Judicial Notice (01.05.25): Brave New World

A filing requirement lawyers need to know about, Biglaw bonus reversals, Kirkland’s continuing conquest, and the trailing off of Trump litigation.

The San Diego outpost of Nordstrom, which will once again be controlled by the Nordstrom family (photo by Kevin Carter 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.

I hope your 2025 is off to a great start—and I hope you enjoyed the 2024 holiday season. With Christmas and New Year’s Day falling on Wednesdays, the last two weeks of the year felt even more laid-back than usual. I enjoyed the downtime with family in New Jersey and then California, which explains why I wrote less than usual.

I did publish a roundup of Original Jurisdiction’s top 10 stories of 2024, showcasing the type of work I’m able to produce because I can devote myself full-time to writing and podcasting. To the subscribers and sponsors who make my independent journalism possible, I thank you.

Speaking of paid subscriptions, as previously mentioned, later this month I’m raising the Original Jurisdiction subscription rate to $7 a month or $70 a year. So now is an excellent time to subscribe and lock in the current rate of $6 a month or $60 a year, which you’ll continue to enjoy despite any future rate increases, unless and until Substack changes its policy. (Even at the new rate, OJ will still be the cheapest of the top 25 paid Substack newsletters in the Business category.)

Now, on to the news.

Lawyers of the Week: Roberta Kaplan and D. John Sauer.

It might seem odd to jointly name Roberta Kaplan and D. John Sauer as Lawyers of the Week, considering that they are arguably Donald Trump’s greatest legal nemesis and defender, respectively. Robbie Kaplan tortured Trump in multiple depositions, then defeated him at trial, twice—in defamation and sexual-assault cases brought by her longtime client, writer E. Jean Carroll. Meanwhile, Sauer won a major victory for the former and future president in Trump v. United States, aka the “immunity case”—and he’s now Trump’s pick to serve as U.S. solicitor general (SG), the federal government’s top lawyer before SCOTUS.

But as longtime readers know, I award Lawyer of the Week “honors” based on newsworthiness. And in the last two weeks of the year, Kaplan and Sauer were the lawyers whose matters made the most news.

First, on December 27, Sauer filed a buzz-generating amicus brief on behalf of Trump in the TikTok litigation that will be argued before the Supreme Court on January 10. He supported neither TikTok nor the federal government on the core constitutional question—whether the Protecting Americans from Foreign Adversary Controlled Applications Act, the “divest or get banned” law, violates the First Amendment—but instead “urge[d] the Court to stay the statute’s effective date to allow his incoming Administration to pursue a negotiated resolution” of the dispute. (By the way, for an excellent explainer of the TikTok case, check out Legalytics, the new Substack newsletter by Adam Feldman of Empirical SCOTUS fame.)

Sauer’s amicus brief for Trump generated lots of commentary, most of it critical—and not just from the left. The Wall Street Journal editorial board declared that “Mr. Trump wants the Court to treat him as if he’s already President,” while Professor Jack Goldsmith opined that the brief’s sycophantic, ring-kissing tone “diminishes [Sauer’s] credibility before the Court” even before he takes over as SG.

Second, on December 30, the Second Circuit issued its decision in Carroll v. Trump. A unanimous panel—consisting of Judges Denny Chin, Susan Carney, and Myrna Pérez—affirmed the judgment of the district court, which awarded Carroll $5 million in damages (the smaller of Carroll’s two awards, the other being for $83.3 million). As you can see from the counsel listing near the top of the 77-page opinion, the appeal was argued by Kaplan for Carroll and Sauer for Trump. (The opinion was filed per curiam, but if I had to guess authorship, I’d go with Judge Chin—the Second Circuit doesn’t standardize opinion formatting, and if you look at recent opinions by Judges Chin, Carney, and Pérez, you’ll see the paragraph indents and italicization of the word “BACKGROUND” in Carroll are most consistent with Chin’s template.)

Finally, in big news here in the New York metropolitan area, three rulings, by three different federal judges, refused to block New York City’s congestion-pricing plan, which will charge tolls for most vehicles driving south of 60th Street in Manhattan. So the plan, which was (and remains) controversial, will take effect today. If you’re happy (or sad) about that, you can direct your thanks (or blame) to Robbie Kaplan and D. Brandon Trice of Kaplan Martin, who represented the Metropolitan Transportation Authority together with Sive Paget & Riesel. Some of my fellow New Jerseyans might be upset, but I see the public-policy arguments in favor of congestion pricing (and I almost always take the train into Manhattan instead of driving, so this won’t affect me much personally).

In memoriam:

• Noted conservative lawyer David Rivkin—who served in several significant positions in the Reagan and George H.W. Bush administrations before spending three decades in Biglaw, primarily at BakerHostetler—passed away at 68.

• Richard Parsons—who graduated at the top of his class from Albany Law School and was a partner at Patterson Belknap, before making his name as a leader of blue-chip companies like Time Warner and Citigroup—passed away at 76.

• Michael Halpern, a prominent lawyer turned hotelier and philanthropist in Key West, Florida, passed away at 72.

May they rest in peace.

Judge of the Week: Chief Justice John Roberts.

What can judges do for the rule of law under Trump? That’s the title of a thoughtful New York Times guest essay (gift link) by former federal judge Nancy Gertner (D. Mass.) and former federal and state prosecutor Joel Cohen, which stresses the importance of an independent and courageous judiciary.

Judicial independence was also the theme of Chief Justice John Roberts’s 2024 year-end report on the federal judiciary, which Adam Liptak described in The Times as “unusually urgent and somber.” The Chief highlighted “four areas of illegitimate activity” that “threaten the independence of judges, on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”

You’d think that a paean to judicial independence and a condemnation of violence would be fairly uncontroversial. But the Chief’s report generated both extensive news coverage and opinion—comprehensively collected, as always, by Howard Bashman at How Appealing—and with the exception of a positive write-up from the WSJ editorial board (gift link), much of the commentary was critical: