A shorter 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 additional observations in this post, appearing in the footnotes and after the section break, are a form of bonus content for Original Jurisdiction subscribers. You can learn more about OJ by reading its About page; it’s a reader-supported publication, and you can subscribe by clicking here.

When I picked a law school some 30 years ago, I didn’t engage in a very thoughtful decision-making process. I consulted the Best Law Schools ranking of U.S. News & World Report, then picked the highest-ranked school of the ones that admitted me.

That was Yale Law School, the number-one school in the annual U.S. News rankings since their inception in 1990. But in the 2026 ranking, which just came out, Yale is no longer at the top.

Stanford Law School is now the nation’s leading law school, according to U.S. News. Stanford tied with Yale for the top spot in 2025, 2024, and 2023—but this year, Stanford stands alone.

I can’t say I’m surprised. In fact, back in 2024, I predicted that “at some point in the next few years, Stanford will be an undisputed #1.”1

University of Notre Dame law professor Derek Muller—author of Law School Docket, a Substack newsletter about legal education—wasn’t surprised either. Back in December, he also predicted that Stanford would displace Yale, based on analyzing some of the data collected by the American Bar Association that U.S. News relies on in putting together its ranking.

Yale didn’t fall far; it’s now #2, tied with the University of Chicago. The law schools of the University of Pennsylvania and the University of Virginia tied for #4. Harvard, a top-three school for most of the history of the rankings, landed at #6 (unchanged from last year).

What factors explain the year-to-year shifts in schools’ ranks? “Because 58 percent of the rankings turn on employment outcomes and bar exam passage, the bulk of changes can be explained by those metrics,” Muller told me in an interview.

Indeed, Stanford overtaking Yale can be attributed, at least in part, to the schools’ employment numbers. If you look at the employment data for their 2024 graduates, 98.4 percent of Stanford’s 199 graduates had full-time, long-term employment (or were enrolled in other graduate studies, which U.S. News treats as equivalent to full-time, long-term employment when calculating employment scores). Meanwhile, for Yale’s 215 graduates, the comparable figure was 96.2 percent.

The difference between 98.4 percent and 96.2 percent might seem small. But when schools are so close to each other, as Stanford and Yale are, “little changes can make the difference,” Muller said.2

Stanford also benefited from its high bar passage rate. If you compare the bar passage rates for Stanford and Yale, you’ll see they’re very close—both north of 95 percent. But as Muller explained, the U.S. News methodology gives schools more points in the scoring system when their graduates pass a state bar with a lower passage rate. This benefits Stanford, because its top bar jurisdiction (California) has a lower bar passage rate than Yale’s (New York).

Looking at the bigger picture, one might ask: Who cares? Do the U.S. News rankings still matter?

Some research suggests that they’re not as important as they used to be, with students focused increasingly—and understandably—on factors such as cost.3 But even if they might not be as influential as they were in my day, the U.S. News rankings are far from irrelevant.

“Of course the rankings matter,” said Muller. “They’re a factor that students consider—even if more and more students are focusing on other considerations, such as cost or employment outcomes.”

And should the rankings matter? Over the years, they’ve received plenty of criticism—including from the deans of Yale and Harvard Law, who in 2022 stopped providing U.S. News with certain data that the outlet required from the schools for its ranking. (After more than 60 schools joined this boycott, U.S. News changed its methodology so it would no longer need the schools’ cooperation.)4

The year-to-year shifts in rank—and even Stanford overtaking Yale, which will garner plenty of attention and headlines—honestly don’t mean much.5 But Muller made a case for the utility of the rankings as a whole.

“They should matter, at least a little bit,” he said. “Even if you might quibble with where a specific school stands, the rankings give you a rough sense of where schools stand. There are overall tiers or buckets that schools fall into, and these generally align with both common perception and employment outcomes.”6

I agree. I don’t think students should treat the rankings as the be-all and end-all, as I did three decades ago. But students shouldn’t ignore the rankings either—especially given that other participants in the legal ecosystem, such as partners hiring associates and judges seeking clerks, do consider them.7

And for better or worse, the legal profession is obsessed with prestige, so where you went to law school tends to matter more than where you went to college. Over the years, I have heard members of the profession comment negatively on where a lawyer went to law school—even if that lawyer graduated decades ago.

Michael Orey, director of public affairs at New York University School of Law, knows the rankings well. Last month, he published a novel centered around them, Dean’s List—focused on a new law school dean’s (seemingly impossible) mission of making his institution a top-five school within a year.

The novel satirizes the obsession that some administrators have with the U.S. News rankings. As Orey said in an interview, he decided to write a novel about the rankings after noticing that within academia, they’re often at the “very top of people’s minds,” which he found “interesting and at times absurd and, ultimately, fairly amusing.”

But even as someone who pokes fun at the rankings, Orey does see value in them.

“The world is a better place with more information,” he said. “And rankings are part of that.”

Here’s more granular commentary about the 2026 Best Law Schools ranking of U.S. News. Let’s start with the T14—this year the T15, thanks to a two-way tie at #13 (with changes from the 2025 U.S. News ranking noted parenthetically):

(1) Stanford University (-)
(2) University of Chicago (+1)
(2) Yale University (-1)
(4) University of Pennsylvania (Carey) (+1)
(4) University of Virginia (-)
(6) Harvard University (-)
(7) Duke University (-1)
(7) New York University (+1)
(9) Columbia University (+1)
(9) Northwestern University (Pritzker) (+1)
(9) University of Michigan—Ann Arbor (-1)
(12) Vanderbilt University (+2)
(13) Cornell University (+5)
(13) University of California—Los Angeles (-1)
(13) Washington University in St. Louis (+1)

Some observations:

• Congratulations to Stanford on its status as the undisputed #1 school—look Ma, no tie!—and to Chicago and Penn, which rose to #2 and #4, respectively.

• Harvard kept its #6 spot—its all-time lowest ranking—while Duke dropped a spot, so it’s no longer tied with HLS.

• Cornell, which shockingly dropped out of the T14 last year, climbed five spots, clawing its way back into that grouping.

• Two other members of the traditional T14, UC Berkeley and Georgetown, dropped three and four spots to land at #16 and #18, respectively. This is the first time Berkeley hasn’t been in the T14. But as Dean Erwin Chemerinsky told Law.com, “Berkeley Law is one of the great law schools in the world,” according to multiple metrics; the shift does “not reflect[] any actual changes in the school”; and he has “long been skeptical of rankings, whether they show us well or poorly.”

• Three schools that aren’t part of the traditional T14—Vanderbilt (#12), UCLA (#13), and WashU (#13)—made it into the club this year.

Is it time to retire the T14 designation? Unlike 10, 20, or 50, the number 14 is pretty random. The T14 became a thing only because for many years, the same 14 schools appeared in the top 14 spots of the U.S. News rankings—simply trading places among themselves, and rarely joined by outsiders.

This year, however, marks the fifth consecutive year that the rankings haven’t featured the conventional T14 schools in the top 14 spots, all by themselves. In light of this, Professor Derek Muller told me that it’s time to ditch this designation.

“The T14 should be dead,” he said. “People keep using it, but there is no longer that lock.”

“In the past, certain aspects of the U.S. News methodology worked to ensconce those 14 schools, making it difficult for anyone else to break in,” he explained. “But thanks to recent methodological changes, that’s no longer the case. The metrics are now much more compressed, and some of the categories that go into the ranking are very volatile. We’re no longer going to see the consistency we once did—so it’s time for the T14 to be retired as a label.”8

[UPDATE (4/12/2026, 11:34 p.m.): For an incisive analysis of the T14 concept—and why it definitely needs to die—see this Volokh Conspiracy post by Professor Stuart Benjamin, The US News T14 Is Dead, and Has Been Replaced by the T11 (or, if You Prefer, the T10 with 11 Members).]

Moving beyond the T14, T15, or whatever you want to call them, here are the schools that make up the rest of the top 50 (actually 51 this year, because of a three-way tie for #49):

(16) University of California, Berkeley (-3)
(16) University of Texas—Austin (-2)
(18) Georgetown University (-4)
(18) University of North Carolina—Chapel Hill (-)
(20) Boston College (+5)
(20) University of Notre Dame (-)
(22) Texas A&M University (-)
(22) University of Minnesota (-2)
(24) Boston University (-2)
(24) Brigham Young University (Clark) (+4)
(26) George Washington University (+5)
(26) University of Georgia (-4)
(26) University of Southern California (Gould) (-)
(26) University of Wisconsin—Madison (+2)
(30) Ohio State University (Moritz) (-2)
(30) Wake Forest University (-4)
(32) George Mason University (Scalia) (-1)
(32) University of Iowa (+4)
(34) Baylor University (+9)
(34) Florida State University (+4)
(34) University of California—Irvine (+4)
(34) University of Florida (Levin) (+4)
(34) Washington and Lee University (+2)
(34) William & Mary Law School (-3)
(40) Emory University (-2)
(40) University of Alabama (-9)
(42) Fordham University (-4)
(42) Southern Methodist University (Dedman) (+1)
(44) Arizona State University (O’Connor) (+1)
(44) University of Utah (Quinney) (-13)
(46) Pepperdine University (Caruso) (+9)
(46) University of Illinois Urbana-Champaign (+2)
(46) University of Kansas (+4)
(49) Indiana University—Bloomington (Maurer) (-3)
(49) Temple University (Beasley) (+1)
(49) Villanova University (Widger) (-1)

Some observations:

• Congratulations to the five schools in the top 50 that moved up by five or more spots: Cornell (+5), BC (+5), GW (+5), Baylor (+9), and Pepperdine (+9). Over the past two years, two of these schools made double-digit gains, GW (+15) and Baylor (+12).

• Condolences to the two schools in the top 50 that moved down by five or more spots, the University of Alabama (-9) and the University of Utah (-13).

• The following schools fell out of the top 50:

  • (52) University of California—Davis (-2)

  • (52) University of Washington (-2)

  • (54) University of Colorado—Boulder (-8)

  • (58) University of Connecticut (-8)

• The four schools that fell out of the top 50 were all state schools, and overall, state schools fared poorly in this year’s ranking. If you take last year’s top 50 as your starting point, 16 public law schools collectively lost 64 spots in the rankings: UMich (-1), UCLA (-1), Berkeley (-3), UT Austin (-2), Minnesota (-2), Georgia (-4), Ohio State (-2), George Mason/Scalia (-1), William & Mary (-3), Alabama (-9), Utah (-13), IU Maurer (-3), UC Davis (-2), University of Washington (-2), UC Boulder (-8), and UConn (-8). Nine state schools—half as many—collectively gained 26 spots: Wisconsin (+2), Iowa (+4), FSU (+4), UC Irvine (+4), UF Levin (+4), Arizona State (+1), Illinois (+2), Kansas (+4), and Temple (+1). [UPDATE (9:59 a.m.): This discussion was revised after a commenter helpfully pointed out to me that Temple is also a public law school.]

• Beyond the top 50, there was much more volatility, as is typically the case. The following schools gained 10 or more spots: Miami (+22), SUNY Buffalo (+12), Arkansas—Fayetteville (+15), Brooklyn (+12), Washburn (+13), Howard (+10), Louisville (+22), South Texas (+10), Elon (+14), University of the Pacific (+11), Widener (+15), and University of San Francisco (+10).

• And the following schools dropped by 10 or more spots: University of Arizona (-11), University of Cincinnati (-11), UNLV (-12), University of St. Thomas (-11), Lewis & Clark (-13), University of New Mexico (-10), Samford (-15), IU McKinney (-17), Cleveland State (-15), UNH (-11), Northern Illinois (-11), Ave Maria (-11), Willamette (-18), CUNY (-15), and UMass Dartmouth (-10).

For the complete ranking of all 194 law schools, check out U.S. News, and for additional reporting and analysis, see stories at Law.com (by Christine Charnosky), Above the Law (by Staci Zaretsky), and Law School Docket (by Derek Muller).

What jumps out at you as interesting? How did your alma mater fare? Please feel free to share any thoughts in the comments (which are open to all readers, not just paid subscribers, on this Notice & Comment post). Thanks!

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.

This morning, the U.S. Supreme Court heard a little more than two hours of oral argument in Trump v. Barbara, better known as the birthright citizenship case. Barbara presents the following question: “Whether Executive Order No. 14,160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.”

EO 14,160, “Protecting the Meaning and Value of American Citizenship,” provides in relevant part as follows:

[N]o department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Translation: if neither of your parents was a U.S. citizen or lawful permanent resident, i.e., a green card holder, at the time of your birth, you’re not a U.S. citizen, even if you were born in the United States. So the EO covers not only the children of undocumented immigrants, but also the children of foreign nationals who are here on tourist, student, or work visas.

(The EO doesn’t apply retroactively, but I wouldn’t be a citizen had it been in effect when I was born. Although I was born in New York, my parents—who have been U.S. citizens for decades now—did not have citizenship or green cards at the time. Instead, they were here on work visas—specifically, doctors doing their residencies.)

If you have the time, you can listen to the argument or read the transcript for Trump v. Barbara. You can also dive into the news coverage—such as Amy Howe’s SCOTUSblog post, or the stories collected by Howard Bashman at How Appealing.

But if you don’t have the time for all that, here are my five takeaways. I listened to the arguments in order to participate in the SCOTUSblog live blog, which as usual was great fun (and I encourage you to join us for future live blogs).

1. Donald Trump attended the argument—a historic first.

Trump raised the possibility of attending the arguments in the tariff litigation, but didn’t in the end. This time around, he followed through—and became the first sitting president in the history of the United States to attend a Supreme Court argument. He entered One First Street minutes before the argument began, and he (and his Secret Service detail) departed quietly in the middle of the session—shortly after Solicitor General D. John Sauer finished his presentation. (According to his public calendar, Trump had to make it back to the White House for a 12:30 p.m. Easter brunch.)

There was chatter on Twitter among SCOTUS obsessives about where Trump would sit. I learned the fun fact that the courtroom at One First Street might contain “a special chair for the President of the United States, although the President's attendance is rare and limited to important ceremonial occasions.”

I say “might” for two reasons. First, the source for this fact—a form prepared by the National Park Service, nominating the Court’s building for inclusion in the National Register of Historic Places—dates back to 1986. So it’s not clear if there’s still a “special chair” today. Second, even if there might be such a chair, Trump didn’t occupy it. According to the NPS form, the presidential chair is located among a section of black chairs designated for “officers of the Court [and] visiting dignitaries.” But Trump—as reported by numerous outlets, and confirmed by a Court spokesperson—sat in the first row of the public gallery, a different section of the courtroom.

[UPDATE (7:09 p.m.): Mark Walsh of SCOTUSblog penned a great View From the Court column, which explains the mystery of the “special chair”:

There is a vibrant discussion in the press room about where [Trump] will sit, as some in his administration have suggested there is a special or dedicated chair for any president in the VIP section of the courtroom. When Trump and other presidents have come to the Court for the investiture of a new justice, they typically sit in that section, in the first chair closest to the bench.

But as Walsh predicted to his colleagues in the press room, Trump didn’t take that first chair today, instead sitting in the public gallery.]

[UPDATE (5:28 p.m.): For a fun read about Trump going to One First Street, check out “I Am Here to Watch the Birthright-Citizenship Arguments, but Not in a Threatening Way,” by Alexandra Petri for The Atlantic (gift link).]

2. The challengers will probably prevail—but a narrow win by the administration can’t be ruled out.

Before oral argument, my prediction for the outcome of Barbara was a win for the challengers of the EO, by a lopsided margin—probably 7-2, with Justices Clarence Thomas and Samuel Alito dissenting. (Speaking of Justice Alito, happy birthday to him—he turns 76 today—but even if he’s getting up there in years, I stand by my prediction that he’s not retiring from SCOTUS this year.)

After this morning’s argument, I’m less confident of a win for the challengers (represented at the Court by Cecillia Wang, national legal director for the ACLU—and, fun fact, a birthright citizen herself). But I’m also less confident of, well, many things related to this case; most of the justices posed tough questions to both Sauer and Wang, making it hard to tell where each jurist stands.

Nothing from the argument changed my view that Justices Thomas and Alito will vote to uphold the EO, while Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson will vote against the legality of the EO. But the votes of four justices—Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—remain less obvious.

In high-profile, politically inflected cases, Chief Justice Roberts often seems to take into account considerations other than legal doctrine—such as practical consequences, prudential judgments, the reputation and legitimacy of the Court, and whether a particular ruling might diminish its political capital. In Barbara, these factors favor the challengers, to the extent that the administration’s position represents a departure from a settled understanding of birthright citizenship as a legal and policy matter. So if forced to guess, I’d predict that the Chief will side with the challengers—and will write the majority opinion, as he often does in the biggest cases.

But I’m honestly at a loss when it comes to 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.

I think it’s highly unlikely that the administration wins three or more of the justices I’m unsure about, so I have a hard time “counting to five” for Trump’s position. But after the argument, I believe it’s at least theoretically possible for the administration to eke out a narrow, 5-4 win—in a way that I didn’t think possible before today.

(I listened to the live audio of the Barbara argument, and my observations are based on that. Interestingly enough, some observers in the courtroom itself came away more confident in a win by the challengers—including Professor Akhil Amar and SCOTUSblog reporter Amy Howe, who shared their views on Advisory Opinions.)

3. The concept of “domicile” was surprisingly dominant.

The relevant constitutional text, from Section 1 of the Fourteenth Amendment, is quite brief: “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.” It does not contain the word “domicile”—or any derivative thereof. So why was the D-word invoked so frequently in the Barbara argument?

The most important precedent on the issue of birthright citizenship is the Supreme Court’s ruling in United States v. Wong Kim Ark (1898). As you can tell based on how frequently it’s invoked in the ACLU’s brief—as well as how Justice Gorsuch pointedly told John Sauer during the argument, “I’m not sure how much you want to rely on Wong Kim Ark”—its language and reasoning heavily favor the challengers.

But in terms of its facts, Wong Kim Ark involved an individual born in San Francisco to Chinese nationals who were, at the time of his birth, “domiciled residents of the United States.” So the Trump administration seeks to limit the sweep of Wong Kim Ark to the children of “domiciled” U.S. residents—in its view, citizens and lawful permanent residents of the United States, but not undocumented immigrants or temporary visitors.

And the administration’s argument got a fair amount of traction from the justices at oral argument. If you do a “find” in the transcript for “domicil”—which captures derivative terms, such as “domiciled” or “domiciliaries”—you’ll get 161 hits (including the index). So the justices are giving serious thought to the administration’s position, not dismissing it out of hand—which is why I left the argument feeling that the government’s chances are better than I originally thought.

4. It’s possible the case will be resolved based on a statutory rather than constitutional ground.

If you look back at the question presented by Barbara, you’ll see it’s a compound question: it contains a constitutional question, whether the EO complies with the Fourteenth Amendment, and a statutory question, whether the EO is consistent with 8 U.S.C. § 1401(a), a codification of the Fourteenth Amendment’s citizenship clause.

The relevant language of § 1401(a), extending citizenship to persons “born in the United States, and subject to the jurisdiction thereof,” is pretty much the same as the operative language of the Fourteenth Amendment. But even if the Trump administration is right on the Fourteenth Amendment, the EO still might violate § 1401(a). Why? From the ACLU brief (citations omitted and emphasis added):

The Order also violates 8 U.S.C. §1401(a), which is an independent basis for affirmance. As Respondents previously explained, the statute borrows the phrase “subject to the jurisdiction thereof” from the Citizenship Clause and thus incorporates the understanding of those words that prevailed when the statute was first enacted in 1940 and reenacted verbatim in 1952. At that time—as the government all but concedes—Congress understood that the Clause’s “jurisdiction” language incorporated the English common-law rule and exceptions, with the sole additional exception of Native American tribal members.

The statutory argument got surprisingly few mentions during the argument—and one can understand why. As Cecillia Wang of the ACLU told Justice Kavanaugh, although she and her client would be “happy to win on either or both” of their arguments, they believe “it would be prudent for the Court to reaffirm its decision in Wong Kim Ark.” And this makes sense as well: as Professor Amanda Tyler noted on Advisory Opinions, if the case gets resolved on a statutory ground, the constitutional question could return to the Court—e.g., if the Trump administration issues a new, narrower EO.

But if there aren’t five votes for any particular position on the constitutional issue, resolving the case based on the statutory question could become more attractive to the justices. And based on the Barbara argument, the views of the justices on the constitutional issue appear more muddled than many of us expected.

5. The “conservative” position pushed policy considerations, while the “liberal” position focused on text, history, and tradition.

Constitutional debates over politicized issues often assume the following form: liberals and progressives invoke policy considerations, such as some terrible thing that will happen if the case is decided against them, while conservatives cite text, history, and tradition—regardless of policy consequences.

But in Barbara, these traditional positions appear to be reversed. As David French quipped on Advisory Opinions, “you don’t often see an ACLU lawyer pushing original public meaning.” But that’s exactly what Cecillia Wang was doing: she focused intensely on (1) the text of the Fourteenth Amendment, which doesn’t contain the word “domicile”; (2) history, in terms of contemporaneous sources that confirm the challengers’ understanding of the citizenship clause in 1868 (such as debates between framers); and (3) tradition, in the form of interpretations of the clause over the decades that support the challengers’ views.

In contrast, Solicitor General John Sauer spoke more about policy considerations (in addition to engaging the ACLU and the justices on the textual and historical points). He discussed the serious problem of illegal immigration, which didn’t exist at the time the Fourteenth Amendment was ratified, including the phenomenon of “birth tourism,” in which people come to the United States—often as tourists—to give birth here, so their babies will be American citizens.

As mentioned above, it’s possible—albeit unlikely—that the administration will prevail. But if it does, it will be because Sauer persuaded the justices on the legal issues, not because of any policy considerations. As Chief Justice Roberts memorably quipped—responding to Sauer’s invocation of birth tourism, a new phenomenon (at least compared to the oldness of the Fourteenth Amendment)—“Well, it's a new world. It’s the same Constitution.” (Put that on a t-shirt!)

So those are my thoughts. Readers, what do you think? Please take my poll below, and please share your views in the comments—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!

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

As a suburban dad of two, I don’t discuss dicks much these days. Consistent with guidance from pediatricians, we refer to body parts by their correct anatomical terms when talking to our boys.

So I didn’t expect to be taken back to dick talk—which I haven’t heard much of since my time as a fanboy of Samantha Jones from Sex and the City, or my salad days as a young(ish) gay man in Manhattan—by a Ninth Circuit opinion. But the legal world in 2026 is a surprising place.

As mentioned by seemingly everyone (including me), penises popped up last week in Olympus Spa v. Armstrong. Here’s what the case is about, as explained in Judge Margaret McKeown’s majority opinion for the three-judge panel:

This appeal stems from the application of the Washington Law Against Discrimination (“WLAD”) in connection with the entrance policy of two Korean spas (collectively “Olympus Spa” or “the Spa”). Washington’s Human Rights Commission (“HRC”) initiated an enforcement action against the Spa based on the Spa’s policy of granting entry to only “[b]iological women” and excluding, in addition to men, preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia. The HRC alleged that the entrance policy violated WLAD, a state public accommodations law that prohibits public facilities from discrimination on the basis of sexual orientation….

Although the enforcement action is grounded in state law, the Spa sued state officials (the Executive Director and Civil Rights Investigator for the HRC) on First Amendment grounds, claiming that WLAD, as enforced against the Spa’s entrance policy, violates its rights to the freedom of speech, religion, and association. Because the enforcement action did not violate the Spa’s First Amendment rights, we affirm the district court’s dismissal of the Spa’s complaint.

Judge Kenneth Lee dissented, but on statutory grounds. In his view, WLAD doesn’t cover transgender status.

Last Thursday, the Ninth Circuit voted against rehearing en banc in Olympus Spa. Three judges filed dissents from the denial of rehearing aka “dissentals.” But only one went viral—that of Judge Lawrence VanDyke aka “LVD,” who opened as follows:

This is a case about swinging dicks. The Christian owners of Olympus Spa—a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.

You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.

Not to be outdone, Judge Jim Ho, LVD’s fellow Trump appointee and rival SCOTUS shortlister, subsequently issued a Fifth Circuit opinion that opened as follows: “This is a case about huge, throbbing cocks.”

[UPDATE (2:00 p.m.): In response to a reader who emailed me to say they thought this was real for a split second, please note the discussion deeper into this post: “my joke above about Judge Ho was just that—a joke.” To be clear, Judge Ho has not—to my knowledge, as of now—referenced “huge, throbbing cocks” in any opinion.]

Not to be pedantic, but is it accurate to say this case is about “swinging dicks,” plural? To date, there’s only one transgender woman whom we know of, Haven Wilvich, who has expressed interest in going to Olympus Spa. In fact, as noted in LVD’s opinion, “Olympus Spa staff had no records or recollection of Wilvich ever having come into the spa,” and “Wilvich later told local reporters that he never actually visited the spa but had, in reality, merely called ahead of a friend’s visit.” So unless Wilvich has some highly unusual anatomy, there’s at most one “swinging dick” here (although I acknowledge the theoretical possibility that multiple transgender women who have not had gender-affirming bottom surgery might now flock to Olympus Spa).1

Offering a citation for the vulgarity might have made it less edgy. For instance, Judge VanDyke could have cited Liar’s Poker (1989), Michael Lewis’s account of his time as a bond salesman on Wall Street during the late 1980s, which popularized the term “Big Swinging Dick” (used to refer to a successful bond trader or salesman). But then again, edgy might have been LVD’s point.

Alas, no other judges joined Judge VanDyke’s dicks-ental (shocker). But twenty-seven judges2 joined Judge McKeown’s one-paragraph statement respecting the denial of rehearing en banc, which took Judge VanDyke to task for using the D-word:

The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to “disagree without being disagreeable.” It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have “collectively lost their minds,” or that they are “woke judges[]” “complicit” in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts.

The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent3 ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.

Judge John Owens, joined by Judge Danielle Forrest, issued a shorter statement: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”

Interestingly enough, five of the judges who signed on to either the McKeown or Owens statements were Republican appointees: Judges Richard Clifton (Bush 2), Jay Bybee (Bush 2), Milan Smith (Bush 2), Eric Miller (Trump 1), and Danielle Forrest (Trump 1).4 But the rest were, as you might expect, Democratic appointees.

In response to his critics, here’s what Judge VanDyke had to say for himself (the footnotes appeared as footnotes in LVD’s opinion, although with different numbering):

Finally, I’ll respond briefly to my colleagues’ discomfort with how I’ve written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties5 and exposing women and girls to male genitalia.6 That kind of selective outrage speaks for itself. The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants.

Two thoughts. First, you don’t need to be “a Victorian nun” to think it’s wildly inappropriate to mention “dicks” in a judicial opinion, with some exceptions—such as a sexual-harassment case where you have to describe the alleged harassment, in terms of the exact words that were said.7

Second, speaking of harassment, there’s an Easter egg for Ninth Circuit obsessives in here. After Judge Stephen Reinhardt, the court’s leading liberal, passed away, allegations that he sexually harassed and otherwise mistreated his clerks came to light. So in the context of the current controversy, revolving around a sexually charged vulgarity, VanDyke invoking the “dearly departed” Reinhardt wasn’t just about the Reinhardt-authored opinions referenced in the footnotes. It was the right-leaning LVD telling his left-leaning colleagues, “It’s a bit rich for you to be clutching your pearls over my having used the D-word in an opinion, considering that someone on your team—your former captain, actually—sexually harassed his clerks.”

(By the way, what’s it like to clerk for Judge VanDyke? If you have information, please drop me a line.)

Back to the LVD dissent (again, the footnotes are his):

Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The “ordinary Americans” affected by the majority’s opinion don’t have that luxury. Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.

Sometimes “dignified and civil” words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues’ Victorian sensibilities: “In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?”8

Sometimes coarse and ugly words bear the truth.9 I coarsely but respectfully dissent from our court’s willingness to leave this travesty in place.

“I coarsely but respectfully dissent”—that’s a new one. But how “respectfully” he dissented is definitely open to question.

Going to the merits of Judge VanDyke’s dissent, I understand what he was trying to do here. He wanted his style to mirror his substantive argument: if you find his language shocking and inappropriate, that’s because the majority opinion countenances something shocking and inappropriate: the entry of penis-packing persons into a women-only, nude spa.

Whether you’re an LVD critic or fan—and his outré dissent did have its fans, from gazillionaire Elon Musk to U.S. Attorney Sigal Chattah (D. Nev.)—you can’t say he’s stupid. He’s a Harvard Law School graduate, former D.C. Circuit clerk, former Gibson Dunn associate, and former solicitor general of two states (Montana and Nevada). When the American Bar Association gave him a “Not Qualified” rating when he was nominated to the Ninth Circuit, it was based on concerns not related to his intellect—such as allegations that he’s “arrogant, lazy, [and] an ideologue.” In fact, William Hubbard’s letter to the Senate Judiciary Committee, summarizing the ABA’s (negative) findings, described VanDyke as “clearly smart.” So I get where he was coming from, and I wouldn’t blame his problematic dissent on stupidity.

But there’s a difference between intelligence and wisdom—and, at least in my opinion, the LVD dissent was not only inappropriate, but unwise. And I’m far from alone in holding that view. Professor Adrian Vermeule of Harvard Law School is a pretty hard-core conservative—and he was unfazed by Judge VanDyke’s coarse language, noting that “[s]ometimes the demand for ‘civility’ is just an attempt to make certain subjects undiscussable that very much ought to be discussed.” But even Vermeule found the VanDyke dissent unproductive (via his HLS colleague, Professor Jack Goldsmith):

The better objection [than his language being “uncivil”] is that Judge VanDyke’s rhetoric is clumsy, even self-defeating. Rather than causing the audience to empathize with the party opposed to transgender access requirements—the Judge’s stated goal—the controversy this language provoked itself became the topic.

As did a number of other commentators—such as Dahlia Lithwick and Mark Joseph Stern, in a piece for Slate titled, “We Have a Winner for Most Grotesque Supreme Court Audition Yet”—Vermeule raised the possibility that VanDyke might be “auditioning” for SCOTUS. But even assuming that was his goal, LVD’s effort was ham-handed, according to Vermeule:

The skillful auditioner for the Court must send the right signals on two margins, not just one—[he] must show not merely that he is ideologically aligned with the appointing President, but also that he is more persuasive, intelligent, and [more] compelling than the competing candidates. The resort to vulgarity may help on the first margin, but hurt on the second, for it always raises a suspicion that the rhetor cannot think of any more subtle and clever way to make his point. Vulgarity is the recourse of dull minds. Whatever the Judge’s motivations may have been, his opinion is worse than an incivility; it is a blunder.

And this is why my joke above about Judge Ho was just that—a joke. I can’t imagine any of my four top SCOTUS contenders in the current administration—Judges Patrick Bumatay, James Ho, Andrew Oldham, or Amul Thapar—writing a “swinging dicks” opinion. They’re too savvy for that.10

Agreeing with Vermeule, I think it’s fair to say that the LVD dissent isn’t helpful in advancing his Supreme Court prospects, and it isn’t helpful in persuading moderates. I also agree with Professor Dan Epps that it reduces the chances that the Supreme Court will grant certiorari in Olympus Spa; as Epps put it, “This is now the case about VanDyke’s dissent. The justices will recognize that some will see granting cert as an endorsement of his rhetoric.”

But as Michael Fragoso wrote in a fascinating National Review piece, The Postmodern Jurisprudence of Lawrence VanDyke, LVD might have a different project:

Through a series of separate writings, VanDyke has adopted a postmodern approach to the circuit-court opinion genre that ironically turns the text against itself. He has embraced the fact that an opinion as opinion can have meaning beyond the arguments it presents. His is an ironical approach to the practice of judging deployed in support of deeply sincere normative legal views. It’s an approach that can be disturbing to those with a traditional view of the judicial enterprise and that is truly unique in the federal judiciary.

After running through LVD’s “greatest hits”—such as his (in)famous YouTube “video dissent” in a gun case, his mock en banc opinion, and his recent musings on “the Wonderful Circuit of Wackadoo”—Fragoso looks at the bigger picture:

All of these separate writings are not about particular laws, but about the law. It’s not about using the text of his opinions to argue doctrinal points, but about using the opinions as text to critique—one is tempted to say “problematize”—the Ninth Circuit’s judicial enterprise.

This is a uniquely postmodern approach to judging. It reminds me of the University of Colorado legal philosopher Pierre Schlag, whose subversive scholarship has taken an ironic sledgehammer to the legal academy for decades….

Turning back to Schlag, once I was introduced to his writing by my jurisprudence professor in law school, I rarely took legal scholarship all that seriously again. That’s the potential danger in VanDyke’s approach. How will turning his opinions [into weapons] against the Ninth Circuit’s judicial enterprise affect the judicial enterprise as a whole?

In closing, I’d like to share with you some provocative thoughts from a reader, “Mr. Angry Moderate,” about what Dick-gate says about America in 2026:

We suck. And our reaction to the LVD dissent shows why we suck.

We give our attention to stunts like this—and attention is exactly what people like LVD want. It only encourages more of them in the future.

When a child acts out or has a tantrum, how should parents react? Perhaps counterintuitively, the best response is to ignore them. As child psychologists and behavioral pediatricians explain, “Attention from parents is very rewarding for children…. [And] negative attention from you is still attention. Ignoring works because it takes away attention from the behaviors you want to decrease.”

But instead of ignoring such rants, we feed them, with massive amounts of attention. And then we act all shocked when Donald Trump, the master of misbehaving to get attention, gets elected and reelected—fueled by billions of dollars in free media coverage.

Our nation is doomed. And we deserve it.

Tell us how you really feel, Mr. Angry Moderate! But seriously speaking, and informed by my experiences as a parent, I see his point.11

There is, however, a possible collective-action problem here. The nation might be better served if we all ignored such acting out. But many individuals feel—and understandably so—that for the sake of their individual integrity, they must speak out against such outrageousness.

In fact, there’s even an argument that a failure to condemn such breaches of shared norms is to be complicit in them—and encourages more transgressions. For a good articulation of this view, see Joe Patrice’s post at Above the Law, criticizing the 22 judges of the Ninth Circuit who stayed on the sidelines during Dick-gate, joining neither the McKeown nor Owens rebukes of LVD.

At the end of the day, this is a debate not about the end goal, but the best way to get there. On the end goal, I think—or at least hope—that many of us would agree with David French’s recent column in The New York Times (gift link), in which he decries the polarization and incivility of our current national discourse.

But what’s the best way to get to a better place? Reasonable minds can disagree over whether we need to do a better job of (1) ignoring the outrages of the other side, or (2) taking a stronger stance against them. This is an empirical debate—and, unfortunately, it’s hard to figure out what the world might be like if we did more of the former and less of the latter.

Readers, how do you feel? Please take my poll. Note the wording of the question, which asks whether Judge VanDyke’s invocation of swinging dicks was “justified.” I considered using “appropriate,” but decided to go with “justified” because it might produce less of a lopsided vote: LVD defenders might argue that while his language might have been inappropriate, it was justified under the circumstances.

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

Also, as I recently mentioned, I’m now on a spring break of sorts, which could affect publication here at Original Jurisdiction. I’ll still be generating content over the next week or two, but if posts don’t appear on the usual timetable, that’s why. As always, thanks for your readership and support.

March is Women’s History Month, and last Sunday, March 8, was International Women’s Day. It’s an opportune time to talk about the representation of women in the legal profession—specifically in Biglaw.

Women represent more than 51 percent of associates, according to the latest data from the National Association for Law Placement, but they make up only 29 percent of partners and 25 percent of equity partners. These statistics suggest that while women have made strides forward, more progress can be made.

In the world of large law firms, partners with the most business enjoy the greatest power and highest pay. So for female lawyers to continue advancing, they must excel at business development, according to Deborah Farone—former chief marketing officer at top law firms, Cravath Swaine & Moore and Debevoise & Plimpton, and author of a noteworthy new book, Breaking Ground: How Successful Women Lawyers Build Thriving Practices.

Last week, I interviewed Farone about business development and Breaking Ground. I began by asking: What inspired her to write it?

“I had been hearing for years that women at law firms felt they didn’t have enough in terms of training and role models for business development,” she said. “At the same time, I was meeting so many women who were amazing rainmakers, both in the U.S. and abroad. I wrote this book to bridge that gap.”

To research Breaking Ground, Farone conducted more than 60 in-depth interviews with women from around the world who are experts in business development. She spoke with law firm chairs, rainmaking partners, business development experts, and academics from four continents—North America, Europe, Africa, and Asia. (Although Farone focused her research on women in the legal sector, she emphasized that her book can help men, as well as non-lawyers looking to get better at business development.)

What did Farone learn after this extensive research? Although her book contains plenty of practical advice, she isn’t big on tips and tricks such as “spend 10 minutes a day on networking activities.”

“Business development is all about authenticity,” Farone said. “It’s not one size fits all. Everyone has their own style. Clients can tell when what you’re doing feels right or not—and it’s incredible what happens when you’re being yourself.”

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Take Annalisa Reale, a partner at Italian law firm Chiomenti Studio Legale. While she was growing up, she was a classical violinist, and she’s had a lifelong love of music. One of Reale’s most successful methods for business development is taking clients to musical performances, such as orchestral concerts and operas, followed by a nice meal. To Reale, it’s all about “sharing values and things you are truly passionate about—and that defines what you are in professional and personal terms.”

Susan Eandi, a partner at Baker McKenzie in San Francisco, enjoys taking (very early) morning walks. She mentioned this once to a client, who asked to join her, and now Eandi goes on morning walks with multiple clients and friends. Most of the time, they don’t discuss business on these walks. But when a client does develop a legal need, Eandi and her firm are top of mind.

“You’re much more likely to repeat a business-development activity if you enjoy it,” Farone said. “If you find something you like, you’ll do more of it.”

As a consultant and speaker, Farone needs to engage in business development of her own. She happens to be a coffee devotee: “I love coffee and I love talking to people, so that’s what I often do with current or prospective clients.”

As someone who enjoys coffee and conversation, this resonated with me. But what about individuals who are more introverted?

“Business development doesn’t have to be something extensive, like throwing a party or hosting a large seminar,” Farone told me. “You can start with something as simple as scheduling a phone or Zoom call to catch up with someone.”

For lawyers who don’t enjoy going to conferences or cocktail parties, LinkedIn—to which Farone devotes an entire chapter—is an excellent option. As Farone writes, LinkedIn “has given anyone who wants it a channel to disseminate thought leadership or news of their own accomplishments and to connect with an audience of their own selection.” (Readers, please feel free to follow or connect with me on LinkedIn.)

Another takeaway from Farone’s book is that business development shouldn’t be frightening or intimidating, especially when you’re being authentic. She urges lawyers to begin developing business by taking “baby steps”—and to stick to it once they’ve started.

Citing former Weil Gotshal partner Jeff Klein, Farone writes that developing business is like building a muscle: “It is a talent that one needs to strengthen by using it over and over again. At first, it might be slightly painful to exercise that talent muscle—but over time, it gets better, and the muscle gets stronger.”

Just as there are many effective ways to build muscle, there are many methods to develop business. So lawyers should pick the path that’s best for them. In the words of consultant and career coach Jordana Confino, “There may be no one ‘right’ way to build a book of business. But the wrong way is by trying to be someone you’re not.”

What’s not an option, at least for lawyers in private practice today, is simply ignoring business development. Having the ability to develop business is like financial literacy or being an informed citizen: It’s essential.

“All lawyers need to have business development skills,” Farone said. “If you can develop business and build your own practice, you can chart your own path.”

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

On Monday night, the U.S. Department of Justice filed a motion in the D.C. Circuit to voluntarily dismiss the Trump administration’s appeals in four cases where district judges ruled against its executive orders targeting law firms. This was big news, covered not just by legal outlets—such as Bloomberg Law, Law360, and Law.com—but also The Wall Street Journal (gift link), where Erin Mulvaney and Ryan Barber broke the news, and The New York Times.

The dismissal surprised me. I thought the DOJ would at least try to defend the EOs against arguments that they were unconstitutional (six ways from Sunday). And I was weirdly looking forward to seeing the arguments that the government would advance.

It appears that I was right to be surprised. On Tuesday afternoon, less than 24 hours after moving to dismiss its appeals, the DOJ filed a motion to withdraw a motion to voluntarily dismiss appeals. The abrupt reversal was reported by The Times—where Michael Schmidt, Jonah Bromwich, and Devlin Barrett broke the news—as well as The WSJ, NBC, Bloomberg Law, Law360, Law.com, and other outlets.

The motion didn’t explain the reversal of position, simply stating as follows:

Defendant-Appellants respectfully move to withdraw their motion to voluntarily dismiss these consolidated appeals. Counsel for Defendant-Appellants reached out to counsel for Plaintiff-Appellees for their position. All Plaintiff-Appellees oppose, stating, “Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”

Regardless of Plaintiff-Appellees’ position, this Court has not yet granted the motion to dismiss, and it is the prerogative of Defendant-Appellants to pursue this appeal. In addition, there is no prejudice to Plaintiff-Appellees in the Court granting this motion. This Court should grant this motion to withdraw.

What the heck happened here? The government’s opening brief in the appeals, which the D.C. Circuit consolidated, is due on Friday. My guess is that having to write such a brief caused certain DOJ lawyers to realize how difficult it would be to defend the EOs—and to recognize the high probability that the appeals will produce what would be, from the Trump administration’s point of view, “bad law”—i.e., unfavorable precedent that could be cited against it in other cases where Trump targets are pushing back. So the government (sensibly) filed a motion to dismiss.

But then—and this is still just my speculation, nothing more—folks higher up in the chain of command either changed their minds about the dismissal or learned about the dismissal for the first time. Not wanting to look “weak,” the powers that be countermanded the original dismissal. And so here we are.

Back in January, I predicted that the Trump administration would lose these appeals in the D.C. Circuit and that the Supreme Court would deny certiorari. Assuming the Justice Department’s motion to “undismiss” is granted—and assuming the DOJ doesn’t change its position yet again, which is always possible with this administration—I stand by my predictions. [UPDATE (3:04 p.m.): Yes, I know: “undismiss” isn’t technically accurate, since the D.C. Circuit had not yet ruled on the original motion to dismiss (as noted in the government’s second motion). I just wanted to write the word “undismiss” because it’s fun.]

Let’s say my predictions pan out, and the four firms prevail. That would be, in my opinion, a welcome development—but I still wouldn’t consider this a “happily ever after” story. As OJ readers know, nine law firms reached settlements with the Trump administration to avoid getting “EO’d” themselves (or to get out from under an EO, in the case of Paul Weiss).

So even though the DOJ lost (resoundingly) in the courts, with four judges from across the ideological spectrum ruling against it,1 the Trump administration didn’t walk away from all this with nothing. In their deals with the government, the nine firms promised to perform almost $1 billion in pro bono work for causes supported by the administration. And perhaps more importantly, the EOs appear to have intimidated at least some law firms into reducing their involvement in litigation against the administration. (For additional commentary along these lines, see this Times staff editorial, this Law Dork post by Chris Geidner, and this essay by Vivia Chen.)2

An earlier draft of this post extended congratulations to the four fighting firms. Now, in light of the latest news, I’ll simply wish good luck to them and their counsel: Jenner & Block (represented by Cooley), Perkins Coie (represented by Williams & Connolly), Susman Godfrey (represented by Munger Tolles & Olson), and WilmerHale (represented by Clement & Murphy).

And so the legal battle continues—at least for a while longer. But the final outcome probably won’t change.

(I have reprinted below the various statements issued by the four firms—some of them about Monday’s motion, and some of them about today’s motion.)

JENNER & BLOCK

Regarding the motion to dismiss:

The government’s decision to withdraw its appeals makes permanent the rulings of four federal judges that the executive orders targeting law firms, including Jenner & Block, were unconstitutional. This chapter has once again confirmed what has been true of Jenner for more than a century—we will always zealously advocate for our clients and put them first, without compromise. Our partnership is proud to have stood firm on behalf of its clients, and we look forward to continuing to serve them—guided by these bedrock values—for many decades to come.

PERKINS COIE

Regarding the motion to dismiss:

Today, the government voluntarily dismissed its defense of the unlawful Executive Order (EO) targeting Perkins Coie. The end of the appeal means the district court’s decision stands as a final order, protecting core constitutional freedoms such as free speech, due process, and the right to select counsel without fear of retribution. We are grateful to everyone who supported our firm over the past year since the EO was issued, including our clients, our lawyers and business professionals, and all who stand for the rule of law. As we have for over a century, we will continue to devote ourselves to tireless advocacy on behalf of our clients.

Regarding the motion to withdraw the motion to dismiss:

Hours after asking the court to dismiss its appeal, the Department of Justice has abruptly reversed course and moved to continue its defense of the unconstitutional executive orders. It offered no explanation to either the parties or the court for its reversal. We remain committed to defending our firm, our people, and our clients.

SUSMAN GODFREY

Regarding the motion to dismiss:

The Government has capitulated, which is a fitting end to its plainly unconstitutional attack on Susman Godfrey and the rule of law. In doing so, it has abandoned any attempt to defend the indefensible executive order against our firm. Susman Godfrey fights tirelessly for its clients every day, so of course we defended ourselves when the President sought to punish and intimidate us because of the clients we represent and the values we hold. We fought for ourselves, but we fought for bigger things, too: for a Constitution that protects our freedoms; for a legal profession that depends on equal justice under the law; and for the people across this country who refuse to back down in the face of an Administration that seeks to silence and intimidate them—lawyers and non-lawyers alike. We did not seek this fight, but neither did we run from it. And we won. We salute the excellent lawyers who represented us, the legal profession that supported us, and the clients who steadfastly stood by us as we opposed the Administration’s blatantly unconstitutional actions.

Regarding the motion to withdraw the motion to dismiss:

Yesterday evening, the administration told the court that it gave up and wouldn’t even try to defend its unconstitutional executive orders. Today, it reversed course. Regardless, Susman Godfrey will defend itself and the rule of law—without equivocation.

WILMERHALE

Regarding the motion to dismiss:

The government’s decision to dismiss its appeal is clearly the right one. As we said from the outset, our challenge to the unlawful Executive Order was about defending our clients’ constitutional right to retain the counsel of their choosing and defending the rule of law. We are pleased these foundational principles were vindicated.

Regarding the motion to withdraw the motion to dismiss:

Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.

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

On January 31, Justice Samuel A. Alito Jr. celebrated his 20th anniversary as an associate justice of the U.S. Supreme Court.

On April 1, he’ll turn 76.

On Oct. 6, he’ll release his first book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.

And on November 3, Americans will go to the polls to vote in the 2026 midterm elections.

This combination of dates has led commentators to ask: Could Justice Alito be preparing to hang up his robes? Might 2026 be the year that he retires from the Court, allowing Donald Trump to appoint a similarly conservative—but significantly younger—successor?1

This latest round of retirement speculation appears to have been kicked off by my former colleague from Above the Law, Elie Mystal. Earlier this month, he published a column in The Nation with this provocative title: “Is Samuel Alito Preparing to Disrobe?”

After noting how the publication date for Justice Alito’s book falls only one day after the start of October Term 2026, Mystal suggested that “Alito doesn’t plan on having a real job the Tuesday his book launches, and instead thinks he’ll be free to run around the country promoting it.” Mystal then pointed out that retiring at the end of the current Term “would give Trump, and the Republicans who still control the Senate, time to appoint and confirm his replacement before the midterm elections” (emphasis in the original).

Other pundits picked up on this prediction. Over at One First, Georgetown law professor Steve Vladeck agreed that “the October publication date is a pretty big tell, since one can’t exactly go on a book tour during the first argument session of the Term.” (Mystal and Vladeck, both authors of bestselling books, understand the importance of book promotion.)

On the popular podcast Strict Scrutiny, NYU law professor Melissa Murray noted Justice Alito’s 20th anniversary as a member of the high court, calling it “a very good milestone on which to retire.” Echoing Mystal, she added that “the signs are not looking great for the Republicans in the midterms”—and if Republicans were to lose control of the Senate, that would make it much more difficult to confirm a nominee in the mold of Alito.

In a conversation on Slate with his colleague Dahlia Lithwick, Mark Joseph Stern added additional evidence. He noted that conservative lawyers and writers marked the occasion of Alito’s twentieth judicial anniversary “by publishing laudatory articles that had, to me, a distinctly valedictory feel to them”—including “at least one former clerk who may well be in contact with the justice and even have an inkling of his plans.”

While I understand these points, I respectfully dissent. I stand by my earlier prediction that Justice Alito won’t retire this year.

First, he remains energetic and engaged as a justice. He continues to produce solid and smart, if not particularly stylish, opinions—and he’s known around One First Street for being one of the least clerk-dependent justices. As former Alito clerk Ben Aguiñaga, now the solicitor general of Louisiana, wrote in a Fox News tribute to his former boss, “On more than one occasion, email chatter from him would go quiet, and then a flood of perfectly cited draft opinions would come streaming in. He did not need us.”

Justice Alito participates actively in oral argument, and he’s one of the shrewdest questioners on the Court. I argued before him twice, back when he was a judge on the Third Circuit, and advocates have known for decades that they need to think carefully before responding to his questions (despite his unprepossessing demeanor on the bench).

Take last November’s oral argument in the tariffs case, Learning Resources, Inc. v. Trump, concerning whether the president’s emergency power to “regulate … importation” includes the power to impose tariffs. Justice Alito posed this hypothetical: “suppose that there’s a particular national park that’s very crowded, and Congress passes a statute that says the National Park Service may regulate admission to the park. Would you say, well, that does not allow them to impose a fee?” It was one of the most challenging questions that Neal Katyal, counsel to the tariff challengers, had to field.

Second, Justice Alito is still years away from the ages that SCOTUS members have retired at in recent years. Justices Stephen Breyer and Anthony Kennedy served until they were 83 and 82, respectively—and Justices Ruth Bader Ginsburg and John Paul Stevens stayed on the Court until they were 87 and 90, respectively. Even if he served until the end of Trump’s term in January 2029, Justice Alito would still be shy of 80.

And I’m guessing the justice believes he has at least a few more good years left in him, in terms of contributions to the work of the Court. When he wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, that might have been a mic-drop moment for his judicial career; he’ll never write another opinion as momentous as Dobbs, which will be in the first or second paragraph of his obituary. But that was back in 2022, and instead of peacing out, he stuck around—and, it seems to me, he has been invigorated in some ways by the Trump administration, as its foremost defender at One First Street.

Third, the publication of his book might, if anything, suggest that he’s staying put. Book buyers are far more interested in the thoughts of a current justice as opposed to a retired one: the memoirs of Justices Ketanji Brown Jackson and Amy Coney Barrett became bestsellers, while the memoir of retired Justice Kennedy did not. So I could see Justice Alito not stepping down until well after publication of So Ordered.

As for the October 6 publication date, I’m assuming the justice and his publisher simply wanted to take advantage of the spike in media coverage of the Court that the start of a new Term brings. Yes, this will curtail Justice Alito’s ability to go on a book tour or do signings—but that might be a feature, not a bug, from his point of view.

As former clerk Aguiñaga put it, Justice Alito is “famously introverted.” I’ve crossed paths with the justice a few times over the years, and I can confirm the characterization of him as an introvert. Having to meet and make small talk with hundreds or even thousands of strangers, in cities across the country, would be torture for him.

In addition, as the author of Dobbs, Justice Alito would be guaranteed to face protesters at many of his book events. And sadly, in this day and age, going on a national book tour would raise serious security concerns for him as well. I wouldn’t be surprised if, when negotiating his publishing contract, Justice Alito specifically bargained for limitations on his own promotional duties—rather than guaranteed promotion by his publisher.

I should offer the caveat that while I stand by my non-retirement prediction (and have a friendly wager with Elie Mystal about it), I don’t issue it with a high degree of confidence. First, I wouldn’t be surprised if Justice Alito’s wife, Martha-Ann Alito, has been urging him to retire. In a surreptitious recording made by filmmaker Lauren Windsor in the wake of the Flag-gate controversy, Mrs. Alito sounded as if she was looking forward to the day when her husband is “free of this nonsense”—i.e., not subject to the strictures and scrutiny that come with being a sitting justice. Second, I’ve heard from sources that a number of former Alito clerks believe their former boss will retire this year, and the White House Counsel’s Office is expecting—and preparing for—an Alito retirement.2

But I don’t believe these pieces of information, assuming their truth, are dispositive. First, my understanding is that the Alito clerks in question hold their views based just on their gut feelings, not on any inside intel from the justice. Second, it’s entirely understandable that the White House is getting ready for a retirement; given the importance of SCOTUS, a presidential administration should always be prepared to move quickly in the event of a vacancy. So I wouldn’t read much into that.3

At a conference I recently attended, three former Supreme Court clerks who now litigate before the high court were asked about a possible Alito retirement. Two out of three predicted that he’s not going anywhere, at least for now—and I concur. Whether they like it or not, my guess is that the left will still have Alito to kick around some more.4

[UPDATE (4/17/2026, 8:55 p.m.): As reported by Fox News and subsequently confirmed by Jan Crawford of CBS News, Justice Alito doesn’t plan to retire this year.]

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 Friday, the U.S. Supreme Court issued its long-awaited, eagerly anticipated decision in Learning Resources, Inc. v. Trump—aka the tariffs litigation. As I mentioned yesterday in Judicial Notice, the ruling actually covered two consolidated cases, Learning Resources and Trump v. V.O.S. Selections, Inc.—and, funnily enough, the case that gave its name to this landmark precedent, Learning Resources, got dismissed for lack of jurisdiction.

As I mentioned on the SCOTUSblog live blog, the Court handed down Learning Resources as I was boarding a plane, on my way home from a speaking engagement. This wound up being good timing: I downloaded the opinions and pored over them during my four-hour flight, giving them a closer read than usual (a much better way to pass the time than trying to work using United’s terrible Wi-Fi).

Now that we’ve had a few days to sit with Learning Resources—all 170 pages of it, spread out over seven separate opinions—let’s discuss. This is a Notice and Comment (N&C) post, so all readers can comment, not just paid subscribers.

This post assumes familiarity with the opinions. If you’re looking for a good summary of the decision or an overview of where the different justices came out on the various issues, this ain’t it; I refer you instead to Adam Feldman’s analysis for SCOTUSblog, Jack Goldsmith’s write-up at Executive Functions, or the many other commentaries that I mentioned yesterday in Judicial Notice or that Howard Bashman has been compiling over at How Appealing.

Here are my miscellaneous musings:

• The nice thing about predictions is that nobody except you remembers when you’re wrong—but when you’re right, you can claim vindication. So allow me to claim vindication: in my post-argument recap, I correctly predicted the 6-3 breakdown and the lineups of the justices. Chief Justice John Roberts wrote an opinion for the Court holding the tariffs unlawful, which was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh wrote the principal dissent, which was joined by Justices Clarence Thomas and Samuel Alito.

• In that same post-argument analysis, I highlighted the “problematic tension” in the government case between denying the tariffs are revenue-raising while crowing about the revenue they’re raising. Chief Justice Roberts called this out in his opinion, noting that “the Government admits—indeed, boasts—the economic and political consequences of the IEEPA tariffs are astonishing.” (p. 11)

• The Federal Circuit’s per curiam opinion held that the International Emergency Economic Powers Act (IEEPA) did not authorize these specific tariffs—i.e., “the tariffs imposed by the Executive Orders” challenged in this litigation. In a concurrence, Judge Tiffany Cunningham, joined by three colleagues, took a broader position: “we write separately to state our view that IEEPA does not authorize the President to impose any tariffs” (emphasis added). The SCOTUS majority wound up siding with Judge Cunningham: “we hold that IEEPA does not authorize the President to impose tariffs”—full stop. (p. 20)

• The Roberts opinion, barely hitting the 21-page mark, was short and sweet. Chief Justice Roberts—while not as terse as his predecessor (and former boss), Chief Justice Rehnquist—kept it concise. This struck me as the right choice, for an opinion that Chief Justice Roberts knew would be read by an unusually high number of laypeople.

• I’m guessing the Chief had this opinion ready quite some time ago—and might have been annoyed at the delay introduced by his colleagues and their 150 pages of additional writings (especially Justice Gorsuch’s 46-page concurrence). Considering the importance of the issue and how eagerly the opinion was awaited, would it have been wise for the Court to have issued a bottom-line ruling ASAP, with “opinions to follow”? Perhaps.

• On the other hand, the justices punted on refunds, sending the issue back to the lower courts. It will probably take weeks or even months for anything to happen as a practical matter (as trade lawyers told Jeff John Roberts of Fortune). So issuing a bottom-line ruling more quickly wouldn’t have changed anything immediately anyway.

• In addition to remedies, two other issues that the Chief’s opinion notably didn’t discuss were (1) whether a president’s declaration of an “emergency” under IEEPA is reviewable by courts, and (2) whether Trump can re-impose his tariffs under other authorities. (I’m not counting footnote 4, acknowledging that Justice Kavanaugh’s dissent raises this possibility, since it then goes on to state that “[w]e do not speculate on hypothetical cases not before us.” (p. 16))

• I enjoyed Justice Gorsuch’s “I’ll take all comers” concurrence, in which he seemingly went after pretty much all of his colleagues. As a friend who’s a pro-wrestling fan quipped, “Gorsuch taking on everyone from the top rope!” Or see this tweet by Jacob Ben-David Linker, invoking Seinfeld—which is why Sarah Isgur and David French of Advisory Opinions (AO) referred to the Gorsuch opinion as the “Festivus Concurrence.”

• If you (like me) agree with the AO slogan of “Congress, do your job,” you’ll love the last paragraph of the Gorsuch concurrence. I jotted down in my notes that it was “a paean to congressional power” (and subsequently saw that Catie Edmondson described it in pretty much the same way in The New York Times).

• When the Court decided Biden v. Nebraska, the student-loan forgiveness case, I fell in love with Justice Barrett’s famous concurrence about the major-questions doctrine (aka the “babysitter concurrence”). But Justice Gorsuch’s critique of the ACB view of MQD gave me… food for thought. After reading both the Gorsuch and Barrett concurrences in Learning Resources, I’m not sure where I stand.

• There was precious little humor in the 170 pages. One of the few laugh lines came—unsurprisingly—from Justice Kagan: “Justice Gorsuch claims not to understand [my view that ordinary statutory interpretation can dispose of this case], insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. Given how strong his apparent desire for converts, I almost regret to inform him that I am not one.” (Almost.)

• Justice Jackson wrote a concurrence trying to defend the use of legislative history in statutory interpretation, but her evidence was kinda “meh.” She might have had a point if, say, the legislative history involved a few individual members of Congress pushing for adding explicit “tax” or “tariff” language, then getting shot down—with members of the majority saying, “Of course ‘regulate importation’ doesn’t allow tariffs, and that’s the way we like it.”

• What was up with Justice Thomas’s dissent, arguing that Congress can delegate huge swaths of authority to the president? I share Ilya Somin’s take in The Atlantic (gift link): “Such a position would run roughshod over the text and original meaning of the Constitution, and create a dangerous form of near-monarchical presidential power.”

• Some CT dissents are important and prophetic, foreshadowing the future direction of the Court, while others are esoteric, even head-scratching—and this one was the latter. I also agree with Sarah Isgur’s comment on AO that Justice Gorsuch had a “killshot” against Justice Thomas’s concurrence: regardless of whether Congress can delegate certain powers to the president, the issue here is whether Congress did delegate—and the best reading of IEEPA is that it did not.

• On the whole, I liked Justice Kavanaugh’s dissent; it was clear and well-written, and it caused me to conclude that this case was closer than I originally thought. But I was puzzled by two observations in the dissent, which struck me as neither here nor there: (1) suggesting that “the Court’s decision might not prevent Presidents from imposing most if not all of these same sorts of tariffs under other statutory authorities,” and (2) noting that “the refund process is likely to be a ‘mess.’” I suppose they could be justified as helpful to the many non-lawyers who Justice Kavanaugh knew would wind up reading the opinions, since they highlight the limits of the majority decision—but they don’t really advance the legal analysis.

• Justice Kavanaugh frequently invoked the Federal Circuit dissent of Judge Richard Taranto—which I liked, as a rhetorical matter. Why? Judge Taranto, an Obama appointee, is hardly some MAGA judge—and the fact that he dissented in the Federal Circuit shows that the issues in this case, rather than being purely ideological, are ones that smart judges acting in good faith can disagree about.

So those are my random reflections. What are your thoughts? Please take my poll below, and please share your opinions in the comments of this N&C post. I look forward to engaging with your views.

Earlier:

• Judicial Notice (02.22.26): abcdefu

• 4 Thoughts On The Supreme Court Arguments In The Tariffs Litigation

[UPDATE (3/1/2026, 12:10 a.m.): The original version of this story contained an embarrassing graphic generated by ChatGPT that I didn’t bother to review before including with my post (see below). As noted by a commenter, “The AI image at the start of this is pretty gross for a few reasons. Top among them that it shows Justice Thomas twice and Justice Jackson not at all. It also shows the author of the principal dissent alongside five members of the majority. Very distracting from a nice post.” This is why I don’t judge AI fails too harshly; as I previously wrote, “The next time you hear about an epic AI fail, instead of (or at least after) laughing your ass off, perhaps have the humility to say this to yourself: ‘There but for the grace of God go (A)I.’”]

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

When Brad Karp stepped down as chairman of Paul Weiss on February 4, in the wake of new revelations about his ties to the late Jeffrey Epstein, it was big news in Biglaw. Over the past two weeks, I’ve written around 10,000 words about Karp’s departure. And many other journalists have covered the story as well—including my friend Vivia Chen, a former columnist for The American Lawyer and Bloomberg Law who now has her own newsletter here on the Substack platform, The Ex-Careerist.

Earlier this week, Vivia and I spoke together at an event sponsored by Law Firm Media Professionals. After the event, we traded notes about reader reactions to our Karp coverage. We both thought it was an interesting conversation—so we turned it into a written dialogue, which we’re now sharing with our respective audiences.

Vivia Chen: I don’t know about you, David, but I’m getting blowback for my post, Big Law’s Execution of Brad Karp. I’m hearing that I was much too nice to him because I suggested that he was treated shabbily by Paul Weiss. One partner at another Biglaw firm told me that if Karp had any decency, he would have resigned immediately. Another said the partners should have kicked him out on his ass as soon as they learned about his Epstein connection. What are you hearing from your readers?

David Lat: I’ve received similar feedback. And I’ve gotten comments suggesting that I should have offered a more normative or even moralistic take. But my writing about Brad’s resignation has been focused primarily on reporting—talking to Paul Weiss sources, reviewing the 1,700-plus Epstein files with the word “karp” in them—and analysis. I wanted to pass along facts—and let readers form their own moral and ethical judgments.

VC: Reviewing 1,700-plus Epstein documents—I’m impressed! Thank you for your service. As for passing judgment, well, that’s my bailiwick. Guess that’s the difference between us: you stay above the fray while I get down and dirty.

DL: Ha! I did plenty of passing judgment, for years, at Above the Law—but I’ve turned over a new leaf.

VC: We kind of switched places. In any case, I think we both tried to write a nuanced piece about Karp and his legacy. But that’s not what people seem to want these days. They want a clear villain, and Karp seems to fill that need.

DL: Agreed. People just want to pile on. They want to hear about the evils of Epstein—and anyone who associated with him, such as Karp. And don’t get me wrong—Epstein was evil. But as I wrote, “I don’t think it’s very productive for me to chronicle and condemn his wrongdoing; that has already been done, quite ably, by others.”

VC: I admit, I do question whether I was too easy on Karp. I feel having personal interactions with someone—which, in my case with Karp, was in my role as a journalist over a 10-year-plus period—makes objectivity impossible. He’s exceptionally personable, as you know, so I wonder if we got charmed and wrote a kinder piece than he deserved.

DL: It’s entirely possible that we were too easy on him—which is why, in my story from last Friday, I included a disclosure of my friendly relations with him. But I would also draw the reader’s attention to the fifth and final point from that story, arguing that “[a]t some point, Karp lost track of who his client was, as well as the goal of the representation.” I believe that the discussion under that heading is quite critical of Karp—although, again, my main focus wasn’t on morality or ethics.

VC: Well, I think it’s hard to avoid those judgments when it involves Epstein. I think both of us made clear that Karp advising Epstein in 2019 about the reopening of his “sweetheart” plea deal was beyond the pale. Still, I don’t think Karp is some kind of monster, though he’s disappointed me profoundly, starting with that unforgivable deal he made with Trump. More than anything else, he seems deeply flawed. Some might feel that’s an excuse or that Karp pulled the wool over my head, but I’d like to think there’s value in seeing someone more fully.

DL: There’s perhaps a lesson to be learned here: it’s often in your self-interest to treat people nicely. Maybe we didn’t come down harder on Karp because, over the years, he’s been nice to us.

VC: I totally agree, and I hope all you big shots are listening. But back to Karp: should he be allowed back into the Paul Weiss fold? Other high-profile business figures caught in the Epstein web, like Kathy Ruemmler [GC of Goldman Sachs] and Thomas Pritzker [executive chairman of Hyatt Hotels], have announced their departures. So why not Karp? Shouldn’t he be kicked out of the firm and exiled forever from Biglaw? And, as a predictive matter, will he be?

DL: Again, maybe I’m letting my views be colored by my positive past interactions with Brad, but I don’t think he should have been forced out of the PW partnership or exiled forever from Biglaw. Yes, he made some errors of judgment—one of them a huge error of judgment, in terms of offering comments on a draft court filing prepared by Epstein’s lawyers. But any lawyer with a career as long as Brad’s will have some bad calls in there.

VC: Except this bad call involved Epstein, which is career kryptonite—unless, of course, you’re on Team Trump. But go on.

DL: As for prediction, I doubt he’ll be driven out of the firm. Unlike many firm leaders, he never reduced his client work—and he reportedly has a nine-figure book of business. To be sure, some of that book might be counting longtime clients who wouldn’t move all their work if Brad left. But why take the chance?

VC: Exactly. If Brad’s book of business weren’t so spectacular, he’d probably be pushed out of the door by now. I’m sure there was a risk/benefit calculation involved. From what I’ve seen, it’s seldom moral or ethical concerns that move Biglaw. There I go again—being judgy.

DL: In fairness to Karp, I think Ankush Khardori, a Paul Weiss alum, made a valid point in Politico: “it is important to recognize the difference between engaging in criminal misconduct and simply being friendly with a felon.” While the Epstein-Karp emails have certainly generated bad publicity, making it understandable for Karp to step aside as chair, it’s not clear that Karp engaged in wrongdoing serious enough to toss him out of the partnership.

VC: I’m really curious if more high-profile lawyers are lurking in those Epstein files. I can’t believe Karp and Ruemmler are the only ones who stuck their heads out for this sleaze bag. Will more Biglaw heads roll?

DL: Given our line of work, I’m usually happy to make predictions—but on this, I’m keeping my powder dry. There are three million files, and it seems we’ve only just scratched the surface. After all, I could never have predicted that such prominent figures as Brad Karp and Kathy Ruemmler would have lost their leadership roles over their Epstein interactions.

In 2026, the world is a very unpredictable place!

VC: I’d add 2027 and 2028 too. Hopefully, it’ll get a lot more boring after that.

Earlier:

• 5 Takeaways From Brad Karp’s Emails With Jeffrey Epstein

• Paul Weiss’s Firm Culture Fell Victim To The Vampire Rule

• Brad Karp Steps Down As Chairman Of Paul Weiss

• Brad Karp’s Email To Paul Weiss About Its Deal With The Trump Administration

• Paul Weiss Cuts A Deal With Donald Trump

This conversation is being cross-posted on Vivia’s Substack newsletter, The Ex-Careerist—to which you should subscribe if you don’t already.

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

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This story is longer than a usual OJ post, but I think you’ll find it interesting. If you don’t have time to read it now, save it for later and read it over the three-day weekend for Presidents’ Day. Speaking of which, a quick programming note: because of the Presidents’ Day holiday weekend, my weekly legal news roundup, Judicial Notice, will most likely appear on Monday, February 16, instead of Sunday, February 15.

Last night, Kathryn Ruemmler resigned as chief legal officer and general counsel of Goldman Sachs, some two weeks after the latest Jeffrey Epstein files revealed the depth of her ties to the late financier and sex offender. My main reaction: I was surprised it took this long. (And note that her resignation isn’t effective immediately; as reported by The Wall Street Journal, she’s not leaving her post until June 30.)

I’ll have more to say about Ruemmler later. In the meantime, I’d like to return to a story that I regard as more interesting: Brad Karp stepping down as chairman of Paul Weiss, the elite law firm that he had led since 2008. I’ve written about this at great length, and I won’t rehash my prior coverage (with which this post assumes familiarity).

To report on Karp’s departure as chair, I spent many hours on the Epstein files website set up by the U.S. Department of Justice (DOJ), reviewing the documents that came up when I searched the term “karp.” This was not a pleasant experience—aside from how it immersed me in the seamy world of Jeffrey Epstein. The DOJ website, which has a terrible user interface, constantly crashed—forcing me to restart my search, then click through many pages I’d already seen, to return to where I had been. And doing all that doc review took me back to the worst parts of being a junior associate in Biglaw. (There’s now a more user-friendly archive of the Epstein files called Jmail.)1

The files shed light on several subjects that should interest to Original Jurisdiction readers. But before turning to substance, I have some disclaimers and disclosures.

First, I’m not an entirely objective observer. Like many people in the legal world, I know and like Brad Karp. We’re both extroverts who go to plenty of events, and whenever our paths have crossed, we’ve always had pleasant interactions.

And at least until now—when he and his successor as chair, Scott Barshay, seem to have gone into media lockdown—Karp has made himself very accessible to journalists. So I’ve also spoken to Karp in a journalistic capacity several times over the years, and our conversations have left me with positive feelings toward him—because he’s an extremely charming, even charismatic, individual.2 It’s entirely possible that these feelings are coloring my coverage; feel free to apply a “discount factor” to anything you see in this post that strikes you as too sympathetic toward Karp.

Second, here’s a quick explanation of my methodology. I went onto the DOJ Epstein Library website, typed in the search term “karp,” and proceeded to review the responsive emails. Not all of the 1,700-plus documents relate to Brad Karp—for example, some involve Robert Karp, at the time a managing director at Wells Fargo—but it’s fair to say that most of them involve Brad Karp.

The number 1,700 vastly overstates the Epstein-Karp relationship. If you heard that two people exchanged 1,700 emails, you might think that they were besties. But as anyone who has done document review well knows, there are duplicate files—many, many duplicates. In addition, the vast majority of the Epstein-Karp emails are not substantive. Many are simply scheduling emails, trying to set times for calls—and considering Karp’s crazy schedule, there are a ton of those.

Because of this proliferation of duplicative and non-substantive emails, I didn’t review every last document. The DOJ website provides a preview of the first few lines of each file, and based on these previews, I skipped documents that looked to me like ones I’d already seen. But it’s entirely possible that this caused me to miss relevant communications. If you’d like to bring a file to my attention that I might have missed, please email me (davidlat@substack.com) or text me (917-397-2751; texts only, since this is a Google Voice line that I don’t use for calls).

Third and finally, Jeffrey Epstein is terrible, and I incorporate by reference pretty much all the awful things said about him, everywhere. I don’t think it’s very productive for me to chronicle and condemn his wrongdoing; that has already been done, quite ably, by others. But nothing in this post should be construed as defending Epstein or having associated with Epstein. Like so many others, Kathy Ruemmler and Brad Karp have expressed regret for their Epstein interactions. And it goes without saying that, with the benefit of hindsight, they should never have associated with him in the first place.

Now, on to the main event: five takeaways from the Epstein-Karp correspondence. These points are based not only on my review of the Karp-related Epstein files, but also reflect information I received from current and former lawyers at Paul Weiss. These sources were not willing to speak on the record, given the sensitivity of the issues and the firm’s desire to reduce its media coverage (and to better protect their anonymity, I often don’t distinguish between information from them versus information from the files).

1. Brad Karp is a workaholic.

During his 18 years as chair, Karp, 66, somehow managed to maintain a more-than-full-time practice as a lawyer serving clients. Unlike most Biglaw leaders, he didn’t reduce his client work to make room for his management work—on which he also spent thousands of hours each year. Word on the street is that while he was chair, he spent well over 2,000 hours a year, and probably closer to 3,000 hours a year, just on client service—on top of thousands of hours on management responsibilities and business development efforts.3

And after reading the Epstein-Karp emails, I believe it. The emails confirm Karp’s busyness—and offer an interesting window into what it’s like to run a major law firm while also maintaining an extremely active practice as a litigator. Karp frequently had to reschedule or decline calls or meetings with Epstein, and he would often explain why. Here are some examples of Karp’s scheduling conflicts:

• a telephonic court argument

• an in-person court argument

• a mediation

• a meeting with the DOJ

• a presentation to regulators

• a board meeting

• an offsite meeting for Citigroup (one of the firm’s largest clients)

• a presentation to the Citi audit committee

• a meeting of NFL owners (the NFL is another marquee client)

How did Karp manage to juggle all of his responsibilities? Many people, especially the working parents among us, wonder if there’s some sort of life hack for being more productive. Based on his emails with Epstein, Brad Karp’s approach appears to be brute force: just work more (and sleep less).

But it comes at a cost. On one occasion, after Epstein emailed Karp to check in (because he hadn’t heard from him for several days), Karp wrote that he had been “working 20 hour days/nights” and was now “sick as a dog,” with a 104 fever. In other messages, Karp alluded to various medical tests and surgical procedures. And last year, Karp experienced a heart attack. At least in terms of his health, it might be a good thing for Karp that he’s no longer chair.

2. Karp’s dealings with Epstein were driven by one major factor: keeping Leon Black happy, largely for the benefit of Karp’s corporate partners.

Why was Brad Karp dealing with Jeffrey Epstein in the first place? As Paul Weiss explained in a statement, “Paul Weiss was retained by Leon Black, then the CEO of the firm’s longtime client Apollo, to negotiate a series of fee disputes with Jeffrey Epstein that spanned several years. The firm was adverse to Epstein, and at no point did Paul Weiss or Brad Karp ever represent him.”

Apollo first became a litigation client of Paul Weiss in 2008, through Karp—who obtained an excellent result for the private-equity giant in the messy Huntsman/Hexion litigation. Pleased with PW’s work, Apollo started sending transactional matters to the firm—which ramped up after the 2011 arrival at PW of a group of partners from O’Melveny & Myers, who already did deals for Apollo.

Apollo grew to become Paul Weiss’s biggest client—especially on the corporate side, where Apollo generated so much work that PW basically created a firm within the firm to service it. As chair of the firm, Brad Karp had a mission, driven primarily by his partners on the transactional side: keep Apollo—and therefore Leon Black, its co-founder and then-CEO—happy at all costs.

Although Leon Black and Jeffrey Epstein had a deep relationship, in which Epstein provided Black with tax- and estate-planning services, they sometimes had a difficult time dealing with each other—especially on the matter of fees. In fact, when the two men ultimately parted ways in 2018, it was because of a fee dispute.

The Epstein-Karp emails show that in 2013, Black asked Karp to handle all fee negotiations with Epstein. While it might seem like overkill to hire a (very expensive) Biglaw partner to handle such a matter, it makes more sense when you understand the enormous sums involved: an investigation by Dechert, commissioned by Apollo, found that Black paid Epstein a total of $158 million over the years.

Karp has always had excellent interpersonal skills—“an asset in winning clients and rising to the upper echelons of the legal world,” according to The Wall Street Journal—and he applied these skills to his relationship with Epstein. Based on my read of their correspondence, it seems that Karp’s thinking was that being on good personal terms with Epstein would benefit Black in the Black-Epstein fee negotiation. So Karp went on a “charm offensive” vis-à-vis Epstein.

As it turned out, Jeffrey Epstein also had people skills—which helped him worm in his way into elite circles, despite being a total fraudster—and he apparently had the same idea. Epstein thought that he’d fare better in the fee negotiation if he had a friendly relationship with Karp. So the result was a minuet of sorts, with each man trying to get in the other’s good graces, in order to get a better outcome in the negotiations—Karp on behalf of his firm’s largest client, and Epstein on behalf of... Epstein.

3. Karp and Epstein had an instrumental relationship, and it was a lopsided one—with Epstein as the more eager party.

By now, we’re all familiar with some of the worst—i.e., the warmest—emails between Karp and Epstein. Some examples:

• Karp thanked Epstein for having him over to dinner—which Karp called “an evening I’ll never forget,” as well as a “once in a lifetime event”—and then told Epstein, after Epstein sent a “you’re welcome” email, “You’re amazing.”

• Karp asked for Epstein’s help in obtaining a job for his son, filmmaker David Karp, on a film production by Woody Allen—a longtime Epstein friend—and expressed gratitude when Epstein delivered.

• Members of the Karp family attended screenings of Woody Allen films, which Epstein made possible, and Brad Karp thanked him.

But focusing on these emails, a small sliver of the 1,700-plus messages, doesn’t paint an accurate picture of the complete Epstein-Karp relationship. On the whole, it was an imbalanced one, with Epstein showing greater enthusiasm:

• Epstein emailed Karp far more than Karp emailed Epstein—few of their email chains were actually started by Karp—and it was generally Karp who would drop the ball on a chain, often prompting Epstein to email Karp something like “???”"

• Although Karp accepted a handful of social invitations from Epstein, attending two dinners and a few movie screenings, he declined many more invitations than he accepted, generally citing work-related conflicts (see point #1, supra).

• On some occasions, Karp claimed sickness—in fact, so often that Epstein sent him advice on how to use Vicks VapoRub and Mucinex to ease his discomfort. (As someone who just got over a long cold, I endorse both products; I wouldn’t believe most things said by Epstein, but a stopped clock is right twice a day.)

• Karp was invited to Epstein’s island—but Karp never took him up on that, and I came across no emails indicating that Karp visited (as far as I know, this isn’t a Howard Lutnick situation).

• Epstein tried on multiple occasions to introduce Karp to Steve Bannon, but it never happened. Indeed, the emails show that Epstein repeatedly invited Karp to breakfasts and dinners with various VIPs, but Karp almost always begged off.

• Epstein texted Bannon, “Need to work magic to get brad Karp admitted to augusta golf club.” But I found no communications from Karp requesting such help, from either Epstein or Bannon. (It wouldn’t surprise me if Epstein did this unsolicited; he was often trying to get powerful people to owe him favors.)

4. Karp is a talented litigator—but capable of being a “fixer,” if necessary.

In 2018, I covered a panel on Biglaw business development—moderated by Brad Karp, actually. The panelists stressed the importance of client service, with former Hughes Hubbard chair Candace Beinecke declaring that “I’ll help my clients with anything”—e.g., finding a certain medical specialist for a general counsel, or assisting a CEO’s kid with getting into a selective school. When an associate complained that handling such requests wasn’t offering legal advice, Beinecke said, from the partner’s side of the desk, “This is why I’m here—and how you could get here.”4

Based on the window into Karp’s work life offered by his emails with Epstein, the sense I have is that the vast majority of his work for clients is conventional legal work—appearing in court, dealing with regulators, and the like. And Karp excels at that work, with clients describing him to Chambers as “a star in commercial litigation.”

But I suspect that Karp agrees with Beinecke: he’s willing to help his clients with anything. So there’s a small percentage of Karp’s work—if I had to guess, maybe five to ten percent—that’s not straight-up legal work. Call it strategic advising, crisis management, or—if you’ve seen the movie Michael Clayton, or the show Scandal— “fixer” work.

In Michael Clayton, George Clooney, playing the title character, is a self-described “fixer.” A lawyer for a corporate law firm, he works behind the scenes to “fix” problems—some with legal aspects, some without—for the wealthy and powerful. The firm touts him to clients as “a miracle worker,” but Clayton calls himself “a janitor”—because he quietly cleans up messes, no muss, no fuss.

Fixer work might feel unsavory because it often involves dealing with embarrassing personal problems. For example, after billionaire Robert Kraft and former Citi executive John Havens were charged with soliciting prostitution down in Florida, Epstein and Karp worked on finding them defense counsel. In the end, Kraft secured representation from two top trial lawyers, Bill Burck and Alex Spiro of Quinn Emanuel, who succeeded in getting key evidence suppressed—and the charges against Kraft and Havens were ultimately dropped.5

Most relevant for present purposes, Karp and Epstein teamed up to do fixer work for their shared client, Leon Black. In 2015, they corresponded over how to deal with a woman who had an affair with Leon Black, accused him of abuse, and—in the words of one of Black’s lawyers, Susan Estrich—“attempt[ed] to blackmail him.” As described in Law.com and Business Insider, this involved Karp and Epstein communicating about private investigators from Nardello & Co., who followed and surveilled the woman (reportedly former Russian model Guzel Ganieva). The two men also discussed whether to report the woman to law enforcement.

[UPDATE (2/13/2026, 9:53 a.m.): The paragraph above was edited to reflect that Karp and Epstein communicated about the investigators from Nardello, but only Karp communicated with them. When it came to the work done in 2015 for Leon Black, Nardello dealt with Brad Karp and Lorin Reisner, co-chair of PW’s white-collar practice, but not Epstein. (Nardello did have other contact with Epstein over the years, as discussed in the footnote.6)]

[UPDATE (2/14/2026, 11:39 a.m.): As reported by The Financial Times, Karp called then-Manhattan District Attorney Cyrus Vance in April 2021 to discuss the possibility of an investigation into Ganieva for allegedly attempting to extort Black.]

Getting involved with surveilling a client’s mistress is not, admittedly, a great look. When you read the Epstein-Karp emails over dealing with the Guzel Ganieva problem, referred to in the emails as “GG,” you might feel… kinda gross. But to quote the famous line uttered by Hyman Roth (Lee Strasberg) in The Godfather: Part II, “This is the business we’ve chosen.”

Remember: Leon Black, worth an estimated $13 billion, was the co-founder and CEO of Apollo, Paul Weiss’s largest client—and an especially important client on the transactional side, because of the torrent of deal work it generated. The PW partnership, especially the corporate partners, knew that they needed to keep Black happy. But as transactional lawyers, they didn’t have the expertise to handle a messy matter involving allegations of sexual abuse (against Black) and blackmail (against Ganieva)—which could have led to criminal litigation, against either Black or Ganieva, and did in fact result in civil litigation.

So it fell to Brad Karp—a seasoned litigator, with expertise in crisis management—to make Leon Black’s problem go away. And in doing this, he worked with Epstein—who knew about the “GG” problem as well, as a close confidant of Black, and who had experience in dealing with… problems of this nature.

In my head, I like to imagine Brad Karp getting off a call with the private investigators who were trailing Ganieva, calling up the head of the corporate practice at Paul Weiss, and uttering the signature line of Olivia Pope (Kerry Washington), the great fixer from the show Scandal: “It’s handled.”7

5. At some point, Karp lost track of who his client was, as well as the goal of the representation.

As discussed above, Brad Karp began interacting with Jeffrey Epstein on behalf of a major client, and it often seemed (in the emails) that Karp was trying to avoid or minimize his contact with Epstein. Contrast Karp with Kathy Ruemmler—who did not appear to have a client-based reason for interacting with Epstein, and who had much more extensive, enthusiastic interactions with the man she called “Uncle Jeffrey.”8

At the same time, I think it’s fair to say—and I suspect that Karp would agree—that in trying to maintain a warm relationship with Epstein, for purposes of the Leon Black fee negotiations, Karp went too far—way, way too far. Recall that Karp’s client was Leon Black—who was actually adverse to Epstein. Despite that, Karp sometimes seemed to treat Epstein as a client too.

In one email to Epstein, dated March 9, 2016, Karp wrote, “I sought reconsideration from Mike Corbat and Jamie Forese, but in the end they deferred to compliance. I wish I had different news to report.” It’s not clear what this is in reference to, but at the time, Corbat and Forese were high-ranking executives at Citigroup. If I had to guess, Citi decided to cut off Epstein as a client, perhaps out of “Know Your Customer” concerns—and Epstein turned to Karp, a trusted lawyer to Citi, for help.

In another email, dated March 2, 2019, Karp told Epstein that he reached out to contacts at The New York Times. The Times had just published a staff editorial condemning Epstein’s ridiculously lenient plea agreement, and Epstein was trying to get the paper to publish a letter to the editor defending the deal. So he asked for Karp’s help in flagging the letter for editors at The Times. In the end, The Times did publish the letter, written by four of Epstein’s current and former lawyers (Ken Starr, Martin Weinberg, Jack Goldberger, and Lilly Ann Sanchez).

There’s no evidence in the emails that Karp actually did reach out to The Times or Citi on Epstein’s behalf, even if you can imagine such evidence—e.g., Karp forwarding to Epstein the emails as sent to The Times or Citi. According to my sources, Karp tells colleagues who ask that he never reached out to contacts at Citi or The Times—but simply claimed he did to Epstein, in order to placate him.

Regardless, it was completely unnecessary for Karp to have done these things, if he actually did them, or to tell Epstein he did these things, if he didn’t do them. Regarding The Times, Karp could simply have told Epstein that he didn’t know anyone at the paper. As for Citi, Karp could have said that as outside counsel to Citi, he wouldn’t be comfortable trying to seek reversal of a decision by compliance. Or he could have politely reminded Epstein that he (Karp) represents Leon Black, not Epstein—so Epstein should ask his own attorneys to reach out to Citi.

And it’s not as if Epstein didn’t know other lawyers. First, Epstein was already good friends with Kathy Ruemmler, then a partner at Latham & Watkins—and more than happy to help Epstein out with legal issues.9

Second, Epstein had been represented years earlier by Susman Godfrey—one of the nation’s top trial firms—in business litigation. In response to my inquiry about its representation of Epstein, which I don’t believe has been previously reported, the firm sent me this statement:

From 2009 to 2012, Susman Godfrey represented Jeffrey Epstein in two commercial matters—one against Bear Stearns involving the collapse of a hedge fund, and another in which Epstein claimed a preferential redemption right in shares of a hedge fund. Both cases settled. As reflected in the emails recently released by the Department of Justice, these were purely business disputes. Susman Godfrey’s representation of Epstein was limited in scope and limited in time and involved solely the referenced business matters.

This brings us to what might be the worst Karp-Epstein email of all: the March 2019 missive. Two Epstein victims tried to reopen and modify his slap-on-the-wrist plea deal, in which federal prosecutors agreed not to charge Epstein with a litany of serious sex offenses if he pleaded guilty to two (relatively minor) state charges. The victims argued that the agreement failed to comply with the Crime Victims’ Rights Act (CVRA), since they weren’t notified of the deal (as required by the CVRA).

Epstein shared with Karp a draft of a court filing, prepared by Epstein’s lawyers, arguing against reformation of the plea deal. Karp responded as follows:

The draft motion is in great shape. It’s overwhelmingly persuasive. Truly.

Wish there was a different case name than [United States v.] Fokker, but we can’t have everything. In all seriousness, I don’t see a credible counter to our arguments. The case law is totally stacked in favor of our position.

Even the equities are—I particularly liked the argument that the “victims” lied in wait and sat on their rights for their strategic advantage, knowing you were in prison, before they came forward.

The amici letter is well done as well. I’m wondering if it makes sense to attach to the amici request a close-to-final draft of the legal analysis, which is more persuasive than the summary in the amici letter. I do think it may be difficult to persuade amici to wade into this issue because of the controversy.

This is terrible. Where to begin? What’s the worst part?

• Commenting on the draft in the first place? In March 2019? By this point in time, Leon Black himself was no longer communicating with Epstein, having cut off ties in 2018, and Epstein’s predations had become widely publicized.

• Making a tasteless joke about the case name Fokker?

• Referring to Epstein’s points—remember, Karp is supposed to be representing Leon Black, who’s adverse to Epstein—as “our arguments”?

• Claiming that “the equities” are “stacked in favor” of Jeffrey Epstein?

• Putting the word “victims” in scare quotes?

And what’s so regrettable about all of this, from Brad Karp’s perspective, is that it was one big, unforced error. He could have sent a response like one of the following:

• “Thanks, Jeffrey. But I should probably refrain from commenting, since I’m not your lawyer.”

• “Apologies, just slammed—won’t have the time to look at this.”

• “You’re represented by some excellent lawyers, so I’m going to defer to them. You’re in good hands with Roy.” (The motion was signed by Roy Black—who was, in the words of David Oscar Markus, “the GOAT of criminal defense lawyers.”)10

• “Looks good.”

Of these four possibilities, “Looks good” is obviously the worst. But let’s imagine Karp had sent a perfunctory “Looks good,” instead of what he actually sent. Might he still be chair of Paul Weiss today?

In fairness to Karp, I haven’t practiced law in 20 years, so my negative opinions and second guessing might not be worth much. As I previously wrote, after I criticized Paul Weiss’s deal with the Trump administration, Karp is “the proverbial ‘man in the arena’; it’s easy for folks like me, typing away in my pajamas, to sit on the sidelines and carp about Karp.” And, of course, hindsight is 20/20.

Still, there’s probably a lesson to be learned here. Good lawyers go the extra mile for clients—but great lawyers know where to stop.

As with Wednesday’s post, Paul Weiss’s Firm Culture Fell Victim To The Vampire Rule, there’s additional “inside baseball” in the footnotes, which are available to paid subscribers. While the vast majority of OJ’s content is free, I do believe in providing some extra value to my paid subscribers, who make it possible for me to do my work on a full-time basis. If you’re a paid subscriber, I thank you for your support.

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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 lengthy and detailed footnotes, which contain material not appearing in Bloomberg Law, are a form of bonus content for paid subscribers to Original Jurisdiction. As readers of legal documents well know, the best stuff is often in the footnotes—and here, the footnotes are almost as long as the main article.

I recently learned about the “vampire rule”—which provides, in a nutshell, that a vampire can’t enter your home unless you invite it in. The rule’s canonical formulation can be found in Bram Stoker’s gothic horror novel, Dracula (1897): a vampire “may not enter anywhere at the first, unless there be some one of the household who bid him to come, though afterwards he can come as he please.”

The rule figures prominently in Sinners, which just snagged a record 16 Oscar nominations. It’s invoked in discussions of Wolford v. Lopez, a pending U.S. Supreme Court case about whether Hawaii can prohibit the carrying of handguns on private property unless the property owner affirmatively grants permission.

And the vampire rule might be an apt explanation for the sudden resignation of Brad Karp as chairman of Paul Weiss,1 the firm he had led since 2008. Allow me to explain.

(This story is based on conversations with current and former partners and associates at Paul Weiss. They were not willing to speak on the record, given the sensitivity of the issues and the firm’s desire to reduce its media coverage.)

For most of its 150-year history, Paul, Weiss, Rifkind, Wharton & Garrison was known primarily as a litigation powerhouse. Its most celebrated lawyers—including Arthur Liman, Martin “Marty” London, Ted Wells, former federal judge Simon Rifkind, and current federal judges Lewis Kaplan and Colleen McMahon (S.D.N.Y.)—were litigators. Roughly two-thirds of the firm’s revenue came from litigation.

And Paul Weiss wasn’t just any litigation shop, but a particular kind of litigation shop. As former partner (and former Homeland Security secretary) Jeh Johnson told me, it was a public-spirited, politically engaged firm, with deep ties in Democratic circles.2

In 2008, Karp—a veteran litigator—became chairman. He had big ambitions for Paul Weiss, eager to grow its profitability and prestige. In many ways, he succeeded: between 2008 and 2026, the firm rose in industry rankings of both profits per partner and prestige.3 His spectacularly successful tenure as chair explains why he’s one of the most famous of Biglaw leaders—and why his fall has garnered so much attention, with one PW alum calling it “a Greek tragedy about a law firm leader.”4

Part of Karp’s strategy involved doubling down on the firm’s traditional strengths. He brought in well-known, well-connected litigators with high-level government experience—such as Jeh Johnson (who returned to the firm), former attorney general Loretta Lynch, former associate White House counsel Karen Dunn, and former assistant to the solicitor general Kannon Shanmugam. Karp maintained the firm’s robust commitment to pro bono work—including prominent, public-facing, politically inflected matters, such as representing families affected by the first Trump administration’s family-separation policy.

Karp also built out the firm’s transactional side. In 2011, he brought in seven partners from O’Melveny & Myers, to help grow Paul Weiss’s private-equity practice. The firm already had a strong relationship with Apollo, after Karp and Paul Weiss helped the PE giant secure what The Wall Street Journal called a “sweet deal” resolving the messy Huntsman/Hexion litigation. But the former O’Melveny lawyers helped Paul Weiss take its Apollo work to the next level—to the point where Apollo is now one of Paul Weiss’s largest and most lucrative clients.5

And then in 2016, Karp scored what many regarded at the time as a coup: he convinced Scott Barshay, a star of the M&A bar, to leave Cravath—a preeminent transactional firm—and join Paul Weiss. Over the next decade, Barshay turbocharged the firm’s corporate practice, especially in terms of public M&A. Today, Paul Weiss is a top-ten M&A firm—and corporate work generates a majority of the firm’s revenue, with litigation falling to around 45 percent (not because the litigation work has declined, but because corporate has grown much faster).

This shift toward transactional practice brought about changes at Paul Weiss. It made the firm more conservative—perhaps politically, but definitely culturally—and more cautious. Corporate America is more politically balanced than the undoubtedly liberal world of Biglaw, and some companies are uncomfortable with their outside counsel being too outspokenly progressive.

And some businesses, wanting to avoid controversy of any type, don’t want their lawyers to be involved in conservative causes either—such as the Kirkland & Ellis clients who opposed the Second Amendment work of Paul Clement, who left Kirkland over the issue. Put another way, corporate clients—and many of the Biglaw firms that service them—don’t focus on blue or red, but green.

As the Biden administration was drawing to a close, with the Trump administration waiting in the wings and rumbling about ”retribution,” some corporate partners argued internally that Paul Weiss needed to maintain a lower profile on political issues. But by then, it was too late; the seeds had been sown. The firm’s leftward leanings and history of hiring high-profile progressives—including Mark Pomerantz, who returned to Paul Weiss after investigating Donald Trump—made the firm a target of the new administration.6

In March 2025, the Trump administration hit Paul Weiss with a punitive executive order. As Karp explained in a firm-wide email, Paul Weiss considered fighting the order in court. But in the end, the firm entered into a controversial settlement with the administration—a position strongly advocated for by Paul Weiss’s ascendant corporate partners, especially Barshay, who believed they needed to stay in the good graces of the federal government to get many of their deals done.

Then on January 30, 2026, the Department of Justice released some three million pages of documents related to the late financier and sex offender Jeffrey Epstein. The emails included previously undisclosed correspondence between Karp and Epstein, showing a friendlier relationship than the firm had previously acknowledged.

In one email from March 2019, Karp commented on a draft motion, prepared by Epstein’s lawyers, that opposed an effort by Epstein victims to modify his (scandalously lenient) plea deal. Karp praised the motion as being “in great shape” and “overwhelmingly persuasive,” adding that he “particularly liked the argument that the ‘victims’ lied in wait and sat on their rights for their strategic advantage, knowing you were in prison, before they came forward” (quotation marks around “victims” in the original).

Amid the controversy that ensued, Brad Karp resigned as chair (but remains at the firm as a litigation partner). According to The Wall Street Journal and The New York Times (gift links), Karp was ousted by some of Paul Weiss’s most powerful partners, led by Scott Barshay—who immediately succeeded Karp as chair.

Based on last year’s Trump deal and this year’s replacement of Karp by Barshay, the first M&A partner to lead the firm, I recently suggested that Paul Weiss’s days as a public-spirited, politically engaged firm might be over. One could argue that in many ways, it’s no longer that different from the eight other firms, dominated by their deal practices, that reached settlements with Trump.

“What’s most sad about all of this is the destruction of the unique Paul Weiss culture,” a former Paul Weiss partner told me. “Maybe some of it might have been marketing BS, and maybe I’m looking at this through rose-colored glasses—but I really believed in the idea of a special Paul Weiss culture.”

What brought Paul Weiss—and Brad Karp—to this point? Maybe we can think of it like the vampire rule. Hoping to take the firm higher, Karp invited Barshay and other top dealmakers into the firm—and for a time, it worked.

But the corporate partners brought more than just books of business. They instituted a less civically engaged, more bottom-line-driven approach to practice at Paul Weiss—one in which closing deals is paramount, and dealmakers rule the roost. That mindset drove last year’s Trump deal—and likely this year’s departure of Karp.

In fairness to Karp, perhaps this is less about Paul Weiss and more about Biglaw more generally. Law firms were already focusing much more heavily on corporate work over litigation, especially politically tinged litigation. By growing his firm’s transactional practice, Karp was simply bringing Paul Weiss into the present and keeping it competitive. He did what he had to do, for the sake of the institution—even if it ultimately weakened his own power and established the conditions for his ouster, by making litigation second fiddle to corporate.7

Did Karp accelerate certain changes at Paul Weiss? Maybe—but many of them were probably going to happen anyway. The transactional worldview was already inside the house.8

UPDATE (2/13/2026, 10:25 a.m.): For a deeper dive into Brad Karp and Jeffrey Epstein’s relationship, please see my follow-up, 5 Takeaways From Brad Karp’s Emails With Jeffrey Epstein. As I explain in that post, I’m not entirely objective when it comes to Karp, so feel free to apply a “discount factor” to anything you see in my coverage that strikes you as too sympathetic toward Karp.

Programming note: because of the three-day weekend for Presidents’ Day, my weekly legal news roundup, Judicial Notice, will most likely appear on Monday, February 16, instead of Sunday, February 15.

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

On the evening of Wednesday, February 4, 2026, Brad Karp abruptly resigned as chairman of Paul, Weiss, Rifkind, Wharton & Garrison, the powerhouse law firm that he had led since 2008. This was huge news in the legal world, and it was covered by, well, everyone—including The New York Times (gift link), The Wall Street Journal (gift link), Bloomberg, Reuters, The American Lawyer, Law360, and Above the Law.

I’m working on a longer piece about this news, for which I’m doing some reporting. I might not be the fastest on breaking news—but when I do cover something, I try to add value, in terms of original reporting, in-depth analysis, or both.

While I work on my longer piece, here are my answers to some Frequently Asked Questions (FAQs) about Brad Karp’s resignation as chair.

Why did Brad Karp step down as chairman of Paul Weiss?

Karp’s departure from firm leadership came in the wake of new revelations about his ties to the late Jeffrey Epstein, the disgraced financier and convicted sex offender. Last Friday, the U.S. Department of Justice (DOJ) released three million Epstein-related documents—which included extensive, friendly email correspondence between Karp and Epstein (discussed in the last edition of Judicial Notice).

Paul Weiss announced the news in a press release issued yesterday at 8:30 p.m. (ET). The firm’s statement contains the following comment from Karp, a cryptic but clear reference to L’Affaire Epstein (emphasis added): “Leading Paul, Weiss for the past 18 years has been the honor of my professional life. Recent reporting has created a distraction and has placed a focus on me that is not in the best interests of the firm.”

His departure doesn’t have anything to do with how the firm has fared under his watch. Since taking over as chair in 2008, Karp has presided over tremendous growth at Paul Weiss, which today boasts more than 1,200 lawyers and $2.6 billion in revenue (in 2024; look for 2025 to be higher, since it was reportedly a record year for the firm).

In 2008, when Karp took over, Paul Weiss was #9 in the Am Law 100 profits-per-partner ranking and #13 in the Vault 100 prestige ranking. In 2026, the firm is #6 in profits per equity partner and #8 in prestige. These gains might not seem like a big deal—but as someone who has followed these rankings obsessively for a quarter-century, I can tell you that they are. Why? The higher you get in the rankings, the harder it is to gain ground, as your competition gets fiercer.

Brad Karp, who’s 66, will remain at Paul Weiss as a litigation partner. A 1984 graduate of Harvard Law School, he has spent his entire four-decade career at the firm, aside from a clerkship on the Second Circuit with Judge Irving Kaufman (most well-known for presiding over the espionage trial of Julius and Ethel Rosenberg, back when he was a judge on the Southern District of New York).

So what exactly was in Karp’s emails with Epstein?

When Karp’s name appeared in earlier Epstein emails, released in December by the U.S. House Oversight Committee, Paul Weiss issued the following statement: “Paul, Weiss was retained by Leon Black, then the CEO of the firm’s longtime client Apollo, to negotiate a series of fee disputes with Jeffrey Epstein that spanned several years. The firm was adverse to Epstein, and at no point did Paul, Weiss, or Brad Karp ever represent him.” But the emails released last Friday by the DOJ suggest a friendly rather than adversarial relationship between the two men (who met through Black):

• Karp asked for Epstein’s help in obtaining a job for his son on a Woody Allen movie production, and Karp and Epstein also corresponded about members of the Karp family attending screenings of Woody Allen films.

• Karp attended dinner at Epstein’s home. After one such event, he emailed Epstein, “I can’t thank you enough for including me in an evening I’ll never forget. It was truly ‘once in a lifetime’ in every way, though I hope to be invited again. You are an extraordinary host—and your home . . .!!!” After Epstein responded that Karp would be “always welcome” and “invited often” in the future, Karp replied, “You’re amazing…. and thank you!”

• As noted by The Times, “The emails released by the government also show that Mr. Karp and Mr. Epstein discussed how to deal with a former mistress of Mr. Black’s and her demands for money. In one email, Mr. Epstein suggested to Mr. Karp that he recommend that Mr. Black retain a firm to surveil the former mistress. In another email, Mr. Epstein raised questions about the woman’s visa status. It is unclear if Mr. Karp and Mr. Black acted on Mr. Epstein’s suggestions.”

• As reported by Bloomberg Law, the latest emails show that Karp “reviewed a 2019 draft court filing arguing that [Epstein’s] decade-old plea deal should not be reopened.” As you might recall, Epstein reached a non-prosecution agreement with the federal government that was widely viewed as a “sweetheart deal,” in which the feds agreed not to prosecute him—for numerous offenses, involving multiple victims—if he pleaded guilty in Florida state court to one count of felony solicitation of prostitution and one count of procuring a person under 18 for prostitution.

• In his March 2019 email, Karp praised the draft filing as being “in great shape” and “overwhelmingly persuasive.” In the end, the position advocated by Epstein’s lawyers prevailed, and the plea deal was not reopened. A few months later, in July 2019, Epstein was arrested on new federal charges—and it was while imprisoned on those charges that he died, in what has officially been deemed a suicide.

In a statement about the latest Epstein emails, Paul Weiss said, “Mr. Karp never witnessed or participated in any misconduct. Mr. Karp attended two group dinners in New York City and had a small number of social interactions by email, all of which he regrets.”1

Who’s succeeding Karp as chair of Paul Weiss?

Last night’s press release from the firm was actually not about Brad Karp stepping down, but about his successor: Scott Barshay, former chair of Paul Weiss’s corporate department. Barshay is one of the nation’s top M&A lawyers, with a book of business in the nine figures, and his 2016 move from Cravath to Paul Weiss is widely credited with taking PW’s transactional practice to the next level.

Barshay might very well be, as one respondent told Chambers, “the very best M&A lawyer” in America. But even if clients love him, some colleagues find him challenging to work for. See, e.g., this Reddit thread—but I’m not relying on Reddit for this. I’ve heard that Barshay can be a tough boss dating all the way back to his time at Cravath (which is why, in a 2016 story about his move to PW, I wrote that some at Cravath were “not devastated” by his departure because he’s such a “complex” individual).

Speaking of Reddit, a Redditor wrote, “Saw Barshay in Le Bernardin tonight. Dude was blitzed and just said ‘life is good, gentleman.’ Genuinely out of a movie.”

Fun fact: Scott Barshay has an identical twin brother, Lawrence Barshay, who’s a partner at Fried Frank. But the two are said to be not on speaking terms. [UPDATE (7:43 p.m.): From Lawrence Barshay: “The notion that Scott and I aren’t on speaking terms is untrue and ridiculous. I congratulated him as soon as I heard the news of his elevation to chair of Paul Weiss. I am very proud of my brother and all he has accomplished.”]

(I did reach out to Scott Barshay, to give him the opportunity to comment on any of the items above—his book of business, what he’s like to work for, the alleged Le Bernardin sighting, and his relationship with his brother—but I didn’t hear back from him as of publication time. If I do hear from him, I’ll update this post.)

[UPDATE (10:32 p.m.): For more on Scott Barshay, see Meghan Tribe and Justin Henry’s Bloomberg Law piece, “Karp Ouster Tests Dealmaker Barshay’s Ability to Lead Paul Weiss.” Rick Rule, former co-chair of antitrust at the firm, described Barshay as “very business-oriented and focused on the bottom line,” as well as someone who “doesn’t suffer fools gladly.” Another source said that Barshay, who has the largest book of business at Paul Weiss, has a polarizing reputation among his colleagues.]

How exactly did Karp’s departure come about?

In a juicy article titled “A Revolt Inside Paul Weiss Over the Epstein Files Took Down Brad Karp,” Cara Lombardo, Lauren Thomas, and Erin Mulvaney reported as follows, for The Wall Street Journal (gift link):

On Wednesday, an exclusive group of 10 or so Paul Weiss partners met unbeknown to their longtime chairman, Brad Karp, to discuss whether he could continue to lead the law firm.

The partners, who manage the firm and refer to themselves as the “Deciding Group,” were grappling with the release of new emails suggesting Karp had a more extensive relationship with Jeffrey Epstein than they realized, including in the months before the convicted sex offender’s death….

By the end of that meeting, people familiar with the matter say the group agreed to replace Karp with Scott Barshay, a top rainmaker Karp brought in a decade ago to help transform the firm into an M&A powerhouse.

It fell to Barshay to break the news. He met with Karp in person late Wednesday and told him the group had concluded the Epstein ties were too much of a distraction and that he needed to resign from his role as chairman, the people said. Barshay, 60 years old, also told Karp he would be succeeding him.

It’s interesting that Barshay was willing to take over as chair because, as noted by the WSJ, he “had long told partners at the firm he never wanted the role of chairman.” And a reluctance to serve as chair makes sense to me: my guess is that Barshay’s first love is doing deals, and that would be his highest and best use at Paul Weiss. So don’t be surprised if he names some deputy chair or other second in command, who will handle the leadership and administrative responsibilities he might not love.

Could the firm’s controversial settlement with the Trump administration—which Karp both negotiated and then defended, in a firm-wide email—have contributed to his leaving leadership?

Unlikely. First, the new chair is Scott Barshay, who was a strong advocate for the deal within the firm (per Michael Schmidt of The New York Times). Second, the agreement was announced almost a year ago, in March 2025; if Karp’s partners wanted him out of leadership as a result of the settlement, he would have left long ago.

So those are the basic facts on Brad Karp stepping aside as chair of Paul Weiss. I’ll have more to come, based on some reporting, very soon.

[UPDATE (2/11/2026, 12:25 p.m.): For a much closer look at Brad Karp’s departure and the evolution of Paul Weiss as a firm, see Paul Weiss’s Firm Culture Fell Victim To The Vampire Rule.]

[UPDATE (2/13/2026, 4:21 p.m.): For a deep dive into the Epstein-Karp correspondence, see 5 Takeaways From Brad Karp’s Emails With Jeffrey Epstein.]

Earlier:

• Brad Karp’s Email To Paul Weiss About Its Deal With The Trump Administration

• Paul Weiss Cuts A Deal With Donald Trump

• Judicial Notice (02.01.26): The $4,000-An-Hour Club

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.

Back in September, after the assassination of conservative commentator Charlie Kirk, a reader asked me whether I knew what Crystal Clanton was up to nowadays. Clanton worked for Kirk at his nonprofit, Turning Point USA, and rose through the ranks to become his “top lieutenant,” according to The New York Times.

In 2017, The New Yorker reported that while she was at TPUSA, Clanton allegedly sent text messages to a colleague that said, among other things, “I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story.” There’s a long, complicated backstory here; I won’t rehash it here, but if you’re not familiar with it, please read An Open Letter To Crystal Clanton and A Counterpoint On Crystal Clanton—From A Leading Libel Lawyer.

After her time at TPUSA, Clanton entered the legal field. She graduated from Scalia Law School, in 2022; clerked for two federal judges, Judge Corey Maze (N.D. Ala.) and Chief Judge William “Bill” Pryor (11th Cir.); and clerked for Justice Clarence Thomas, during October Term 2024 (the 2024-2025 judicial year). Clanton’s clerkship with Justice Thomas concluded in July 2025, so asking about her whereabouts in September 2025 would be understandable.

It’s not uncommon, however, for Supreme Court clerks to take time off after their clerkships are done and before starting their new jobs. Who wouldn’t want to take the six-figure signing bonus offered by Biglaw firms to ex-SCOUTS clerks and go on a lengthy, luxury vacation?1

But now it’s late January, so most clerks from OT 2024 know where they’re going next (if they’re not there already). Where in the world is Crystal Clanton?

As it turns out, the answer has been a matter of public record for quite some time. But until now, it hasn’t been reported by any news outlet.2

Crystal Clanton is currently an attorney at the America First Legal Foundation, the conservative nonprofit law firm that Gene Hamilton and Stephen Miller co-founded in 2021, shortly after the end of the first Trump administration. Hamilton is back at AFL, after six months in the White House, and leads AFL as its president; Miller is back in the White House and remains there, where he serves as deputy chief of staff for policy—and, in the words of The Atlantic (gift link), “turns President Trump’s most incendiary impulses into policy.”3 [UPDATE (1/28/2026, 10:03 a.m.): Corrected to note that Hamilton went to the White House at the start of the second Trump administration for a few months, before returning to AFL.]

How do we know that Clanton is now at AFL? From court records.

One case being litigated by AFL is University of South Florida College Republicans v. Lutnick (M.D. Fla.), which AFL describes as “a landmark lawsuit, alleging that the 2020 Census was unconstitutional and violated federal law.” On October 7, 2025, the plaintiffs filed a pro hac vice motion for Clanton, to allow her to represent the plaintiffs despite not being admitted to the court where the case is pending (the Middle District of Florida). On October 8, the motion was granted.

According to the motion, Clanton “is an attorney with the law firm America First Legal” and “an active member in good standing of the Bar of the State of Alabama.” A quick search for Clanton on the Alabama State Bar website confirms her membership. (She was admitted in 2022, five years after The New Yorker reported on her alleged texts, so they apparently didn’t create a character-and-fitness problem for her.)

Clanton works on other cases for AFL as well. On January 12, she filed a pro hac vice motion (granted that same day) in S.W. v. Loudoun County School Board. As noted on AFL’s website, its clients in S.W. are “[t]wo boys from Stone Bridge High School in Loudoun County Public Schools (LCPS), [who] were issued a 10-day suspension and deemed guilty of Title IX ‘sexual harassment’ for complaining about a girl in their locker room” (or, if you prefer, for complaining about a transgender student or a student assigned female at birth in their locker room).

It makes perfect sense that Clanton now works for America First Legal. As a staunch conservative, she surely supports AFL’s agenda. As for AFL, it’s an aggressive, fairly in-your-face organization—one that delights in triggering or trolling the left. So any controversy over Clanton’s alleged texts might be, from AFL’s perspective, a feature and not a bug—a reason to hire Clanton, not to shun her.

By hiring Clanton, AFL is sending a message: “The establishment tried to cancel Crystal Clanton—but we welcomed her, with open arms.” Or put another way, “Give us your tired, your poor, your conservative-but-nearly-canceled masses, yearning to breathe free.”

Here’s what I wonder: did Clanton apply to any other employers, including law firms, and was AFL a fallback option? Or was going to a place like AFL her first choice?4

I wouldn’t be surprised if Clanton went straight to AFL, not bothering to apply to any firms. As a litigator for conservative causes, she can have a much greater impact on law and public policy than an anonymous associate toiling away at a firm. And based on her pre-law-school work in politics—at TPUSA and later at Liberty Consulting, Ginni Thomas’s firm—Clanton wants to have an impact.

I could see her eventually becoming her generation’s Kristen Waggoner, CEO of the Alliance Defending Freedom (and, based on her track record of winning hot-button cases over divisive social issues, the Queen of Right-Wing Impact Litigation). Clanton could end up having a controversial but consequential career—not unlike her former boss, Justice Clarence Thomas.

Like it or not, the world hasn’t heard the last of Crystal Carolyn Clanton.

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.

Happy new year. I hope your 2026 is off to an excellent start.

Of the more than 20 years I’ve been writing about law and the legal profession, 2025 was one of the busiest. My two main beats are Biglaw and the federal courts, especially the U.S. Supreme Court, and both were extremely active last year—thanks in large part to actions taken by Donald Trump and his administration, many of which generated litigation.

What does the new year have in store for lawyers and the legal world? Here are my predictions.

1. The Trump administration’s targeting of large law firms is (probably) over.

When Trump started issuing executive orders against law firms last March, I was shocked. As a journalist covering the business of law, I’m obsessed with Biglaw. But I never imagined that law firms would make it onto the radar of the president, to the point where they would become his targets.

After nine firms reached swift settlements to avoid getting hit with executive orders, I expected the administration to start targeting—and cutting deals with—much of the Am Law 100. But that hasn’t happened; instead, Trump has turned his attention to other things. My guess is he’s gotten what he wanted: he’s successfully intimidated Biglaw into not taking on his administration in court.

2. Trump will lose the law firm executive-order cases in the D.C. Circuit.

Four firms—Perkins Coie, Jenner & Block, Susman Godfrey, and WilmerHale—challenged the executive orders against them in court. All four firms prevailed, with judges from across the ideological spectrum—two Democratic appointees, two Republican appointees—holding the orders unconstitutional.

The administration appealed its defeats to the D.C. Circuit, where I predict it will lose yet again. Democratic appointees outnumber Republican ones on the court, 7–⁠4—but beyond that, even a Republican-appointed judge would have a hard time coming up with a convincing rationale for upholding the orders.

Judge Richard Leon (D.D.C.), a George W. Bush appointee, is a conservative jurist. But as he wrote when invalidating the order against WilmerHale, “to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!” (Exclamation point in the original.)

3. The Supreme Court will decline to take any of the executive-order cases.

If the Trump administration loses in the D.C. Circuit and appeals to the Supreme Court, I’m guessing the justices won’t take any of these cases. There won’t be a circuit split, the outcome is squarely controlled by existing constitutional law, a majority of the justices will agree with the lower courts, and there’s no reason to antagonize Trump unnecessarily (especially if he’s done issuing such orders, making this issue irrelevant as a practical matter).

4. The Court will start ruling against the Trump administration more—on its merits docket.

On the Supreme Court’s emergency docket—or “interim docket,” to use Justice Brett Kavanaugh’s preferred term—the Trump administration has won almost all of its cases. As Justice Ketanji Brown Jackson complained in a dissent last August, it appears that on the interim docket, “this Administration always wins.”

A key feature to keep in mind about the interim docket, however, is that the Trump administration gets to pick the cases in which it seeks interim relief. Unsurprisingly, it picks cases where it views its chances of prevailing as strong, so a high win rate should be expected. (Note that the administration didn’t seek interim relief in any of the Biglaw executive-order cases.)

But now, one year into Trump’s second term, cases against the administration are coming (or coming back) to the Court as merits cases—and in a number of them, the administration could lose. Possible defeats for Trump could come in cases involving tariffs, birthright citizenship, and his attempt to remove Lisa Cook as a governor of the Federal Reserve Board. (As a technical matter, Trump v. Cook is before the Court on the government’s application for interim relief—but the justices have the benefit of full briefing and are hearing oral argument, as they would for a merits case.)

5. No justices will retire in 2026.

Ever since Trump won the 2024 election, conservatives have been predicting (or hoping) that Justice Clarence Thomas or Justice Samuel Alito will step down, allowing Trump to appoint an equally conservative but much younger successor. But both justices remain healthy, active, and deeply engaged with their work.

Justice Thomas, a staunch conservative and originalist, waited more than three decades for a Court that thinks as he does—and now he has it, to a significant extent. At the peak of his influence, why would he want to leave?

And at ages 77 (for Justice Thomas) and 75 (for Justice Alito), they’re still shy of the ages that justices have retired at in recent years. Justices Stephen Breyer and Anthony Kennedy served until they were 83 and 82, respectively; Justices Thomas and Alito could serve until the end of Trump’s term and still be shy of these ages. And here’s a bonus prize for Justice Thomas: if he sticks around until the middle of 2028 or so, he will replace Justice William O. Douglas as the longest-serving SCOTUS justice (which the conservative Justice Thomas might enjoy, considering that Justice Douglas was one of the most liberal justices in history).

[UPDATE (4/17/2026, 9:02 p.m.): As reported by Fox News and subsequently confirmed by Jan Crawford of CBS News, Justice Alito doesn’t plan to retire this year. For more on this subject, see my February post, Justice Samuel Alito Won’t Hang Up His Robes Anytime Soon.]

6. Kirkland & Ellis and Wachtell Lipton will be the first firms to break the $10 million mark in profits per equity partner.

Turning to Biglaw, I’m expecting to see mixed results when The American Lawyer releases its 2025 financial reports for law firms. But last year was record-setting for M&A, especially deals involving public companies—and I’m expecting it will be record-setting for top M&A firms.

In 2024, the top two firms in profits per equity partner, Kirkland & Ellis and Wachtell Lipton, enjoyed PPEP of $9.253 and $9.036 million, respectively. In 2025, Kirkland and Wachtell were #2 and #3 in the M&A league tables, guiding deals worth $743 billion and $621 billion, respectively—significantly higher than their 2024 totals of $427 billion and $228 billion. Given their dramatically higher deal flow in 2025, it would actually be surprising if Kirkland and Wachtell failed to surpass the $10 million mark in PPEP. (The #1 firm in the 2025 league tables was Latham & Watkins—but historically it hasn’t been as profitable as Kirkland or Wachtell, with PPEP of $7.135 million in 2024.)

The firm with the third-highest profits per equity partner in 2024, Quinn Emanuel, recently revealed that it broke the $9 million mark in 2025, after growing its PPEP by four percent. And Quinn Emanuel is a litigation shop; I’m guessing that Kirkland and Wachtell, as M&A-focused firms, posted even bigger PPEP increases last year.

7. Wachtell will reclaim its #1 spot in PPEP from Kirkland.

Wachtell has been the #1 firm in profits per partner for 22 out of the past 25 years. In the 2025 rankings, based on 2024 financial performance, Kirkland edged out Wachtell. But in the 2026 rankings, based on 2025 financial performance, I expect Wachtell to retake its crown.

Yes, Kirkland advised on deals with a higher aggregate value than Wachtell did. But remember that profits per equity partner is a fraction—and Kirkland, with more than 500 equity partners, has a much larger denominator than Wachtell, with fewer than 100 equity partners.

Kirkland also went on a litigation hiring spree in 2025, adding more than 140 lateral hires to its litigation group. That could—and probably will, given Kirkland’s track record—end up being a winning business strategy over the long term.

But bringing in lateral partners, who often have to be lured away from their current firms with large guarantees, can be expensive in the short term. So I wouldn’t be surprised if all this hiring exerts a dilutive effect on Kirkland’s PPEP for 2025, allowing Wachtell to pull ahead.

These are just some of my calls for 2026; what are yours? I’m making this a Notice and Comment post, i.e., opening up the comments section to everyone (not just paid subscribers). So please post your predictions, and maybe I’ll highlight the best ones when I look back on my own, one year from now.

I’m guessing that 2026 will be another jam-packed year for legal news. So that’s my final prediction for the year ahead: it won’t be boring.

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

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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 new year! I hope your 2026 is off to an excellent start.

How was 2025 for you? Last year was challenging for many people, for many reasons—and it was tough for our family as well, because of a health issue faced by a loved one (who is thankfully doing much better now). If your 2025 was difficult, I hope that 2026 brings you better news.

Let’s bid farewell to 2025 by reviewing the year’s top posts here at Original Jurisdiction. It’s an annual tradition, performed for every full year of this newsletter’s existence—in 2024, 2023, 2022, and 2021—and it provides an excellent opportunity to look back on the year in legal news. [UPDATE (1/16/2026, 5:28 p.m.): To clarify (in response to a reader email), these are the top stories based on traffic or readership, not my personal preference.]

Here are the top stories of 2025, from #10 to #1 (and yes, there are actually 11 pieces listed below—I combined two closely related stories, which happened to be back-to-back in the ranking, into a single entry):

10. Trump’s Attack On Perkins Coie Sends Chills Down My Spine

Perhaps the biggest story of 2025 from the perspective of most OJ readers was what might be called “Trump v. Biglaw.” Donald Trump fired off a series of executive orders (EOs) targeting large law firms that had incurred his ire, for various reasons—such as representing or employing individual attorneys on his enemies list. Trump issued the first of these EOs on March 6, against Perkins Coie.1 I wrote critically about the order, declaring that it sent chills down my spine—quoting Judge Beryl Howell, who held the EO unconstitutional and enjoined it (as did every other federal judge who ruled on the legality of these orders).

9. SCOTUS Clerk Hiring Watch: OT 2025 And Beyond

My reporting on the hiring of Supreme Court law clerks is one of my most popular features here at Original Jurisdiction, and SCOTUS clerk hiring roundups have made my lists of top posts for every year that I’ve done them. And I’ll have a new one for you very soon, hopefully including the latest hires by Justice Ketanji Brown Jackson—who interviewed finalists in mid-December, extending offers shortly thereafter. (I have some names already, but I need a little more confirmation; if you can help out, please email me at davidlat@substack.com or text me at 917-397-2751.)

8. Paul Weiss Cuts A Deal With Donald Trump

Four firms targeted by Trump-issued EOs—Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey—fought the orders in court (and prevailed). But nine other firms avoided getting hit with EOs by entering into settlements with the Trump administration, in which they promised to provide a total of $940 million in pro bono legal services to support causes favored by the administration (among other undertakings). The first firm to cut a deal was Paul Weiss—which was also the most criticized for doing so, perhaps because it arguably gave other firms the political “cover” to settle (and also established a template for such agreements).

7. The 2025 U.S. News Rankings: All Hail The... T17?

For many years, the top 14 schools in the U.S. News law school rankings remained the same, changing spots only among themselves. But in the 2025 rankings, there was a four-way tie for #14—with UT Austin, Vanderbilt, and Washington University joining Georgetown, a traditional member of the T14, to form the “T17.” The two other notable changes: Harvard Law School clocked in at #6, its all-time lowest ranking, and Cornell Law School fell out of the T14 to land at #18. Are these just blips—or will their slips in the rankings be long-lasting?

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6. A Skadden Associate Urges Peers To Stand Up For The Rule Of Law

Many lawyers at the nine firms that settled with the Trump administration were upset over what they perceived as their employers’ capitulation to creeping autocracy. Some of these lawyers expressed their dissent by “voting with their feet” and quitting. But nobody caused as much of a stir as Rachel Cohen, a 2022 graduate of HLS who resigned from her job as a third-year finance associate at Skadden. After news of the Paul Weiss settlement broke, Cohen initially announced a “conditional” resignation, “revocable if the firm comes up with a satisfactory response to the current moment.” But then Skadden announced its own deal with Trump—which Cohen found highly unsatisfactory. In an interview with me, she said that Biglaw firms that refuse to stand up to Trump “are totally abdicating their moral duty and responsibility.”

5. SCOTUSblog Founder Tom Goldstein Hit With 22-Count Federal Indictment

One of the most talked-about stories of 2025 was the federal government filing a 22-count indictment against Tom Goldstein, accusing the renowned Supreme Court advocate of tax fraud and making false statements on a loan application. Later this month, Goldstein’s case will go to trial—and he insists on his innocence, as Jeffrey Toobin reported in a fascinating piece for The New York Times (gift link).

4. A Major Law Firm’s ChatGPT Fail and An AI Fail By An Elite Litigation Firm

I view 2025 as the year that AI “arrived,” i.e., started to make a difference in the day-to-day lives of ordinary people (including me). But increased usage brought increased screw-ups—committed not just by solo or small-firm practitioners, but by large law firms, too. In January, lawyers at Morgan & Morgan, the giant plaintiff-side firm, filed motions in limine featuring a slew of hallucinated cases. Some observers minimized the significance of that episode, noting that while Morgan & Morgan might be big in terms of headcount, it’s not “Biglaw.” But then Boies Schiller & Flexner—a member of both the Am Law 200 and Vault 100, and definitely a Biglaw firm—submitted its own appellate brief containing AI-generated errors. Will we see fewer AI fails in 2026, as firms learn from these cautionary tales? Here’s hoping.

3. Three Lawyers Who Lost Their Lives In The D.C. Plane Crash

On January 29, 2025, an American Airlines passenger plane collided with a U.S. Army Black Hawk helicopter near Reagan National Airport in Washington, D.C. All 67 people aboard both aircraft were killed—including, tragically, three young lawyers. Sarah Lee Best and Elizabeth Keys, both 33, were associates at Wilkinson Stekloff, one of the nation’s leading litigation boutiques; Kiah Duggins, 30, was an attorney with Civil Rights Corps. May their memories be for a blessing.

2. A Top SCOTUS Litigator’s Major Lateral Move

Tom Goldstein wasn’t the only superstar of the Supreme Court bar who had an eventful 2025. In February 2025, Andrew Ross Sorkin and his colleagues at Dealbook broke the news that Neal Katyal, the legendary SCOTUS advocate, was leaving Hogan Lovells to join Milbank. In an interview with me, Katyal explained how he never thought he’d leave Hogan Lovells, his professional home for more than a dozen years—but Milbank and its chair, Scott Edelman, “made the impossible possible.” (In April 2025, Milbank entered into a settlement with Trump—but that hasn’t stopped Katyal from taking on the Trump administration in court, including arguing in the Supreme Court against Trump’s tariffs.)

1. Brad Karp’s Email To Paul Weiss About Its Deal With The Trump Administration

As longtime OJ readers know, I was critical of both the Trump EOs against Biglaw and the Biglaw settlements with Trump. But my readers also know that I believe in presenting a wide range of perspectives, including ones that I disagree with. So if you’re interested in Trump v. Biglaw as a subject, I urge you to read the email that Brad Karp, chairman of Paul Weiss, sent to all of his colleagues on March 23, attempting to explain and defend his firm’s deal with The Donald. Many view the settlements as indefensible—but Karp, who was a successful litigator before taking the helm at Paul Weiss, put forward his best case I’m not sure I’m persuaded, but I also don’t think I’ve read a better defense than Karp’s (although if I’ve missed one, please send my way).2

So those were the top stories of 2025—and if you’re thinking it was a pretty depressing year, you’re not alone. But to look on the bright side, 2026 has to bring better news—right?

I’ve been on a break since December 22—currently in California, spending time with family—but I’m planning to publish a Judicial Notice news roundup on either January 4 or 5. The podcast will also pick back up, on Wednesday, January 14 (rather than January 7, owing to the challenges of scheduling interviews around the holidays).

I hope you and your families have been able to enjoy some rest and relaxation over the past few weeks. As always, thank you for your readership and support, and I look forward to spending another interesting year with you.

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

On Wednesday, the U.S. Supreme Court heard argument in two cases challenging tariffs imposed by Donald Trump: Trump v. V.O.S. Selections, out of the Federal Circuit, and Learning Resources, Inc. v. Trump, from the U.S. District Court for the District of Columbia. After losing in the lower courts, the Trump administration appealed to SCOTUS, hoping for a more favorable ruling from the justices.

If you have the time, you can listen to the oral arguments or read the transcript. You can also dive into copious coverage of the arguments, collected by Kelsey Dallas of SCOTUSblog and Howard Bashman of How Appealing.

But if you don’t have the time for all that—most of you have pretty demanding day jobs, after all—here are my takeaways. I listened to the arguments in order to participate in the SCOTUSblog liveblog and the post-argument episode of Advisory Opinions, which I encourage you to check out.

1. Overall, the justices appeared skeptical of the tariffs.

SCOTUSblog compiled articles from 11 outlets that covered the arguments. Of the 11, six used the word “skeptical” in their headlines to describe the justices’ attitudes toward the tariffs, and the remaining five arguably expressed similar sentiments. But I wouldn’t call it a blowout. I find it hard to imagine a 9-0 win for the challengers, which apparently some journalists think possible (as Amy Howe mentioned on C-SPAN, quoting fellow denizens of the press room at One First Street).

2. The challengers will probably prevail, 6-3—but a win by the administration, 5-4, can’t be ruled out.

What do I predict in terms of the breakdown? A poster on X uploaded the argument transcript to ChatGPT and asked it to rank the justices’ opposition to the tariffs. It came up with this ranking:

I generally share this assessment, but I’d switch Justices Gorsuch and Barrett, with Gorsuch as most likely to side with the liberals. Why do I view Justice Gorsuch as firmly in the anti-tariff camp? Check out the transcript and read pages 63-76, when Justice Gorsuch grilled U.S. Solicitor General John Sauer—in a way that I felt telegraphed the justice’s views of the merits.

After making that switch, I’d predict a 6-3 vote against the tariffs, with Justices Thomas, Alito, and Kavanaugh dissenting. But I agree with Roman Martinez and Sarah Isgur from Advisory Opinions: a government win remains possible. If the government prevails, I think the vote will be 5-4, with Chief Justice Roberts joined by Justices Thomas, Alito, Kavanaugh, and Barrett. The dissenters would then be three liberal justices and Justice Gorsuch.

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3. It’s possible we’ll get a “split decision.”

Most observers view the possible resolution of this case in binary terms: the plaintiffs will win, or the Trump administration will win. It’s possible, however, that we’ll end up with a mixed outcome, where each side walks away with something.

In my view, many or even most Supreme Court cases are decided based on the legal merits (with a soupçon of politics occasionally thrown in). But certain high-profile, high-stakes cases reflect what Professor Stephen Vladeck calls “constitutional politics.” As I’ve previously explained, constitutional politics includes doctrinal considerations of constitutional law but “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.”

(Yes, the main question in these cases could be viewed as one of statutory interpretation: ”whether the International Emergency Economic Powers Act (IEEPA) authorizes the president to impose tariffs.” But I see these cases as constitutional cases in many ways, focused on Congress’s authority under Article I of the Constitution versus the president’s authority under Article II.)

As a matter of constitutional politics, the tariffs litigation is… tricky. On the one hand, the justices don’t want to look like they’re giving away the store to Trump (which they’ve already been accused of doing). On the other hand, they might be reluctant to strike down a key policy initiative of the president, an issue that he raised repeatedly in the 2024 presidential campaign.

So the justices might be tempted to issue a compromise verdict of sorts, giving each side something that could be viewed as a win. For example, the justices might hold the tariffs unlawful but declare that there won’t be any refunds—i.e., the Trump administration gets to keep the billions in tariffs revenue it’s already collected. Or the justices might uphold the “trafficking tariffs”—imposed against goods from Canada, China, and Mexico, in response to a declared national emergency of opioid trafficking—but strike down the much broader “reciprocal tariffs,” issued against imports from nearly every country with which the U.S. engages in trade.

4. Problematic tensions exist within the government’s case.

The Trump administration’s defense of the tariffs suffers from at least two tensions (which is why I think it’s ultimately likely to lose). First, as Sarah Isgur noted on Advisory Opinions, the administration needs to argue that IEEPA represents a sweeping grant of power to the president—but the broader the grant of power, the harder it is to defend under the major-question and nondelegation doctrines.

Second, because IEEPA gives the president the explicit power to “regulate … importation,” but not the explicit power to impose tariffs, taxes, or duties, the administration must (and does) argue that the tariffs at issue here are “regulatory” rather than “revenue-raising” tariffs. But in its public messaging to the American people and even in its briefing to the Court, the administration touts the massive revenue these tariffs will generate—and the calamity that would ensue if the tariffs are held unlawful. From the introduction to the government brief (citations omitted):

To the President, these cases present a stark choice: With tariffs, we are a rich nation; without tariffs, we are a poor nation. The President has stated that “[o]ne year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.” ….

In short, President Trump and his advisors have determined that erroneously invalidating the IEEPA tariffs “would have catastrophic consequences for our national security, foreign policy, and economy.” The President observes that “[t]hese deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money”—which, he projects, could reach $15 trillion. The President has emphasized: “If the United States were forced to unwind these historic agreements… the economic consequences would be ruinous, instead of unprecedented success.”

It strikes me as a stretch to argue that tariffs capable of raising as much as $15 trillion in revenue are not “revenue-raising.”

So those are my thoughts. Readers, what do you think? Please take my poll:

And please share your own thoughts in the comments to this post—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!

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

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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.

Since the start of Donald Trump’s second term, challengers have filed numerous lawsuits to oppose actions taken by his administration, echoing the wave of suits filed during Trump’s first term against policies such as the travel ban. But there’s a big difference between 2017 and 2025: this time around, when it comes to opposing the Trump administration in court, Biglaw is largely absent.

Large law firms represented plaintiffs in 15 percent of cases challenging Trump executive orders between January and mid-September of this year, according to The Washington Post. In contrast, during the comparable period in Trump’s first term, big firms represented plaintiffs in roughly 75 percent of such cases.

That’s a huge shift. Who’s picking up the slack? Small and midsize firms have stepped up to the plate: almost 90 percent of firms suing the administration during Trump’s second term through mid-September employ fewer than 500 lawyers, per The Post. Organizations such as the American Civil Liberties Union and Democracy Forward, as well as state attorneys general, are also playing an active role.

But these actors, which don’t have the same resources as Biglaw, are struggling to keep up. Their lawyers are working nights and weekends on lawsuits arising out of Trump administration policies—and they turn away many cases because of an inability to staff them.

Elite litigation boutiques have risen to the occasion in challenging the administration. But they’re not a perfect substitute for Biglaw, especially in large and complex cases that require many lawyers and staff members to litigate properly (to say nothing of optimally).

As Paul Clement of Clement & Murphy, a former Kirkland & Ellis partner, told me in a podcast interview, “boutiques are pretty good at certain things”—for example, appellate litigation—but “it’s harder for the boutique law firms to do some of the really intensive trial work that requires huge commitments of capital and labor to get right. It’s much easier for Biglaw to do that.”

What’s behind Biglaw’s apparent change of heart? I suspect that fear is a factor. Beginning in late February, the Trump administration began targeting large law firms with punitive executive actions, including executive orders that would have made it difficult for these firms to represent clients before the federal government.

These orders never took effect. Four firms won court battles to block them, and a fifth firm, Paul Weiss, struck a deal with the administration to get out from under its order.

But the orders’ legality (or lack thereof) didn’t stop them from exercising an in terrorem effect on Biglaw. After Paul Weiss reached an agreement with Trump, eight other firms reached similar settlements with the administration—reflecting Biglaw’s focus on the bottom line, in the eyes of many commentators.

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“The firms that capitulated didn’t just capitulate to the government,” Peter Zeughauser, a partner at the Zeughauser Group consultancy, said to me. “They also capitulated to their highest-earning partners and the Trump supporters among their biggest clients.”

Most large firms neither sued nor settled with the government. But the leaders of these firms were aware of the executive orders issued against their peers—and I’m guessing that some of these leaders decided that their firms would refrain from taking cases adverse to the administration, to avoid incurring Trump’s ire.

“Firms that focus on their own survival will do what they can not to fall out of the administration’s good graces or not to call attention to themselves,” said Professor Nancy Rapoport of UNLV William S. Boyd School of Law, author of a law review article about the executive orders. “Firms that are more concerned with ‘why should the government tell me whom to represent’—and the legitimate role of government more broadly—are more likely to not shy away from the pro bono work that might be unpopular with the government.”

The possibility that the Trump administration has successfully deterred Biglaw from taking on the government in court raises concerns about the rule of law, at least to some observers.

“We take an oath to uphold the Constitution and the rule of law, and this is clearly antithetical to that,” said Professor Bill Henderson of Indiana University. “And you know what the problem is? It’s costly. We’re not used to paying a price for our freedom. We’re not used to paying the price for constitutional democracy. And we’ve deferred payment.”

“The real existential threat posed by the capitulating law firms is to the rule of law,” Zeughauser told me. “It is a threat to our duties to uphold the rule of law, to disclose conflicts of interest, and to provide pro bono services—not to the Department of Commerce, but to those who cannot afford a lawyer.”

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

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One week from today, on Friday, November 7, the U.S. Supreme Court will consider whether to grant certiorari in Davis v. Ermold. The Davis in Davis v. Ermold is Kim Davis, the Kentucky county clerk who became (in)famous in 2015 for refusing to issue marriage licenses to same-sex couples—notwithstanding the Court’s decision in Obergefell v. Hodges, which held that the Fourteenth Amendment requires states to issue marriage licenses to two people of the same sex.

Davis’s petition, filed on July 24, is an appeal from her loss before the Sixth Circuit. For a discussion of that Sixth Circuit case—which arose from long-running civil litigation between Davis and a gay couple she denied a marriage license to, who then sued her (successfully) under 42 U.S.C. § 1983—please see my August post.

Here are the three questions presented in her cert petition:

1. Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages….

2. Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses….

3. Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.

Yes, that’s right: Kim Davis wants the Supreme Court to overrule Obergefell and hold that the Constitution doesn’t protect gay marriage. Marriage equality would then, like abortion after Dobbs, return to the states. (Davis isn’t arguing that the constitution prohibits states from recognizing same-sex marriages—and she graciously concedes in her brief that “already-married couples get to stay married.” Thanks?)

The gay couple who won $100,000 in damages from Davis—David Ermold and David Moore, hereinafter “the Davids”—waived their right to respond to Davis’s petition. Why? As explained by Sarah Isgur in the latest episode of Advisory Opinions, waiving one’s right to respond is “a super baller, mic-drop move,” which sends the following message to SCOTUS: “we don’t even have to deign to acknowledge this, because it’s obviously so stupid on its face.”

Davis’s petition was distributed to the justices’ chambers on August 6, for consideration at their September 29 conference. But on August 7—i.e., only one day after distribution—the Court directed the Davids to file a response. And that was the development that launched a thousand anxious tweets Bluesky posts, from progressives fearing an imminent overruling of Obergefell. (It also triggered a spike in the odds of an Obergefell overruling in the Kalshi prediction market.)

I agree with Isgur that the Court requiring a response was a significant development worthy of news coverage. But I’d underscore what Amy Howe pointed out on SCOTUSblog: requesting a response requires the vote of only a single justice—e.g., Justices Clarence Thomas or Samuel Alito (the Court doesn’t disclose who).

The additional briefing—the Davids’ response, plus Davis’s reply—moved back the timetable for consideration of Davis’s cert petition, which will now take place at the justices’ November 7 conference. As explained by Howe, a denial of the petition could come as soon as Monday, November 10—but if the Court (eventually) grants cert, we might not know that for a while. Why? “As a general practice, the Court does not grant review without considering a case at at least two consecutive conferences, and this is the first conference in which Davis’s challenge will be considered.”

So… do I think the Court will grant the petition and overrule Obergefell?

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No, I do not. I explained my logic back in my August post, as well as to Elie Honig for his New York Magazine column:

Davis did not challenge Obergefell’s constitutionality in the trial court; she only added it as an afterthought during the appeal. The Supreme Court typically won’t consider arguments that the parties did not fully argue below, and [Justices] Kavanaugh and Barrett are notably exacting about procedural niceties.

See also Point II of the Davids’ response (pp. 27-29), arguing that (1) “Davis has waived any request to overrule Obergefell,” having previously stated in this litigation that she “did not ‘want[] to relitigate the Supreme Court’s decision in Obergefell,” and (2) “[t]his case would be a poor vehicle for overruling Obergefell, even if the issue had been preserved,” because it would require the Court to first address “novel and difficult questions” about § 1983 liability.

I agree with the Davids, and I stand by my prediction. I don’t rule out the possibility, though, of a dissent from the denial of cert by Justice Thomas or Justice Alito—more likely addressing Davis’s First Amendment defenses to the § 1983 lawsuit, rather than urging an overruling of Obergefell.

For arguments that Obergefell might actually be in danger, see this Politico piece by Professor Kimberly Wehle, “5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage.” Her reasons are as follows:

1. “[T]he configuration of justices on the Supreme Court is obviously different now than it was when Obergefell was decided in 2015.”

2. “[T]hree of the justices who are still on the Court wrote their own spirited dissents to Obergefell.”

3. “[I]n the intervening years, Dobbs happened. With it, the majority adopted the so-called ‘history and tradition’ test as the leading standard for determining whether a constitutional right that’s not stated expressly in the text of the Constitution is nonetheless protected.” And applying that standard, “Obergefell presents a far easier case for reversal than Roe.”

4. “Davis’s claim that she was denied the right to freely exercise her religion works in her favor because the current majority is on an unmistakable trajectory of elevating the First Amendment over other constitutional and legal rights.”

5. “[A]s Dobbs made clear, this Court is hardly queasy about overruling longstanding precedent.”

For a rebuttal of sorts, see this USA Today piece by David Urban, “Marriage equality isn’t in danger, but Democrats need you to stay afraid.” A Republican strategist and former adviser to the 2016 Trump campaign, Urban cites polling data—e.g., 72 percent of Americans believe that same-sex couples should have the right to marry, and 68 percent support Obergefell specifically—to argue that when it comes to marriage equality, “Americans have moved on, especially Republicans.”

Readers, what do you think? Please vote in this poll:

And please discuss in the comments to this post—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!

[UPDATE (11/10/2025, 1:32 p.m.): In the order list released earlier this morning, the Supreme Court denied Davis’s cert petition and declined to review her case, as I predicted. And there wasn’t even a dissent or statement about the cert denial from Justice Thomas or Justice Alito, interestingly enough. For more, see this SCOTUSblog post by Amy Howe or this New York Times story by Ann Marimow (via Howard Bashman’s How Appealing).]

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

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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 version below, including the footnotes, contains material that did not appear in Bloomberg Law—a form of bonus content for Original Jurisdiction subscribers.

You can learn a lot about an industry from the litigation filed against it. Consider cryptocurrency and other digital assets—whose total market value surpassed $4 trillion in July—and how crypto litigation has evolved.

Alexander Drylewski, co-head of Skadden’s blockchain and digital assets group, began his career as a securities litigator. Around 2017, he started noticing—and focusing on—the application of U.S. securities laws to emerging technology.

This led Drylewski to start litigating crypto-related cases—which took off. Today, he said that the “vast majority” of his practice, which includes both litigation and counseling, involves crypto and other digital assets (although he maintains what he calls a “side hustle” in traditional securities litigation).

Over the past year or so, he has noticed a change in the mix of his work. For starters, Drylewski said, the center of gravity has moved away from government investigations and enforcement, a very active space during the Biden administration.

“Up until last November, the bulk of my work involved litigation and regulatory investigations,” he explained. “But with the change in administration, we’ve seen pullback from federal regulators in the space.”

Michelle Kallen, co-chair of Steptoe’s appeals and advocacy practice and a litigator of crypto-related cases, agreed.

“From a litigation standpoint, things have shifted,” Kallen said. “Under the last administration, many crypto companies complained of ‘regulation by enforcement’ because the Securities and Exchange Commission never promulgated rules defining which crypto assets are securities; it just brought enforcement actions. Under the Trump administration, the SEC has dropped most if not all of these actions.”

And this came as no surprise. Donald Trump won the 2024 presidential election after running a pro-crypto campaign, and since taking office in January, he has implemented numerous pro-crypto policies. In addition to scaling back enforcement actions, he has issued executive orders supporting the industry and signed the GENIUS Act, the first federal law to regulate stablecoins.

The crypto industry has welcomed this move away from enforcement in favor of regulation and even legislation.

“The Trump administration is taking a disciplined, constructive approach to crypto regulation,” said Katie Biber, chief legal officer of Paradigm, a prominent crypto investment firm. “They’re starting where good regulators should, with clear guidance to industry. We’re also seeing the Department of Justice and the SEC demonstrate a renewed respect for due process, which is both heartening and long overdue.”

As the federal government has shifted away from aggressive enforcement, Drylewski has found himself doing more proactive advising on crypto issues, working with clients that are both crypto-native and what he calls “crypto-curious.”1

“As co-head of our crypto group at Skadden, I work with a multidisciplinary group of lawyers, including experts in technology, M&A, anti-money laundering, tax, and white-collar work,” he said. “We all work together as an integrated whole, which is essential—because many of our matters implicate a lot of different areas of the law.”

“For example, we have clients that are interested in raising capital and doing deals in the crypto space,” said Drylewski. “Based on my experience as a litigator, I know the risks well and can counsel companies on the front end about risk mitigation, to minimize the risks associated with the transactions they’re considering.”

In addition to his counseling work, Drylewski’s litigation practice remains very busy as well. But it’s more focused on cases filed by private parties, including putative class actions, and investigations by state regulators under state blue sky and other laws.2

Many of the issues raised in private litigation are similar to the issues involved in the enforcement actions brought by the Biden administration. For example, what qualifies as a “security” for purposes of federal securities laws, under the U.S. Supreme Court’s Howey test, remains a hotly contested question.

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In a 2022 speech, then-SEC chair Gary Gensler expressed the view that “[o]f the nearly 10,000 tokens in the crypto market… the vast majority are securities.” And the SEC under Biden frequently took this position, bringing a slew of enforcement actions that some dubbed a “war against crypto.”

As reflected in the dramatically reduced number of SEC crypto enforcement actions filed in 2025, the Trump administration holds a very different view. But plaintiffs in private securities cases, in order to move forward with a securities fraud or unregistered securities theory, must still prove that the digital asset at issue in their lawsuit counts as a “security” or involves an “investment contract” under Howey.

According to Tibor Nagy, a trial lawyer with extensive experience in the crypto space, it used to be rare to see defendants filing motions to dismiss in these “is it a security” cases, instead trying to win on summary judgment. But now, he said, it’s more common for defendants to file motions to dismiss, arguing that discovery isn’t needed to establish that the token or asset isn’t a security.

And last month, Drylewski and his colleagues at Skadden prevailed on such a motion, in Real v. Yuga Labs, Inc. Brought by purchasers of Bored Ape Yacht Club non-fungible tokens, the Real case was widely followed—in large part because the defendants included celebrities such as Madonna, Paris Hilton, and Justin Bieber. After the defense win in that high-profile case, expect to see even more motions to dismiss at the pleading stage.

Looking ahead, some private securities lawsuits could become much harder to bring if certain “market structure” legislation becomes federal law. For example, the CLARITY Act—passed by the House in July, now pending in the Senate—would classify most tokens as commodities rather than securities, placing them beyond the reach of federal securities laws.3

Perhaps anticipating tough sledding ahead, plaintiffs’ lawyers in the crypto space are exploring theories of liability independent of the securities laws, bringing causes of action that don’t require establishing the presence of a security or investment contract. As Nagy told me, more recent crypto cases might involve allegations of fraud (other than securities fraud) or the violation of consumer-protection laws. Even racketeering (civil RICO) claims have been the basis of some actions, according to both Nagy and Drylewski.

So in addition to the reduced focus on federal enforcement, the increased diversity in causes of action represents another way that crypto litigation has changed over time. One can even argue about how much of this work should be considered “crypto litigation” as such.

“Today, a lot of what might be called crypto litigation is run-of-the-mill commercial litigation that happens to unfold in the crypto world,” explained Nagy. He and his colleagues at Nagy Wolfe Appleton are currently litigating contract, founder, and shareholder disputes involving crypto companies—but the issues in these cases aren’t crypto-specific.

This transformation of the crypto docket to focus on more mundane, fact-specific issues, rather than cutting-edge questions of law, speaks volumes about how far the crypto industry has come. The issues in dispute are no longer existential ones on the fundamental legitimacy or viability of crypto.

“The current state of crypto litigation shows that crypto as an industry has matured,” said Nagy. “And the regulatory environment has either accepted crypto’s legitimacy or itself evolved, so that the lack of clarity that gave rise to many legal claims is going away or gone. There’s no longer this cloud of ‘can I exist’ litigation hanging over crypto companies.”

“Crypto has arrived,” Nagy concluded. “And now—for better or worse—crypto players can be sued for the same reasons as everyone else.”

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.

As we get deeper into the academic year, it was only a matter of time before a free-speech controversy would erupt in legal academia. So maybe we shouldn’t be entirely surprised by what reportedly went down at NYU Law School. Here’s a succinct summary, from a tweet by the Foundation for Individual Rights and Expression (FIRE):

Doing the work for the would-be censors without even needing them to show up, NYU Law School’s reported decision to cancel the Federalist Society’s event with conservative legal scholar Ilya Shapiro is a textbook heckler’s veto.

After initially approving the request to host Shapiro on October 7, administrators allegedly moved the goalposts. They first asked that the event be relocated because they “anticipate an increased likelihood of demonstrations and protests connected to the anniversary of the October 7, 2023, incidents in Gaza.”

For the record, I’m not a fan of this administrator’s reference to “the October 7, 2023, incidents in Gaza.” First, I don’t think “incident” is the best word for referring to a terrorist attack in which 1,200 people were killed. Second, most of what transpired on October 7 took place in Israel (although yes, the Hamas soldiers retreated into Gaza after attacking Israel, some 250 hostages in tow).

Back to FIRE:

Then, after FedSoc agreed to the change, NYU canceled it outright. While NYU now describes this as a “rescheduling,” the reality is clear: by preemptively canceling a student-sponsored lecture due to expected opposition, NYU allows the threat of disruption to override students’ and speakers’ rights to listen and be heard. By also approving other events scheduled for the same time, NYU sends the message that only some views can be heard on campus. Universities cannot selectively disfavor one speaker while approving other major events on the same day.

NYU must reaffirm its commitment to free expression by ensuring that all student groups, regardless of viewpoint, can peacefully host events with invited speakers without facing censorship disguised as logistics.

I reached out to NYU Law School, which provided the following statement:

We did not cancel an appearance by Mr. Shapiro. When the students organizing the event requested a classroom on Oct. 7, they were informed that we could not accommodate them on that date, and we subsequently suggested alternative dates. Mr. Shapiro is welcome to come speak here at NYU Law and has appeared here in the past. We remain willing to work with students to find a time for him to do so in the future.

For a detailed account of what transpired, see this Washington Free Beacon article by Aaron Sibarium, who broke the story. His reporting—including documentary evidence, such as emails from NYU Law administrators and a screenshot from NYU’s event management system—suggests the following:

• The NYU Federalist Society was initially allowed to schedule the event (or at least allowed to enter it into the law school’s event-management system).

• An administrator emailed FedSoc, asking if the event could be rescheduled—and her email cited “security reasons,” “an increased likelihood of demonstrations and protests connected to the anniversary of the October 7, 2023, incidents,” and the possibility of “disruptions in the event of a protest or demonstration.”

• After multiple email exchanges with the administration and a meeting with Dean Troy McKenzie, FedSoc ultimately was not allowed to proceed with the event.

So whether or not the event was technically “cancel[ed]” strikes me as a distinction without a difference. And Sibarium argues that there’s a certain irony in all this, in light of the substance of the event that was canceled not allowed to proceed:

NYU’s Federalist Society chapter had invited the conservative legal scholar Ilya Shapiro to discuss his new book Lawless: The Miseducation of American Elites. Shapiro, who is Jewish, has criticized anti-Israel protesters and taken schools to task over their handling of encampments. He has also been the target of multiple campus protests, including one at UC Hastings, where he was shouted down for nearly an hour straight….

Lawless argues that “institutional weakness” has created a climate of illiberalism at law schools, with spineless administrators courting radicalism and refusing to expel students who disrupt events. The irony was not lost on Shapiro, the director of constitutional studies at the Manhattan Institute, who said the decision to cancel his talk vindicates the thesis of his book.

“There could not be a more on-the-nose example of weak university officials in the face of a heckler’s veto than this farce,” Shapiro told the Free Beacon. “I’d be happy to give NYU’s dean a copy of my book so he can ‘do the work’ of learning how to be an effective and principled leader.”

For more about Lawless and Shapiro, check out my podcast interview of him.

Making the proverbial lemonade out of lemons, the Federalist Society and the Manhattan Institute (where Shapiro is a fellow) are getting a teaching moment out of this incident (and yes, this qualifies as an “incident”). From a tweet by Shapiro:

UPDATE: @FedSoc and @ManhattanInst are instead hosting an event near NYU campus on free speech/antisemitism, featuring judges Roy Altman (SDFL) and Lisa Branch (11th Circuit) alongside Nadine Strossen and me. Bookmark to watch the livestream Tues 1pm ET:

https://fedsoc.org/commentary/fedsoc-blog/campus-free-speech-after-october-7

If the original event with Shapiro had proceeded as planned, at NYU Law on October 7, would it have turned into a debacle? I actually don’t think so—and here’s why.

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I speak at a lot of law schools—it’s only October, and I’ve already been to Columbia (twice), Duke, Fordham, and Penn State Dickinson—and I usually have a meal or drinks with students, before or after my talk. I frequently ask them about the speech climate on their campuses. Based on my own, disruption-free visits—look ma, no protests!—as well as my chats with students, the sense I have is that we’re actually in a better place than we were a few years ago. While tensions are high at some schools, there seems to be less enthusiasm nowadays for disruptive protests like shoutdowns.

And even if NYU Law administrators reasonably assessed that students were likely to protest an event with Ilya Shapiro, I still don’t think hosting him would have been particularly difficult to manage:

• The event could have been held in an indoor space that lends itself to regulated access—such as Lipton Hall, in the basement of D’Agostino Hall (as one of the NYU Law administrators helpfully suggested to FedSoc).

• The talk could have been limited to the NYU Law community, with identification required at the door. Yale Law School required IDs for the return visit of conservative litigator Kristen Waggoner of the Alliance Defending Freedom, in January 2023—and that event went smoothly, unlike her March 2022 event.

• A law school faculty member or administrator could have opened the proceedings by reminding everyone of NYU Law’s free-speech policy—and by emphasizing that anyone violating that policy would be disciplined (with such discipline appearing on the student’s permanent record, shared with future employers and state bars).

• Identifying violators could be facilitated by requiring identification, writing down the names of attendees, and recording video footage of the event (including any disruptions). It’s not uncommon for law-school events to be recorded—see, e.g., my 2016 appearance at NYU Law, with then-S.D.N.Y. Judge Alison Nathan (now on the Second Circuit) and Professor Barry Friedman.

So if I had to guess, I believe that the originally planned event with Shapiro would have turned out fine. Perhaps there might have been a walkout at the start—a common form of protest these days, and not one I have a huge problem with (because it allows the event to proceed, albeit after a brief interruption). Perhaps there might have been protesters quietly holding up signs during his remarks—but as long as the signs don’t obstruct anyone’s view, I’m fine with that type of protest too.

But again, I don’t think Shapiro would have been shouted down, as he (infamously) was at UC Hastings (now UC Law San Francisco) back in March 2022. And that arguably makes the situation more unfortunate: as FIRE put it, NYU Law wound up “[d]oing the work for the would-be censors without even needing them to show up.”

To be fair—and as I mention in Original Jurisdiction’s mission statement, I try above all to be fair—university administrators have tough jobs in 2025. And while I believe that Ilya Shapiro at NYU Law would have gone smoothly—because Ilya isn’t that incendiary as a speaker (he’s a con-law scholar), and (job-seeking) law students tend to be less crazy than wild-eyed undergraduates—I can imagine events that would raise genuine security concerns. After all, the horrific assassination of Charlie Kirk at Utah Valley University took place less than a month ago.

In situations raising very serious security issues—more like Charlie Kirk in an outdoor space, less like Ilya Shapiro in a basement—how should a university proceed? To what lengths must universities go to host extremely controversial speakers, ones whose visits might raise the possibility of violence? This isn’t an easy issue.

For a thoughtful and nuanced exploration, check out the first episode of Advisory Opinions that Sarah Isgur and David French recorded after the Kirk assassination. They mention examples like the University of Florida having to spend $500,000 on security when Richard Spencer came to campus and UC Berkeley having to spend around $4 million for almost a month of free-speech events in 2017.

How would we feel if NYU Law had to spend a six-figure sum to host Ilya Shapiro? Should organizations like FedSoc have to cover, or at least contribute to, such security costs? At first blush, that might seem reasonable, and it’s facially neutral as a policy. But in practice, one could argue that it amounts to a “tax” of sorts on groups that want to host controversial speakers. There are genuinely difficult issues in this area—and people of good faith can disagree on how they should be handled.

For now, though, I’d like to close by quoting the title of a recent, worthwhile New York Times guest essay (gift link) by Laura Ann Rosenbury, president of Barnard College (and a law professor and dean before Barnard): “Now Is the Time for Colleges to Host Difficult Speakers.” I hope that law-school administrators, at NYU Law School and beyond, take this message to heart.

UPDATES:

• 10/4/2025, 10:25 a.m. Good news! According to a FedSoc tweet, “NYU has now agreed to host the NYU FedSoc student event featuring @ishapiro on campus on October 7th. The event will focus on campus free speech. It will still be livestreamed.”

• 10/12/2025, 7:28 a.m. Here’s a recording of the October 7th event, “Campus Free Speech After October 7” (which I attended in person). As I predicted, there were no disruptions, and everything went off without a hitch.

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

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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.

In 2024, the U.S. electorate moved to the right. In 2020, Joe Biden won the popular vote by 4.4 percentage points, but in 2024, Donald Trump carried the popular vote by 1.5 percentage points—a 6-point swing.

Did Biglaw attorneys also become more conservative between 2020 and 2024? Apparently not. New research suggests that Biglaw, already quite liberal, moved even further to the left during this four-year period.

University of Notre Dame law professor Derek Muller has been tracking the political contributions of lawyers and staff at large law firms for more than a decade. He first wrote about the topic in 2013, based on data from the 2012 presidential election, then revisited it in 2021, looking at the period from 2017 to 2020.

This year, Muller updated his research yet again. He began with 150 law firms: the Am Law 100—the nation’s 100 largest law firms based on revenue, which do primarily defense-side work—and 50 comparable plaintiffs’ firms, taken from the NLJ 500 or Legal 500 rankings. He reviewed contributions by lawyers and staff at these firms to the Biden/Harris presidential campaigns, the Trump campaign, major Democratic and Republican party organizations, and two leading aggregators of campaign contributions, ActBlue (Democratic) and WinRed (Republican). He looked at a two-year period, covering 2023 and 2024.

Muller’s research captured around $52 million in contributions to Democratic-affiliated groups, compared with approximately $4 million to Republican-affiliated groups. So 92.45 percent of the funds went to Democrats—roughly a 12-to-1 ratio, significantly up from the 6-to-1 ratio he observed back in 2020.

The overwhelming majority of firms had fewer than 10 percent of their employees’ contribution money going to Republicans, and most of these firms saw less than 5 percent falling on the Republican side. Only six firms had at least 25 percent of their employees’ funds going to Republicans, and no Am Law 100 firms had a majority of contribution dollars going to Republicans. Compare this with Muller’s 2021 research—when more than 20 firms had at least 25 percent of employees’ contribution money going to Republicans, and three Am Law 100 firms had a majority of contribution dollars going to Republicans. (For a list of the 150 firms examined by Muller and the percentage breakdown of their employees’ contributions, see his story on Excess of Democracy.)

“This represents a pretty significant shift to the left,” Muller told me in an interview. What might explain it? After offering the caveat that this isn’t yet something he has researched, Muller raised two possibilities.

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First, during the 2023–2024 period, Biden and Kamala Harris were incumbents. In a phenomenon some have dubbed “money following power,” incumbents tend to receive more campaign contributions—perhaps from donors hoping to curry favor with the current administration.

Second, the 2023–2024 period came after the riot at the U.S. Capitol on January 6, 2021. In the wake of January 6, dozens of prominent companies announced that they would be making changes to their political contributions. Some declared that they would withhold donations from the 147 members of Congress who voted against certifying the 2020 presidential election results, which disproportionately hurt Republicans. It’s reasonable to think that some Biglaw attorneys might have followed the lead of their corporate clients by reducing their political giving to Republicans.

Still, even if the direction of the shift toward Democrats might have been predictable, the magnitude of the move was striking. As Muller told me, “I was surprised to see such a stark shift, in only four years.”

I asked Muller to predict what we might see if he repeats this research in 2029. With the disclaimer that offering predictions can be a risky business, he guessed that we’ll see a shift to the right, based on a few factors.

First, Republicans will be the incumbent party in 2028, at least when it comes to the White House. So they could enjoy the financial benefits of incumbency, discussed above.

Second, some large law firms that reached settlements with the Trump administration witnessed dips in headcount—and at least anecdotally, we know that some of the departing lawyers were liberals or progressives unhappy over Trump deals. These attorneys took their campaign contributions with them—so to the extent that they donate heavily to Democrats, their dollars will no longer show up in surveys of Biglaw political donations.

Muller offered one final reason why he expects Biglaw campaign contributions to be less skewed toward the Democratic side in the next iteration of his research.

“It would be hard to get farther to the left.”

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