Judicial Notice (05.27.24): Crash And Burn

Airline attorneys embarrass themselves, SCOTUS issues a big ruling, the NCAA announces a $2.8 billion settlement, and Kirkland takes talent from Milbank.

(photo by Jakub Porzycki/NurPhoto via Getty Images)

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

Greetings. I hope you’ve enjoyed your long Memorial Day weekend. And I hope you’ve taken time to reflect upon and honor the courageous Americans who gave their lives for our great nation.

Last week went well for me. I enjoyed speaking at Patterson Belknap Webb & Tyler for their AAPI Heritage Month celebration, and I had a fun time recording the latest episode of Movers, Shakers & Rainmakers. Zach Sandberg and I conducted a wide-ranging interview of Winston & Strawn M&A partner Kyle Gann—and I do mean wide-ranging, since the conversation was both deeply personal and borderline metaphysical at points.

Although most of my audience has been practicing for a decade or more, I do have younger readers, including law students (who follow features like Supreme Court Clerk Hiring Watch). One of them—Juliette Farmer, a rising 2L at NYU Law School—provided the latest testimonial for Original Jurisdiction: “I’ve been following Original Jurisdiction since I began preparing to apply to law school. I appreciate David’s unique perspective as well as his commitment to impartial and fair coverage. The column has been a great resource for me over the years, and all law students can benefit from his ‘on beat’ reporting. Reading OJ is a great way to stay informed about movements in the industry and to feel a part of the legal community at large.”

I thank Juliette for her kind words—and wish her good luck with the rest of law school. Now, on to the news.

Lawyer of the Week: Akiva Cohen.

You don’t ordinarily see a story about a lawyer at the top of the list of most-read articles at The New York Times. But Akiva Cohen is no ordinary lawyer:

Here’s one way to build a legal team: Interview graduates from the top law schools or firms, then hire the most qualified.

Akiva Cohen, a trial lawyer at a small New York firm, tried a different way: Spend way too much time on Twitter, talking trash about other lawyers’ cases, then hire the people who post the smartest, most biting comments.

Now, from his suburban family room on Long Island, Mr. Cohen, 45, is leading this small team of Twitter adepts against an almost comically outsized adversary in a $500 million lawsuit against Elon Musk [a class-action lawsuit seeking severance pay for ex-Twitter employees].

Check out the full story of the “Threadnought”—the epic thread of legal trash-talking that picked up thousands of comments, including the ones that helped Cohen make hires—in John Leland’s delightful profile:

Mr. Cohen, who before the Threadnought had barely enough cases to keep himself busy, soon expanded his team to six lawyers and three support staff members—all working virtually; all but one he had met through Twitter.

It was a ridiculous way to build a litigation team. But it made a kind of sense, said David Lat, who founded the legal website Above the Law and now writes the newsletter Original Jurisdiction.

“On the one hand, a lot of people would think you’re just hiring a bunch of randos you met online,” Mr. Lat said. “On the other hand, what he has been doing is weirdly meritocratic. Instead of hiring people based on where they went to law school, which is how a lot of legal hiring is done, he’s hiring based on seeing how people think and write in real time and under pressure. I think it’s gutsy, but it seems to be working for him.”

One thing I noticed during my two-year detour into legal recruiting: some employers are moving away from the “chitchat about your résumé” model of hiring and toward a more experiential approach, such as consulting-style case studies asking interviewees to analyze a litigation fact pattern on the spot. What Akiva Cohen is doing struck me as a version of this trend (albeit an unorthodox one).

Other lawyers in the news:

• Baltimore’s former top prosecutor, Marilyn Mosby, was sentenced to 12 months of home confinement for her mortgage-fraud and perjury convictions—well below the 20 months in prison sought by prosecutors.

• Two months ago, Hampton Dellinger took over as head of the U.S. Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act. And he isn’t wasting any time: he just announced enforcement reforms that will make it harder for senior White House personnel to mix partisan politics with the work of government.

In memoriam: did you know that Ivan Boesky—the poster boy for 1980s insider trading, for which he served almost two years in prison—was a lawyer by training? As noted in his Washington Post obituary, he graduated from the Detroit College of Law, now part of Michigan State, and clerked for a federal district judge (a job arranged for him by his well-connected father-in-law, real-estate developer Ben Silberstein).

Judge of the Week: Justice Clint Bolick.

For a second week, Justice Samuel Alito was the most-talked about judge in America, after Jodi Kantor, Aric Toler, and Julie Tate of The New York Times broke the news of another flag-related controversy—this time at the Alitos’ vacation home in Long Beach Island, New Jersey. But as regular readers know, I disfavor repeat “winners” in Judicial Notice, so I’ll discuss “Flag-gate: The Sequel” in a future post. [UPDATE (6/2/2024, 5:18 a.m.): Here’s the promised post.]

I do, however, want to examine an important issue raised by Flag-gate. In a world of increasing gender equality—marked by a growing recognition that in marriages, women and men are independent people, with their own careers, political opinions, and agency—how can society strike a balance between respecting this independence while holding public officials to high ethical standards? [UPDATE (10:31 p.m.): On the subject of spouses being independent people with their own views, check out the latest episode of Amarica’s Constitution, in which Professor Akhil Amar argues that justices should not be held responsible for the political views of their spouses.]

For an interesting case study, consider Arizona Supreme Court Justice Clint Bolick and his wife, Arizona State Senator Shawnna Bolick. As highlighted in articles collected by Howard Bashman at How Appealing, the Bolicks are their state’s most powerful political couple—and recently found themselves on opposite sides of Arizona’s near-total abortion ban. (In case you were wondering, “Bolick” is pronounced with a long “o,” as in “bow and arrow.”)