Judicial Notice (04.15.24): Get Off My Lawn

The disruptive protest at Chez Chemerinsky, Alex Spiro’s latest celebrity client, group hires by Hogan and Goodwin, and other legal news from the week that was.

‘Talk to the hand’: Malak Afaneh (left) and Professor Catherine Fisk, last Tuesday at Fisk’s home (screenshot via X fka Twitter).

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. Thanks!

Happy Monday—and Happy Tax Day. Don’t forget to file your tax returns on time—unlike this edition of Judicial Notice, which I’m sending out a day late.

Last week was a bit crazy for me. I was in Charlotte for a speaking engagement on Wednesday (and I’ll be in Salt Lake City on Tuesday, for any of you who might want to say hi). I recorded a new episode of Movers, Shakers & Rainmakers from the Tar Heel State: my co-host Zach Sandberg and I interviewed Katherine Allen, CEO and co-founder of Flo Recruit, an innovative platform that helps law firms in their recruiting and law schools in their placement efforts.

While I was away, we had a little flood in our basement, thanks to a leaky valve (ah, the joys of home ownership). So I had to deal with that situation upon returning—along with recording two new episodes of the Original Jurisdiction podcast, about which I’m very excited. One features the dean of a top-four law school, and the other features my first transactional lawyer—a leading figure in the field of M&A.

And then, on Saturday, my husband Zach and I took Harlan on a long-planned overnight trip to Legoland New York. We had a great time, but it did mean my weekend wasn’t very productive.

The latest testimonial for Original Jurisdiction comes from Tamara Lange, former ADR director for the U.S. District Court for the Northern District of California, who’s now a mediator and arbitrator with JAMS: “Original Jurisdiction condenses a tremendous amount of legal news, thoughtful analysis, and personal commentary into an enjoyable, well-balanced review. It’s like People magazine for lawyers: chock full of details about what’s happening in every corner of the law, yet compelling enough to feel like a guilty pleasure.” My thanks to Tamara for her generous testimonial.

Now, on to the news.

(Note: although I’m sending this out on Monday afternoon, it will not discuss any news from Monday morning—such as Justice Clarence Thomas missing this morning’s Supreme Court arguments. I’ll tackle that in the next Judicial Notice.)

Lawyers of the Week: Erwin Chemerinsky and Catherine Fisk.

Last Tuesday night, a dinner party for graduating law students at the private home of Berkeley Law Dean Erwin Chemerinsky and his wife, Professor Catherine Fisk, turned into the site of a disruptive pro-Palestine protest. In the subsequent days, Dean Chemerinsky and Professor Fisk were hailed by some observers, who appreciated how they dealt firmly with the protesters at the time and spoke out against them afterward, and criticized by others, who felt they overreacted.

For my detailed thoughts, please read A Tale Of Two Protests: UVA v. Berkeley Law. It’s one of the best things I’ve written in a while, and it’s now one of the most-read posts in the history of OJ (to use an abbreviation I’ll be more comfortable using going forward, as it becomes more associated with a delicious beverage and less associated with the notorious O.J. Simpson, who is now no longer with us).

I supplemented my initial story with follow-up thoughts in a lengthy thread on Twitter (to which I’ve returned, after a hiatus—and I’m also now on Threads). Here are a few additional thoughts:

• The consensus that this protest did not constitute protected speech under the First Amendment—from an ideologically diverse group of experts in free speech specifically or constitutional law more generally—is remarkable. It’s not easy to find a proposition of con law that’s agreed upon by Jonathan Adler, Randy Barnett, David Bernstein, Erwin Chemerinsky, Jameel Jaffer, Alex Morey, Glenn Reynolds, Eric Segall, Jed Shugerman, Eugene Volokh, and Ed Whelan (links to their takes in my Twitter thread).

• Even my former colleague Joe Patrice of Above the Law, who until now (it seems) hasn’t met a disruptive protest he didn’t like, concurred: “You don’t have a First Amendment right to go into someone else’s house and hold a protest just because they work for a public university.”

• The smarter take from folks who are sympathetic to the pro-Palestine cause is to focus less on students’ actions, which were clearly unprotected, and more on the reactions of Dean Chemerinsky and Professor Fisk—just as how the smarter take on the raucous March 2023 protest of Judge Kyle Duncan was to focus less on the protesters, whose conduct was difficult to defend, and more on Judge Duncan, who admittedly (but understandably) lost his cool. Dean Chemerinsky did raise his voice in demanding that the protesters leave his property, and Professor Fisk did make physical contact with the lead protester, Malak Afaneh.

• Afaneh opened her speech with a traditional Arabic greeting, “As-salamu alaykum.” So yes, it might have been nicer if the Chemerinskys had responded to Afaneh by saying, in honeyed tones, “Wa alaykumu s-salam! We would greatly appreciate it if you would kindly leave our home at this time. But please, take some food for breaking your fast on this final day of Ramadan. Ma’ssalaame!” But brilliant legal academics are people too, and given how surprised and shocked Chemerinsky and Fisk must have been by how a dozen students tried to turn a social, celebratory dinner for 3Ls into a political, pro-Palestine rally, I can’t judge them too harshly.

• Malak Afaneh alleged that she was “assaulted” by Professor Fisk—and yes, Fisk did make contact with Afaneh while trying to take away her microphone. But I highly doubt any prosecutor would bring prosecute Fisk for battery (which is the applicable offense under California law, not assault).

• I similarly don’t expect any civil jury—even in super-progressive, pro-Palestine Northern California—to find a sixty-something woman liable for briefly putting her hands on a robust young woman about half her age. Having watched the video numerous times, I think Fisk has a decent molliter manus imposuit defense, i.e., she used reasonable force. Fisk’s initial contact with Afaneh was putting her arm around Afaneh’s shoulder, in what struck me as almost materteral fashion—and Fisk’s subsequent actions seemed primarily focused on taking away Afaneh’s microphone, not inflicting harm. As Joe Patrice noted, “Folks, California still has a friggin’ Castle Doctrine, so I don’t think ‘homeowner tried to wrestle the microphone from me’ is going to get very far.” (The best-case scenario I could imagine for Afaneh is a civil jury finding that yes, Fisk overreacted a tad—so here’s a dollar in nominal damages.)

Other lawyers in the news:

• This morning the first criminal trial of former president Donald Trump, in the hush-money case involving Stormy Daniels, got underway in New York Supreme Court (which is, counterintuitively, a trial court). So all eyes are on Manhattan District Attorney Alvin Bragg, the subject of many profiles—like this New York Times piece, “How a ‘Nerdy’ Prosecutor Became the First to Try Trump.”

• Who’s representing crypto king turned convict Sam Bankman-Fried (SBF) in the appeal of his criminal case to the Second Circuit? SBF has made an excellent choice in hiring Alexandra Shapiro of Shapiro Arato Bach, one of the nation’s top criminal appellate attorneys (and author of a highly enjoyable novel, Presumed Guilty).

• In an absolutely horrific turn of events, prominent Nevada trial lawyer Dennis Prince and his wife, Ashley Prince, were shot and killed by fellow lawyer Joe Houston, who then died by suicide. The shootings took place during a deposition that was part of a custody battle between Ashley Prince and her ex-husband, Dylan Houston (who was both the son and client of Joe Houston).

Judge of the Week: Chief Judge Alia Moses.

I have a weakness for courthouse drama—which can have real-world implications for the administration of justice, as we’ve seen in the handling of the Trump documents case by Judge Aileen Cannon (S.D. Fla.). So I was intrigued by the report that Chief Judge Alia Moses (W.D. Tex.) tried to exile a newly appointed colleague from her courthouse over a personal issue.