Judicial Notice (05.01.21): Lawyers Wade Into The Culture Wars

A prosecutor makes the case against “wokeness,” SCOTUS tackles the hot-button issues of immigration and free speech, and other legal news from the week that was.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can register to receive updates on this signup page.

Last week was a significant one for me: the official end of my two-year foray into legal recruiting. My time as a recruiter was exciting (and occasionally exasperating), I greatly enjoyed working with my former colleagues at Lateral Link, and I certainly earned more as a recruiter than I did as a writer. But during the pandemic, I came to the realization that writing is my true calling. So as of today, I’m once again a full-time writer (although I have a few final searches that I’ll see through to the end).

This means that I now rely upon Original Jurisdiction as my primary source of income. Starting on Monday, like many writers on Substack, I will start charging a small subscription fee to access all of OJ’s content, including Judicial Notice.

I’m setting the initial subscription cost at $5 a month, the lowest amount allowed by Substack, and if you sign up for an annual subscription, you’ll pay just $50 (which works out to less than $1 a week — ninety-six cents). This will give you access to all posts on OJ, as well as additional features such as commenting — yes, you’ll be able to comment on posts, like in the early days of Above the Law — and special events. More details will appear in future posts — of which there will be many, since I’ll be much more prolific now that I’ve returned to writing.

Now, on to the news.

Lawyer of the Week: Jonathan VanBoskerck.

Disgraced former prosecutors were certainly in the running as Lawyers of the Week. On Tuesday, former New York Attorney General Eric Schneiderman had his law license suspended for a year, based on allegations of physical abuse against three women. On Wednesday, federal investigators executed search warrants at the Manhattan home and office of Rudy Giuliani, the former U.S. Attorney for Manhattan who’s now under scrutiny for his Ukraine-related activities. Considering how Giuliani relished perp-walking captains of finance out of their offices or trading floors as U.S. Attorney, having his home and office publicly raided by FBI agents is “a stunning reversal,” in the words of Patricia Hurtado and Greg Farrell of Bloomberg News.

But as I’ve explained before, Lawyer of the Week is typically about who’s most talked-about (and certainly not about doing something praiseworthy, as some readers have mistakenly thought). So for the week just ended, LOTW “honors” go to Jonathan VanBoskerck.

VanBoskerck, the chief deputy district attorney in Clark County, Nevada, recently wrote a guest column for the Orlando Sentinel whose title says it all: “I love Disney World, but wokeness is ruining the experience.” Making the case against wokeness, the Las Vegas prosecutor cited such changes to Disney World as removing a scene from the Pirates of the Caribbean ride showing women being sold by pirates at auction; eliminating Trader Sam, a vendor of shrunken heads, from its Jungle Cruise ride; and imposing fewer restrictions on the haircuts and tattoos of park employees.

Alas, VanBoskerck’s advocacy of a return to the Disney World of yesteryear wasn’t well received in many quarters. Of course he took a ton of flak on Twitter (which he probably expected, given his complaint about Disney caving to the “Twitter mob”). Writing at Above the Law, Kathryn Rubino expressed disappointment in VanBoskerck’s persuasive abilities as an attorney:

I guess it’s too much to ask for a lawyer to have more honed argumentation skills than just loudly screaming “change is scary” and refusing to have an iota of sympathy for any experience that doesn’t exactly mirror his own. Oh, who am I kidding, this is utterly unsurprising; VanBoskerck was previously most famous for pushing for his state to administer the death penalty using an experimental cocktail of drugs that opponents argued could cause great suffering.

Will Disney make any changes to Disney World in response to VanBoskerck’s column? As of now, there’s been no such indication. Objections overruled, counselor.

Judge of the Week: Justice Samuel A. Alito, Jr.

This year, Justice Alito will celebrate his 15th anniversary on the Supreme Court. On Tuesday, I attended a virtual event to mark the occasion, featuring four former Alito clerks. One of them, Professor Aaron Nielson, had an insightful comment about how Justice Alito likes to try and figure things out — and if something doesn’t make sense, he’s not afraid to say so.

That’s as good an explanation as any for Justice Alito’s dissent in Texas v. California, a recently filed case in which Texas tried to invoke the Supreme Court’s original jurisdiction. Specifically, Texas objected to a California law prohibiting state-funded travel to any state whose laws fail to meet California’s specified standards regarding discrimination — states that include Texas — and Texas sought SCOTUS intervention.

By way of background, Congress has declared that “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States” (emphasis added). Notwithstanding this language, SCOTUS has a 45-year-old practice of treating its jurisdiction in state-versus-state cases as discretionary. When it doesn’t want to hear such a case, the Court simply denies the plaintiff state’s “motion for leave to file a bill of complaint,” just as it would deny a petition for certiorari.

Justice Alito, joined by Justice Thomas, could find no basis for treating such jurisdiction as discretionary. After looking at how the practice arose, Justice Alito concluded that there’s no solid grounding for it in constitutional or statutory text, history, or policy considerations. Considering that the Court’s jurisdiction in state-versus-state cases is “exclusive,” there’s no other forum in which a plaintiff state’s claims can be litigated — which is why states deserve their day in the Supreme Court.

I find Justice Alito’s dissent persuasive, but I’m admittedly biased. I’m always up for an expansion of original jurisdiction!

Ruling of the Week: Niz-Chavez v. Garland.

Usually I try to unearth interesting but overlooked opinions from the lower courts to feature as Ruling of the Week. But after searching my go-to sources, How Appealing and Short Circuit, I couldn’t find anything that grabbed me. (Yes, the Second Circuit’s decision in Whiteside v. Hover-Davis, Inc. deepens a circuit split — but even I can’t get that excited over the statute of limitations for Fair Labor Standards Act (FLSA) cases.)

So I’m turning to the Supreme Court for the Ruling of the Week, Niz-Chavez v. Garland — a perhaps surprising ruling, with a perhaps surprising line-up of justices. Here’s a concise summary from Debra Cassens Weiss of the ABA Journal:

The U.S. Supreme Court’s three liberal justices joined with three conservatives Thursday to rule for an immigrant who claimed that the government’s notices to appear for removal proceedings didn’t follow the statutory mandate.

In a majority opinion by Justice Neil M. Gorsuch, the Supreme Court ruled that the government had to supply all the required information in one notice, not the two notices that the government had sent to Agusto Niz-Chavez.

The two conservatives who joined Justice Gorsuch were Justices Thomas and Barrett. Justice Kavanaugh, joined by Chief Justice Roberts and Justice Alito, dissented.

This seemingly technical decision — as Adam Liptak noted in the New York Times, it turned on the meaning of “a” (yes, that “a,” the indefinite article) — is more significant than it might seem. This explains why it has generated a good amount of coverage and commentary (collected here by Howard Bashman). For example:

  • Josh Blackman, who sees (and appreciates) the libertarian bent of the Gorsuch opinion;

  • Michael Dorf, who criticizes the ruling as a bit of a Trojan horse, a liberal result (immigrant wins) laying the foundation for conservative interpretive approaches in the future; and

  • Mark Joseph Stern, who sees the textualist and libertarian aspects of Gorsuch’s opinion, but seems okay with them here, because “immigration officials can’t cheat noncitizens out of a right guaranteed to them by the plain language of the law.”

Some commentators like Niz-Chavez, and some commentators don’t. But folks seem to agree that this opinion has ramifications well beyond its immediate context, which is why it’s Ruling of the Week.

Litigation of the Week: Mahanoy Area Schools District v. B.L.

Argued before the Supreme Court on Wednesday, Mahanoy Area School District v. B.L. is like a Jackson Pollock painting: super-interesting, and a big old mess. It concerns the ability of schools to regulate student speech in the age of social media, consistent with the First Amendment.

The “B.L.” of the caption is Brandi Levy, a Pennsylvania high school student. On a Saturday, while hanging out with a friend at a local convenience store, Levy sent out a vulgar rant over Snapchat to about 250 people, venting her frustration over not making the varsity cheerleading squad. Snapchat messages are meant to disappear, but one of the recipients took a screenshot, which she shared with her mother, one of the school’s two cheerleading coaches. The coaches suspended Levy from the junior varsity cheerleading squad for a year as punishment, a decision that school officials stood by when Levy and her parents complained.

Levy took the fight to the courts, arguing that the school district violated her First Amendment rights. She prevailed before the district court and the Third Circuit, which issued a broad ruling essentially saying that schools can’t regulate “off-campus speech.” More precisely, the Third Circuit held that the key precedent — Tinker v. Des Moines Independent Community School District, in which the Supreme Court let students wear black armbands to protest the Vietnam War, but said that schools can still regulate disruptive speech on school grounds — simply doesn’t apply to “off-campus speech.”

Based on the oral argument, it sounds like SCOTUS will hold that the Third Circuit’s per se rule — Tinker doesn’t apply to off-campus speech — was too sweeping (which was also the gist of Judge Thomas Ambro’s concurrence below). As Lisa Blatt of Williams & Connolly, representing the school district, argued before SCOTUS, “The internet’s ubiquity, instantaneous and mass dissemination, and potential permanence make the speaker’s location irrelevant.” (So this will likely end up being another win for Blatt, who is 37-3 before the high court — and whose rebuttal greatly impressed James Romoser of SCOTUSblog, who tweeted that Blatt “just gave the strongest two-minute rebuttal I have ever heard.”)

But what’s more important than who wins is what the Court will do beyond vacating the Third Circuit ruling (and I’m guessing that they will vacate rather than reverse, since Levy may still deserve to win, just not based on the Third Circuit’s overbroad reasoning). At oral argument, Justice Kavanaugh warned against “writ[ing] a treatise” on the First Amendment in the schools context, since the Court “can’t foresee all the things that could arise.” Fair enough. But I suspect that lower courts, school districts, and students would all appreciate some guidance from SCOTUS on how to think about students’ free-speech rights in the social-media age.

Runner-up (and likely a Litigation or Ruling of the Week in the future): New York State Rifle & Pistol Association Inc. v. Corlett, which the Supreme Court on Monday agreed to hear. The question presented: “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

As noted by both Adam Liptak in the New York Times and Robert Barnes of the Washington Post, this case is likely to be the Court’s first major Second Amendment ruling since District of Columbia v. Heller in 2008. And the replacement of Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett appears to be what made it possible. As Liptak points out in the Times:

In [June 2020], the court turned down some 10 appeals in Second Amendment cases. Since it takes only four votes to grant review, there is good reason to think that the court’s conservative wing, which at the time had five members, was unsure it could secure Chief Justice John G. Roberts Jr.’s vote.

Justice Barrett’s arrival in October changed that calculus.

Can you really blame liberals and progressives for wanting Justice Breyer to retire?

Deal of the Week: Thoma Bravo’s $12.3 billion acquisition of Proofpoint Inc.

Thoma Bravo, a private equity firm, has agreed to acquire Proofpoint Inc., a major player in the cybersecurity and compliance spaces, for $12.3 billion. The deal, which involves Thoma Bravo paying Proofpoint stockholders $176 a share in cash, is expected to close in the third quarter (unless Proofpoint finds a better deal; the agreement does include a 45-day “go shop” period in which Proofpoint can try to drum up better offers). Skadden Arps advised Proofpoint, and Kirkland & Ellis advised Thoma Bravo (because K&E advises seemingly all PE firms).

Runner-up: the $110 million funding round just completed by Clio, the innovative legal technology company known for its popular legal practice management software. This round values Clio at $1.6 billion, making it the first “unicorn” in the legal practice management space. Congratulations!

Law Firm of the Week: Sullivan & Cromwell.

Yes, I was tempted to go (yet again) with Kirkland & Ellis. The firm once again topped the Am Law 100 rankings, and it’s using its deep coffers to go on a hiring spree, offering associates — yes, associates — six-figure signing bonuses. But I couldn’t bring myself to do so. In my opinion, Kirkland — a bit like a certain other “K” celebrity, Kim Kardashian — is overexposed right now. Enough already.

Instead, I’m going to go with Sullivan & Cromwell — not nearly as flashy as Kirkland, but similarly successful. Like K&E, S&C had a great 2020, growing its revenue per lawyer (RPL) by a robust 6.1 percent and its profits per equity partner (PPEP) by an even more impressive 11.4 percent. Its revenue per lawyer of $1.925 million and its profits per equity partner of $5.185 million put S&C in second place for RPL — behind only Wachtell Lipton, the perennial leader — and in sixth place for PPEP.

But Sullivan & Cromwell made headlines for controversy last week as well. It appears to be one of the first major law firms to announce a full reopening of its U.S. offices, as of July 6. And in the announcement — made over a phone call rather than by email, maybe to make the news harder to leak (although it promptly did, to Above the Law) — S&C didn’t set forth a policy on remote work or work-from-home arrangements going forward. Instead, according to SullCrom sources, the firm said “that we would all have to see how things go.”

Instead, it looks like it will be business as usual at S&C after the July 4 holiday. This didn’t sit well with some SullCrom lawyers, who described themselves as “generally unhappy with the very early target date” and wondered why they weren’t consulted on these plans. [UPDATE (5/5/21): In an interview with Christine Simmons of Law.com, S&C chair Joseph Shenker said that July 6 is “not a forced return date,” but added that employees are “strongly encouraged” to return to the office on that date.]

Other Biglaw firms should learn lessons from the S&C situation. First, send out a survey to all your lawyers and staff, soliciting their opinions on what post-pandemic work arrangements will look like. You don’t have to listen to them, but at least they can’t complain that they weren’t asked.

Second, try to develop a post-pandemic policy on remote working that you can announce at the same time as your reopening. After more than a year of working remotely, a period in which Biglaw firms enjoyed record revenue and profit, it’s quite clear that lawyers and law firms can work effectively on a remote basis. It wouldn’t be unreasonable for a firm to say, for example, that lawyers can work remotely at least one day a week to start, with the policy subject to adjustment as time goes on. (Across the pond, the Magic Circle firms seem to be allowing lawyers and staff to work remotely for 40-50 percent of the time, which strikes me as eminently reasonable.)

Lateral Moves of the Week: Cooley’s launch in Chicago.

Congratulations to Cooley on its launch of a Chicago office, its first new U.S. office since it opened in Los Angeles in 2012. The rapidly growing firm, which has been on a tear lately in terms of lateral hiring, will launch in the Windy City with Rick Ginsberg, who currently chairs Winston & Strawn’s technology and emerging companies practice, and Greg Grossman, a member of the emerging growth and venture capital leadership team at DLA Piper.

Opening in Chicago is only Cooley’s latest coup, per Roy Strom of Bloomberg Law:

Cooley has been one of the fastest growing law firms in the country over the past decade as the firm’s fortunes rise with the increasingly prominent technology and life sciences industries. The 101-year-old law firm founded in San Francisco maintains one of the highest regarded emerging companies practices in the country.

The firm’s financial performance in 2020 stood out even in a strong year for Big Law. Cooley’s revenue grew nearly 17% to $1.55 billion and its profits per equity partner rose by more than 25% to $3.18 million. The firm’s revenue has more than tripled since 2010, according to data from The American Lawyer.

Chicago might not spring to mind as a top city for tech, but as my former Lateral Link colleague Jesse Hyde told Meghan Tribe of Bloomberg Law, Chi-town is now emerging as “a strong emerging company and venture capital market,” boasting both startups and large tech companies with the potential to disrupt multiple industries.

Runners-up for Lateral Move of the Week:

  • a trio of bankruptcy partners at Morrison & Foerster — including Brett Miller, managing partner of MoFo’s New York office — moving over to Willkie Farr;

  • also in the bankruptcy space, Sidley Austin bringing aboard Tom Califano, former chair of DLA Piper’s U.S. restructuring practice, also in New York; and

  • Paul, Weiss hiring Austin Pollet, a rising star in the private equity space, away from Kirkland & Ellis, to bolster PW’s growing presence in San Francisco.

Two quick updates on move-related news discussed in the last edition of Judicial Notice. First, I wondered about the fate of Coca-Cola’s aggressive new diversity guidelines for outside counsel, in the wake of Bradley Gayton’s departure as general counsel. It seems that the guidelines, which could have sparked a legal challenge had they been implemented, are now on an indefinite hold.

Second, I noted the selection of Alex Oh, a longtime partner at Paul, Weiss, to lead the SEC’s division of enforcement. Alas, Oh wound up stepping down from her new role almost as soon as she started in it, in the wake of a federal judge’s order — an order that Judge Royce Lamberth (D.D.C.) specifically directed to be served upon Oh — asking the PW lawyers to explain why they shouldn’t be sanctioned “for alleging that plaintiffs’ counsel was agitated, disrespectful, and unhinged during the deposition despite a lack of record evidence supporting those allegations.” Yikes.

To paraphrase Ferris Bueller, news in the legal world changes pretty fast. If you don’t stop and look around once in a while, you could miss it. So please read Judicial Notice regularly, sign up to receive Original Jurisdiction in your inbox if you haven’t done so already, and spread the word about OJ among your friends and colleagues. Thanks!

Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.