Judicial Notice (12.15.24): The Next Generation

FedSoc’s new president, $1 million associate bonuses, Luigi Mangione’s lawyers, and Jones Day’s latest SCOTUS clerk haul.

Luigi Mangione’s New York lawyer, Karen Friedman Agnifilo (screenshot via MSNBC).

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 the year draws to a close, it’s a good time to do your financial housekeeping. Have you maxed out your 401(k)? Have you contributed to your child’s 529 account? Would you like to make a monetary gift, to your child or anyone else, to take advantage of the annual gift-tax exclusion? Are there capital gains or losses you might want to take, or any investments you might want to sell, before the end of the calendar year?

In my case, I remembered that I had bought an I bond back when inflation was high—and because the interest rate on an I bond reflects inflation, I got a great rate. But with inflation down, so was the interest rate on my I bond—to around 3 percent. So I cashed it in and moved the money to my Wealthfront account, where it earns 4.25 percent—and is still FDIC-insured. (Shameless plug: if you sign up for Wealthfront using my referral code, we’ll both get a rate of 4.75 percent for the next three months.)

Now, on to the news—of which there was once again a ridiculous amount, explaining the somewhat late hour of this missive.

Lawyer of the Week: Andrew Ferguson.

President-elect Donald Trump announced plans to name more lawyers to key positions in his administration—some explicitly legal roles, some not. In terms of posts for presidential appointees requiring Senate confirmation—”PAS” roles, in D.C. parlance—they include former Kirkland & Ellis and Quinn Emanuel partner Christopher Landau, for deputy secretary of state; civil-rights litigator and Dhillon Law Group founder Harmeet Dhillon, for assistant attorney general (AAG) overseeing the Civil Rights Division of the U.S. Department of Justice (DOJ); and Kimberly Guilfoyle, for ambassador to Greece. (Yes, Guilfoyle is a lawyer, a former state prosecutor in California—and she might soon be a former fiancée of Donald Trump Jr., assuming their engagement hasn’t already been called off.)

The president-elect’s picks for non-PAS roles include prominent conservative attorney Mark Paoletta, who will reprise his role as general counsel of the Office of Management and Budget, plus two of Trump’s personal lawyers: Will Scharf as White House staff secretary—a crucial job, held by Brett Kavanaugh during the second Bush administration, charged with controlling the flow of paper into and out of the Oval Office—and Alina Habba as counselor to the president, another highly influential post (held by Kellyanne Conway during the first Trump administration).

But the appointment I’d like to highlight is Trump’s selection of Andrew Ferguson to replace Lina Khan as chair of the Federal Trade Commission (FTC)—one of two critical enforcers of the antitrust laws, along with the DOJ’s Antitrust Division. As the Reagan-era saying goes, “personnel is policy”—and so Trump’s picks of Ferguson to lead the FTC and Gail Slater as AAG for antitrust will play a key role in shaping competition law in the second Trump administration.

Ferguson, a 2012 graduate of UVA Law, clerked for Justice Clarence Thomas, worked as a lawyer at both the FTC and DOJ, and served as an adviser to Senators Mitch McConnell (R-Ky.) and Mike Lee (R-Utah). Because Ferguson was confirmed as an FTC commissioner in March 2024, moving him to chair doesn’t require Senate confirmation. (But Senate confirmation is required for Mark Meador, another FTC and DOJ alum, whom Trump plans to nominate to fill Ferguson’s seat—and if Meador is confirmed, Khan will leave the Commission, creating a Republican majority.)

Wall Street expects Ferguson to be less aggressive than Lina Khan when it comes to merger enforcement—i.e., opposing allegedly anticompetitive M&A deals—and regulating artificial intelligence. But he will probably continue to investigate and sue large technology companies for antitrust violations, based on his past comments—including a tweet declaring that “[a]t the FTC, we will end Big Tech’s vendetta against competition and free speech. We will make sure that America is the world’s technological leader and the best place for innovators to bring new ideas to life.”

I have a quick update on recent Lawyer of the Week Kash Patel—Trump’s pick for director of the FBI, and author of an “enemies list” that includes at least a dozen lawyers in private practice, many in Biglaw. As I previously discussed, Trump would have had to fire the current director, Chris Wray, to make way for Patel—but Wray announced last week that he will save Trump the trouble, by resigning in January. Some criticized Wray: as Garrett Graff wrote in Politico, it’s “a damning decision, an abdication of leadership.” But David French offered a different take in The New York Times, suggesting that it might be “an act of defiance” of Trump (because, for various complicated reasons relating to the Vacancies Reform Act, it will delay Patel’s takeover of the FBI—and probably prevent him from leading the FBI as acting director).

In memoriam:

• Ruth Reardon O’Brien—one of only four women in her Yale Law School class, the second woman to be named partner at Ropes & Gray, and yes, the mother of star comedian Conan O’Brien—passed away at 92 (and only three days after the passing of her husband, noted epidemiologist Thomas O’Brien). [UPDATE (12/16/2024, 7:33 a.m.): Deleted an erroneous reference to the year that Ruth O’Brien graduated from YLS.]

• Courtroom sketch artist William J. Hennessy Jr., who covered everything from Supreme Court arguments to Trump’s first impeachment to January 6 trials, passed away on his 67th birthday (as reported by John Fritze and Katelyn Polantz of CNN, via Howard Bashman of How Appealing).

May they rest in peace.

Judge of the Week: Chief Judge R. David Proctor.

One of the four standard questions I pose to my podcast guests, in the speed round at the end of each episode, is what they like the least about the law. One common response: the lack of civility shown by some lawyers toward each other.

At least one judge is trying to do something about it. Chief Judge R. David Proctor (N.D. Ala.) recently ordered bickering lawyers to have lunch with each other, in the hope that breaking bread together might break the cycle of toxicity:

Further, the court ORDERS that, on or before December 31, 2024, counsel for both Plaintiff and Defendants are to go to lunch together. Plaintiff’s counsel will pay the bill; Defendants’ counsel will leave the tip. The parties will discuss how they can act professionally throughout the rest of this case. Within ten (10) days of the lunch, the parties SHALL file a join report describing the conversation that occurred at lunch and the amount of the tip.

This isn’t Chief Judge Proctor’s first time chastising lawyers for pettiness. Last year, for example, he humorously called out counsel for moving to strike a summary-judgment opposition that was filed 15 minutes late.

As noted by commenters on LinkedIn, Chief Judge Proctor’s lunch order wasn’t the first; judges have been issuing them for years. But his order did go viral, getting picked up by Joe Patrice on Above the Law and Sarah Isgur and David French on Advisory Opinions, among other outlets.

And how can the reaction of lawyers be described? Mixed—because lawyers can’t agree on anything—but my overall response is positive. The standard judicial response to uncivil conduct is to benchslap counsel—as Judge Jamal Whitehead (W.D. Wash.) recently did, in a case involving “[e]xpletive-laden phone calls, hang-ups, backing out of prior agreements without explanation, and misleading emails purporting to ‘memorialize’ phone calls.” But as long as judges exercise discretion, issuing lunch orders only in cases where it makes sense, it’s good for them to have another tool in their toolbox besides benchslaps and formal sanctions.

Other judges in the news: