Judicial Notice (02.18.23): Disrupted

An imperiled judicial nomination, a Biglaw firm's big bet on AI, and other legal news from the week that was.

(via Getty Images)

I hope everyone had a lovely Valentine’s Day. Zach and I had to postpone our celebration since I was traveling on the 14th, returning from Utah after speaking on Monday to Dean Gordon Smith’s Law and Leadership Colloquium at BYU Law. Then on Thursday, I joined McKinsey CLO Pierre Gentin for his Columbia Law course, “Aspiration and Action: The Role of the Chief Legal Officer.” I thoroughly enjoyed both classes, and I thank my hosts and their students for the warm welcomes.

Also on Thursday, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, interviewing veteran legal recruiter Zain Atassi about the Chicago legal market. I’ve long been a fan of the Windy City, and based on Zain’s account, it sounds like a great place to practice law (the cold notwithstanding).

Now, on to the news.

Lawyer of the Week: Christine S. Wilson.

On Valentine’s Day, Christine Wilson sent a very public breakup letter to her soon-to-be-former colleagues on the Federal Trade Commission (FTC). In a Wall Street Journal opinion piece, she announced her intent to resign from the FTC, declaring that FTC Chair Lina Khan’s “disregard for the rule of law and due process make it impossible for me to continue serving.”

A loud and longtime critic of Khan, Wilson raised a slew of issues. The two that jumped out at me were (1) Khan’s refusal to recuse from the FTC’s review of Meta’s acquisition of virtual-reality gaming company Within, despite Khan publicly calling for blocking future acquisitions by Meta before she joined the FTC, and (2) the FTC’s proposed ban on nearly all noncompete clauses in employee contracts, which Wilson criticized as an abuse of the FTC’s regulatory authority.

Wilson was the only Republican left on the five-member FTC after the departure of Noah Phillips last October, which means that Khan and the two other Democratic commissioners can now pursue their ambitious antitrust agenda without any internal opposition. As William Kovacic, a former Republican FTC chair, told Bloomberg Law, “The position of the dissenting commissioner has been a source of enormous transparency over time. A consequence of her leaving is you don’t have an artillery spotter within the agency—a running, insider account of the operations of the agency and what she sees to be its flaws.”

So Wilson’s departure from the FTC could have downsides—former FTC general counsel Stephen Calkins described it to Law360 as “a devastating blow to the FTC as an institution”—but it could benefit the private antitrust bar. Without any internal check on their actions, the Democratic majority on the FTC might move even more aggressively on antitrust enforcement. This could generate even more work for Biglaw—and even more wins, since the courts don’t seem to be fully onboard with Khan’s effort to expand the boundaries of antitrust law.

Other lawyers in the news:

• Congratulations to Charles Eblen, Eric Hobbs, Caroline Gieser, and Jason Scott of Shook Hardy & Bacon, who won a nearly $190 million verdict for CPI Security Systems Inc. in an unfair-competition lawsuit against Vivint Smart Home Inc., a rival home-security company.

• Congrats also to Charles Weiss and Jonathan Potts of Bryan Cave for winning a bench trial that led to the exoneration of Lamar Johnson, who spent 28 years in prison for a murder he did not commit.

• Richmond lawyer Robert C. Smith, a descendant of 19th-century tobacco magnate T.C. Williams, wants the University of Richmond School of Law to pay his family $3.6 billion. Smith claims this is the current value of gifts made by the Williams family to the university over the years—and since the university recently took “T.C. Williams” out of the law school’s name, after finding he owned 25 to 40 enslaved persons, Smith wants the money back.

• Speaking of law school renaming, I have a quick correction about last week’s Lawyer of the Week, prominent civil-rights lawyer Ben Crump. Although the St. Thomas University School of Law is now the Benjamin L. Crump College of Law, Crump himself didn’t graduate from St. Thomas; instead, he received his law degree from the Florida State University College of Law. Go Gators Seminoles! [UPDATE (2:05 p.m.): Ironically enough, my correction required a correction; the FSU team is the Seminoles, apparently. I am a sports ignoramus.]

Judge of the Week: Judge Andrew Carter.

As my regular readers know, I’m obsessed these days with free speech and the First Amendment. So it should come as no surprise that I was pleased by the ruling of Judge Andrew Carter (S.D.N.Y.), enjoining New York State’s so-called “Hateful Conduct Law,” in Volokh v. James. (Yes, that Volokh—Professor Eugene Volokh, a leading scholar of the First Amendment, is one of the plaintiffs in this case, since he’s subject to the law as co-owner and operator of the Volokh Conspiracy blog.)

As explained by the Foundation for Individual Rights and Expression (FIRE), which successfully litigated the case, the Hateful Conduct Law was a “misguided” law that would have “force[d] websites and apps to address online speech that someone, somewhere, finds humiliating or vilifying.” But thanks to Judge Carter’s ruling, “New York cannot legally force blogs and other internet platforms to adopt its preferred definition of hate speech or be drafted into New York’s ‘speech police.’”

I have a ton of interesting nominations news to cover this week, so in the interest of efficiency, I urge you to read Judge Carter’s cogent and concise opinion, which is just 21 pages, for yourself. I also commend you to additional analysis from Jonathan Turley on his blog and Sarah Isgur and David French on Advisory Opinions (around 34:00; also, I agree with them that the Wikipedia photo for Judge Carter, a “grainy photo of him making the shrug emoji face,” needs replacing). Kudos to Professor Volokh and his lawyers at FIRE—Darpana Sheth, Daniel Ortner, and Jay Diaz, plus local counsel Barry Covert—on the win.