Judicial Notice (08.18.24): On The Move

Continuing campus controversies, Skadden partner departures, and the biggest M&A deal of 2024 (so far).

Camille Vasquez, who rose to fame for representing Johnny Depp in Depp v. Heard, is switching firms (photo by Nathan Congleton/NBC via Getty Images).

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It’s August, so you’re probably not up to much besides relaxing—and that’s true for me too. My husband Zach and I headed off to the Hudson Valley for the weekend for an early anniversary celebration (and we thank Zach’s parents for watching our two sons in our absence, which made our getaway possible).

The latest testimonial for Original Jurisdiction comes from Zack Austin, who’s on quite the “vacation” between clerking and firm life: “As a deckhand on a three-masted sailing ship tumbling through the South Pacific, I often wonder, ‘How will I get my fix of legal news during the 20 minutes a week I have email access?’ Fortunately, Original Jurisdiction is my trusty port of call. David Lat’s prose is as crisp as a new sail. He plumbs the depths in search of stories no one else is covering, all while maintaining an even keel and anchoring his reporting to the facts. Like a boat beating upwind, he presents both sides. And if you don’t know larboard from starboard when it comes to the hot-button legal issue everyone is talking about, then you can trust David to unravel it. Plus—as anyone who’s had a glass of grog with him will say—he’s even kinder and wiser in-person than he is online.” I thank Zack for his warm words—and wish him smooth sailing for the remainder of his trip.

Now, on to the news.

Lawyer of the Week: David Zionts.

It’s not often that an opinion from a circuit court causes a corporation to gain billions of dollars in value. But after the Third Circuit’s ruling in Schaffner v. Monsanto Corporation, a big win for Bayer in the seemingly endless litigation over its Roundup weed killer, the company’s share price rose more than 13 percent—adding more than $2 billion to its market capitalization.

In an opinion by Chief Judge Michael Chagares, the Third Circuit held that a federal law regulating pesticides preempted a Pennsylvania statute requiring Monsanto, a Bayer subsidiary, to place a cancer warning on Roundup’s label. The ruling creates a circuit split, with the Third Circuit on one side and the Ninth and Eleventh Circuits on the other—and increases the chances that the Supreme Court will get involved, possibly in a way that terminates the Roundup litigation that has already cost Bayer more than $10 billion.

Who does Bayer have to thank for this? For starters, David Zionts of Covington & Burling, who argued the case before the Third Circuit. A former law clerk to Judge Merrick Garland and Justice Stephen Breyer, Zionts focuses his practice on appellate and international law. He won Lawyer of the Week honors back in 2022 for representing Ukraine against Russia before the Hague-based International Court of Justice—and whether or not his Third Circuit win ends up sticking, there’s no denying that Zionts handles some of the most interesting and important cases on the planet. If Schaffner ends up going to the Supreme Court, it would be an excellent vehicle for allowing him to make his SCOTUS debut.

Judge of the Week: Judge Mark Scarsi.

Most universities aren’t back in session, but the campus culture wars rage on. Elite schools continue to make changes to their leadership—with Dr. Nemat “Minouche” Shafik stepping down as Columbia’s president, and Harvard Law School Dean John Manning stepping up to serve as provost of Harvard University. A conservative legal academic who clerked for Judge Robert Bork and Justice Antonin Scalia, Manning has served as interim or acting provost since March, but he’s now assuming the role on a permanent basis (which makes him a top contender for Harvard’s presidency).

And prominent universities continue to get into trouble for mishandling antisemitism on campus—as UCLA just did in Frankel v. Regents of the University of California, a lawsuit brought by three Jewish students in the wake of protests against Israel’s military intervention in Gaza. Judge Mark Scarsi (C.D. Cal.) issued a preliminary injunction that prohibits the university “from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas.”

Here’s the powerful, incredibly effective, widely quoted opening paragraph of Judge Scarsi’s 16-page ruling, a fine example of judicial writing that makes legal issues accessible and understandable to the general public (emphasis in the original):

In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.

Considering the circumstances described by Judge Scarsi, you’d think that UCLA wouldn’t have fought this. But apparently it did, with a university spokesperson telling The New York Times that the injunction “is improper and would hamstring our ability to respond to events on the ground”—because UCLA needs the freedom to knowingly allow or facilitate the exclusion of Jewish students from parts of campus.

Expect to hear more about Judge Scarsi, a former Milbank partner who was appointed in 2020 by President Trump, in the near future. As noted by Sarah Isgur on Advisory Opinions—where she and David French discussed the UCLA ruling along with two others, one in favor of MIT and one against Harvard —Judge Scarsi is also presiding over Hunter Biden’s criminal tax case, going to trial next month.

Ruling of the Week: United States v. Smith.

Is the Fifth Circuit too conservative, even for the (already quite conservative) Supreme Court? Professor Brian Fitzpatrick came to the Fifth Circuit’s defense in the pages of the National Law Journal. (I have my own theory about the Fifth Circuit and its relationship to SCOTUS, which I plan to share in a future post.)

Here’s one thing the Fifth Circuit definitely isn’t: boring. Consider their latest high-profile ruling, in the case of United States v. Smith.