.

Lawyers of the Week: Cliff Cone and Michael Sabin.

In January, funds lawyers Cliff Cone and Michael Sabin made news when they left Clifford Chance, where they had co-led the U.S.-based funds and investment management group, and joined the New York office of Sidley Austin. Now they’re in the news again—not as lateral partners, but as plaintiffs.

Represented by Duane Morris, the two partners are suing Clifford Chance, the U.K.-headquartered firm where they previously worked. Their lawsuit, filed in the Southern District of New York, offers an interesting window into the world of Biglaw in 2026, including issues of partner compensation and lateral movement.

Cone and Sabin left Clifford Chance in early January. In early March, Clifford Chance global managing partner Charles Adams sent them nearly identical letters, announcing the firm’s intent to claw back almost $4.4 million from Cone and $1.4 million from Sabin. Why? Under Clifford Chance’s global and U.S. partnership agreements, “some partners who leave for a competitor can have their compensation recalculated as if they held fewer partnership units during the prior three years,” as Sara Randazzo explained in her column for Reuters.

In their 14-page complaint, Cone and Sabin argue that the clawback provisions are unenforceable because “New York law prohibits the enforcement of law firm partnership agreement terms which impose financial disincentives, penalties, or claw backs of already-earned or paid compensation against partners withdrawing from a law firm to join a competing firm.” While they accept that their dispute with Clifford Chance must be resolved through mediation or arbitration, as provided for by the partnership agreements, their lawsuit seeks a declaratory judgment that New York law—not English law—should apply to these proceedings.

In the view of Cone, Sabin, and their lawyers at Duane Morris, application of New York law “will likely be outcome dispositive with respect to the enforceability of the claw back and forfeiture provisions” that Clifford Chance is pushing. They include as an exhibit to their complaint a recent ethics opinion from the New York City Bar Association, which declares that “law firms may not impose financial penalties or disincentives” upon lawyers who leave for competitors; such penalties run afoul of ethics rules “designed to preserve (i) a lawyer’s right to practice and (ii) ensure a client’s freedom and ability to select a lawyer of his or her choice.”

Cone and Sabin’s lawsuit is assuredly unusual, but I wonder whether someday we’ll look back on them as starting a trend. With lateral partner movement running high and partner pay continuing to climb, don’t be surprised to see more battles between partners and the firms they leave behind. As legal recruiters told Law.com, firms are increasingly playing hardball with partners who defect to competitors—especially if the firm losing the talent paid the departing partner a big pay package to join. As the old saying goes, “Mo money, mo problems.”

Other lawyers in the news:

• Goldman Sachs is (finally) moving on from its former chief legal officer and general counsel, Kathryn “Kathy” Ruemmler: it named Michael Bosworth, currently a deputy general counsel at the bank, as acting GC. Bosworth seems to have all the right credentials: he served as an assistant U.S. attorney in the Southern District of New York, clerked at the U.S. Supreme Court (for Justice Breyer), was a partner at Latham & Watkins, and is not known to have accepted $9,400 handbags from pedophiles.

• Here’s a fun Bloomberg Law profile of William Savitt—co-chair of the executive committee at Wachtell Lipton, co-chair of the firm’s litigation department, and Elon Musk’s least-favorite litigator (having defeated the gazillionaire twice, in Twitter v. Musk and Musk v. Altman). When he addresses a jury, Savitt believes it’s important “to be approachable, to be informal, to speak in a vocabulary that isn’t overly lawyerly”; but in speaking to journalist Isaiah Poritz for this article, he did drop the word “aleatory” (which apparently means “depending on an uncertain event or contingency” or “relating to luck”—thanks to Bill Savitt for teaching me a new vocabulary word!).

In memoriam:

• Prominent plaintiffs’ lawyer Paul Napoli, founder of New York-based Napoli Shkolnik, passed away at 58.

• Judah Gribetz—who served as counsel to Governor Hugh Carey (D-N.Y.) during New York City’s fiscal crisis in the 1970s, helping NYC avoid financial collapse—passed away at 97.

May they rest in peace.

Judge of the Week: Justice Amy Coney Barrett.

Trump v. Barbara came down last Tuesday, along with the Court’s final two opinions in argued cases from October Term 2025: West Virginia v. B.P.J., upholding state laws prohibiting transgender athletes from competing in girls’ and women’s sports, and National Republican Senatorial Committee v. Federal Election Commission, holding unconstitutional a provision of federal election law limiting how much political parties can spend in coordination with a candidate for elected office. These decisions were nicely summed up by a friend who texted me last Monday, after the opinions issued that day made clear what we’d be getting on Tuesday: “The final case of the Term is about whether a trans baby of an illegal alien born in the United States can contribute money to federal elections.”

Justice Amy Coney Barrett was in the majority in all three of these headline-making cases—just as she was in 89% 92% of the Court’s decisions in merit cases in OT 2025. This made her the #3 justice most often in the majority—behind only Chief Justice John Roberts and Justice Brett Kavanaugh (tied at 95%), according to SCOTUSblog’s invaluable Stat Pack for the 2025-2026 Term. [UPDATE (7/7/2026, 10:28 a.m.): Fixed to use the correct percentages for OT 2025: the Chief and Justice Kavanaugh at 95%, then Justice Barrett at 92%. The percentages that I initially published—95% for the Chief, 92% for Justice Kavanaugh, and 89% for Justice Barrett—were for OT 2024.]

Justice Barrett’s vote in Barbara disappointed—or even infuriated—some conservatives. So did her vote in the tariffs decision and her majority opinion last Monday in Watson v. Republican National Committee, in which she and Chief Justice Roberts joined with the three liberal justices in holding that federal law doesn’t prevent Mississippi from allowing the counting of absentee ballots postmarked by Election Day but received up to five days later. As a Fox News headline put it, “Conservatives revolt after Trump-appointed Barrett joins liberals in ‘shockingly wrong’ mail ballot ruling.” See also this Times article, “Amy Coney Barrett Faces Right-Wing Ire Over Recent Rulings,” and this conversation between Times writers Emily Bazelon and David French, “Amy Coney Barrett Is the Lightning Rod” (in which they discussed—but disagreed with—what French referred to as an “out of control,” potentially “dangerous” MAGA backlash against Barrett).

But Justice Barrett had her defenders, who noted that her overall record remains quite conservative. In OT 2025 alone, she voted in favor of the Republican or conservative outcome in B.P.J. (transgender athletes) and NRSC v. FEC (campaign finance laws), discussed above; Trump v. Slaughter and Trump v. Cook, concerning Trump’s efforts to fire Federal Trade Commission member Rebecca Slaughter (green light) and Federal Reserve Governor Lisa Cook (red light, at least for now); Louisiana v. Callais, the landmark Voting Rights Act case; Mullin v. Doe and Mullin v. Al Otro Lado, a pair of major immigration cases; and Wolford v. Lopez and United States v. Hemani, two rulings that came out in favor of Second Amendment claims.

As Professor Brian Fitzpatrick told Reuters, “To expect any justice to always vote the way that ​we wish things were, it's just complete fantasy, and it misunderstands the entire enterprise.” Or as the editors of National Review noted, looking at Justice Barrett’s record before OT 2025, she “has stood courageously with her colleagues in one landmark conservative victory after another,” in cases that overruled Roe v. Wade, ended racial preferences in higher education, and reined in the administrative state. In sum, they concluded that even if “we don’t always agree with her,” ACB “is an outstanding justice and a key contributor to an outstanding Court.”

Runner-up for Judge of the Week: Chief Justice Roberts. The end of a Term brings with it evaluations of the Supreme Court—and, of course, the Chief Justice as its leader. For critiques of the current conservative Court—and, implicitly, Chief Justice Roberts—see the views of Professors Kate Shaw and Steve Vladeck in this spirited debate in The Times (gift link).

I call it a “spirited debate” because of the vigorous pushback that Shaw and Vladeck received from Professor Will Baude (who clerked for the Chief). See also this post at Executive Functions by Professor Jack Goldsmith—no fan of the Trump administration—titled “The Powerful, Resilient, Independent Supreme Court.” Or if Goldsmith is too conservative a commentator for your tastes, check out this staff editorial by The Washington Post (gift link), “The Supreme Court’s not-so-MAGA majority.”

Whether or not you agree with most of the Supreme Court’s rulings or its overall direction, it’s hard to dispute that Chief Justice Roberts is extremely influential these days. After Justice Barrett replaced the late Justice Ruth Bader Ginsburg, the Chief lost some of his power; he was no longer the “swing vote,” and the five conservatives could take actions—like overruling Roe—without his support.

But now, thanks in part to the aggressiveness of the current administration’s agenda, it can sometimes be hard for Trump to muster up five votes—making the Chief once again a key vote. And because of his seniority, the Chief also wields power through his ability to assign opinions—including to himself, in key cases such as Barbara, Cook, Slaughter, and Learning Resources v. Trump (aka tariffs). So the Roberts Court is, once again, Roberts’s Court. As Adam Liptak put it in his newsletter, The Docket, “The Term was a triumph for Chief Justice John Roberts, who was in all but complete control of a Court that had not long ago threatened to slip from his grasp.”

In other news about judges and the judiciary:

• If Bad Bunny can play the Super Bowl Halftime Show, maybe he can perform a private concert for SCOTUS—because he has at least one fan at One First Street. As Amy Howe reported for SCOTUSblog, the justices released their latest financial disclosures, and the most interesting tidbit was Justice Sonia Sotomayor receiving concert tickets valued at more than $4,000, to attend a show while “on a private trip to Puerto Rico in August 2025.” She didn’t identify the artist—but the tickets were provided by the record company representing Bad Bunny, and it was previously reported that she had attended one of his concerts.

• Even after Nina Totenberg and NPR retracted their report that Justice Samuel Alito was stepping down from the Court, retirement rumors persist. But sources close to the justice “insisted,” to Abbie VanSickle and Ann E. Marimow of The Times (gift link), that no retirement announcement is forthcoming—and Justice Alito is “expected to be on the bench in October.”

• Justice Alito didn’t retire on Tuesday, but do you know who did? Mark Sherman, who did great work covering the Supreme Court for the Associated Press for 20 years. Sherman reflected on his two decades at One First Street in a final AP piece (via Howard Bashman’s How Appealing).

In nominations news, Donald Trump announced two judicial picks: Judge Anna St. John (E.D. La.), for the Fifth Circuit, and Alabama Supreme Court Justice Gregory Cook, for the Northern District of Alabama. I wasn’t surprised by St. John’s nomination, having previously identified her as a strong contender. One advantage of picking her is that, assuming she’s confirmed, Trump will be able to fill her seat on the district court—perhaps with Louisiana Solicitor General Ben Aguiñaga or Department of Veterans Affairs General Counsel James Baehr, both possibilities for the Fifth Circuit nomination that went to Judge St. John.

In memoriam:

• Judge Rosemary Collyer (D.D.C.)—who presided over a number of notable national-security cases, and who led Crowell & Moring as its chair before taking the bench in 2002—passed away at 80.

• Judge David Doty (D. Minn.)—who played a major role in shaping the modern National Football League, through his oversight of a 1993 class-action settlement between the NFL and its players—passed away at 96.

May they rest in peace.

Job of the Week: an opportunity for a funds/investment management associate in Chicago.

Lateral Link is spearheading an unposted search for a prominent Am Law 100 firm seeking a funds/investment-management associate to join its close-knit, supportive team in Chicago. The firm seeks an associate with 4+ years of fund-formation/transactional experience to play a leading role representing asset managers, hedge funds, private-equity firms, and other global market participants. The group is highly collaborative and deeply invested in its people, offering top-of-the-market compensation and a hybrid work schedule. For immediate consideration, please email your résumé to Zain Atassi at zatassi@laterallink.com.

Read more

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.

Happy Fourth of July (observed). In honor of the 250th anniversary of the adoption of the Declaration of Independence, I have a gift for you: a new Supreme Court clerk hiring roundup.

Before turning to the clerks, let’s talk about a topic that had Court watchers buzzing this week. If you were one of the 50,000-plus people who joined SCOTUSblog’s live blog of the last day of the Term, you’re aware of the drama that ensued on Tuesday at around 11 a.m., as the session was drawing to a close: NPR reported that Justice Samuel Alito was retiring from the U.S. Supreme Court. Say what?!

I was incredulous—and unhappy (because of how much work covering a retirement and nomination would create). My reaction, captured in a text to the friend who alerted me to NPR’s report, was, “Oh, f**k me.1 Please tell me this is an April Fool’s joke.” (Fun fact: Justice Alito, 76, was born on April 1, 1950—yup, April Fool’s Day.)

Even though the news made no sense to me, I couldn’t dismiss it out of hand. It came from NPR—which, despite its critics, is still a highly reputable and reliable source. It was being reported not only online, but on air. And the article, posted online at 10:51 a.m., bore the byline of Nina Totenberg—NPR’s longtime, legendary Supreme Court correspondent, who has broken the news of multiple justices’ retirements over the years (including Justice Souter in 2009 and Justice Breyer in 2022).

Fortunately for me, NPR’s report turned out to be “fake news,” which it promptly retracted. I chronicled the reporting and retraction in real time, in a thread on X (which is where I usually discuss breaking news, since a newsletter like OJ isn’t a good vehicle for that). As you can see from my X thread, there was quite a bit of confusion—and some wondered whether the NPR story wasn’t totally off-base, but simply published prematurely (i.e., an Alito retirement announcement wasn’t supposed to come out on Tuesday, but would be made shortly thereafter).

So what happened? Now that the dust has settled, you can get chapter and verse from this NPR story by Kelly McBride, NPR’s public editor. Here’s the gist:

Totenberg was reporting on the final day of the Supreme Court session on Tuesday. As she was leaving the court, Chief Justice John Roberts was announcing upcoming retirements [of SCOTUS staff members]. Totenberg wondered why everyone else wasn’t leaving and asked someone outside the court. According to her interview that same day on All Things Considered, Totenberg asked a bystander what was going on, and the person replied “retirement announcements.” But Totenberg heard the reply in the singular, “announcement,” and assumed it was the notice that Alito was retiring.

Totenberg relayed this (mis)information to NPR’s executive editor, Krishnadev Calamur, and the outlet promptly published its pre-written story about Justice Alito’s retirement. It’s fairly standard practice for news outlets to pre-write stories about events they know are coming—e.g., retirements and deaths—and given all the retirement speculation that has been swirling around Alito, it’s not surprising that NPR had a pre-written story ready to go. (So I guess you could say the NPR story was published prematurely—very, very prematurely.)

In addition to reading McBride’s story, you can listen to Totenberg explain herself on All Things Considered. To her credit, she didn’t throw anyone under the bus, taking all the blame for what she described—in an apology letter she sent to Justice Alito—as “the worst professional mistake of my more than 50 years in journalism.”

In the All Things Considered interview, Totenberg quipped that she “scared everybody half to death for about five minutes.” That “everybody” included me—and I wonder if it might have included Justice Alito’s clerks for October Term 2026.2

Justice Alito tends to be one of the least transparent justices when it comes to clerk hiring, so I definitely don’t learn of his hires in real time. But upon information and belief, two to three of his clerks for the upcoming Term, OT 2026, were hired as recently as last month—which was another reason, in addition to the ones I’ve previously given, that I expect him to stick around for one more Term (at least).

After recently receiving the identities of the three Alito clerks for OT 2026 I was missing, as well as the clerk to retired Justice Anthony M. Kennedy, I now have a complete roster of OT 2026 clerks. In addition, I have a critical mass of hires to report since my last hiring update in May, including hires for Terms beyond OT 2026. So I thought now would be a good time for a fresh roundup.

Before providing the clerks’ names in these posts, I usually share an assortment of articles or other interesting items related to clerkships and clerking, accompanied by my commentary. This post’s potpourri consists of three pieces from Adam Feldman’s excellent Substack, Legalytics—to which you should subscribe, if you don’t already. He writes frequently about judges and clerks, especially Supreme Court clerks, so if these topics interest you—and since you’re reading this post, they probably do—definitely take a look at Legalytics.

1. Former Judicial Clerks: Creating Legacies for Generations

In this post, Feldman compiled rankings of the justices, circuit judges, and district judges who have the most former clerks serving in the federal judiciary. The #1 justice, with 12 clerks now on the federal bench, is Justice Clarence Thomas—which didn’t surprise me. Thomas clerks are especially well-represented among the ranks of Trump’s judicial nominees, which is one reason I declared the “Clarence Thomas Clerk Mafia” to be the “Legal Brain Trust of the Trump Administration.”

The #1 circuit judge is Judge David Sentelle (D.C. Cir.), with seven clerks turned judge. Or make that six clerks turned judges, and one clerk turned justice: I had forgotten until I read Feldman’s post that Justice Neil Gorsuch clerked for Judge Sentelle. That might seem hard to believe, since Sentelle is only 83—but he joined the D.C. Circuit at the age of 44, Gorsuch clerked for Sentelle fairly early in Sentelle’s judicial career, and Gorsuch became Justice Gorsuch at the age of 49.

The #1 district judge is former judge Michael Mukasey (S.D.N.Y.). The four Mukasey clerks now on the bench are Judges Florence Pan (D.C. Cir.), Michael Farbiarz (D.N.J.), Jesse Furman (S.D.N.Y.), and Sarah Russell (D. Conn.). Interestingly enough, Mukasey is a Republican—he was appointed by Ronald Reagan, then served as attorney general under George W. Bush—while his four clerks were all appointed by Democratic presidents.

One last tidbit from Feldman’s piece: “Perhaps most surprisingly, given his position as Chief Justice, John Roberts has not yet seen a former clerk become a federal judge according to Federal Judicial Center data.” I found this hard to believe—but after eyeballing the list of Roberts clerks, no current judges jumped out at me.

2. Biglaw Firms’ Federal Clerkship Networks and Institutional Ideology in 2026

For this story, Feldman examined the clerk hiring of ten elite law firms: Davis Polk, Gibson Dunn, Kirkland & Ellis, Latham & Watkins, Milbank, Paul Weiss, Sidley Austin, Simpson Thacher, Skadden Arps, and Sullivan & Cromwell. Notable findings:

• “Kirkland has the largest overall federal clerkship footprint”—i.e., its lawyers, collectively, have the most Article III clerkships under their belts. This isn’t surprising in light of the fact that K&E is, of these ten firms, the biggest in terms of both headcount and revenue.

• “Sidley is the most appellate-heavy firm in the dataset”: of the Article III clerkships completed by Sidley’s lawyers, collectively, 67.2% were circuit-court clerkships. Sidley is well ahead of the next three firms on this metric: Latham, with 52.8%, and Milbank and Gibson, tied with 50%.

• There’s a metric called Judicial Common Space (JCS), which “places federal judges on a left-right scale by connecting judges to the political actors associated with their appointment and confirmation…. Negative scores generally correspond to more liberal judicial ideology, while positive scores generally correspond to more conservative judicial ideology.” Per Feldman, “Gibson Dunn has the highest mean JCS score and the strongest positive-JCS share. Sidley, Kirkland, and Sullivan & Cromwell also have clearly positive centers of gravity. Paul Weiss sits closest to the liberal side, with the lowest mean JCS and the only majority-negative JCS profile in the current analysis.”

This makes sense. Paul Weiss has always been one of Biglaw’s more left-leaning firms (although that might be changing after its widely criticized Trump deal), while Gibson is home to many prominent conservative appellate advocates. They include all four co-chairs of its appellate and constitutional law practice: Tom Dupree, Allyson Ho, Julian Poon, and Jeff Wall. (Jones Day wasn’t part of Feldman’s dataset—but had he looked at it, I wonder if it would have outscored Gibson.)

3. Former SCOTUS Clerks in the Amicus Pipeline

In this piece, Feldman “examine[d] the role of former Supreme Court law clerks as counsel on merits-stage amicus briefs.” Some takeaways:

• “[A]bout one in five merits amicus briefs in signed cases included at least one former Supreme Court clerk.”

• “[F]ormer-clerk briefs were cited in the Court’s opinions at higher rates than briefs without former clerks.” Specifically, 22.8% of former-clerk briefs wind up getting cited in the Court’s opinions, compared to 15.2% of briefs without former clerks—meaning that “[f]ormer-clerk briefs were therefore cited about one-and-a-half times as often as other merits-stage amicus briefs.”

• But former-clerk briefs wind up on the winning side of the case with the exact same frequency as briefs without a former clerk: 55.1% of the time.

Feldman’s bottom line: “former clerks are a measurable part of the Supreme Court’s amicus machine, and their briefs are disproportionately likely to enter the Court’s written work.”

This concludes my clerkship commentary; now, on to the clerk names. For folks who’d like to see the lists, they appear below (for paid subscribers). I’ll have another hiring update soon, later this month or early next month—in which I’ll conduct my usual demographic analysis, looking at gender, feeder schools, and feeder judges.

As usual, you can share any hiring news that I have not yet reported—and any corrections, of course—by emailing me, at davidlat@substack.com, or by texting me at 917-397-2751 (texts only—this is a Google Voice number I use only for collecting SCOTUS clerk hiring tips, so I don’t accept calls at it). 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. Thanks!

[UPDATES (I strive for total transparency when I edit posts after their publication; I view “stealth edits” as dodgy to downright unethical, depending on their nature):

• 2:18 p.m.: This sentence was revised as follows: “Having obtained the identities of three out of four Alito clerks for the upcoming Term, I have close to a complete roster of OT 2026 clerks—missing only one Alito clerk. and the clerk to retired Justice Anthony Kennedy, assuming he still hired a clerk (but I have reason to believe he didn’t).” As it turns out, Justice Kennedy has hired a clerk for OT 2026, whose information I have added to the roster below.

• 2:30 p.m.: This sentence was revised as follows: “In honor of the 250th anniversary of the signing adoption of the Declaration of Independence, I have a gift for you: a new Supreme Court clerk hiring roundup.” Although America250.org, the official website of the U.S. Semiquincentennial Commission, states that “[t]his weekend, our nation commemorates and celebrates the 250th anniversary of the signing of the Declaration of Independence,” that’s not quite right. Although the Declaration was adopted or ratified by the Constitutional Congress on July 4, the signing took place later—primarily on August 2, 1776.

• 2:46 p.m.: I added the missing name of one of Stephen Vukovits’s lower-court judges, Judge Carl Nichols (replacing “? (D.D.C.)”—I knew Vukovits’s court, but not his judge).

• 4:26 p.m.: After obtaining the identity of the final Alito clerk for OT 2026, whom I added to my list, I revised my text again, as follows: “Having obtained the identities of three out of four Alito clerks for the upcoming Term, I have close to a complete roster of OT 2026 clerks—missing only one Alito clerk. After recently receiving the identities of the three Alito clerks for OT 2026 I was missing, as well as the clerk to retired Justice Anthony M. Kennedy, I now have a complete roster of OT 2026 clerks.”

• 4:26 p.m.: I also made this clarifying edit (since now my roster is complete): “And once I have a complete, confirmed my roster of OT 2026 clerks is confirmed by the Public Information Office of the Court, which should happen later this month, I’ll conduct my usual demographic analysis, in which I look at gender, feeder schools, and feeder judges.”

• 7/6/2026, 12:33 p.m. My list has been confirmed as accurate—at least in terms of the clerks’ names—by the Public Information Office of the Court. Accordingly, I deleted this language—“And once my roster of OT 2026 clerks is confirmed by the Public Information Office of the Court, which should happen later this month”—and made conforming edits. My thanks to the PIO for the confirmation!

• 7/16/2026, 10:42 a.m. I added a link to a UVA Law article about Justice Alito hiring Patrick Dever.]

Read more

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.

I was born in Far Rockaway, New York, to immigrants from the Philippines. Although my parents have been U.S. citizens for decades now, they did not have American citizenship or green cards at the time of my birth; as doctors doing their medical residencies, they were here on work visas. But because I was born in the United States, I became a U.S. citizen through birthright citizenship, regardless of my parents’ citizenship when I was born.

As a birthright citizen myself, I was not a fan (to put it mildly) of Executive Order No. 14160, Donald Trump’s attempt to end our nation’s decades-long understanding of birthright citizenship. Although the order wasn’t retroactive, its issuance at least raised the possibility that my U.S. citizenship could be taken away in the future. And as a proud U.S. citizen, who sees myself as no less American than a Mayflower descendant, I was offended by the EO’s implication that birthright citizens like me are somehow “less than” people born in the United States to U.S. citizens.

I mention this because I’ve always tried to be open and transparent about my biases and priors. So readers of this post about Trump v. Barbara, the birthright citizenship case decided yesterday by the U.S. Supreme Court, should know that I’m far from objective.

I try to be more analytical than opinionated in my writing these days, and that’s my approach here. The most brilliant minds in the legal profession have been arguing the merits of birthright citizenship for years, and it would be presumptuous of me to claim I have anything valuable to contribute to that doctrinal debate.1 But to the extent that my normative views on the underlying legal issues might be coloring my descriptive and predictive writing about the Court, readers should be aware of that possibility—and can discount or dismiss my analysis accordingly.

Turning to the substance of Trump v. Barbara, here’s what the case is about, from the characteristically clear opening to Chief Justice John Roberts’s majority opinion:

At issue in this case is whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States.

The [Citizenship Clause of the] Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born of persons unlawfully or temporarily present in the United States are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act (INA), which uses the same language.

Several parents filed suit, some on their own behalf, others on behalf of (and in the name of) their children. They argued that the Executive Order violates the Fourteenth Amendment and the INA. The District Court agreed. It provisionally certified a nationwide class of children who would be denied citizenship by the Order and preliminarily enjoined the Order’s enforcement. We granted certiorari before judgment.

Affirming the district court, the Barbara Court held, 5-4, that the order violates the Citizenship Clause of the Fourteenth Amendment. Here’s a quick overview of the 189 pages of opinions (or 194 pages counting the syllabus):

• As most of us predicted, Chief Justice John Roberts wrote the opinion of the Court, which was joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. The five-justice majority held that “[c]hildren born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.”2

• Justice Jackson, joined in part by Justice Sotomayor, wrote a concurrence—at 20 pages, not much shorter than the 26-page majority opinion—“to respond to some of the themes in the principal dissent” by Justice Clarence Thomas. Pushing back against his claim that the Fourteenth Amendment “was designed and understood to secure equal rights for the freed blacks,” not to “guarantee[] citizenship to persons who were not domiciled in the United States,” Justice Jackson argued that his view “elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”

• Justice Brett Kavanaugh wrote a 10-page opinion, concurring in the judgment in part and dissenting in part. He dissented from the Court’s constitutional holding, opining that “the Executive Order does not violate the Fourteenth Amendment.” But he concluded that it “does contravene a federal statute, 8 U. S. C. §1401(a)”—the Immigration and Nationality Act of 1952, which “has long been interpreted to adopt Wong Kim Ark’s general rule of birthright citizenship.”3

• Justice Thomas, joined by Justice Neil Gorsuch, wrote the principal dissent—which weighed in at 91 pages (those poor Thomas clerks!). In the dissenters’ view, “many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause,” which simply does not “recogniz[e] a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.”

• Justice Alito wrote a 39-page solo dissent. Opening his opinion by declaring Barbara to be “one of the most important decisions in the history of the Court,” he asserted that “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

• Justice Gorsuch wrote a three-page solo dissent. He contended that “children born to temporary visitors in this country, whether here lawfully or unlawfully, are not citizens”—and “[b]ecause the executive order is lawful at least to this extent, respondents’ facial challenge must fail.”4 But he also raised this question: “Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents’ presence violates statutory law?” Justice Gorsuch didn’t answer that question—leaving open the possibility that he might support birthright citizenship for the children of undocumented immigrants “who make their permanent home here,” legally or not (as opposed to so-called “birth tourists”).

To sum up:

• By a 5-4 vote, the Court ruled that the order is unconstitutional under the Fourteenth Amendment.

• By a 6-3 vote, the Court ruled that the order is unlawful.

• There might be up to 7 justices who would rule against an order denying birthright citizenship to the children of undocumented immigrants who intend to stay in the United States on a long-term basis.

Having set the table, let’s turn to my takeaways.

1. Trump v. Barbara was never realistically going to come out the other way.

Although I strongly oppose Trump’s birthright-citizenship order, I believe the constitutional questions are significant and substantial. There’s a reason why the split of the justices was closer than many predicted (as discussed below).

Speaking pragmatically, though, and given the current composition of the Court, Barbara really couldn’t have come out the other way—i.e., with the Court upholding the constitutionality of the order (or, to be technical about it, rejecting a facial challenge to the order). It would be, quite simply, too much: too big a departure from the status quo and too aggressive an assertion of the Court’s power, with practical consequences that would be too dramatic and disruptive.

The argument against birthright citizenship reminded me a bit of the argument in favor of disqualifying Donald Trump from the ballot under Section Three of the Fourteenth Amendment. As a matter of constitutional law, these arguments enjoy some support. But as a matter of constitutional politics, it was clear from the outset that they, much like “fetch” from Mean Girls, were simply not going to happen.

What do I mean by “constitutional politics”? Here’s what I wrote when discussing the concept in the context of the effort to disqualify Donald Trump:

The decision will be based on what [Georgetown law] professor Stephen Vladeck calls “constitutional politics,” which is distinct from constitutional law. Constitutional law isn’t irrelevant to constitutional politics, but it’s also not controlling; constitutional politics reflects additional factors like practical consequences, prudential judgments, the reputation and legitimacy of the Supreme Court, and what the justices are willing to spend in terms of political capital.

Upholding the order would have had massive practical consequences. According to an amicus brief filed in Barbara by 141 social-sciences professors, “The Order, if implemented, would strip 4.8 million future U.S.-born children of citizenship by 2045 and 12.8 million by 2075, with impacted children representing approximately 255,000 U.S. births per year.” It’s hard to imagine the Supreme Court wanting to own that—and to spend the required political capital to do it.

Critics of the Court contend that it has no problem with aggrandizing its own power.5 But even these critics must acknowledge that every Court, including this one, has lines it won’t cross. And it was clear all along that upsetting a decades-old understanding of birthright citizenship, in a way that could affect millions, was one such line.6

In his dissent, Justice Alito attempted to address the “bridge too far” concerns that some of his colleagues might have had:

Congress can and should address [the] situation [of the millions of children of undocumented immigrants]. The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress. Congress has conferred citizenship on many people who are not made citizens by the Fourteenth Amendment, including children born abroad to American citizen parents. These people and the millions of immigrants who have been naturalized are no less American than those who are fortunate enough to be born here.

For these reasons, the original meaning of the Fourteenth Amendment does not require inhumane results, and we should not adopt an erroneous interpretation of the Fourteenth Amendment simply out of fear of the consequences of “rocking the boat” or as a reaction to current immigration policy.

In the end, though, six justices decided not to “rock the boat”—as most of us expected.

2. The margin of victory turned out to be closer than many expected.

Most legal commentators believed before the oral argument that Barbara would come out against the Trump administration, 7-2, and many adhered to that view even after the argument. So please indulge me as I take a victory lap (as I also did in the tariffs case), based on the vindication of my post-argument, pre-opinion predictions:

I’m honestly at a loss when it comes to [ascertaining the views of] Justices Gorsuch, Kavanaugh, and Barrett, who all asked thoughtful, probing questions of both sides. I think there’s a possibility that one of them will vote with the Trump administration, making for a 6-3 vote, and it’s also possible that two of them go that way—meaning that the ACLU would still prevail, but by a close, 5-4 vote.

This is pretty much exactly how the case came out: 6-3 on the overall legality of the order, but 5-4 on its constitutionality.

That 5-4 margin was too close to comfort for some—like my former Above the Law colleague Elie Mystal, who urged Democrats to remain vigilant against efforts to roll back or abolish birthright citizenship:

Democrats, meanwhile, are likely to treat this bare win in Barbara just like they treated Roe: as a settled victory that requires no more legislation or defense. They are likely to throw Barbara back in the face of court reformers—as if a 5-4 ruling that the 14th Amendment means what it says is some kind of enduring victory—and media pundits are likely to use Barbara as an example of the court “standing up to Trump,” even though the dissents literally told Trump what to do next to accomplish his unconstitutional goals.

I agree with Elie that defenders of birthright citizenship must stay alert. At the same time, I believe Barbara is a win worth celebrating—congrats to the ACLU and its national legal director, Cecillia Wang, who argued the case—precisely because the margin was so close.

[UPDATE (11:22 p.m.): For more on this subject, see this New York Times article by Amy Qin, The Birthright Decision Was Surprisingly Close, Some Legal Scholars Say.]

3. The concept of “domicile” dominated the dissents.

In my post-argument recap, I observed that “[t]he concept of ‘domicile’ was surprisingly dominant” when the case was argued. And now that we have the Barbara decision, we can see how domicile loomed large in the opinions as well.

In a very interesting SCOTUSblog post, Breaking Down the Birthright-Citizenship Decision, Adam Feldman analyzed which concepts were most mentioned in the opinions. For the dissents, domicile came in #1, with 35.8% of concept mentions. Even for the majority opinion, domicile was also #1, with 31% of concept mentions (because the Chief spent time responding to the dissenters’ reliance on domicile).

So what exactly is “domicile,” and why is it relevant to birthright citizenship? From Justice Thomas:

Americans, consistent with their settler ethos, believed that citizens were the people who called a place home. Accordingly, domicile—a person’s legal home—played a key role in both state and national citizenship in America….

The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States.

What explains this interpretation? According to Justice Thomas, linking domicile to the words of the Citizenship Clause, “Children born to temporary visitors owed allegiance to another government—the country of their domicile—so they were not subject to the jurisdiction of the United States” (emphases added).

Note Justice Thomas’s reference to “allegiance,” which both the majority and the dissenters recognize as a key concept. As Chief Justice Roberts stated, both sides agree that “citizenship turns on allegiance.”

Here’s where they disagree: what gives rise to allegiance? In Justice Thomas’s view, allegiance flows from domicile. In Chief Justice Roberts’s view, the Citizenship Clause essentially adopted the view of citizenship reflected in the English common law, under which allegiance turned on where you were born. According to this “jus soli, or right of the soil” theory, you owed a “natural allegiance” to where you were born and to the sovereign of that place—here, the United States (subject to certain exceptions, such as children born in the U.S. to foreign diplomats and children of members of the Indian tribes).7

4. It’s unclear if this will end up being the beginning or the end of efforts to redefine birthright citizenship.

Trump was very invested in his birthright-citizenship order. Reflecting his strong feelings, he made history by becoming the first sitting president of the United States to attend a Supreme Court argument in person.

How did Trump react to the decision in Trump v. Barbara? His Truth Social post was fairly restrained (by his standards):

The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!

Alas, the president is incorrect in declaring that no constitutional amendment is necessary (setting aside the theoretical but remote possibility of the Court itself overruling Barbara). Multiple allies of Trump and supporters of his order—including lawyers by training, such as Senator Mike Lee (R-Utah) and Governor Ron DeSantis (R-Fla.)—explained that amending the Constitution would be required to end birthright citizenship in its current form.8

Might we see an attempt at such a constitutional amendment? Of course, amendments require a great deal of popular support.9 And at least if polling is any guide, there simply isn’t that level of support for changing birthright citizenship. Polls suggest that 55% to 65% of Americans support birthright citizenship.

Even narrowing birthright citizenship through an amendment could be challenging. Here’s what polling suggests about the different categories of birthright citizenship:

• Children born in the U.S. to parents who are in the country legally on work visas (my situation): 75% support automatic citizenship, 24% oppose.

• Children born in the U.S. to parents who are in the country legally on tourist visas: 58% support automatic citizenship, 41% oppose.

• Children born in the U.S. to parents who are in the country illegally: 49% support automatic citizenship, 49% oppose.

In terms of other implications, Sarah Isgur and David French raised this question on Advisory Opinions: could opposition to birthright citizenship replace opposition to Roe v. Wade as the new litmus test for prospective Republican judicial nominees, especially possible Supreme Court picks? In Elie Mystal’s view, the answer is yes: “From where I sit, birthright citizenship is now poised to replace abortion as the litmus test for future Republican judicial appointments, with Barbara replacing Roe as the case Republicans insist must be overturned.”

So those are some thoughts on Trump v. Barbara. Readers, what do you think? Please take my poll below and share your views in the comments (which are open to all readers, not just paid subscribers).

This week’s Judicial Notice is sponsored by

BriefCatch is trusted by over 22,000 legal professionals, 50 Am Law 200 firms, and 70+ courts. Built directly into Microsoft Word, it delivers real-time insights to help you write with precision, clarity, and confidence. And with RealityCheck, BriefCatch now verifies that citations are accurate and authorities are used correctly. To learn more, schedule a meeting with an expert—or try it out for free with BriefCatch Express.

Zach and I spent last week as most legal journalists did: waiting for the U.S. Supreme Court to close out the home stretch of October Term 2025. The justices handed down big rulings last Tuesday and Thursday (discussed below), but we’re still missing some blockbusters—including Trump v. Barbara, the birthright citizenship case. So please join us at SCOTUSblog for live blogging of the remaining decisions, starting at 9:30 a.m. on Monday (and on at least one other—not yet announced—day after that).

Shortly after the Court released its Thursday rulings, I joined Josh Barro on one of my favorite podcasts, Serious Trouble. We discussed one of the SCOTUS decisions from that day, Monsanto Co. v. Durnell—but spent much of the episode talking about Biglaw in the age of Donald Trump. Thanks to Josh for inviting me on the show.

Now, on to the news.

Lawyer of the Week: Konstantinos Ligris.

In the age of social media, nominees to top government posts routinely field questions about ill-advised statements they previously made online. Most of the time, they do a combination of explaining and apologizing, and they get confirmed in the end. But sometimes the social-media postings are bad enough to derail a nomination. Will that be the case for Konstantinos “Kosta” Ligris?

I’m not quite sure why Ligris, a tech entrepreneur and former real-estate lawyer with no apparent law enforcement experience, is qualified to serve as assistant attorney general for the Office of Justice Programs—a DOJ component charged with supporting state and local law enforcement. And given OJP’s mission, it can’t help that Ligris once tweeted that the “typical cop” is “dumb as dirt.”

Alas, this tweet isn’t an outlier. As reported by Courthouse News, The National Law Journal, and The Daily Beast, Ligris appears to have made numerous problematic postings on social media—hundreds of which he has deleted, but not before they were preserved for posterity. And many of Ligris’s posts insulted members of the Senate, which will decide the fate of his nomination:

• He referred to Senator Alex Padilla (D-Ca.)—a member of the Judiciary Committee, which must sign off on Ligris’s nomination before it can go to a floor vote—as a “thug.”

• He called Senator Amy Klobuchar (D-Minn.), another member of the Judiciary Committee, a “top-rated propaganda peddler” and “partisan hack.”

• In the spirit of bipartisanship, he attacked Republican Senators as well, declaring Senator Susan Collins (R-Me.) a “fraud” and opining that Senator Lisa Murkowski (R-Alaska) “sounds almost as dumb as Kamala [Harris].”

When Ligris was questioned about the posts at his confirmation hearing by Senator Dick Durbin (D-Ill.), in a painful colloquy that you can watch in this clip (via Aaron Rupar’s X feed), the nominee declared himself “not familiar with some of the contexts or retweets,” but said he’d be “happy to take a look at them.” It will be interesting to see what he has to say for himself after he does.

Will Ligris win confirmation? On the one hand, his qualifications appear weak—he’s an aspiring assistant attorney general with scant experience as an attorney—and his social-media history is a liability. On the other hand, this administration has gotten controversial nominees confirmed to far more important posts, so I wouldn’t rule it out.

Other lawyers in the news:

• The confirmation process should unfold more smoothly for Adam Candeub, who will be nominated to serve as assistant attorney general for the DOJ Antitrust Division (per Bloomberg). Candeub is a Michigan State law professor currently serving as general counsel of the Federal Communications Commission.

• Speaking of DOJ confirmations, former attorney general William “Bill” Barr argued in favor of confirming Todd Blanche as attorney general, in an opinion piece for The Wall Street Journal (gift link).

• As expected, former national security adviser John Bolton pleaded guilty to unlawfully retaining sensitive national security information. His sentencing is scheduled for October 28.

In memoriam:

• John DeBoy, a litigation partner at Covington & Burling in Washington, D.C., passed away at 51, after battling cancer.

• Former Prince William County Commonwealth’s Attorney Paul Ebert—sometimes called “the sniper and the snipper prosecutor,” a reference to his unsuccessful prosecution of penis snipper Lorena Bobbitt in 1994 and his successful prosecution of D.C. sniper John Allen Muhammad in 2003—passed away at 88, after suffering from Parkinson’s disease.

• Clive Davis—who graduated from Harvard Law School, practiced at two law firms, and worked as an in-house lawyer at Columbia Records, before becoming a top music executive—passed away at 94.

• Former New Jersey congressman Frank Guarini, who graduated from NYU Law School and practiced law before entering politics, passed away at 101.1

May they rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

If he hadn’t snagged this honor last week, Justice Samuel Alito would have been the obvious pick for Judge of the Week in this edition of Judicial Notice. Of the 10 merits opinions the Court issued last week, he authored majority opinions in three: a pair of important immigration decisions, Mullin v. Doe and Mullin v. Al Otro Lado, and Wolford v. Lopez, holding a Hawaii gun law unconstitutional under the Second Amendment.

If you joined last Thursday’s SCOTUSblog live blog, you also know Justice Alito got into a bit of drama with Justice Sonia Sotomayor. After he summarized his majority opinion in Al Otro Lado, she dissented from the bench—an unusual move, signifying strong disagreement with the majority opinion. After she was done, he said—before proceeding to his next opinion, Mullin v. Doe—“There is much that I would have added to my bench statement had I known there would be a dissent read.”

Justice Alito’s retort “cause[d] heads to turn in the courtroom,” as reported by Mark Walsh, and led journalists to discuss afterward what he meant by “had I known there would be a dissent read.” The logical inference would be that Alito didn’t have much (or any) notice that Sotomayor would be giving an oral dissent. But on Friday, a spokesperson for the Court denied this: “Justice Alito was notified in advance by Justice Sotomayor’s chambers that she would be reading a dissent from the bench. It was a misunderstanding on Justice Alito’s part.”

The subject of dissents brings us to the latest Judge of the Week, Justice Ketanji Brown Jackson. Alito wrote the most majority opinions last week, while Jackson wrote the most dissents—a total of five across the 10 opinions. She wrote lead dissents in four—Monsanto Co. v. Durnell, Wolford v. Lopez, Blanche v. Lau (an immigration case involving lawful permanent residents aka green card holders), and Landor v. Louisiana Department of Corrections and Public Safety (a religious-liberty case brought by a Rastafarian whose hair was cut when he was in prison)—plus a solo dissent in Al Otro Lado (where she also joined Sotomayor’s lead dissent).

Last June, I wondered whether Justice Jackson had “wrested the gavel away from Justice Sonia Sotomayor as ‘Justice of the Resistance.’” A year later, there’s more evidence to support answering that question in the affirmative. As we saw last week, Jackson is a prolific and passionate dissenter—and as we’ve seen during her time on the Court, she’s willing to dissent even in cases where her fellow liberals join the conservatives. In the current Term, she dissented solo in two 8-1 cases, Chiles v. Salazar (Colorado’s ban on conversion therapy) and Fernandez v. United States (compassionate release for criminal defendants).

In the 10 opinions issued last week, many of them touching on “culture war” issues like immigration and guns, eight broke along 6-3 lines—Republican appointees versus Democratic appointees. For folks who contend that there’s a difference between law and politics and that the Supreme Court is (mostly) “doing law,” these latest decisions are… not helpful. As Sarah Isgur quipped on Advisory Opinions, “the end of this Term is just blowing up the thesis of my book” (the bestselling Last Branch Standing, arguing against the notion of a 6-3, politically polarized Supreme Court).

It’s worth noting, however, that not all of Justice Jackson’s dissents concern hot-button political issues. In Durnell, the case against Monsanto involving its Roundup weedkiller, she was joined in dissent by Justice Neil Gorsuch—and her arguments focused on how to properly interpret the federal law regulating insecticides, not policy considerations or abstract notions of justice. So whether or not she’s the “Justice of the Resistance,” it’s fair to say this about Justice Jackson: she’s an independent thinker, unafraid of charting her own path.

In nominations news:

• The Senate confirmed two district-court picks, Acting U.S. ​Attorney John Marck (S.D. Tex.) and Ohio Chief Deputy Solicitor General Michael Hendershot (N.D. Ohio)—by votes of 52-45 and 50-44, respectively.

• We’re probably not getting a Supreme Court vacancy anytime soon. But that hasn’t stopped SCOTUS possibilities from jockeying for position, as reported by Jacqueline Thomsen for Bloomberg Law.

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

Lateral Link is assisting the Los Angeles office of a premier law firm in its search for a midlevel litigation associate. The group handles sophisticated IP, entertainment, and complex commercial litigation, representing leading companies in the video game, film, television, and music industries. Associates work closely with experienced trial lawyers and receive meaningful responsibility across a diverse mix of matters. The practice is growing, driven by increasing demand and recent strategic additions to the firm’s IP platform. If interested, please email Sean Hamrin at shamrin@laterallink.com.

Read more

Defending some of the Trump administration’s most controversial policies in court, before frequently skeptical judges, can be difficult. But Abhishek “Abhi” Kambli, who recently stepped down as deputy associate attorney general, took on this challenge—repeatedly. During 15 months at the U.S. Department of Justice, he personally argued more than 20 consequential cases, involving subjects including the Biglaw executive orders, the Alien Enemies Act, and military service by transgender individuals.

Earlier this month, Kambli joined Holtzman Vogel—a boutique known for its political-law practice, state attorneys general work, and government and congressional investigations expertise, as well as its high-level connections in Republican and conservative circles. Having completed his government service, Abhi is freer than before to speak his mind—and agreed to sit down with me to talk about his time in the administration.

Thanks to Abhi for a thoughtful conversation, which included fielding difficult questions, and congrats to him on his latest move.

Show Notes:

• Abhishek Kambli bio, Holtzman Vogel

• Abhi Kambli, X (fka Twitter)

• Ex-DOJ Lawyer Who Defended Trump’s Big Law Attacks Lands at Firm, by Tatyana Monnay for Bloomberg Law

• DOJ’s Kambli Entrusted to Pull Off Win in Trump-Big Law Fight, by Justin Henry for Bloomberg Law

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.

Three quick notes about this transcript. First, it 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. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, 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: Thanks so much for joining me, Abhi.

Abhishek Kambli: Thanks for having me. I’m looking forward to this chat.

DL: Tell us about your background and upbringing. Where did you grow up?

AK: I grew up in Norwalk, Connecticut, but was originally born in Mumbai, India. I didn’t come from very much. Going back in my family history, my grandmother on my father’s side raised nine kids on her own—my dad was one of them—and she was illiterate on top of that. My dad moved to America right when I was one year old, and I was with my mom in India until I was three. Then I came over and grew up in Norwalk, Connecticut. My dad worked at a gas station; my mom worked in administration at a bank. I went to college at the University of the Arts and then did a stint in the entertainment industry for three years, but didn't like it. So I took my dad’s advice and went to law school: I went to Notre Dame, graduated, and started my legal career right after that.

DL: I want to double back a little bit, because I was actually intrigued by the arts and entertainment stuff in your background. You mentioned that you worked in the entertainment industry before going to law school. What was the nature of that? Were you working at a production company? Were you working at an agency?

AK: It’s a long story, but I got an internship with the Academy of Television Arts and Sciences, which gives out the Emmy Awards, so that was what initially got me out there. And then I worked at a talent literary agency for a while—and all the stuff that you hear about the nightmares about working in the entertainment industry, it’s all true. So I ended up not liking it and thinking, “Maybe I should do something else with my life.”

DL: You mentioned you followed your father’s advice and went to law school. When you went to Notre Dame Law, what kind of career did you envision for yourself?

AK: I knew immediately that I wanted to serve in the military. I knew that going into the JAG Corps was something that I wanted to do. At that time, I didn’t know about clerking and all that, and I definitely didn’t know that 10 years later people would still care about whether you clerked or not, since that’s just the way the legal industry works. But I ended up not even thinking about all that and just went straight into the military after law school. It was one of the best experiences of my life. It was an opportunity to serve both as a military officer and as a lawyer. I did that for about six years, and I’ve liked it enough that I still do it part-time in the reserves.

DL: Thank you for your service. Which branch were you with?

AK: The Air Force.

DL: Oh, cool. You did both prosecution and defense side work, correct?

AK: Yeah. The way the military works for everybody, including lawyers, is that they rotate assignments every two to three years. They prefer people be generalists and focus on seeing different things within the military. So I did assignments as both a prosecution and a defense attorney.

DL: Did you have a preference in terms of one side or the other?

AK: They’re both different, and each has its pros and cons. But in the military, the types of defendants are not the same as people on the outside. They’re typically people who made the decision to serve, and they’re very respectful compared to what I’ve heard of criminal defendants on the outside.

It’s a much different system altogether. The military court-martial system was a lot of fun. There are some serious offenses, but not everything is necessarily going to be a murder case or something like that. It’s oftentimes someone who made a bad decision, did something they shouldn’t have done, and you’re trying to get the best result for them under the circumstances and finding creative ways to do that. So if I had to choose, the defense side was probably a little bit more fun.

DL: And then after your service, you became a prosecutor?

AK: I got offers to be both an assistant federal defender as well as an assistant U.S. attorney. I talked to a lot of people who did each when making a decision, and becoming an AUSA just seemed like the path that left the most things open. Given how the legal industry works, and the fact that AUSAs are known and people understand that path, it just made more sense as a tiebreaker to go that route.

DL: And you served as an AUSA in Indiana?

AK: Yep, for five years.

DL: Which district or city were you based out of?

AK: It was the Southern District of Indiana, and I was at the Indianapolis office.

DL: And you handled a mix of cases there, correct?

AK: I was primarily doing drug and violent crimes. So the Supreme Court case that came out today, about whether someone who uses marijuana recreationally can be prosecuted for owning a firearm—I wasn’t prosecuting a lot of those cases, but I did a couple of them, so it was interesting to see where the winds have blown on that particular issue.

DL: Yes, that’s right: we are recording this shortly after the Supreme Court issued its decision in United States v. Hemani, involving gun possession by a user of marijuana—but I believe they have left open questions regarding, for example, someone who is a true addict. We’ll see. There’s a lot of Second Amendment litigation out there.

AK: There used to be a time when everyone just assumed, “Yeah, that gun regulation makes sense.” But to get to the point where it’s 9-0 on the Supreme Court the other way is definitely a sign of how times have changed.

DL: Speaking of constitutional litigation, I believe in your next job, you actually did touch more upon constitutional concerns.

AK: Yeah. So going into five years as an assistant U.S. attorney, it was a lot of the same types of cases over and over, and I wanted to do more cause-type litigation, things that I felt moved the ball forward for the stuff that I believed in. And there just happened to be an opening to lead the special litigation division at the Kansas Attorney General’s Office. So I applied for that, interviewed with Kansas AG Kris Kobach and his staff, and everything was a perfect fit. So we packed our bags and moved from Indiana to Kansas.

DL: Where in Kansas were you?

AK: The capital is Topeka, so that’s where the office was, and we lived in Lawrence, where the campus of the University of Kansas is located.

DL: The issue of state AGs suing federal presidential administrations is something we’ve seen on both sides. I recently had on the podcast California Attorney General Rob Bonta, whose office has sued the new Trump administration something like 70 times. When you worked for Kris Kobach, you also were involved in a number of prominent—and successful—lawsuits against the Biden administration. But let me ask you what I asked Rob: is AG litigation of this nature a positive thing? Aren’t some of these issues better hashed out through the political process?

AK: It’s a good question. When I was litigating these cases, one of the biggest issues was state standing. And now that I have some distance from that world, I do think that the Supreme Court is getting very skeptical of state standing and what that looks like, especially when the state’s not the directly injured party. In some cases it may make sense, like in student-loan forgiveness, where there are going to be direct pocketbook injuries to states; those cases are always going to have standing. But when it’s states acting as substitutes for private citizens who can otherwise bring lawsuits, I think that, especially in a post-Trump v. CASA world, the Court will look at that very skeptically.

DL: It sounds to me that if a state can show it has standing, you’re okay with that litigation, whether it’s a red state or a blue state.

AK: Yeah—if someone has standing and they can make the arguments on the merits for why something’s illegal, they should obviously be able to bring that to court and exhaust whatever legal processes they have. We definitely did that in Kansas, and it was for some very consequential things that would’ve harmed the state. So it’s a good thing to have that as an option, since state AGs have a special authority: they can bring a lawsuit on behalf of the state, so they’re a unique litigant that not everyone else can be.

DL: You and Rob Bonta basically come down on the same side on the general question, even if I’m sure you might have differences as to particular cases. What were some of the most significant cases you worked on in the Kansas AG’s Office?

AK: The one that gets the most attention was part two of student-loan forgiveness. We led one of the lawsuits on the $475 billion SAVE plan. That was a fun case because we won a district-court injunction in the District of Kansas, while Missouri was litigating a separate case. The Tenth Circuit stayed our injunction, and we went up to the Supreme Court. At that time, Missouri got a partial injunction, and then got a full one with the Eighth Circuit, and they were up at the Supreme Court at the same time. And that all happened in less than two weeks, from district-court decision all the way to the Supreme Court. So it was my first exposure to the Supreme Court’s emergency docket—and especially for a case that consequential, it was probably my favorite of the cases we did out there.

DL: In a way, that was sort of a foreshadowing of the much heavier use of the emergency docket that we’ve seen in the past year, and the velocity with which that docket moves is really striking.

AK: When you look at it in context, the administration has been sued at least 600 times on big-picture priorities—that was when I was still at DOJ, so the number could easily be at 700 by now. So when you look at how many times the administration has actually gone to the Supreme Court’s emergency docket, that ratio isn’t as large as it looks. When I was at DOJ, the Solicitor General’s Office was very intentional and judicious about which cases they were actually taking up on emergency.

DL: That’s an important point, because when people say, “Oh, the Supreme Court is so favorable to the Trump administration,” there’s a selection bias, in the sense that the administration, as you mentioned, is very strategic about what it brings to the Court. And the SG, John Sauer, is very smart and strategic; he’s not going to bring dogs to the Supreme Court. So there’s a bit of a skew, isn’t there?

AK: Not quite. The cases that are brought up there are the ones where there is true irreparable harm—where, if we don’t get emergency relief, something can’t be undone. Those are the cases that go up there—because it doesn’t make sense to go all the way up there unless you really need it. So that’s where the SG’s office has been really judicious about how they use the Supreme Court’s time.

DL: But the SG’s office also looks to likelihood of success on the merits, which is another factor, and they pick cases where they feel that they have a good case on the merits.

AK: And sometimes the appellate courts fix the problem, or it could be a case where there’s another avenue to do the same thing. So it’s reserved for cases where it’s a necessity to do that particular case on the emergency docket.

DL: Just to close out the portion about your career: after the Kansas AG’s office, where did you go?

AK: I joined the new Trump administration pretty early on, as a deputy associate attorney general at DOJ.

DL: Tell us how that came about. I’m curious about both (a) what led you to join the administration in February 2025 or so, and (b) just logistically, how did that happen? Did somebody reach out to you? Did you already have ties to the campaign?

AK: It’s an organic and relational process when any administration is staffing up, because with political appointees it’s not just about qualifications but also alignment and things of that sort. This Department of Justice, especially under Chad Mizelle when he was DOJ chief of staff, was looking outside the Beltway for people who have not just been part of the political scene but also have done the type of litigation that DOJ would be expected to do. There were people I knew who passed my name along, and I was ultimately interviewed and given the opportunity to come on and serve.

I loved my job in Kansas, but big picture, when you look at the types of cases we were doing, it just wasn’t going to be the same with a Republican state AG and a Republican presidential administration. We definitely weren’t going to have any more $475 billion student-loan-forgiveness cases. So the place where there was going to be the most consequential action, for lack of a better term, was going to be in the administration—and DOJ was going to be at the forefront of all of that, so that’s the big thing that drew me over there.

DL: In terms of people who have served in legal roles in both Trump administrations, we’ve seen a range in terms of their personal politics. On a scale of 1 to 10, how personally MAGA would you say you are?

AK: I don’t know if I would put it on a 1-to-10 scale, but I’ve definitely supported Trump personally since 2016—and even before that, when there was skepticism among others within the Republican Party—and I’ve maintained that ever since. I actually voted for him in the 2016 primary, so it goes way back.

DL: So tell us in general terms about the scope of your role at the Trump DOJ.

AK: DOJ has one of the weirdest org charts, and this org chart has stayed roughly the same across both Democratic and Republican administrations. There’s the attorney general, whom everyone knows. There’s the deputy attorney general. And typically the number-three official is the associate attorney general—and that’s who I worked for. And traditionally, the associate attorney general oversaw everything that was civil and involved litigation within DOJ—so divisions like the Civil Division, the Antitrust Division, and the Environmental and Natural Resources Division.

Historically, especially in the first Trump administration, the role of the associate attorney general had been more management and supervisory. This particular DOJ, in the second Trump administration, saw that as a little redundant, because the Deputy Attorney General’s Office also oversees the same divisions. So it was an intentional decision to have the associate’s office—especially since there were people in the office with litigation backgrounds like me—become more involved in the litigation, particularly some of the affirmative litigation. So that’s been a different way that they’ve been doing it.

So I had both a management and supervisory role, overseeing the day-to-day work of the divisions and attending to whatever needs and issues arise, as well as a litigation role. As you probably know, I litigated over 20 cases personally. And that’s just the ones I argued; there were also cases where we were involved in a supervisory capacity, without personally arguing. So litigation was a heavy part of the job for me.

DL: That’s very striking to me—how hands-on you were, for being a political appointee at a fairly high level. You argued more than 20 cases and were in the administration for less than a year and a half, so 20 cases, in federal courts across the country, is a lot. And you scored a number of very significant victories. Is there a case or matter of which you are most proud or that stands out to you in some way?

AK: There are about three cases that stand out. Contrary to what people think, the administration does win at the district court sometimes too, and those district-court victories are probably some of the more significant ones.

There were three different cases: one involving putting a school system on restricted status for their Title IX policies, in the Eastern District of Virginia; another that involved grant cancellation, in the District of New Mexico; and then another involving the Equal Employment Opportunity Commission’s decision to close out disparate-impact investigations, in the D.D.C. All three of those were fast-paced preliminary-injunction cases, but we got dismissals out of the preliminary-injunction hearings in all of them. So we got to a point where we were rushing into court on a preliminary injunction and then having the entire case dismissed.

In particular, Cross v. EEOC stands out the most because a lot of attention has been paid to the new OLC opinion on disparate impact and its viability. When those parties were suing in Cross v. EEOC, it was to require the EEOC to continue investigating disparate-impact claims in a certain way, even if the EEOC believed they were unconstitutional. Judge Trevor McFadden (D.D.C.) was the judge, and he ruled, based on United States v. Texas (2023), that an outside party not subject to our enforcement can’t direct us on how to use our enforcement or put together our enforcement priorities. So we got a dismissal based on that. But that was important because if that went a different way, then even if this OLC opinion was out, a court would’ve still been ordering the EEOC to investigate these cases. Cross was argued in November of last year, and the OLC opinion came out earlier this month—so sometimes you don’t see the full impact of a ruling until more than six months later.

DL: And then in terms of cases where you didn’t prevail, do you have a particular one that you would say was your toughest loss or biggest disappointment?

AK: No, I wouldn’t say there was any. I didn’t take these cases personally, especially when we were litigating such a high volume. I take the approach of understanding that I’m fallible and not going to make every argument perfectly—but as long as I made the best argument I possibly could and did it professionally and zealously, then as soon as the argument’s done, I move on to the next case. And if there is a loss, then we just examine what our appellate options are or whether there’s a different way to do the same thing. But I didn’t take an in-court loss personally at all; if I did, I would never get any sleep, given the volume of cases that we handled.

DL: What you alluded to raises a very interesting question. Over the past year or so, a number of DOJ lawyers have resigned, been reassigned, or been fired over disagreements with the merits of the positions of the administration in various cases. You talked about how you didn’t take these losses or wins personally; you were there as a lawyer on behalf of the United States government. But did you ever have a situation where you thought your legal position was weak, but you pushed forward because you did have some colorable argument, and that’s the nature of the job—sometimes you have to advance cases that maybe you’re not personally thrilled with?

AK: No, I never had that situation. The main reason is that sometimes, when you dig deeper into these cases, there’s a lot more there than meets the eye. And what tends to happen, especially when these cases are fast-moving, is that there’s a media framing of them that is a little bit too high-level. And what I noticed ends up happening in a lot of media articles is that they’re not quoting people like me, who understand what the issues are and how to frame them in a way people can understand. They’re mostly quoting people who are opponents—and that creates a groupthink around some of these cases, and that makes the administration’s positions seem a lot less meritorious in the media sphere than they actually are.

One example I’ll give—and I can talk somewhat about this, given that it’s still under litigation—is the Alien Enemies Act contempt litigation. I did the initial argument in front of Chief Judge James Boasberg (D.D.C.) on that, and I got a lot of hate mail from people I didn’t know, saying, “It’s so frivolous that you made these arguments, and you should be disbarred,” and whatnot. But when you look six to 12 months later, a lot of the same arguments that I made, we won on twice, at the D.C. Circuit’s emergency docket. And when you have sophisticated judges like Judge Gregory Katsas or Judge Neomi Rao, who don’t always rule for us, agreeing with some of these arguments, then you’re way past the point where you can call it a weak position that you’d still have to argue anyway.

I knew all of that when I was arguing it at the time. So the way I approach it is to drown out all the noise, especially when you have fast-moving cases with complex issues, and just dig into the legal issues. Once you do that, it’s a much different case than anyone really sees, especially when you include both the merits as well as the jurisdictional and threshold issues. When you combine all of them, then a lot of these cases end up looking a lot different by the time you ultimately get to the endpoint than what it’s portrayed like at first.

DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It’s not easy, especially if your benefits don’t match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.

You mentioned you got angry messages and hate mail. I hope this is not the case, but did you ever get any death threats?

AK: No, I didn’t get anything like that, thankfully. But people do feel very strongly about these cases. I know former colleagues of mine who got some really weird messages—even messages to their spouses on social media. So that part you definitely see, but I never had anything like that.

DL: How would you respond to somebody who said, “Abhi, how do you look yourself in the mirror in the morning?” or “how do you sleep at night?” Or to people who sent you angry mail, saying your position was so frivolous? What would be your response?

AK: I would say, “Wait six to 12 months and see what the case looks like after that.” Because sometimes when these issues are fleshed out, you’ll see a much different perspective.

DL: Let’s turn now to a case that is of very keen interest to my readership and listenership: the litigation over the Biglaw executive orders, issued against five law firms. One firm settled—Paul Weiss—and the other four litigated.

I know it’s still pending; we’re waiting for a decision from the D.C. Circuit, so you may be somewhat limited in what you can say. I think you can answer this next question without referring to anything privileged or anything that’s not in the public record. What is the strongest version of the government’s position? Because, I’ll be honest, I think there was a certain amount of groupthink on this case; the vast majority of public opinion was against you on this case. So give me the strongest argument in favor of the government’s position, in terms of the executive’s ability to target private law firms in this way.

AK: Sure. There are 10 different issues on the merits in that case, and there were four different law firms, but I’ll point to a couple of key issues.

First, security clearances. D.C. Circuit precedent has been very clear: there has never been a circuit that restored someone’s security-clearance access after the president has taken it away, and every court has dealt with it as a non-justiciable political question. But the district courts in this case not only enjoined the executive order, but required the administration to restore everyone’s security clearance that was taken away or suspended, and prohibited even individualized review of them. So when you’re getting that far out from what the precedent is, that’s going to be an issue.

Second, on First Amendment retaliation, the standard is a really tough one to meet. It’s not enough to say that action was taken against you for protected conduct; there has to be but-for causation. So if there’s both protected and unprotected conduct at issue, you have to show that the government action would not have been taken on the unprotected grounds alone. I don’t want to get too deep into this, since there was a back-and-forth between me and the judges on it, but there is a difference when you’re viewing commercial entities like a law firm, especially in freedom-of-association claims, because there is D.C. Circuit precedent that says freedom-of-association claims that are based on commercial associations are foreclosed. So those kinds of things did not get a lot of attention, but those arguments are there, and they’re in our briefs.

DL: That’s totally fair. And it’s interesting, on the security clearances: correct me if I’m wrong, but when some of the law firms sought initial injunctive relief, or temporary restraining orders, I think a lot of them did not challenge the security-clearances issue, perhaps because they realized that that would be a tough row to hoe.

AK: Yeah. The only one that did was WilmerHale, and Judge Richard Leon (D.D.C.) initially denied the preliminary injunction on that part—and then later, on summary judgment, sided with them.

DL: In the executive-orders case, you’re before the D.C. Circuit, arguably the second-most-important court in the country, and at the other counsel table is Paul Clement, a former solicitor general, regarded by many as perhaps one of the greatest Supreme Court and appellate advocates of all time. And also in the room, perhaps at counsel table, were two other former SGs: Elizabeth Prelogar from the Biden administration, who’s now at Cooley, and Don Verrilli from the Obama administration, who’s at Munger. Were you nervous for that argument?

AK: No, not any more than I would be for any other. But it’s one of those moments where I wished photography was allowed in the courtroom, because I wanted to capture that with a photo—it’s definitely a story that I’ll be telling my kids and grandkids about. It’s one of those once-in-a-lifetime experiences that will never be replicated in my career, so I’m glad I had the chance to do it.

DL: How do you prepare for an argument in general—say, a court of appeals argument like that one? Do you do moots?

AK: I did multiple moots for that one, and typically I try to. Sometimes, especially for district-court TROs that move at such a fast pace, there’s not enough time to do a moot—because the court says you have to turn in your response and come to a hearing three days later, and preparing for and conducting a moot is obviously going to eat up a lot of time.

And the big thing I try to do is dig in as much as possible and use as much precision as possible. That’s probably the greatest weapon any oral advocate has: being as precise as possible and leaving little room for confusion in what you’re trying to say and how you’re trying to say it. That’s typically what goes over best, even with judges who might not agree with your position.

DL: So let me ask you this—and again, you can answer based on what’s in the public record. You talked about some of the strongest points of the government, including the security-clearances issue and the tough standard for First Amendment retaliation. What do you think was the weakest part of the government’s case? And to the extent you can discuss this—without going into anything that might be privileged or attorney work product—how did you think about weaknesses as a matter of strategy?

AK: I’d want to be a little careful, especially talking about strengths and weaknesses, given that there’s still an appellate court waiting to decide the case. But what I can say is that whenever we lose at the district court and we’re on appeal, the way I always view it is that it’s our turn to be on offense. Typically, in a defensive case in district court, the plaintiffs have been the ones framing the issues, and we’ve effectively just been responding to what they have to say. But the appeal is a chance to reframe all the issues and start with the things we want to highlight the most—a chance to turn defense into offense and tell the story the way we want to tell it. That’s what I try to capture whenever I do an appeal, and this case was obviously one of them.

DL: So let me give you a compliment and then a criticism. The compliment is about your brief. Full disclosure: I’m not a fan of the executive orders, and I’ve been quite critical of them in my writing. But I read your brief and was quite impressed, because I thought you reframed it very artfully and showcased the government’s strongest arguments, and you made this seem like less of a slam dunk in favor of the law firms than everyone thought.

But here’s the criticism. Part of me read your brief, and it made me think, “Are we talking about the same thing? Are we talking about the same orders?” This term gets overused a lot, but I don’t know if anyone accused you of “gaslighting”—that is, if anyone said to you, “Oh, you’re defending something different, something that’s not as bad as what was actually done to these law firms.”

AK: Well, that goes back to my point: this is the first time people are really hearing our framing of the issues. And that’s why I always say—going back to that message—wait six to 12 months after even a district-court decision, just to see exactly what the arguments are.

And for anyone who dislikes the executive orders, vehemently disagrees with them, and wants us to ultimately lose, you would still want an advocate on the other side to make the best possible argument for it. If a court rules for you, for instance, you want it to have the appropriate limitations on whatever it holds. Sometimes when I read a case I say, “Wait, this court opinion goes really far, and it’s definitely not right,” especially as applied to this case. And when you look back at the briefs, it’s because the arguments weren’t the crispest, and some arguments were waived because they weren’t made. So if you are a fan of getting the law right, you would still want an advocate on the other side making the best possible case for it, so that if you do truly win, you win on the best possible arguments—and the court can be aware of the limitations of whatever it’s saying.

DL: I totally agree with you, and I’ve talked and written about this a lot. I’m a big believer in the adversarial system. I do not believe in punishing lawyers for the sins of their clients. But let me ask you this. In terms of just the principles that could come out of the executive-order litigation—if, say, it comes out in the administration’s favor—are you then prepared to say that under an Ocasio-Cortez or Mamdani regime, they could issue similar EOs against Holtzman Vogel, Consovoy McCarthy, Cooper & Kirk, or Jones Day?

AK: It just depends on what the court says and how it says it, because there are going to be limitations on exactly how it frames things. And a lot of that, in our political environment, is frankly going to be baked in. As for a president’s power over security clearances, it’s either reviewable or not reviewable. And there are other processes for addressing things people disagree with, outside the court system. There’s the impeachment process, there are elections, and there’s Congress passing statutes—part of the reason we said security clearances especially are a political question is that Congress hasn’t circumscribed the president’s authority in any way. So there are a lot of options other than going to court, and I’m not too worried about the ramifications if we win in that way.

DL: So during the Biden administration, you criticized President Biden for talking about how, notwithstanding the rulings of the Supreme Court, he’d find some way to get student-loan forgiveness done. And I agree with you; I was not a fan of Biden’s remarks, and I think you could argue there was a kind of disrespect for the courts there. But more recently, the Trump administration has been criticized for the rhetoric that it has employed in discussing the judiciary, including references to the administration being in a “war” with “rogue activist judges.” Hasn’t this administration, in terms of its rhetoric, gone too far at times?

AK: I wouldn’t characterize it that way. No one should ever cross the line into encouraging violence or anything of that sort. But in terms of vigorous critique of the judiciary, there’s no reason the judiciary shouldn’t get the same vigorous criticism that the executive branch or Congress gets. They are ultimately the only branch with lifetime tenure.

What ends up happening a little too much is that judges end up living in a bubble, where people worship them for various reasons. And there is, at least in part, a direct line between that and some of the issues you’ve seen recently, with judges such as Judge Eleanor Ross (N.D. Ga.) or Judge Sarah A.L. Merriam (2d Cir.)—where the judiciary, in its bubble, is often not aware of how people on the outside perceive something that might be clearly wrong. So people exercising their First Amendment rights to vigorously criticize the judiciary is actually a good thing, because to the extent judges pay attention to it, it at least gives them an idea of how normal people view their rulings and their roles.

I can’t speak for every single statement, but I don’t think I’ve seen one that encouraged violence—and anything short of that is fair game. That applies to both sides. You listen to the Supreme Court’s decisions and abide by them, but in terms of critiquing the Supreme Court, and vigorously so, I don’t have an issue with either side doing that.

DL: So after leaving the administration, quite recently, you decided to join Holtzman Vogel. What led you to join the firm?

AK: The plan was always to do one year at the Justice Department and at least see what was out there beyond that, since, as political appointees, all of us are going to have a shelf life in terms of how long we’re allowed to stay in our current jobs. So it’s always good to see what the options are. I loved my time at DOJ and really enjoyed working there. But when I tested the job market, Holtzman Vogel came in very early in the process. I knew a lot of people there—a lot of the partners are my friends—and I saw the platform they had and the things they were focused on, and it truly seemed like the perfect fit. If there was a window of time to do it, now was the time. So what motivated me to come here is that it was a perfect fit, a great platform, with a lot of great attorneys.

DL: I agree; there’s a lot of great talent at the firm, including many people such as yourself who have very valuable high-level government experience. What type of practice are you hoping to build on their platform?

AK: I’ll be involved in their state AG practice. We are a little unique, since we handle both plaintiff-side work—where we serve as outside counsel to state AGs—as well as defense-side work for companies that might be facing an investigation or action by a state AG office. So getting the opportunity to do both is pretty unique, and something I’ll definitely be involved in. We also have a very strong government and congressional investigations practice, as well as one of the strongest election-law practices, so I'll definitely be doing some of that work.

And the big area I want to continue building is strategic plaintiff-side litigation—when, for instance, a trade group or someone similarly situated sees a regulatory overreach by a state, thinking through what that looks like strategically in terms of bringing a lawsuit, how to bring it, how to loop in amicus briefs, and things like that. So that’s the big-picture strategy for bringing a plaintiff-side case, which is what I was doing in Kansas and at DOJ too, since we did a lot more plaintiff-side work than Republican DOJs typically do.

I also want to build our amicus practice, since there’s an unlimited number of issues to comment on. Especially at the cert stage of Supreme Court litigation, amicus briefs matter a lot more, because if there are enough of them telling the Supreme Court that something is important, that increases the likelihood that the Court takes the case. So cert-stage amicus is an area of practice I definitely want to build up here.

DL: This is your first full-time stint in private practice, isn’t it?

AK: Yep.

DL: And how are you finding it so far? Is this your first time billing time?

AK: Yes. There’s definitely a lot to learn, and I’m starting to get the hang of it. But at the same time, it allows for a level of entrepreneurship that you can’t really have in government, building a practice and seeing how far I can take it. All of that is great, and the firm is really supportive. Unlike big firms, they won’t say no to taking on a client because they’re too controversial in certain circles. So having that freedom in private practice is definitely something that I welcome.

DL: Smaller firms and boutiques actually have that ability in ways that large firms don’t. A lot of large firms are very scared of taking on controversial clients, sometimes on either side of the aisle, but smaller firms tend to be more courageous.

AK: Yeah. And I think the firm relishes doing those types of cases, especially since those are the types of cases that end up getting attention at the Supreme Court and creating precedent. So long-term, it’s a good investment not to say no to a case just because it’s controversial.

DL: And your having been involved in some of the more controversial Trump administration cases wasn’t a challenge when you were testing the market?

AK: I went to Holtzman Vogel so early in the process, and I knew immediately that it was a good fit, so I never had the chance to see whether it would be challenging or not in a broader search.

DL: Fair enough—and, again, congratulations on your move.

AK: Thank you.

DL: Now let’s turn to the speed round. These are four questions, and they’re the same for all my guests. My first question is, what do you like least about the law? And this can either be the practice of law or law as an abstract system.

AK: Sometimes standing gets stretched to absurd limits. This especially happens with aesthetic standing: it can’t possibly be the case that someone can stop an entire federal project because they don’t like how it looks. I know there are other aspects to aesthetic standing, but at some point the Supreme Court is going to need to take a second look at that.

DL: My second question is, what would you be if you were not a lawyer?

AK: I would probably be involved in government in some way, a little more on the policy side. One of the things I like about what I do right now is that it’s where law and policy mix together. So if I weren’t a lawyer, it would be something on the policy side.

DL: So you’ve put the entertainment world firmly in the rearview mirror?

AK: Yes, for sure.

DL: My third question is—and I know that you, like me, are a working parent—how much sleep do you get each night?

AK: It varies, but I try to get at least six or seven hours if I can. We have three kids, all age five and under—including a six-month-old—so it varies. The six-month-old is just starting to sleep through the night, so we’re getting the hang of it now. But for the first few months it was rough.

DL: Good, good. And here’s my last question: any final words of wisdom, such as career advice or life advice, for my listeners?

AK: This is especially true for law students: be open to where your legal career takes you, rather than insisting on checkboxes you feel you have to meet at every stage. I took a very non-traditional path, transitioning in my career from criminal to civil, and it worked out. Sometimes law students or lawyers early in their careers feel a lot of pressure, like, “If I don’t do this clerkship or if I don’t work at this firm, it’s going to throw off the rest of my career.” There’s a lot the legal profession has to offer, and a wide variety of ways to get there. So just be open, and don’t sweat it if exactly what you hoped for doesn’t turn out.

DL: Well, I think you and I are both examples of that: we’ve had unusual careers, but I think we’re both pretty satisfied with where we ended up. Abhi, thank you so much for joining me.

AK: Thank you for having me. I enjoyed our talk.

DL: Thanks so much to Abhi for joining me, and congratulations to him on his move to Holtzman Vogel.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please 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. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, July 8. Until then, may your thinking be original and your jurisdiction free of defects.

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 July, in my analysis of the 2025 Am Law 200 rankings, I pointed out something unusual: the firms that The American Lawyer refers to as the “Second Hundred,” the nation’s #101 to #200 firms ranked by revenue, outpaced their Am Law 100 brethren in two key financial metrics. In 2024, the Second Hundred collectively grew revenue per lawyer by 8.6% and profits per equity partner by 12.6%, while the Am Law 100 improved RPL by 5.2% and PEP by 12.3%.

In the 2026 Am Law 200 rankings, based on 2025 financial performance, things reverted to the historical trend—in which the Am Law 100, the nation’s largest and most profitable firms, put more distance between themselves and the competition. Here’s how the Second Hundred fared last year:

• Total revenue: $29.4 billion, up 6%.

• Revenue per lawyer (RPL): $895,000, up 5.2%.

• Profits per equity partner (PEP): $1.208 million, up 9.5%.

• Total headcount: 32,903, up 0.7%.

On the bright side, the Second Hundred’s revenue, RPL, and PEP growth outstripped inflation in 2025, which hovered around 2.7% last year. But these firms fell short of how they performed in 2024, as well as what the Am Law 100 posted in 2025: revenue up by 13%, RPL up by 8.7%, PEP up by 14%, and headcount up by 4%.

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

As strategic adviser Kent Zimmermann, co-chair of the Zeughauser Group, explained to Brenda Sapino Jeffreys of The American Lawyer, “The rate of growth in the Second Hundred is lower on most of the key metrics, and those firms are starting off on a lower base—thereby creating a widening gap between the Second Hundred and the Top 100 on both size and profitability.”

This gives rise to what Zimmermann called a “talent advantage” for the Am Law 100: because of their stronger finances, they can offer bigger pay packages to attract top partners. These partners, bringing their talents and books of business, increase the profitability of the Am Law 100 relative to the Second Hundred—possibly creating a vicious cycle for the latter group, in which they fall more and more behind.

And if AI becomes a powerful differentiator in Biglaw, the divide between the Am Law 100 and the Second Hundred could expand even more. Why? AI is expensive. Kirkland & Ellis announced a plan to invest $500 million in AI over the next three to four years—which no firm in the Second Hundred has the ability to do. As Kirkland and other Am Law 100 firms pour more money into AI, and as those investments start to pay off, they could put even more distance between themselves and the Second Hundred.

Speaking of Kirkland, here’s an interesting point of comparison that captures the gap between the Am Law 100 and the Second Hundred. In 2025, K&E posted revenue of $10.556 billion—while the Second Hundred firms, collectively, generated $29.4 billion. Put another way, Kirkland alone generated revenue last year equal to 35.9% of the total revenue of the Second Hundred, a group of 100 firms.

Now let’s talk about specific firms. Because the Am Law 200 is a revenue-based ranking, let’s start with that metric.

Here are the top 10 firms in the Second Hundred, i.e., the firms ranked #101 to #110 in gross revenue (for the full list, check out The American Lawyer):

Read more

This week’s Judicial Notice is sponsored by

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

Happy Father’s Day to my fellow dads. Happy Juneteenth to all. And happy birthday to… me! I spent my special day playing Street Fighter at a video-game arcade, eating McNuggets, and napping. What more could I ask for?

Last year, I celebrated my 50th birthday and Original Jurisdiction’s fifth anniversary in more highbrow fashion, with a cocktail reception at the Harvard Club of New York City. Thanks to everyone who joined me for a wonderful evening (and you can now look for yourselves in the photographs I finally posted online).

Speaking of fun events, if you’ll be in D.C. on Wednesday, July 8, please consider joining me and the SCOTUSblog crew for Executive Power and its Limits: Reviewing the Supreme Court’s October 2025 Term. The afternoon conference will include a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court, and a live taping of the Advisory Opinions podcast.

Now, on to the news.

Lawyer of the Week: Will Scharf.

Trump critics argue that the second Trump administration is worse than the first because of the lack of guardrails. While there’s truth to that, there might still be some guardrails—which brings us to the latest Lawyer of the Week, Will Scharf.

In his job as White House staff secretary, an influential role once held by Brett Kavanaugh, Scharf determines what papers make it into the Oval Office and onto the president’s desk. He’s not usually involved in analyzing legal issues; instead, he decides which legal memos get seen by Trump.

But as a graduate of Harvard Law School, former federal law clerk and prosecutor, and personal lawyer to Trump, Scharf certainly has legal chops. And as recently reported by Maggie Haberman and Jonathan Swan of The New York Times (gift link), in connection with their forthcoming book about the second Trump administration, last year Scharf authored two confidential memos: an April 2025 memo expressing concerns over suspending habeas corpus for unlawful immigrants (as urged by top Trump adviser Stephen Miller), and an October 2025 memo identifying issues with invoking the Insurrection Act to deal with domestic protests (as pushed by both Miller and Vice President JD Vance).

The memos—which are actually addressed to White House Chief of Staff Susie Wiles, not Trump—are works of analysis rather than advocacy. But they do push back, in a subtle and restrained way, against suspending habeas or using the Insurrection Act. As David French put it on Advisory Opinions, they are “very well crafted” and “impressively readable, persuasive without being aggressive.”

That these courses of action were being seriously contemplated by Trump “is alarming,” according to Jacob Sullum of Reason, “insofar as it illustrates the Trump administration’s disregard for civil liberties.” But the fact that these proposals didn’t prevail is also “reassuring,” per Sullum: it shows that “the Trump administration is not yet completely devoid of advisers who see a downside to proposals like these.”

Of course, there’s no guarantee that Trump won’t take these or similar steps at a later point in his administration. But in the meantime, anyone opposed to suspending habeas or invoking the Insurrection Act has Will Scharf to thank—for now.

Other lawyers in the news:

• Philadelphia District Attorney Larry Krasner, a prominent progressive prosecutor, got benchslapped by the Pennsylvania Supreme Court. As reported by KYW Newsradio and the Pennsylvania Capital Star, the court issued an opinion rebuking Krasner and his office for being too quick to “concede relief”—i.e., to side with defendants in cases seeking relief under the Post Conviction Relief Act (PCRA). The majority in the 4-3 case criticized Krasner for numerous instances of “untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings”—and ordered that in the future, Pennsylvania Attorney General Dave Sunday’s office will independently review any PCRA case in which Krasner’s office concedes relief. Ouch.

• A special counsel, Professor Niki Kuckes, recommended that no sanctions be imposed on Kevin Bolan, who leads the Civil Division in the U.S. Attorney’s Office for Rhode Island. The U.S. District Court for the District of Rhode Island accepted that recommendation—but criticized the government for a “troubling sequence” of events, in which the administration reportedly failed to inform Judge Melissa DuBose that an undocumented immigrant was wanted for homicide in the Dominican Republic (so it could then criticize her for letting a murderer go free).

• Trying to rehabilitate her reputation, outgoing Goldman Sachs general counsel Kathryn “Kathy” Ruemmler sat for an interview with Ankush Khardori for The Times (gift link). The gist of her defense: spending time with the well-connected Jeffrey Epstein was part of the business development expected of her as a Biglaw partner, and as a white-collar defense lawyer, “I would not have been very effective in my job if I took the position that I would not meet with people who had been convicted of crimes or accused of crimes.” Vivia Chen was not impressed: “Ruemmler was close to Epstein, enjoyed the fruits of that relationship, and stuck with him long after he became a pariah. You could say she was a true friend. If only she owned it.”

• Even though former solicitor general Elizabeth Prelogar, now at Cooley, argued on his behalf (along with Stephany Reaves of Munger Tolles), former SCOTUS advocate Tom Goldstein lost his motion for acquittal or a new trial, after he was convicted at trial of tax and other charges related to his high-stakes poker playing.

• “The Plaintiffs’ Attorney Now 5-0 At High Court With No Dissents”: Jeff Overley of Law360 profiled Jennifer Bennett of Gupta Wessler, my recent podcast guest, who has a great track record advancing progressive positions before a conservative Supreme Court.

• Judges have taken a number of different approaches in dealing with AI-related screw-ups by lawyers. Here’s one I hadn’t heard of (via Eugene Volokh of The Volokh Conspiracy): have the lawyers “write an article for the state bar journal explaining their errors and the potential pitfalls of misusing artificial intelligence.” In this particular case, Chief Judge Martin Reidlinger (W.D.N.C.) expressed “disappointment” in the resulting article, which he felt soft-pedaled the lawyers’ errors—but in the end, he didn’t impose additional sanctions, citing the attorneys’ “long history of exemplary conduct before this Court” and “expressions of repentance,” which he found were “made in good faith.”

In memoriam:

• John Reinstein, former legal director of the ACLU of Massachusetts, passed away at 83. He was married to former judge Nancy Gertner for 41 years.

• Wylie Sheldon, a real-property lawyer in San Francisco, passed away at 86. He was married to Judith Sheldon, the daughter of William Wyler—and the Sheldons were found dead in their running car, parked on the side of the highway.

May they rest in peace.

Judge of the Week: Justice Samuel Alito.

Under 18 U.S.C. § 922(g)(3), an “unlawful user” of a controlled substance can be criminally prosecuted and disarmed for life if they knowingly possess a gun at home. Ali Hemani is a Texas man who admits he owns a gun and uses marijuana “about every other day.” Does prosecuting Hemani under § 922(g)(3) violate the Second Amendment? In United States v. Hemani, discussed in more detail below (as Ruling of the Week), the U.S. Supreme Court held that such a prosecution is inconsistent with the Second Amendment.

Seven justices joined Justice Neil Gorsuch’s majority opinion, but Justice Samuel Alito did not. Instead, Alito filed a surprising opinion in which he concurred in the judgment—and was, in another unexpected twist, joined by Justice Elena Kagan.

Under the analytical framework outlined by the Court’s landmark Second Amendment opinions in Bruen and Rahimi (aka Brahimi), when the government seeks to justify a gun restriction, it must show its proposed regulation is “relevantly similar” to ones that are “well-established” in our nation’s history. Alito opened his concurrence by stating that he “agree[s] with the Court that the historical analogues that the Government cites are not ‘relevantly similar’” to § 922(g)(3) as applied to Hemani.

Specifically, the government tried to compare § 922(g)(3) to laws prohibiting gun possession by “habitual drunkards,” but the majority—and Justice Alito—didn’t buy it. Here’s the language from the Alito concurrence that ricocheted around the internet: “In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. These similarities underscore the deficiency of the Government’s analogues.”

I found this very surprising coming from Justice Alito, a former prosecutor and perhaps the most “law and order” justice on the current Court—and I wasn’t alone. On Advisory Opinions, Sarah Isgur quipped that she wouldn’t have come up with this Alito/Kagan concurrence “in 99 years,” jokingly wondered if they were high when coming up with this, and tongue-in-cheek dubbed them the “Cheech & Chong of the Supreme Court.” David French echoed Isgur’s shock, stating that “the Sam Alito I knew and loved would have required mandatory viewing of Reefer Madness in his dissenting opinion.”

In general, writers for the conservative opinion page of The Wall Street Journal tend to adore Justice Alito. But this time around, one of them, Matthew Hennessey, felt compelled to criticize Alito, in a piece titled Booze and Weed Aren’t the Same.

So what was actually going on here? In terms of why Justices Alito and Kagan didn’t join Justice Gorsuch’s opinion, they apparently felt that his 19-page analysis said much more than necessary to resolve the case. As they put it in their concurrence, after their reflections about the increasing acceptability of marijuana use, “We need not say more to decide this case, and I would for that reason say no more.”

But they could have done this in a much more restrained way. How? Keep the first and last paragraphs of the concurrence, deleting everything in between—and voilà, you have a perfectly serviceable concurrence in the judgment. There was no need to write, as they did, “Marijuana consumption is increasingly common in this country. Many States have legalized its use and sale, and although possession of the drug remains a federal crime, very few persons are convicted of that offense each year.”

What might be going on here? Is Justice Alito acting out of character—in a “screw it” sort of way, because he’s about to reveal his retirement from the Court?

Like it or not, I don’t think he’s going anywhere. Consistent with reporting by Jan Crawford of CBS News and also by Fox News that he’s not stepping down this year, I can confirm that Justice Alito has hired a second clerk, Zach Gluckow (Penn 2024 / Bibas / Katsas), to join Bradley Larson (Columbia 2022 / Stras / Katsas) in chambers for October Term 2026. In addition, the justice was interviewing candidates for the remaining spots earlier this month—and might very well have hired all four OT 2026 clerks by now. If you’re aware of any clerk hires, by Justice Alito or any other justice, that didn’t appear in my most recent SCOTUS clerk hiring roundup, please email me (davidlat@substack.com) or text me (917-397-2751—texts only, not a voice line).

In other news about judges and the judiciary:

• The Supreme Court denied certiorari in Newman v. Moore, Judge Pauline Newman’s challenge to her (seemingly endless) suspension from the Federal Circuit, as reported by Michael Shapiro of Bloomberg Law (via Howard Bashman of How Appealing). I can’t say I’m surprised by the cert denial, but it’s interesting that no justice issued any dissent or statement respecting the denial.

• Judge Ryan Nelson (9th Cir.) obtained a four-week continuance in the Idaho state-court proceedings over the misdemeanor charges against him, arising out of his brief confrontation with a critic of his parking. It appears he requested the additional time to discuss a prosecution offer with his counsel.

• In response to last week’s discussion of Chief Judge Debra Ann Livingston’s resolution of a complaint brought by the Legal Accountability Project (LAP) against Judge Sarah Merriam (2d Cir.), one reader faulted me—and other journalists—for giving too much credence to the complaint. This reader didn’t wish to be quoted, so I won’t cite his message, but he urged folks to actually read Chief Judge Livingston’s full order (as opposed to news articles summarizing it)—which he personally found persuasive. [UPDATE (6/23/2026, 7:11 p.m.): In case you missed it, this press release from LAP critiques the Livingston order.]

• Judge Eleanor Ross (N.D. Ga.) recused herself from litigation involving the Trump administration’s effort to access Georgia election records. The government sought Ross’s recusal based on her (improper) attendance at an event for Fulton County District Attorney Fani Willis, who prosecuted Trump.

• Speaking of Judge Ross and the handling of the ethics charges against her, which (in)famously included having sex in chambers and lying about it, Professor Arthur Hellman wrote an interesting post at the Volokh Conspiracy: Chief Judge Pryor’s Non-Order in the Eleanor Ross Judicial Misconduct Proceedings: Why It Is So Problematic and What Might Be Done About It.

• Speaking of Professor Hellman, he’s quoted in this wide-ranging and timely article by Jacqueline Thomsen of Bloomberg Law, Judges’ Misconduct Cases Bring Extra Scrutiny to Strained Courts.

In nominations news:

• The Senate confirmed Missouri lawyer (and former Trump personal attorney) Justin Smith to the Eighth Circuit, as well as Kansas Solicitor General Anthony Powell and Kansas Bureau of Investigation Director Tony Mattivi to the U.S. District Court for the District of Kansas.

• Last week, I mentioned Louisiana Solicitor General Ben Aguiñaga as a top contender for the Fifth Circuit seat being vacated by Judge Kurt Engelhardt. Other possibilities include Judge Anna St. John (E.D. La.), former president and general counsel of the Hamilton Lincoln Law Institute, and James Baehr, current general counsel of the Department of Veterans Affairs and a former federal prosecutor in New Orleans.

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

Lateral Link is assisting a sophisticated boutique founded by former Biglaw attorneys in its unposted search for an investment funds/private funds associate. The ideal candidate will possess 3-5 years of relevant experience, including private equity experience. This is the perfect role for an entrepreneurial self-starter looking to leave Biglaw because of a lack of hands-on training or direct client experience. It offers Am Law 100 resources with less bureaucracy, interesting and cutting-edge work, a collegial atmosphere, a manageable 1,800-hour billable requirement, and competitive compensation. The group is already reviewing candidates, so please email Vered Krasna at vkrasna@laterallink.com to learn more.

Read more

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 footnotes, which contain material that didn’t appear in my Bloomberg Law column, are bonus content for Original Jurisdiction subscribers.

On June 2, Milbank announced a new associate pay scale. Raising base salaries by $10,000 to $20,000, depending on seniority, the updated scale starts at $235,000 for first-year associates and tops out at $455,000 for eighth-year associates. Two weeks later, it has been adopted by more than a dozen firms—with more likely to follow.

Stories about associate compensation are usually of interest mainly to associates.1 But this latest salary increase merits closer examination by anyone interested in the world of elite law firms, since it offers an excellent window into the current state of Biglaw. Here are my four takeaways.

1. Top firms are thriving—and sharing the wealth with their associates.

The most obvious conclusion to draw from the pay hike is that some firms are doing very well for themselves. As Milbank chairman Scott Edelman wrote in his memo announcing the raise, “We have been very busy across the entire firm over the first five months of the year and expect that the high levels of activity will continue for the remainder of the year.”

Milbank posted revenue per lawyer of $2.085 million and profits per equity partner of $7.6 million in 2025—reflecting 8% and 12% increases, respectively, compared to 2024. And based on Edelman’s memo, it sounds like the firm is on track to do significantly better in 2026 (barring something unforeseen, like a recession).

“The salary increase for associates isn’t because the price of eggs or gas has gone up,” Peter Zeughauser, a partner at the Zeughauser Group consultancy, said in an interview. “Partners are saying to themselves, ‘We’re doing really well—and we should pass some of that along to the people who are helping us make all this money.’”

Biglaw associate salaries last went up in 2023. During the intervening three years, compensation for the highest-paid equity partners has skyrocketed—with some earning more than $40 million a year.

“The dramatic increases in what top partners are making are reported in the news and well-known to associates,” Zeughauser said. “Too much disparity is bad for morale. What we’ve seen historically when this has happened, and what we’ve seen just now, is an associate pay increase.”

2. Traditional hierarchies have been upended.

There was a clear pecking order among firms when I first started covering Biglaw 20 years ago. The top tier consisted of venerable, white-shoe firms, founded in New York more than a century ago—such as Cravath (1819), Sullivan & Cromwell (1879), and Davis Polk (1849).2

Their preeminence manifested itself in a number of ways. They enjoyed the highest profits and greatest prestige (with a handful of younger firms, including Wachtell Lipton and Skadden Arps, thrown into the mix). They rarely lost partners to rivals. They paid their associates the most. And they led the way on associate pay raises—with Cravath such a clear market leader that the prevailing Biglaw salary scheme was called the “Cravath scale.”

It might be time for the “Milbank scale” to take its place. Over the past decade, Milbank has led all six associate pay raises—in 2016, 2018, 2021, 2022, 2023, and 2026. (Founded in 1866, Milbank has a long and distinguished history, but it’s fair to say it wasn’t seen as in the same league as Cravath until recently.)3

The diminishing dominance of old-line New York firms can be seen in other ways as well. Most notably, when it comes to having their partners poached, firms like Cravath are no longer impregnable fortresses.

Cravath itself has lost at least nine partners so far in 2026. Two of them went to Paul Hastings—founded in Los Angeles in 1951, and today a major player in the lateral market.

3. Litigation boutiques are here to stay—and a force to be reckoned with.

At least 17 firms have announced associate raises this month. But only five are among the nation’s 100 highest-grossing law firms: Milbank, McDermott Will & Schulte, Quinn Emanuel, Katten Muchin, and Susman Godfrey.

Most of the rest are elite litigation boutiques, including Hueston Hennigan, Elsberg Baker & Maruri, Wilkinson Stekloff, Desmarais, Kellogg Hansen, Holwell Shuster & Goldberg, and Yetter Coleman. And even though Quinn and Susman are top 100 firms based on revenue, they’re litigation-only rather than full-service firms.

Today, leading boutiques compete with Biglaw not only for talent, but also for cases and clients. Chief legal officers and general counsel are increasingly comfortable with sending their most important matters to boutiques—which can make up for their lower headcounts by partnering with larger firms or leveraging the power of technology, including artificial intelligence.

Given the rise of boutiques, I’d like to propose a new term: “Prestige Law.” It would encompass the large firms traditionally known as “Biglaw” and the smaller firms that play on the same turf.4

4. AI hasn’t killed off demand for associates, and it might be a long-term boon for them.

AI has taken the legal profession by storm over the last few years. Does it make sense for firms to raise associate pay when AI tools can now complete many of the tasks that used to be performed by associates?

“The AI piece hasn’t settled out yet,” Zeughauser said. “We don’t have enough experience yet with the impact of AI to determine how many associates firms need. You see different views on that within Biglaw—with some firms shrinking, some expanding, and some staying the same.”

My own view is that the combination of pay raises and AI could be a good thing for associates.5 If junior associates are increasingly expensive and not immediately profitable because AI tools will do much of what they used to do, firms will have more of an incentive to invest in young lawyers.

If an associate leaves their firm after only two or three years, the firm didn’t get a great return on its investment. So firms will want to give their associates positive experiences, encouraging them to stick around to the point of maximum profitability. Firms will also focus more on professional development and training: With AI handling more rote tasks, associates will be expected to do more sophisticated work earlier on in their careers.

Even if firms substantially reduce associate headcount, they’ll need at least some associates for a very long time. For starters, they need tech-savvy associates to operate and supervise AI tools—because when lawyers don’t review AI output, bad things happen.

And partners, whose necessity is undisputed, don’t just show up fully formed, like Athena from the head of Zeus.

“To have partners, you need to have associates, and to have senior and midlevel associates, you need to have junior associates,” said Zeughauser. “So someone has to hire first-years—because you need that pipeline.”

The first-year associates of today are the partners of tomorrow. Or put another way, those $40 million partners were once first-year associates.

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

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.

This past Saturday, I had the pleasure of attending the beautiful wedding of Zach’s cousin, in lovely Tarrytown, New York. I’ve been swamped by work as of late, so the weekend of festivities was a wonderful reminder of how important it is, no matter how busy we might be, to make time for the people we care about the most.

Speaking of the personal versus the professional, how the former can affect the latter was a big theme of my recent conversation with David Schnurman, CEO of Lawline, on his Lawyers Who Learn podcast. As I discussed with David, my life-threatening experience with COVID-19 back in March 2020 played a big role in my returning to writing, after a short but fascinating foray into legal recruiting—and in my launching Original Jurisdiction, more than five years ago.

Now, on to the news.

Lawyers of the Week: Kathleen M. Wilson, Shauncey Hunter Ridgeway, Kathryn Y. Williams, and Mark McClinton.

As loyal readers of OJ know, I’ve covered many stories of lawyers misusing AI—and getting sanctioned. Most of the time, the AI missteps are brought to the attention of the court by opposing counsel. The latest AI fail features a new twist: a case in which lawyers on both sides submitted court filings containing fake cases.

It’s hard to believe, but it actually happened—and was covered not just by legal outlets such as Bloomberg Law, but by general-interest publications including The New York Times (gift link). In terms of how the ill-fated filings made their way to court, the facts are familiar: lawyers pressed for time failed to verify the authorities they cited before submitting their briefs. If you’re interested in learning more about what went wrong here—in a litigation over legal fees, of all things—check out the 23-page order by Judge Sharion Aycock (N.D. Miss.), who was none too pleased.

Judge Aycock ordered Kathleen Wilson and Kathryn Williams, the out-of-state lawyers who prepared the offending filings, to pay fines of $2,500 and $3,500, respectively. Aycock also disqualified them from the case and ordered them not to appear in the Northern District of Mississippi for two years. As for Shauncey Ridgeway and Mark McClinton—the Mississippi lawyers who moved for the pro hac vice admissions of Wilson and Williams, then later signed the filings without reviewing them—Judge Aycock disqualified them from the case and fined them $1,000 each.

With lawyers on both sides submitting filings with fabricated cases, Withers v. Aberdeen sets a new record for misadventures with AI. Can it be topped? We’d need a case in which lawyers on both sides submit filings with AI errors, and the judge issues an opinion or order reflecting improper reliance on AI. That might sound like a tall order—but based on what we’ve seen over the past few years, I wouldn’t rule it out.

Other lawyers in the news:

• On Monday, Donald Trump officially announced his nomination of Acting Attorney General Todd Blanche to serve as the permanent AG. Will Blanche win confirmation? My current guess is yes, but I make it without a strong degree of conviction. There’s certainly a case to be made against confirmation, even if you’re not a liberal or progressive—see, e.g., this National Review staff editorial. But my guess is that in the end, many senators will—for better or worse—concur with Michael Fragoso’s bottom line, also from the pages of National Review: all things considered, including how Trump deals with the Department of Justice, “Blanche is actually the best man available in terms of running DOJ competently.”

• After the idea of nominating Federal Housing Finance Agency director Bill Pulte as director of national intelligence crashed and burned, Trump put forward U.S. Attorney Jay Clayton (S.D.N.Y.) as his next pick for the post. Clayton’s confirmation prospects look good, with Senate Majority Leader John Thune (R-S.D.) predicting an expeditious process.

• If Clayton gets confirmed, who will replace him as U.S. Attorney for the Southern District? Trump announced James “Jamie” McDonald, a partner at Sullivan & Cromwell (and personal lawyer to Trump), as his pick. The highly regarded, well-credentialed McDonald—a former assistant U.S. attorney in the S.D.N.Y., as well as a former clerk to Chief Justice Roberts—should enjoy a smooth confirmation.

• Trump unveiled his nominee for director of the Consumer Financial Protection Bureau, Brian Johnson. A former senior official at the CFPB, former Alston & Bird partner, and current executive at Capital One, Johnson appears to be qualified and non-controversial.

• The sentencing of former Supreme Court advocate Tom Goldstein, scheduled to take place this coming Tuesday, has been rescheduled for July 24.

In memoriam: Jake Dear—who served as chief supervising attorney of the California Supreme Court under three chief justices, during a 40-year career at the court—passed away at 69, after a short illness. May he rest in peace.

Judges of the Week: Chief Judges Debra Ann Livingston, Mary Murguia, and William “Bill” Pryor.

Does being an Article III judge mean never having to say you’re sorry? Or, if you’re forced to issue an apology, not really meaning it?

After the Eleventh Circuit Judicial Council found that Judge Eleanor Ross (N.D. Ga.) engaged in an extramarital affair with a law enforcement officer, had sex in chambers during work hours, and initially lied about it all when confronted, she was punished through a private reprimand (which turned out to be not-so-private). She was also required to write letters of apology to six former clerks, the poor souls who were subjected to the moaning and groaning of her gavel bangs.

Her initial apology letter—published in The New York Times (gift link), after three of her ex-clerks spoke to the outlet—was… pretty pathetic. Chief Judge William “Bill” Pryor (11th Cir.), who oversees disciplinary matters for judges within the Eleventh Circuit, sent Ross a letter calling her out (which he shared with Bloomberg Law).

Pryor’s letter raised the prospect of a new misconduct proceeding against Ross, based on her inadequate apology. So Ross sent a new and improved letter—also published in The Times (gift link), with Ross’s consent. This satisfied Chief Judge Pryor, who informed Ross by letter that he would not be opening a new inquiry: “Based on my review of your new apology letters, my disclosure of the June 10 inquiry to The New York Times, and your consent to disclose the new apology letters to [The Times], I have determined not to identify a new complaint under Rule 5.”

Based on her half-assed initial apology letter, it seems Ross didn’t feel much remorse—and perhaps her biggest regret was getting caught. I can’t help wondering whether Judge Sarah Merriam (2d Cir.), also the subject of a recently resolved misconduct investigation, had similar sentiments.

Two years ago, I wrote about a complaint of judicial misconduct filed against Judge Merriam. Back in 2022, a former law clerk accused her of mistreating chambers staff, including berating clerks for typographical and other minor errors. But after an investigation, Chief Judge Debra Ann Livingston dismissed the complaint, reporting that Merriam was “deeply troubled and saddened” by the complaints and was “committed to creating a better workplace environment” (Livingston’s order didn’t name the judge, but I independently confirmed that it was Merriam.)

Alas, in December 2025, the Legal Accountability Project filed a new complaint against Merriam, containing allegations along the same lines as the ones made in 2022—and raising the possibility that Merriam hadn’t changed her ways. Last Friday, Chief Judge Livingston’s order resolving the LAP complaint became public. For links to coverage and a copy of the order, see Howard Bashman’s How Appealing. (Once again, Livingston’s order didn’t name the judge—but as noted by Nate Raymond of Reuters, who first reported on the order, “the complaint it described matched one that [LAP] had announced publicly against Merriam in December.”)

As stated in her order, Chief Judge Livingston spoke with Merriam clerks from 2024 and 2025, and they described a “tense and challenging” environment in chambers. In response, Merriam agreed to a number of remedial measures, including (1) “meeting periodically with several advisor judges who have agreed to discuss best practices for chambers management,” (2) “participating in management training approved by the Chief Judge,” and (3) “attending the annual workplace training for new chambers staff with the Judge’s newly appointed clerks.”

For the most part, however, the order downplayed concerns with the atmosphere in Merriam’s chambers—and even criticized the LAP complaint to some extent, quoting clerks who described themselves as “surprised and upset by the complaint and by the resulting publicity about their clerkship experience.” In response, Aliza Shatzman, LAP’s president and founder, expressed disappointment in the Livingston order—and told Reuters, “The lack of accountability for federal judges who abuse their power is ultimately a congressional problem requiring congressional solutions.”

Finally, here’s a quick update on Judge Ryan Nelson (9th Cir.). As I discussed last week, he got into a parking-lot dustup with a fellow resident of Idaho Falls. The incident became public last weekend—and by Monday, Chief Judge Mary Murguia (9th Cir.) issued an order announcing that an inquiry into Judge Nelson has been opened. She cited media reports about the confrontation, suggesting that she acted sua sponte (and not in response to the misconduct complaint against Judge Nelson that was filed by Fix the Court over the same event).

In a guest post at the Volokh Conspiracy, Professor Arthur Hellman offered some thoughts on the complaint against Judge Nelson. Citing the statement that I received from Nelson’s counsel—in which the judge expressed remorse and said he “offered an apology and full compensation” (for a pair of sunglasses he destroyed)—Hellman said that Chief Judge Murguia “could well find that these actions constituted ‘voluntary corrective action’” and “‘conclude the proceeding’ without the need to determine whether Judge Nelson engaged in misconduct.” But while Murguia could do this, she doesn’t have to do it—and could instead let the inquiry unfold more comprehensively.

Considering that Judges Ross, Merriam, and Nelson are the subjects of the inquiries, why have I named Chief Judges Livingston, Murguia, and Pryor as Judges of the Week? I’d like to take this opportunity to highlight the great discretion they enjoy, as chief judges of their circuits, when it comes to judicial discipline.

The conventional wisdom about being chief judge of a circuit is that it’s not a big deal: you don’t get an extra vote on cases, and you can’t fire your colleagues (although you apparently can suspend them indefinitely, as Chief Judge Kimberly Moore of the Federal Circuit has done to Judge Pauline Newman). But even if chief judges lack firing authority, they can, through their handling of judicial disciplinary proceedings, exercise a great deal of power over their colleagues—and perhaps we should have a conversation about that. As Professor Josh Blackman wrote at the Volokh Conspiracy, “Chief judges have vast amounts of unstated powers. And absolute power can be wielded in improper fashions…. Congress needs to revisit this entire regime.”

[UPDATE (6/20/2026, 11:31 p.m.): For more discussion of these issues, see Professor Arthur Hellman’s post at The Volokh Conspiracy, Chief Judge Pryor’s Non-Order in the Eleanor Ross Judicial Misconduct Proceedings: Why It Is So Problematic and What Might Be Done About It (via How Appealing).]

In nominations news:

• Judge Kurt Engelhardt, appointed by Trump to the Fifth Circuit during his first term, will take senior status on December 31 or upon the confirmation of his successor. And who might that successor be? Louisiana Solicitor General Ben Aguiñaga—under 40, a former clerk to Justice Alito, and a crusader for conservative causes—strikes me as a likely candidate.

• At his confirmation hearing for a seat on the Eighth Circuit, Judge Daniel Traynor (D.N.D.) took some criticism for publicly declaring that he wouldn’t hire clerks from Columbia University. And it wasn’t just from Democratic members of the Senate Judiciary Committee; Senator John Kennedy (R-La.) also expressed concern, asking Traynor, “When a federal judge expresses a political opinion, like you and your colleagues did, how does that help our effort to help the public understand judges aren't politicians?” I’m guessing this won’t affect the confirmation of the highly qualified Judge Traynor—but perhaps it might lead him to reconsider his participation in the boycott.

• Michigan’s two Democratic senators, Gary Peters and Elissa Slotkin, turned in blue slips—i.e., signed off on—the judicial nomination of assistant U.S. attorney Michael Martin (E.D. Mich.). This comes shortly after Senator John Fetterman (D-Pa.) turned in a blue slip for Faegre Drinker partner Antonio Pozos (E.D. Pa.). (But I have a correction to my prior coverage: per Professor Carl Tobias, Fetterman wasn’t the first Democrat to turn in a blue slip for a judicial nominee during Trump’s second term.)

In memoriam: D.C. Superior Court Judge Lynn Leibovitz passed away at 67, after battling brain cancer. May she rest in peace.

Job of the Week: an in-house opportunity for litigators in Charleston.

Lateral Link is exclusively partnering with a $39 billion global industry leader to identify a litigation counsel for its growing legal team in Charleston, South Carolina. This is a rare opportunity for a litigator at a firm to make the transition in-house while maintaining exposure to sophisticated disputes and gaining hands-on business experience. The role offers broad exposure to commercial litigation, internal investigations, compliance initiatives, and litigation management. The ideal candidate will have 3-6 years of experience in private practice, strong writing and analytical skills, and a practical, business-oriented approach to problem solving. Interested candidates should send their résumé to Marion Wilson at mwilson@laterallink.com.

Read more

For longtime observers of the legal profession, here’s a headline we wouldn’t have expected a few years ago: “The Eight-Figure Talent Race for Supreme Court Lawyers.” According to C. Ryan Barber and Erin Mulvaney of The Wall Street Journal (gift link), superstar SCOTUS advocates—including former solicitor general Elizabeth Prelogar, now at Cooley, and former acting SG Jeff Wall, who recently joined Gibson Dunn—are commanding pay packages previously unheard of for appellate practitioners.

For such a small and elite group, the Supreme Court bar has seen a striking amount of movement in the past few weeks. In April, Wall led a four-partner group that decamped from Sullivan & Cromwell to Gibson. A few days later, another leading high-court litigator, Kannon Shanmugam, left Paul Weiss and joined Davis Polk & Wardwell, where he now heads the firm’s new Supreme Court and appellate practice group.

What explains this flurry of movement in the SCOTUS space? Why are top firms investing so heavily in Supreme Court and appellate practices? And what broader trends might this reflect?

I could think of no better guest to explore these topics than Kannon Shanmugam. Not only did he recently go through the recruiting process as a lateral partner, but he’s now going to be doing some hiring of his own, as he and Masha Hansford build out what Kannon hopes will be “the very best appellate practice in the country.”

Thanks to Kannon for speaking with me, and congratulations to him and Masha on their move to Davis Polk.

Show Notes:

• Kannon Shanmugam bio, Davis Polk & Wardwell

• Kannon K. Shanmugam profile, Chambers and Partners

• Davis Polk Looks to Appellate Star Shanmugam to Elevate D.C. Build, by Meghan Tribe for Bloomberg Law

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.

Three quick notes about this transcript. First, it 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. Second, my interviewee has not reviewed this transcript, and any errors are mine. Third, 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: 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 at davidlat.substack.com. You’re listening to the ninety-ninth episode of this podcast, recorded on Thursday, June 4.

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. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

We’ve entered the month of June, and OJ readers know what that means: time to focus on the U.S. Supreme Court, which will be handing down some of its biggest decisions over the next few weeks. And it’s also a good time to talk about the Supreme Court bar—which has seen a remarkable amount of movement this year.

In the span of less than a week in late April, we saw two major moves by groups of Supreme Court and appellate practitioners. We first learned about Jeff Wall, Morgan Ratner, Judd Littleton, and Yaira Dubin moving from Sullivan & Cromwell to Gibson Dunn & Crutcher. And then, a few days later, Kannon Shanmugam and Masha Hansford left Paul Weiss and joined Davis Polk & Wardwell.

And now, Kannon is joining me, right here on the Original Jurisdiction podcast. Most of my listeners are familiar with Kannon—but for the few who are not, he’s one of the nation’s leading SCOTUS advocates, with more than 40 Supreme Court arguments under his belt. He clerked for the late Justice Scalia, served as an assistant to the solicitor general at the U.S. Department of Justice, and led the Supreme Court and appellate practices at three top law firms: Williams & Connolly, Paul Weiss, and now, Davis Polk. Without further ado, here’s my conversation with Kannon Shanmugam.

Kannon, thank you so much for joining me.

Kannon Shanmugam: It’s my pleasure, David.

DL: So this is not the first time we’ve spoken, but for the benefit of my readers who somehow are not familiar with you, tell us about your background and upbringing. Where did you grow up?

KS: I grew up in Lawrence, Kansas. I’m a proud Jayhawk by birth. I spent most of my childhood in Lawrence. My parents emigrated from India a few years before I was born. My father was for many decades a professor at the University of Kansas, where my brother still teaches. I nevertheless flew the nest and went to Harvard for college and then also for law school, with two years at Oxford in between.

I then moved here to Washington, where I’ve been ever since. I clerked first for Judge Michael Luttig on the Fourth Circuit, and his chambers were right across the river from here, in Alexandria. And then I was fortunate enough to clerk for Justice Scalia at the Supreme Court, and then started my legal career in private practice, working with Ken Starr in what was then one of the few appellate practices at Kirkland & Ellis. In 2004, I left for the Solicitor General’s Office, the office that handles the government’s litigation in the Supreme Court. I was there for four years, and then in 2008 I came out into private practice. And as of six weeks ago, I’m a partner here at Davis Polk.

DL: So let’s double back a little. You may not remember this, but we actually met a million years ago in college, when you interviewed for a resident tutor position at the house I was in—I think I actually have an ancient copy of your resume in my file somewhere. But let me ask you this: what led you to go to law school, especially since you mentioned your father was an academic, but not a legal academic?

KS: So I didn’t get that resident tutorship position.

DL: That is true—don’t hold that against me! It was a committee decision.

KS: I’ve overcome that failure, David, somehow. I’m glad we’re still friends despite that.

But I never really wanted to be an academic. I had tremendous admiration, not surprisingly, for my late father. He’s one of my heroes. But it just wasn’t really the lifestyle for me. I really like being in the arena. And so either when I was in graduate school studying the classics (which was also my undergraduate subject) or after law school, I never really thought about being a law professor. I enjoy teaching the occasional class, and I hope I will continue to do that. And I love higher education; I joined the Harvard Corporation, which is the board that runs Harvard University, and it’s been a really fascinating thing to learn more about the university and how it operates. But it’s never really been the full-time vocation for me.

DL: I’m about to head up to Cambridge for my 30th college reunion, so as an alum, I’m very glad to see you on the board, especially since our alma mater certainly could use some legal help right now. But let me ask you: you majored in classics—not poli sci or “Government,” as it’s called at Harvard. Why did you pick the law?

KS: Well, when I was in college, I was pretty sure I didn’t want to be a professor, and I was pretty sure I didn’t want to be ambassador to the Vatican. So I knew I was going to do something other than the classics after I finished graduate school. And the two main things I was thinking about were journalism and law.

I was the editor of The Independent, which is the weekly newspaper at Harvard, and thought really seriously about a career in journalism. But I always had an interest in government and politics, so the law was always a possibility. And as I went through my college career, and as I spectacularly failed to get various jobs at leading newspapers for the summer, I came to realize that journalism was going to be a tough field to break into—and that was when the internet was in its infancy. So I decided on law school instead.

DL: Well, I can relate to that. I worked for your rival publication, The Harvard Crimson, and in my senior year I was looking at journalism jobs. My parents saw that they paid, I don’t know, $25,000 or $30,000—and as immigrant parents, they basically said, “No way.” So I wound up in law school. And unlike you, I went straight through.

So let me ask you this. You had a great experience at Harvard Law School. You totally cleaned up there. You wound up clerking for two very distinguished judges. One of them, former Judge Michael Luttig, is now a major commentator on events in the news. He went from being on the Fourth Circuit and a Supreme Court shortlister to the general counsel of Boeing, to now, in some ways, a public intellectual, I would say. I’ve talked to some conservatives who are a little puzzled by him, and I’ve talked to other people who basically view him as their hero. Do you have any thoughts on the evolution of J. Michael Luttig?

KS: Well, he has definitely had a lot of acts, as you say—first as a court of appeals judge, a fabulous court of appeals judge; it was a great privilege to clerk for him. And then as you say, he was general counsel of Boeing, and he is now a leading presence on social media and commentator on present events. I can’t really speak to his current political thinking, but I will say that he is a very thoughtful and serious person—and when he was a judge, a great role model for me in the early years of my career.

DL: I will not disagree with any of that. He is certainly a very thoughtful person, whether you agree or disagree with the particular positions he takes.

So you spent time in the Office of the Solicitor General. That, of course, must have been an amazing experience. How would you characterize that?

KS: For an appellate lawyer, it is a foundational training experience, and it’s no accident that many of the leading appellate litigators cut their teeth in the Solicitor General’s Office. It was just a tremendous professional opportunity to get to work on and even argue Supreme Court cases at such an early stage of my career.

And I was fortunate to be in the office at a time when there were a lot of legends there. Ted Olson was the solicitor general who hired me into the office at the time. Ed Kneedler and Michael Dreeben were among the deputies. Even among the assistants—which was the level that I was at—you had people like Jeff Minear and Irv Gornstein and Jim Feldman and Malcolm Stewart, who’s now one of the deputies, and so many others who were just extraordinary lawyers and role models, in the way that they thought about the law as well as in the very ethical way that they made representations on behalf of the United States. And so it was without question the formative experience of my career.

I was lucky that I was relatively young when I was in the Solicitor General’s Office, because I think I probably didn’t know enough to realize how nervous I should be about arguing cases in the Supreme Court. I was still in the heady days of youth and felt very confident in my own abilities. And so I probably didn’t feel quite as nauseous as I should have before each of those arguments when I was in the government.

DL: I actually totally concur with your thought that the older we get, the more we realize our limitations. When I was an undergraduate or law student, I thought I was so brilliant, and now I realize the limits of my own knowledge and abilities.

You were actually at Kirkland with former judge and solicitor general Ken Starr before you went to the SG’s office—one of the few appellate and Supreme Court practices around at the time. And it’s very interesting because your career trajectory, in many ways, mirrors or reflects the rise of a specialized Supreme Court and appellate bar. This is a very big-picture question, but do you have general thoughts on that, and whether that is a good or bad thing for the Court and for its work in deciding cases?

KS: I don’t think it’s a bad thing—perhaps that’s not surprising—I think, by and large, it’s a good thing. But I think it really reflects a broader trend in the law, which is the ever greater degree of specialization in legal practice—and perhaps that’s not surprising, because we have many more lawyers in the profession than we did 25 or 50 years ago.

So, as in many other areas of practice, people have come to recognize that it takes a particular set of skills and a particular type of knowledge to be an effective appellate advocate. Certainly the form of advocacy in the appellate courts is very different from the form of advocacy in trial courts before juries. If anything, it’s probably evolved even further away from district-court advocacy.

And the reality in the American legal system is that the appellate courts are where cases ultimately get resolved. We have a system that places a lot of weight on juries, but juries sometimes make mistakes. So we really rely on a robust appellate court system in this country to get things right. And so for clients, if clients have big disputes, they really need to have the best lawyers at the appellate level.

Now, sometimes that’s misleadingly characterized as a Supreme Court practice, and I’ve been fortunate to have had a number of arguments in the Supreme Court—but the reality is that most big commercial disputes actually end at the court of appeals level. And so in many ways, if you ask what I do on a daily basis, I’m at least as likely to be arguing something in a federal or even a state appellate court as I am in the Supreme Court.

And it’s funny, as I was thinking about my decision to join Davis Polk, I was talking with a friend of mine, and she said to me, “It’s a little bit misleading to describe your practice as even an appellate practice. What you really do is you help marquee clients with their most difficult issues.” And that, I think, is actually a very accurate way of capturing what lawyers like me do for a living: we help our clients with their most difficult legal issues, wherever a case may be in the lifecycle of litigation.

DL: There has been this evolution, because on the one hand, you’re right, there’s been this greater specialization—but on the other hand, it seems to me that what it means to be an appellate and Supreme Court litigator has changed. Because one thing I’ve heard, and what some of your colleagues have told me, is you don’t argue just in the Supreme Court, or even in the state and circuit appellate courts. You’re also brought into complex litigation, maybe as a case is about to be filed or even before a case is filed, to strategize and brainstorm.

So I guess if we were to think—shout out here to Advisory Opinions listeners—of buckets, we have the Supreme Court bucket, we have the state and federal appeals court bucket, and we have another bucket helping trial teams or counseling or what have you. How would you say, typically, if we were to average or wash it all out, that your practice breaks down into those buckets? And if I’ve missed a bucket, feel free to add it.

KS: No, I think that covers almost everything. And I would say that at any given time, one bucket may be fuller than the others.

So just to give you a sense of what I’m working on right now, I think our Supreme Court bucket is actually probably the fullest bucket right now, just because I recently argued a Supreme Court case shortly after I came over to the firm. We have two cases on the docket for next Term already, one of which I’m taking the lead on, the other one of which my brilliant partner, Masha Hansford, is taking the lead on. And so those are just taking up a lot of bandwidth right now. But if you go back over the last two or three years, I could certainly identify times when the other buckets have been the fullest buckets, and in particular, the district-court bucket can sometimes be fairly time-consuming. And often those are cases where the matter is inevitably going to end up in an appellate court and the client has just brought someone in sooner.

I was having dinner earlier this week with the general counsel of one of our clients, and he said, “Kannon, we have this case that’s going to trial later on this year. I’d love to get you involved because there’s some really novel and significant legal issues that we’re going to need to figure out our positions on and our best arguments on.” And so that’s a case that isn’t even in trial yet where the client is looking for advice, and that’s pretty common nowadays.

So I really do think that that’s the value of these practices. In many ways, labeling them as “Supreme Court” or “appellate” practices is a little bit misleading. What we do is really more like a combination of what the Solicitor General’s Office does and the Office of Legal Counsel does within the Justice Department: we help with difficult legal issues, wherever they might be in the process.

DL: I know that you said it’s going to vary a lot—but of those three buckets, is any of them consistently over 50%, or not really?

KS: I think the court of appeals bucket is probably by volume the most significant—because if you take a typical year, a good year for a Supreme Court advocate is three or four arguments, barring something really unexpected happening. But a typical year for me in the courts of appeals is about a dozen arguments, and sometimes it can be more than that. And if anything, cases in the courts of appeals can sometimes be even more labor-intensive to prepare for than cases in the Supreme Court, because cases in the Supreme Court often involve these neat, discrete legal issues. And it’s not unusual, as you know, to have a case in the court of appeals where you have a big trial, very fact-intensive arguments, and four or five legal issues. And so if you looked at my sheer hours, I think work in the appellate courts is probably year-on-year the most significant.

DL: That makes total sense to me. So I will not rehash your move from Williams & Connolly to Paul Weiss; we’ve talked about that when I had you previously on another podcast I used to host, and also in an interview I did in the early days of Original Jurisdiction. But I want to touch on your move from Paul Weiss to Davis Polk.

So when you moved to Paul Weiss from Williams & Connolly, you kind of set off a little game of musical chairs, because then Williams & Connolly went out and brought in Lisa Blatt, and then Arnold & Porter went out and got John Elwood. And similarly now, there seems to be this flurry of movement in the appellate space. I know from my brief detour into recruiting that these deals take a long time to work out, and so it’s hard to tell when a deal is announced versus when it was in the works. But do you have any thoughts on this flurry of movement in the Supreme Court and appellate space? Because around the same time that you moved from Paul Weiss to Davis Polk, there was a group of other star Supreme Court and appellate advocates, including Jeff Wall and Morgan Ratner, who went from Sullivan & Cromwell to Gibson Dunn. If you go back a little bit farther, of course, Elizabeth Prelogar returned to Cooley. And there’s just been a lot of movement in that space; I could mention a whole bunch of other people. So I guess my question is: all this movement in the SCOTUS and appellate space, what’s up with that?

KS: Well, I don’t know that it’s a huge amount of movement, and I think it certainly is true that the two times that I’ve moved firms, there have been other moves at the same time or roughly at the same time. But there were seven years in between those two moves; I had seven wonderful years at Paul Weiss. And I think the reality is that perhaps it seems as though there’s more movement in the appellate space because often you have people coming out of government, like Elizabeth Prelogar. Historically, there have been a lot of people who’ve gone from our area of practice into government jobs, into the judiciary, and the like. And I also think that the velocity of movement to and from law firms has gone up in recent years, just more generally. So in some sense, this may just be reflective of a broader trend. But in the appellate area in particular, what it probably reflects is a recognition on the part of firms, including firms that historically have not had these practices, that they can really add value to the litigation practices of the firms as a whole and to the firms more generally.

DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It’s not easy, especially if your benefits don’t match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.

Now, this is kind of an awkward subject, but it’s been reported that some appellate stars are getting these gigantic, eight-figure pay packages. I’ve speculated in the pages of Original Jurisdiction about your compensation—you don’t need to address that—but what do you think justifies these pay packages? Because the old narrative about Supreme Court and appellate practice was, “Oh, it’s prestigious, it helps with recruiting, but it’s not leveraged, and it doesn’t make quite as much money.”

But I was speaking recently to the head of litigation at a firm that made one of these big appellate hires, and this partner told me something very interesting. They said that having an appellate or Supreme Court marquee name is actually really critical to winning the biggest litigation matters, period—because this person was grousing that before they hired this appellate star or stars, they had lost some beauty contests to places like your shops who could say, “Well, if this doesn’t go as well as planned, or if we need high-powered brain work at the front end, we also have so-and-so.” So they basically say, “We have these great trial lawyers, but we also have this sort of brain trust of Supreme Court and appellate stars.” And so if you win one or two or three of those matters because of the presence of a Supreme Court or appellate person, maybe that person has paid for themselves because, given what billing rates are, billing in major matters can go well into the tens of millions or even the nine figures.

So is that part of it? How would you explain why some prominent Supreme Court and appellate litigators are commanding, reportedly, $12 million or $15 million or even $20 million pay packages?

KS: So I won’t speak specifically to the issue of compensation, but I will speak to the issue of why appellate practices are seemingly valuable to firms generally. One of the reasons is the reason you said, David, which is that when you are attempting to bring in significant litigation matters, this is a capacity that clients expect to have, and they expect to have it not just at the back end but at every stage of the litigation. And so it’s very important to be able to offer someone who is credible as an appellate advocate, whether or not you’re going to have that person argue the motion to dismiss, or whether or not you’re just going to have that person available to advise on the litigation at the early stages. And so I think that that is unquestionably valuable.

But I’ve always disputed the premise that appellate practices are somehow by their terms not valuable. I don’t know quite why appellate practices have always had that rap, and I suppose that if you were spending all your time pursuing Supreme Court cases at all costs and offering to do them for free, maybe that practice would be less “valuable.” But I think that when a general counsel of a big company calls you up and says, “We have a billion-dollar problem that’s heading to the Second Circuit,” it’s pretty valuable to be able to handle that case for the client, particularly if it’s a client who’s coming to you anew at the appellate level who may not be someone who was a client before that. And these are cases where clients are typically willing to pay the bills. So I think in terms of the economics of all of this, I’ve always thought that appellate practices are valuable for that reason, in addition to all of the intangible reasons why having a leading appellate practice is valuable to the reputation of a law firm.

DL: I totally agree with you, and you can certainly think of it in terms of dollars and cents. I once talked to the head of litigation at a major bank who hired one of your competitors, and this competitor got a nine-figure judgment from a lower court reversed in the court of appeals. It didn’t go to the Supreme Court, but getting a nine-figure judgment reversed or vacated or what have you—what’s a cut of that? It’s significant.

But let me ask you this, to sort of play devil’s advocate or to steelperson the rap on appellate practice. I think the classic argument was that it’s not leveraged. You can’t throw 50 or 100 warm bodies at these matters to do document review. I’m guessing—and maybe you can bake this into your answer to my ramblings—that typically you can staff an appellate matter with a partner or two partners, an associate or two associates, or three or four, but not 50. So I guess the argument was that you just couldn’t do leverage—your thoughts on that?

KS: So David, I would dispute the premise a little bit, because I don’t think that there are that many matters anymore where you have 50 or 60 associates working on the matter. The reality is that much of the work that associates were doing 25 years ago when I started in practice has long since been mechanized—and now with the rise of AI, associates simply aren’t doing that work anymore, and clients are increasingly coming to firms like ours simply because they have major complicated legal problems often involving novel legal issues. And the reality is that if the stakes are high enough, you can handle those cases without 50 or 60 lawyers and do so in a way that serves the client’s interests, but that is still economically rational for everyone involved. And on a typical appellate matter, we will have a team of four or five lawyers, and I think that that’s typically the right size to serve our client’s purposes.

DL: Obviously, I’m not asking about any specific representation, but how would you describe your approach to billing nowadays? Have you seen any kind of change in the billable hour versus alternative fee arrangements? And if so, in what direction? Or have you not really seen a change?

KS: That’s probably an issue above my pay grade, because all I see is my area of practice. And I think that appellate work has always been a type of work that is susceptible to alternative fee arrangements because it’s usually relatively easy to predict how much work is going to be required upfront. I think that gets more difficult with other types of litigation, but I think at least for appellate work where you typically know that it’s going to be two written briefs and an oral argument, you can do that if clients prefer, and some clients do and some clients don’t.

DL: Do you have a rough percentage of what your practice breaks down into in terms of X percent of revenue is billable hour versus alternative fee arrangement?

KS: That’s really hard to say, David; I don’t know that I’ve ever really tried to quantify that. It really varies from time to time, and it just depends on the client.

DL: But it’s probably still fair to say, as I think most lawyers in your position would, that the billable hour is still dominant? It has to be.

KS: I think so. Certainly in my personal experience, I think that’s right.

DL: So I definitely want to delve into a couple other matters, including the Court, but it would be podcaster malpractice of me to not ask you a little bit about why you left Paul Weiss. Now, of course, I understand and I will already preempt your response about how you were going toward an opportunity at Davis Polk. It’s an amazing firm. Nobody disputes that, etc., etc.

But were there any factors related to Paul Weiss that led to your move? I’ll mention two. One, the controversial deal that the firm struck with the Trump administration—and I have to say, I give you props for being more willing to speak about this deal than any other partner at Paul Weiss—and two, the argument that Paul Weiss has been shifting to a more transactional practice rather than a litigation practice.

So I guess that’s my question: Did anything about Paul Weiss lead you to this move, as opposed to the attractiveness of the opportunities at Davis Polk, which I will not dispute?

KS: Well, it was really an attractive opportunity. So even if you’re going to try to preempt me, I’m going to say that, because it was a very attractive opportunity, and it has been wonderful in the first six weeks so far.

I wouldn’t want to say anything critical about Paul Weiss, David, because I had seven great years there. As I said to my colleagues when I left, I wouldn’t be the lawyer I am today but for my experience there. I had some of the most enjoyable years of my professional career there.

I think I’ve always had a simple ambition, which is to have the very best appellate practice in the country, and I would say that over the months leading up to my departure, I thought really long and hard about where would be the best place to do that for the remainder of my career. And in that, I very much had a partner in my colleague, Masha Hansford, who came over with me and who I believe is the finest appellate lawyer of her generation. And we thought about this and talked about it a lot. We were very deliberate in how we went about doing it. And I’ll tell you, David, that a few months before I came over to the firm, I remember I was sitting in a coffee shop in New York, and I remember thinking to myself, if I were ever to leave Paul Weiss, where might I want to go? And I made a list, and I will tell you that Davis Polk was at the top of that list, and it was at the top of my list even before I had any idea that the firm would be interested.

Now, why was that true? I think it was for three reasons that ultimately ended up being the reasons why, when the firm invited me to join the partnership, I was very excited to do so, as was Masha.

The first is the reputation of the firm. I think that there is perhaps no firm that has a better reputation in the world at large among clients, and among fellow lawyers, than Davis Polk does. Second, the culture of the firm. Even when we were in law school, it had a reputation for being a very friendly, collaborative culture, and I think it has retained a team-first mentality that I’ve found very attractive, rather than an individual-first mentality. And so being in a place with a strong culture was very important to me. And the third was the quality of the management of the law firm. This law firm has management with a very clear vision for what a successful law firm in the modern era should look like. And in my conversations with our great chair and managing partner, Neil Barr, and others here at the firm, I really came away with a sense that this firm was being run very well.

And so in the end, for Masha and me, it was a very clear decision at the end of the day that this was the right place for us to continue and to build our practice.

DL: You mentioned AI earlier, and of course another very prominent Supreme Court and appellate practitioner, Neal Katyal, got in some hot water over some controversial comments he made about his use of Harvey in the tariffs case. I won’t ask you to opine on that, but I guess what I would ask you is this. Neal talked a great deal about how he was very effectively leveraging the power of AI. On the other hand, I spoke to another notable Supreme Court litigator, Jennifer Bennett of Gupta Wessler, who’s more on the plaintiffs’ side, but she said that given the nature of the work, she doesn’t find it very helpful. So where do you fall on this spectrum of Neal being a big cheerleader and advocate for AI and Jennifer being perhaps a skeptic?

KS: I think I probably fall somewhere in between. And both Neal and Jennifer are extraordinary advocates, and so it’s interesting to me that they have divergent views about this.

I think of AI first and foremost as a tool, and it’s an incredibly useful tool. We don’t use it yet to draft briefs. I don’t use it yet to tell me how I should answer questions at oral argument. But it can be incredibly helpful, sort of a steroidal version of the research tools that we used when we started out in practice, like Lexis and Westlaw, where we were crafting all these complicated Boolean searches. You can get an AI tool to do in two minutes what those tools could do after two or three hours of fruitless searching and rooting around. And it would be folly not to use those tools—but of course you have to use those tools responsibly. You have to be very careful to double-check the work, in the same way that we’ve always double-checked the work of humans working on cases. And you have to be very aware of the potential pitfalls.

And I think particularly for appellate advocacy, you have to remember that above all, particularly in oral argument, appellate advocacy is the art of humans persuading other humans. And you don’t do that just by making technically proficient arguments, and you don’t do that just by making the sorts of arguments you make to juries. You do that by connecting, by understanding the concerns that the very human judges or justices to whom you’re arguing have about your position and responding to them as best you can. And that’s the part of the job that I think will be the last part of the job that AI can successfully replicate. And it’s a very important part of the job, and I’d like to think that’s really what clients hire us for. It’s the human judgment about how to persuade other humans to agree with your position.

DL: I speak to law students and young lawyers, and I often get the question of, “What field of law can I go into where I’m least likely to be replaced by a robot?” And I actually tell them, and maybe I’m biased as a former litigator, but I tell them that litigation over transactional practice is actually probably pretty good, especially the type of litigation where you have to stand up and argue before a jury or a panel of judges, for no other reason than that juries and judges don’t want robots presenting the arguments. And the judges are in charge, of course—so as long as the judges don’t want the robots, we’re not going to have the robots. So do you think it’s probably true that the type of work you do is perhaps more “AI-proof” than some other areas?

KS: I think that’s probably true, at least until the judges themselves get replaced by robots, and at that point the robots will probably want robots arguing to them, but there would be all sorts of constitutional problems with that on the federal level, David. So I think at least for now, I think we’re good.

DL: Okay, good. Well, maybe we can safely make it to retirement before all the work for journalists and writers and Supreme Court and appellate advocates has been taken by robots. I don’t know about our kids; good luck to them.

But let me ask you this. We were talking about argument, and the Supreme Court is in a very interesting position right now. When I last interviewed you, we were talking about the pandemic format of argument, which had to accommodate certain realities, including the fact that you couldn’t really tell who was going to talk. And so the Court moved to this seriatim format, and now we have this sort of hybrid format where there’s a free-for-all upfront, and then a seriatim round of questioning where the justices go in order of seniority.

I actually really like this setup. In fact, I actually proposed it in an article, before it was adopted. But what are your thoughts on whether the format’s going to change? Because both Chief Justice Roberts and Justice Alito in the past few weeks have commented on how perhaps the arguments are a little bit too long now, and perhaps the marginal utility is decreasing at the tail end of these longer arguments. So I guess I have a two-part question. One, what do you predict the Court will do, and two, what would you want to see?

KS: So I love that it’s a two-part question because that’s like a question a justice would ask. And it’s funny, David, I remember the last time you interviewed me, it was right after one of these pandemic-era arguments. It was literally that afternoon, and it really was the pandemic that triggered the changes in the format of the argument, some of which have continued to this day.

So just for the benefit of the audience, as I think people are probably aware, the way that the Supreme Court currently works, to slightly oversimplify, is that each side gets 30 minutes, which was the way it was before the pandemic, but then at the end of the 30 minutes, the justices go one by one and can ask questions until each of them is done asking questions, and they go by order of seniority from the Chief Justice down to Justice Jackson, the most junior justice. And the result of that change in format has been that the oral arguments have gotten a lot longer, and it’s not at all unusual for an oral argument that started at 10:00 a.m. and previously would’ve been finished right on the dot of 11:00 to go past noon. I think my last argument went a little over two hours, and that’s not uncommon nowadays.

And so my personal view is that I’m happy to do the oral arguments however the justices would like. That having been said, I do think that there is a general sense that the oral arguments often, not always, go on for longer now than is perhaps useful. And I do think that there are certain weird consequences of that. One of them is that when the Court has two different cases in a day, the second case always seems to get short shrift because justices are human, too, and they get hungry. And by the time you get to 1:00 and no one’s had a lunch break, I think people are kind of ready to get out of the courtroom.

Another thing that I’ve observed is that it is usually the norm that the federal government will participate in a case as a friend of the court if it’s not a party to the case. And that means that it’s not uncommon to have two advocates on one side of the case and one advocate on the other. And it seems like when that happens, the time is inevitably split unevenly, favoring the side that has the government supporting it. And I think there’s a little bit of unfairness that comes with that as well.

And so I think those of us who speak in paragraphs rather than in glib half sentences like this current format, because it’s conducive to giving fuller answers, and hopefully that is helpful to the Court and to your client’s case. But at the same time, I recognize that there are countervailing considerations and that, again, the length of the oral arguments may not always be helpful to the Court. And so I know the Chief Justice recently gave a speech where he said that the Court was going to think about this a little bit more over the summer. It’ll be interesting to see what comes out of it—again, I’m happy to do whatever the Court thinks is most helpful—but I do think that the Court probably would be well served by perhaps at least tweaking the format, even if the Court does not go back to the prior format, which could sometimes be challenging, particularly in big cases where the justices have a lot of questions.

DL: And I also heard from some advocates that it was a little challenging for some of the justices, especially the ones who I guess were more junior, because they were worried that they weren’t going to be able to get the opportunity to lob in their question. And now the justices can kind of chill out a little bit more, because they know they’re going to get that time.

So I don’t know. I guess I’m trying to figure out what I would do if I were one of the justices. I don’t know that I want to cut out the seriatim round entirely, because of the benefit I just described. And if you were to just say, go back to really fixed time limits, like under Chief Justice Rehnquist, is that going to cut off somebody’s seriatim time? I don’t know. How long is that free-for-all right now?

KS: It really varies, but again, it’s not uncommon for the free-for-all to go for as long as the original part of the argument itself. I think some advocates have speculated that the Court might have informal limitations on each justice, like three minutes per justice. And nobody knows that for certain, but it does seem as if the justices sometimes suggest that their time is up or otherwise that they’re somehow limited. I could see the Court perhaps tightening those limits a little bit, though sometimes it’s actually helpful when a particular justice gets on a roll and is getting helpful answers; I don’t know that you want to artificially curtail that either. So I’m glad it’s not my problem, because I think it’s not an easy question to figure out what the optimal format is. And I suspect the justices themselves have different views about that.

DL: What about this? What if we get rid of that little minute or two at the front where you get to give uninterrupted remarks? Come on, we all know what this case is about; let’s just cut to it. What if you cut that part off, had a time certain for the free-for-all, and then also had a little time limit on each justice that was actually public and transparent and that the justices knew, too?

KS: What’s funny about the two minutes at the beginning, David, is that that actually came first. The Court instituted that right before the pandemic and retained it after the pandemic. I don’t know how helpful that is to the Court. As an advocate, I actually find it very helpful because after I’ve gone through the preparation process, sometimes I think about the case in a slightly different way, and I try to capture that in the introduction to the argument. And so if someone is listening closely to that introduction, they might perceive the fact that I’m emphasizing some points slightly differently.

And so I think at least for the advocate, it’s a useful tool, but ultimately it’s for the Court to decide whether it’s helpful to them. I do think that often you hear justices referring back to the introduction during the oral argument, which to me is at least some evidence that they are paying attention to it and interested in what the advocates have to say.

DL: You’ve kind of brought me around. I guess I ascribe more utility to that than I used to.

Let me ask you one last question before we go to the speed round. We are recording this now on Thursday, June 4, and we are still waiting for some of the most high-profile rulings from the Supreme Court. The ones that came down today—no offense to the advocates and parties to them—were not so exciting to those of us who are just members of the chattering class or the punditocracy. But let me ask you, based on what we’ve seen so far, do you have any big-picture thoughts on themes that are emerging from the current Court? It’s been stable in composition for a little while now, since the arrival of Justice Jackson. There’s been a lot of talk over the emergency/shadow/interim docket.

So again, big picture, the Supreme Court: where is it now, and where is it going?

KS: Well, we’ll have a better sense of that about a month from now, David, because as you say, we haven’t really had most of the significant decisions of the Term—but there’s no doubt that this is the Term where a number of the major pieces of litigation involving the administration have now finally come to the Court, for the most part, on the merits.

We had a lot of action on the so-called emergency docket in the first year of the president’s term. But here we are in the second year, and now you have all of these major issues, the tariffs case (which has of course already been decided), the cases involving the presidential removal power (both the case involving the FTC and the case involving the Federal Reserve), and the case concerning birthright citizenship, and a number of other interesting second-order cases involving administration initiatives. And it’ll be interesting to see where the dust settles in all of those cases, to see how many of those cases the administration wins and how many of them the administration loses.

And I think if the administration loses at least some of those cases, the interesting question will be, where do the justices break down? And I think in particular on a Court with six Republican appointees that is somewhat more conservative than the Court that you and I grew up with, David, as baby associates, I think it is clear that there are still some meaningful jurisprudential disagreements among those six justices. Your colleague Sarah Isgur has written a whole book about that and has talked a lot about that on Advisory Opinions. And I think that this year is going to provide some pretty significant evidence of that, and how that affects the narrative around the Court and how the Court is perceived is going to be very interesting. I think that there was this narrative that the Court was being deferential to the current administration, and that narrative may well change if the current administration loses some of these big cases.

DL: And I would venture that it’s already changing because of the tariffs case. That was a signature policy initiative of Trump, and we’ll see what happens in the birthright case, but I agree with you, this will be a very revealing next few weeks.

So turning to the speed round, these are four questions, and they are the same for all my guests. And my first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

KS: I think the amount of time I spend dealing with administration. I wish I had more time to prepare for arguments and less time that I spend reviewing bills.

DL: At Paul Weiss, you were both the head of the D.C. office and a co-chair of litigation. I believe at Davis Polk, you’re head of the appellate practice, right?

KS: I am, but that’s easy because until recently the appellate practice was just Masha and me, and she’s very easy to administer. No, I did have some really significant administrative responsibilities when I was at Paul Weiss; I enjoyed them when I had them, but I’m very glad to be focusing now on practicing law. And I hasten to add that the reality is that if anything, Masha is probably administering me rather than vice versa, even though I have the title. She’s much better at that stuff than I am.

DL: Fair enough. My second question is, what would you be if you were not a lawyer?

KS: Well, as I said earlier, I probably would be a journalist. And in my younger days, I would’ve loved to have been a professional athlete, but it became pretty clear that that was not going to happen.

DL: My third question is, how much sleep do you get each night?

KS: So I knew you were going to ask that question. I would say if I’m being honest, about seven hours. I am an early bird. I tend to be up by about 5:45, and I tend to be at the office by about 7:00. If I’m not in bed by 11:00, something has gone wrong.

DL: Fair enough. I always like hearing a number above six from very successful lawyers and other figures in the legal profession, so I’m glad to hear seven. My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

KS: I gave a graduation speech a few years ago where I said that a career is like a climbing wall. Sometimes you have to go sideways or even down to get to where you want to go. And I think that’s really important advice.

My oldest is heading off to college next fall, and I think a lot about this because I think that, for people in our kids’ generation, there’s this tremendous temptation to think that a career has to be linear and that there are just natural steps, and that if you take each of those steps, you’ll rise to the top of whatever profession you’re in. And I just think that the reality is that there are very few people for whom that is actually true. And if you talk to even the most successful people in our profession, chances are that they’ve had setbacks, things that have gone wrong in the course of their career. They’ve made decisions that may not have been obvious career decisions that ended up working out really well for them.

And I think that that is really important advice, particularly for people who are getting started—that it’s okay to make mistakes and to perhaps do something just because it’s interesting, not because it’s the next step on the career ladder. I actually think, again, that when you talk to really successful people, at some point along the way, they can point to something that’s in that category.

DL: Well, I’m very glad to hear you say that, because I suspect that you have not been denied any opportunity since the time that we didn’t hire you for that tutor job.

KS: That’s completely false, but that’s a subject for another episode. We could do the episode of “All of Kannon’s Professional Failures” for our next episode together.

DL: I think that would be a very short episode. Kannon, thank you so much for joining me; it has been a pleasure.

KS: It’s a great pleasure, David. Thanks for having me.

DL: Thanks so much to Kannon for joining me, and congratulations to him on his move to Davis Polk.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please 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. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, June 24. Until then, may your thinking be original and your jurisdiction free of defects.

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.

Share

Subscribe now