Judicial Notice (09.07.25): All Apologies
A swift verdict for Donna Adelson, a rare apology from a federal judge, a slew of partner moves at Sullivan & Cromwell, and Kirkland’s hire of a sports-law star.
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As someone who suffers from the “September Scaries,” I’m a little depressed—and a lot stressed-out—over summer’s end. So I’m trying to find some things to get enthused about.
I’m looking forward to the fall theater season in New York—especially Art, Little Bear Ridge Road, Marjorie Prime, and Waiting for Godot. I didn’t enjoy reading Godot—unlike Zach, a Beckett aficionado—but the producers had me at “Keanu Reeves.” I actually met His Excellency circa 2003, at a Broadway show; he was with Parker Posey, and they were both super nice (even though I was uncouth enough to go up to them and introduce myself, which a real New Yorker would never do).
And I’m excited about my fall speaking engagements. I kicked things off last Wednesday at Duke Law, where I discussed the Trump administration’s executive orders against law firms and their implications for the legal profession. The event was co-sponsored by the Federalist Society, the American Constitution Society, and the American Civil Liberties Union—which I was pleased to see, because at some law schools these organizations aren’t on speaking terms—and more than 100 people attended (and stayed for my entire talk, instead of taking the free food and fleeing).
In other good news, our seven-year-old son, Harlan, started at a new school last week—and so far, he’s loving it. On an initial spelling quiz that asked him to spell words like “in” and “the,” Harlan sua sponte wrote additional words at the bottom of his quiz to demonstrate his actual spelling ability—including “perspective,” “antioxidant,” and “annihilation,” which is what he inflicted on that quiz. Yes, Harlan takes after his Papa—who was also a know-it-all in second grade and was told, by a parent chaperoning a field trip, “You know, David, you’re a little obnoxious.” (Hi, Mr. LaViano!)
Now, on to the news—the real news.
Lawyers of the Week: Georgia Cappleman, Sarah Dugan, Orin Snyder, and Matt Benjamin.
Sorry if this Judicial Notice seems a bit Lat-centric. But I happen to have a personal connection to one of the biggest legal stories of last week, and I’m going to exercise my author’s prerogative to write about it extensively. (In hindsight, I should have done a freestanding post about this news when it came out, but last week was too hectic.)
In July 2014, Professor Dan Markel of Florida State University College of Law—a prominent legal academic, father of two, and friend to many, including me—was shot and killed by two hitmen. How does a law professor wind up as the target of a murder for hire? The short version is that his former in-laws commissioned a contract killing–so that Dan’s ex-wife, Wendi Adelson, could leave Tallahassee and move to South Florida with their two boys.
The long version is… long. If you’re not familiar with it, read my November 2023 story about the conviction of Charlie Adelson, Dan’s former brother-in-law, for more background. Or listen to my podcast interviews of Ruth Markel, Dan’s remarkable and courageous mother, and Steven Epstein, a leading expert on the Markel case. Both Ruth and Steve wrote books about Dan, his murder, and its aftermath: The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life and Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel’s Murder.
Over the past 11 years, law enforcement officers and lawyers have worked tirelessly to bring Dan’s killers to justice. And on Thursday, a Tallahassee jury issued a guilty verdict against a fifth defendant: Dan’s former mother-in-law, Donna Adelson, 75, in many ways the mastermind and moving force behind the murder plot.
The case was superbly tried by Georgia Cappleman and Sarah Kathryn Dugan. The trial lasted almost two weeks, but the jury deliberated for only three hours—a testament to Cappleman and Dugan’s talents as trial lawyers, as well as the overwhelming evidence against Donna. I thank Cappleman and Dugan for their many years of hard work (and I wish Sarah Dugan good luck in applying for a judgeship).
I’d also like to thank Orin Snyder and Matt Benjamin, longtime litigation partners at Gibson Dunn, who have been representing the Markel family, pro bono, since this nightmare began. The Markels—Dan’s mother Ruth, his father Phil, and his sister Shelly—have suffered what Ruth described, in her powerful and heartbreaking victim-impact statement, as “unending sorrow” for the past 11 years. I salute the Markels for their bravery and resilience in the face of this tragedy, which they’ve had to relive with each and every trial. And I thank Orin and Matt for doing what they can to help the Markels endure the unendurable.
Since Donna Adelson’s conviction, followers of the case have been wondering: what about Wendi Adelson, Dan’s ex-wife, who has been referred to by the prosecution as a “co-conspirator[] to the murder”? I have some thoughts on the future of Wendi Adelson—shared under Ruling of the Week, below.
For now, here’s a statement that the Markel family issued to me, through Orin and Matt, in response to my question about whether the Markels have views on whether charges will or should be brought against Wendi or Harvey Adelson (Donna’s husband). The Markels’ response: “The Markel family will not rest until all those who participated in Danny’s murder are brought to justice and held accountable.”
Make of that what you will. For the record—and for Wendi’s lawyer, John Lauro, who has complained of supposedly defamatory statements about his client—I note that Wendi has consistently denied any involvement in the murder. For a longer statement from the Markels—thanking law enforcement, the prosecutors, and Judge Stephen Everett, who did an excellent job presiding over the trial—see WTXL.
Other lawyers in the news:
A federal jury in the Northern District of California hit Google with a $425 million verdict, in a case alleging that the tech giant unlawfully collected information from almost 100 million cellphone users who had asked the company not to track their app activity. Congratulations to the lawyers: David Boies, Mark Mao, and their colleagues at Boies Schiller; Bill Carmody and his team at Susman Godfrey; and John Yanchunis and his colleagues at Morgan & Morgan.
White House Counsel David Warrington was profiled in The New York Times (gift link), in a piece by Maggie Haberman, Charlie Savage, and Jonathan Swan.
Judge of the Week: Judge William G. Young.
Being a federal judge means never having to say you’re sorry. But when a judge ticks off Supreme Court justices, the judge will probably apologize—as we saw last week.
In a lawsuit brought by the American Public Health Association (APHA) against the National Institutes of Health (NIH), Judge William G. Young (D. Mass.) blocked the NIH from terminating $783 million in DEI-related grants. Last month, the Supreme Court, by a 5-4 vote, stayed the funding-related portion of Judge Young’s order—effectively allowing the NIH to kill the grants, as Amy Howe explained at SCOTUSblog.
Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, issued a separate opinion in NIH v. APHA, which got a lot of notice—for benchslapping Judge Young. Here’s the opening (citations omitted):
Lower-court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them. In Department of Ed. v. California, this Court granted a stay because it found the government likely to prevail in showing that the district court lacked jurisdiction to order the government to pay grant obligations. California explained that “suits based on ‘any express or implied contract with the United States’” do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act.
Rather than follow that direction, the district court in this case permitted a suit involving materially identical grants to proceed to final judgment under the APA. As support for its course, the district court invoked the “persuasive authority” of “the dissent[s] in California” and an earlier court of appeals decision California repudiated. That was error. “[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”
On Tuesday, Judge Young—an 84-year-old Reagan appointee who was, as noted by Zach Montague of The Times (gift link), on the bench before Justice Gorsuch or Justice Kavanaugh started law school—apologized profusely:
Before we do anything, I really feel it’s incumbent upon me to—on the record here—to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States. I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.
He added that it “was never my intention” to ignore or defy a precedent of a higher court, adding that he “simply did not understand that orders on the emergency docket were precedent. I stand corrected.”
Judge Young took flak—from both the right and the left. From the right, Professor Josh Blackman of The Volokh Conspiracy complained that “judges who are unfamiliar with the workings of the emergency docket should be more cautious in granting emergency relief against the federal government.” From the left, Jay Willis of Balls and Strikes urged Judge Young “to have an ounce of self-respect here,” chiding him for apologizing when, in Willis’s view, it’s the conservative justices who should be sorry—for “churning out shadow-docket decisions that are sloppy, vague, contradictory, incoherent, or—in most cases—some combination thereof.” (For a milder but still vigorous critique of both Justice Gorsuch’s opinion specifically and the emergency docket generally—or, to use Judge Kavanaugh’s preferred terminology, the “interim docket”—see Professor Carolyn Shapiro’s SCOTUSblog post.)
You know who might agree with Jay Willis? One of Judge Young’s colleagues on the District of Massachusetts, Judge Allison Burroughs. On Wednesday, she ruled in favor of Harvard in that university’s legal battle against the Trump administration over research funding—and in a footnote to her 84-page opinion, she came to Judge Young’s defense, “respectfully submit[ting] that it is unhelpful and unnecessary to criticize district courts for ‘defy[ing]’ the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape.”
Judge Burroughs isn’t alone among district-court judges in feeling unfairly maligned or inadequately supported by the Supreme Court. A dozen judges, in interviews with Lawrence Hurley of NBC News, made similar complaints—with one judge telling Hurley, “It is inexcusable. [The justices] don’t have our backs.” While lower-court judges understand that getting overruled is part of the job, one suggested to Hurley that it might be nice if, when overturning a ruling, the justices said something like, “Let’s be clear, it’s not some crazy opinion, and this judge is not a monster.”
That’s essentially what Justice Stephen Breyer said about Judge Young to Adam Liptak of The Times (gift link). While Justice Breyer didn’t directly respond to Justice Gorsuch’s concurrence, the retired justice did say—based on his 14 years on the First Circuit, when he regularly reviewed Judge Young’s decisions—”I never saw an instance where [Judge Young] would deliberately defy a controlling opinion or legal statement from our court or from the Supreme Court.” He went on to praise Judge Young as “a straightforward judge, a very decent person, and a good judge.”
In light of all this, I wonder whether Justice Kavanaugh—a generally positive person, who has said that he tries to “live on the sunrise side of the mountain”—has second thoughts about joining that concurrence. At the Sixth Circuit Judicial Conference this past Thursday—i.e., after Judge Young’s apology, on Tuesday—Justice Kavanaugh said that district judges like Judge Young have “a difficult job,” constitute “the front lines of American justice,” and deserve our thanks for helping to “preserve and protect the Constitution and the rule of law of the United States.” I interpret that as a message from Justice Kavanaugh to Judge Young: “Apology accepted.”
Runner-up for Judge of the Week: Justice Amy Coney Barrett, the subject of copious coverage that was comprehensively collected, as usual, by Howard Bashman at How Appealing (may he never retire—from legal blogging, at least). Justice Barrett has a book coming out next week, Listening to the Law: Reflections on the Court and Constitution—which I’m looking forward to reading, based on how much I enjoyed interviewing her—and she’s doing a ton of public appearances (now tracked, very helpfully, by Fix the Court). I’m hoping to meet her in person on September 25, when she’ll be speaking at the inaugural SCOTUSblog Summit.1
In nominations news:
At her confirmation hearing, Third Circuit nominee Jennifer Mascott faced tough questions from Democrats—and even from Senator John Kennedy (R-La.), who pressed her to reconcile originalism with Brown v. Board of Education. Senator Kennedy, a former litigator, has a talent for making witnesses look evasive—but Professor Mascott held up well, and I predict she’ll be confirmed. (Originalist scholars and jurists have been struggling with the Brown problem for years—see, e.g., Professor Michael McConnell—and as smart as Mascott might be, I don’t think it was reasonable to expect her to solve it in a seven-minute colloquy.)
Senate Republicans are working on a plan to speed up consideration of Trump’s 145 pending nominees (for executive-branch as well as judicial positions). My general view is that presidents—of both parties—are entitled to expeditious consideration of their picks, so I’m guessing I won’t have a problem with any reforms (and I also won’t have a problem if these reforms benefit the next Democratic president).
Job of the Week: an opportunity for a real estate associate in Chicago.
Lateral Link is spearheading an unposted search for a prominent Chicago firm seeking a real estate associate to join its preeminent, Chambers-ranked team. This firm is looking for an attorney with 3-6 years of experience handling commercial real estate deals—including acquisitions, dispositions, and loan transactions—in a sophisticated firm setting (Am Law 200 experience preferred). This is an outstanding opportunity to collaborate with top real-estate practitioners and enjoy work-life balance in a supportive, team-oriented, and flexible, hybrid work environment. For immediate consideration, please email your résumé to Zain Atassi at zatassi@laterallink.com.
