Judicial Notice (10.26.25): Free Speech And AI
A failed Trump nomination, a SCOTUS shortlister’s controversial theory, another Biglaw firm’s AI fail, and a new leader for the American Constitution Society.
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Despite feeling slightly under the weather, I had a good week. The highlight was speaking on Wednesday to the University of Pennsylvania Federalist Society about Donald Trump’s executive orders targeting law firms (which also got written up in The New Yorker by the magazine’s general counsel, Fabio Bertoni). The students were attentive and engaged, with no shortage of great questions.
I’ve spoken on this topic at three schools: Duke, Columbia, and Penn. Each time, I’ve asked the audience to indicate, by a show of hands, whether a firm’s response to the EOs (suing or settling) would affect the student’s consideration of that firm as a potential employer. The results of my (very unscientific) poll: about 60 percent of the audience at Duke, 50 percent at Columbia, and 40 percent at Penn said yes. Make of that what you will.
Now, on to the news.
Lawyer of the Week: Paul Ingrassia.
The federal government shutdown (for which there’s now a Wikipedia page) started on or about October 1, so it’s almost a month old—and as of this writing, there’s no end in sight. Congress seems perfectly happy to continue marginalizing itself—or deferring to the president, if you prefer to think of it that way.
But the deference of congressional Republicans to Trump does have some limits—which brings us to the latest Lawyer of the Week, Paul Ingrassia. Trump nominated Ingrassia to lead the Office of Special Counsel (OSC), a government watchdog agency that protects whistleblowers. But on Tuesday, Ingrassia withdrew, after it became clear that he lacked sufficient Republican support.
Voting against Ingrassia based on his qualifications would be understandable. Although he went to an excellent law school (Cornell), the 30-year-old Ingrassia graduated only three years ago. As The Washington Post (gift link) noted, the OSC “has largely been led by nonpartisan lawyers with decades of experience; Ingrassia, who was admitted to the New York bar last year, would mark a departure from that norm.” The last head of the OSC—Hampton Dellinger, whose firing by Trump spawned litigation that briefly made its way to the Supreme Court—had almost three decades of experience when he assumed leadership of the office.
But Ingrassia had additional baggage, as noted in The Post’s post-mortem of his nomination. He allegedly sent a series of texts in which he confessed to having “a Nazi streak,” argued that Martin Luther King Jr. Day should be “tossed into the seventh circle of hell,” and quipped that people should “never trust a chinaman or Indian.” These offensive messages—plus an alleged sexual-harassment complaint (subsequently withdrawn), plus the lack of qualifications—proved a bridge too far, for too many Republicans. Ingrassia denied harassing anyone, and his lawyer questioned the authenticity of the texts—but in the end, his side of the story was insufficiently compelling to save his nomination.
Other lawyers in the news:
Judges have a limited ability to respond to their critics, but lawyers are not so constrained. At an online forum hosted on Thursday by Speak Up for Justice, several prominent lawyers—including David Boies, Mark Geragos, Patricia Glaser, and Steve Zack—condemned recent attacks on the judiciary, arguing that they threaten judicial independence and ultimately the rule of law.
Another leading lawyer standing up in defense of the judiciary is Kannon Shanmugam, chair of the Supreme Court and appellate practice at Paul Weiss. In remarks last month at Pepperdine Law, he condemned attacks on institutions like the courts and universities—and argued that “if institutions have problems, we should try to fix those problems, rather than destroy the institutions.”
Shanmugam’s firm, Paul Weiss, famously (or infamously) declined to sue the Trump administration after getting hit with an executive order, instead reaching a (highly controversial) settlement. One “Paul” who’s not afraid to go up against Trump in court is former U.S. solicitor general and conservative legal icon Paul Clement. As noted by Reuters, Clement is extremely busy these days, working on a mix of Trump and non-Trump matters. The Trump matters include representing Federal Reserve Governor Lisa Cook in her battle to keep her job and fighting the executive order against WilmerHale. The non-Trump matters include representing two companies controlled by Elon Musk: Tesla, in wrongful-death litigation, and X, in legal battles with Media Matters, a progressive nonprofit.
Also, congratulations to Clement on his win in Centripetal Networks, LLC v. Palo Alto Networks, Inc. Although two judges chastised him at oral argument—inappropriately, in my view—for what they viewed as inappropriate “rhetoric” in his brief, the panel ultimately vacated the Patent Trial and Appeal Board’s decision against Clement’s client (for failing to consider certain evidence, not based on the recusal issue he also raised).
Another go-to lawyer for Elon Musk, Alex Spiro, also has his hands full right now. He just joined the legal team representing former Activision Blizzard chief executive Bobby Kotick in shareholder litigation in Delaware.
I’m not a huge fan of canceling people based on bad behavior caught on viral video, but it happens. Just ask Shannon Kobylarczyk, a former in-house lawyer at ManpowerGroup, who lost her job and stepped down from a charitable board after getting caught on video telling a Latino man, during a verbal altercation at a baseball game, “You know what, let’s call ICE.”
Isaac Stein, a furloughed Internal Revenue Service attorney, is making the most of the shutdown. He’s using the time off to pursue a childhood dream: running a hot-dog stand (while wearing a suit and tie, no less).
In memoriam: G. Michael Brown—who prosecuted the operators of illegal gambling rings in New Jersey, before becoming a lawyer and then executive for gaming companies—passed away at 82. May he rest in peace.
Judge of the Week: Judge Andrew Oldham.
On Wednesday, Judge Andrew Oldham (5th Cir.) delivered the 2025 Joseph Story Distinguished Lecture at the Heritage Foundation (which you can watch here, via Howard Bashman’s How Appealing). Here’s a concise summary, from Professor Josh Blackman over at The Volokh Conspiracy (also via How Appealing):
The topic was provocative and will no doubt be controversial. Judge Oldham favors the elimination of horizontal stare decisis. As a result, an earlier three-judge panel on a court of appeals would not bind a later three-judge panel on that same court of appeals….
At first blush, this topic may seem crazy, even heretical. But Judge Oldham has provided a deep theoretical defense of his position.
Let’s turn to that defense. Judge Oldham argued that “the law” is like the throughline or trendline in a scatterplot, and individual panel decisions are like the dots along the scatterplot. Collectively, they make up “the law”; but individually, there will be outliers, points that lie way off the scatterplot.
I take Judge Oldham’s argument to be that appellate judges should try their best to find “the law,” i.e., the throughline. But judges shouldn’t feel compelled to reconcile their ruling with every single decision that has come before their ruling, especially decisions that were outliers—i.e., rulings where the prior panel did a bad job of trying to find the trendline (whether intentionally or unintentionally). Or as Jacqueline Thomsen explained Oldham’s theory in Bloomberg Law, judges should “view each individual court decision as a data point and then try to find the law as the trendline that best fits those points, while ignoring the extreme outliers.”
So I think it would be incorrect—a straw-person misreading of his views—to claim that Judge Oldham thinks judges should decide cases based on their own whims or fancies, not bothering to read any prior cases on the issue. That would, of course, be bonkers—and would make for a totally unworkable system.
Instead, he seems to be arguing that judges should read the relevant legal authorities, including cases, to “find” the correct rule or principle, then apply that rule or principle to the case before them (note his verb choice: he’s big on judges “finding” the law, like the throughline on a scatterplot, as opposed to “declaring” or “making” the law). But judges shouldn’t lose sleep over ensuring that their ruling is consistent with each and every prior ruling of their court, especially if they think that a prior ruling was an “outlier” (i.e., wrong). It’s the throughline that makes up “the law,” not each dot.
Whether or not you agree with Judge Oldham, his theory is thoughtful and interesting—and not as crazy as I thought when I first heard, “Judge Oldham doesn’t believe in stare decisis!” Having watched his full speech (as opposed to just reading tweets about it), I came away impressed—and I can see why he’s widely viewed as a top SCOTUS contender (especially to replace Justice Samuel Alito, for whom he clerked).
In other news about judges and the judiciary:
Last week, I wrote that Judge Emil Bove, one of two new members of the Third Circuit, seemed to be “playing well with others” thus far, despite his reputation for hardball during his time at the DOJ. One reader suggested to me that “Judge Bove is being restrained in his conduct—while supporting Trump and the administration in his actions—because he’s campaigning for SCOTUS.” That’s certainly possible—and if you’re looking for further support for that theory, check out his dissental in Eakin v. Adams County Board of Elections, an election-law case out of Pennsylvania, in which he forcefully articulated the Republican position (against counting undated or incorrectly dated mail-in ballots). Writing conservative dissentals in high-profile cases is one way to get noticed by the Trump administration as a potential Supreme Court contender.
I previously wrote about Judges Julien Xavier Neals (D.N.J.) and Henry Wingate (S.D Miss.), two federal judges who issued rulings that appeared to contain AI-induced errors. Neither judge explained the mistakes or confirmed the involvement of AI to the litigants—but now they have, in letters responding to inquiries from Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa). As most of us suspected, the problems resulted from AI (mis)use by support staff—an intern, in the Neals chambers, and a law clerk, in the Wingate chambers—and the decisions weren’t properly reviewed before they were docketed. Oops.
On Friday, Governor Greg Abbott announced the appointment of Kyle Hawkins to the Texas Supreme Court. A former Texas solicitor general, Hawkins was most recently a partner at an elite boutique, Lehotsky Keller Cohn.
In nominations news:
Four district-court nominees whose last names start with “M” got confirmed: Holland & Hart partner William “Bill” Mercer (D. Montana), Squire Patton Boggs partner Chad Meredith (E.D. Ky.), Florida state-court jurist Anne-Leigh Gaylord Moe (M.D. Fla.), and Bradley Arant partner Harold D. Mooty III (N.D. Ala.). All the votes were close except for Mooty’s: 66-32, the most bipartisan support of any judicial nominee from Trump’s second term (much to the chagrin of Demand Justice, the progressive judicial-advocacy group).
Trump’s latest district-court nominees—Justice William Crain of the Louisiana Supreme Court, nominated to the Eastern District of Louisiana, and former interim U.S. attorney Alexander Van Hook, nominated to the Western District—had uneventful confirmation hearings, with limited Democratic pushback.
Job of the Week: an opportunity for litigation associates in Atlanta.
Lateral Link is partnering with an Am Law 100 firm that’s expanding its class-action and product-liability team in Atlanta, seeking litigation associates with 2-7 years of experience. Candidates should have top-tier complex litigation experience (ideally in class actions and/or product liability and/or mass torts) from a major law firm or respected litigation boutique, plus exceptional analytical, writing, and advocacy skills. Whether you’re already in Atlanta or ready to make the move, this is an outstanding opportunity to join a premier national platform. To apply, send your résumé and law school transcript to Marion Wilson at mwilson@laterallink.com.
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