Judicial Notice (10.23.21): 'Ain't Evolving'
Justice Thomas celebrates an anniversary, Trump gets in on the SPAC craze, 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 subscribe by clicking on the button below.
This week was busy for me. I kicked it off by publishing two interviews: one with Trent Colbert, the 2L at the center of Yale Law School’s latest controversy, and one with Savannah Guthrie, the lawyer turned Today Show co-anchor. I spent the rest of the week in northern California, attending the wedding of my husband Zach’s younger brother and related festivities. (This explains why Judicial Notice is arriving in your inbox a little later than usual, for which I apologize; I usually spend much of Saturday doing these write-ups, but this Saturday I was on a plane for most of the day.)
While we were in California, Harlan made his debut as a ring bearer—which was not entirely successful. When he got to the chuppah, he went rogue and wouldn’t fork over the rings. Protip when you have a first-time ring bearer: don’t give him the real rings.
The coming week will be hectic as well. On Wednesday, I’m giving a lunch talk to the Law Firm Media Professionals (LFMP) group. On Thursday, I’m speaking to the Dallas Asian American Bar Association. And on Friday, I’ll discuss key trends affecting the legal industry in a virtual “fireside chat” with Nefra-Ann MacDonald of Clio, as part of the Clio Cloud Conference. It’s a virtual event; if you’d like to attend, the registration deadline is tomorrow, and you can use this link to get discounted registration (or use the discount code “ORIGINAL-JURISDICTION” at checkout).
Now, on to the news.
Lawyers of the Week: George Snipes and Brian Cuban.
One of the most-read stories this week on Law.com was a report on the sentencing of George W. Snipes. The 68-year-old lawyer was just sentenced to 51 months in federal prison and ordered to pay $1.64 million in restitution, after pleading guilty to defrauding clients—injured individuals, who were counting on Snipes to get compensation for their suffering.
Why did he do it? According to his lawyer, Jerry Froelich, Snipes is “very sick. He was a successful lawyer. He had a good career. And then he got a drinking problem. He lost his compass.”
As an attorney with a substance-abuse problem, Snipes is far from alone. According to the American Bar Association, as many as one in five lawyers is a problem drinker. So as we approach the holidays—a traditional time for partying and socializing, especially as the pandemic (hopefully) continues to subside—it’s important for the legal profession to have an honest discussion about substance abuse and addiction. This is why I’ve named George Snipes and Brian Cuban as the latest Lawyers of the Week.
As Randy Maniloff reported this week in an excellent profile for the ABA Journal, Brian Cuban struggled with alcoholism and drug addiction for years, as a law student and then as a practicing lawyer. In April 2007, he hit rock bottom, after waking up from a two-day, alcohol- and cocaine-fueled bender. Realizing that he was in danger of losing what he valued the most—including the love of his father, his two brothers (including billionaire Mark Cuban), and his girlfriend (now his wife)—Cuban went sober.
He has remained sober ever since—and he has turned his life around. After leaving the practice of law, Cuban devoted himself to speaking to law firms and bar associations about addiction, and he wrote three books: Shattered Image (2013), about his struggle with body dysmorphic disorder; The Addicted Lawyer (2017), about his battle with addiction; and The Ambulance Chaser, a legal thriller coming out in December.
May the cautionary tale of George Snipes and the inspiring tale of Brian Cuban help law students and lawyers who are struggling with alcoholism and addiction. If you need help, or if a lawyer or law student you know needs help, please reach out to your local Lawyer Assistance Program—before it’s too late.
Runners-up for Lawyer of the Week:
Jason Greene. A Marine turned Defense Department lawyer, Greene was part of a team that helped bring a badly burned eight-year-old girl named Asma out of Afghanistan—where her family was in danger, because her late father had worked for the U.S. military—and over to the United States.
Merrick Garland. Appearing before the House Judiciary Committee on Thursday, the attorney general took flak from both sides—from Democrats who want him to pursue ex-Trump adviser Steve Bannon, and from Republicans who expressed fears about how the Justice Department might label conservative parents protesting at their children’s schools as “domestic terrorists.”
Ben Wilson. After serving as chair of Beveridge & Diamond for more than a decade, Wilson will retire in January 2022. One of just a few Black lawyers at the helm of a major law firm, he has pledged to continue his efforts at promoting diversity in the legal profession, even after his retirement.
Seth Zachary. The longtime chair of Paul Hastings will leave that role in a year, after presiding over more than two decades of remarkable growth at the Biglaw firm.
Finally, please pray for or send positive thoughts to Matthew Hutchins and his family. A corporate associate in the Los Angeles office of Latham & Watkins, Hutchins was married to Halyna Hutchins, the cinematographer who was fatally shot by actor Alec Baldwin on Thursday. On Friday, he posted a public tribute to her on Twitter:
May she rest in peace.
Judge of the Week: Justice Clarence Thomas.
Thirty years ago this month, when Justice Clarence Thomas took the Supreme Court bench after a bruising confirmation battle, he had many critics on the left. They derided him as an intellectual lightweight and predicted that he would be little more than a sidekick to Justice Antonin Scalia.
Three decades later, no serious observer of the Court holds that view. Instead, as Ariane de Vogue of CNN writes in this retrospective of Justice Thomas’s career, he is now “the Supreme Court’s influencer.” He is not only the longest-serving member of the Court, but he also “finds himself at the center of a conservative judicial movement, lauded for 30 years' worth of writing that has become, for some, currency for the future.”
On Thursday night, at a celebration of Justice Thomas’s legacy, Senator Mitch McConnell (R-Ky.) called Thomas “a legal titan” and the “brightest possible North Star.” Justice Thomas famously declared that he “ain’t evolving,” i.e., that he wouldn’t drift leftward like certain other Republican appointees to the Court—and over thirty years, he definitely has not.
Justice Thomas’s influence extends well beyond his judicial opinions. His 100-plus former clerks, whom he refers to as his “kids,” are all grown up. Many of them are now federal appellate judges, following his lead in shaping the law—and moving it rightward. Whether you love him or hate him, you can’t deny his significance, which is why Justice Thomas is, once again, Judge of the Week.
In nominations news, Judge Gustavo Gelpi, previously of the District of Puerto Rico, was confirmed to the First Circuit, 52-41. He’s the sixth appellate nominee from President Biden to take the bench. Meanwhile, Jennifer Sung, nominated to the Ninth Circuit, became the first Biden nominee to not advance favorably from the Senate Judiciary Committee. The Committee deadlocked, 10-10, with Republican senators expressing concern over an incendiary 2018 letter that Sung signed opposing the Supreme Court nomination of then-Judge Brett Kavanaugh, which referred to him as “an intellectually and morally bankrupt ideologue.” If you aspire to judicial office, be careful about what you sign. (See also then-professor Amy Coney Barrett’s signature on a statement opposing abortion, which got raised at her SCOTUS confirmation hearings.)
Rulings of the Week: Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond.
Yes, everyone is talking about the Supreme Court’s handling of the Texas abortion cases. As you’ve surely read by now, the Court once again declined to block Senate Bill 8 (“SB 8”), Texas’s restrictive new abortion law, from going into effect—over a vigorous dissent by Justice Sonia Sotomayor. But the Court did fast-track these cases by granting certiorari before judgment, which is unusual, and by setting them for argument on November 1.
I’d like to direct your attention instead to Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond, two summary reversals that the Supreme Court issued on Monday in a pair of cases about qualified immunity, out of the Ninth and Tenth Circuits, respectively. For good descriptions of the facts of each case, see this NPR piece by Becky Sullivan or this Forbes analysis by Nick Sibilla.
In recent years, the doctrine of qualified immunity, which protects police officers and other government officials from being held personally liable for constitutional violations unless they violated “clearly established” law, has come under attack from the left and the right. Justices Sonia Sotomayor and Clarence Thomas, at opposite ends of the Supreme Court’s ideological spectrum, have both criticized the doctrine. Congressional Democrats have unsuccessfully tried to limit qualified immunity in recent years, while Judge Don Willett of the Fifth Circuit, a prominent conservative jurist, has rejected claims of qualified immunity in case after case, launching powerful criticisms of the doctrine.
The two SCOTUS cases, Rivas-Villegas and City of Tahlequah, both involved allegations of police officers using excessive force in responding to domestic disturbances. In both cases, the lower courts held the officers not entitled to qualified immunity. And in both cases, the Supreme Court reversed, holding the officers entitled to qualified immunity.
What to make of this pair of rulings? I agree with Ed Whelan: “The doctrine of qualified immunity appears to be under attack from many directions, but the Supreme Court is standing strong by its doctrine.” Or, to put it another way, reports of qualified immunity’s death are greatly exaggerated. Yes, the doctrine might end up evolving, but don’t get expect it to go extinct.
Runners-up for Ruling of the Week:
United States v. Parnas. A federal jury convicted Lev Parnas, former associate of Rudy Giuliani, of violating campaign finance laws.
Students for Fair Admissions, Inc. v. University of North Carolina. Judge Loretta C. Biggs (M.D.N.C.) upheld UNC’s use of race as a factor in its admissions process. Students for Fair Admissions (SFFA) plans to appeal—so if the Supreme Court declines to hear the Harvard case, SFFA could get a second bite at the apple with this litigation.
Ackerman v. Washington. “Let them eat cheesecake.” That’s what the Sixth Circuit held, ruling that two Jewish prisoners were entitled to cheesecake on the Shavuot holiday, under the Religious Land Use and Institutionalized Persons Act. According to Ackerman, he is required to eat a meal with dairy and a meal with kosher meat on Shavuot—and “Shavuot is genuinely associated with cheesecake in the Jewish community.” So please, just give him some cheesecake.
Sisney v. Kaemingk. I can’t do any better than the blurb from Short Circuit: “‘From first kiss to orgasmic finish, this book is every Austen fan’s dream come true—the story you love, with the heat turned up to high. It will come as no surprise that the dashing Mr. Darcy is as passionate and intense with his knickers off as he is with them on.’ Unfortunately for a South Dakota prisoner, it is also no surprise that the prison can constitutionally seize a copy of Pride and Prejudice: The Wild and Wanton Edition.”
Litigation of the Week: Trump v. Thompson.
On Monday, former president Donald Trump sued the National Archives and Congress, seeking to stop the release of certain White House files related to the January 6th attack on the Capitol. The core argument of his 26-page complaint—filed on his behalf by Jesse Binnall, of “Stop the Steal” fame (or infamy)—is that the documents in question are protected by executive privilege. But President Joe Biden is not asserting privilege over the documents, with White House Counsel Dana Remus stating that “the constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
The Constitution does not explicitly mention executive privilege. The Supreme Court has recognized the doctrine, but has barely opined on it. As Ohio State University law professor Peter Shane told the New York Times, “The book of prior decisions by the courts about presidential disagreements over confidentiality is an empty book.” So a judicial decision resolving this litigation could mark a major step in the evolution of this important but underarticulated doctrine.
Runners-up for Litigation of the Week:
Rad v. IAC/InterActiveCorp. This $2 billion legal battle between IAC/InterActiveCorp. and the founders of the popular dating app Tinder is set to go to trial in less than three weeks—which might explain why IAC just added veteran trial lawyer Bill Carmody, a longtime Susman Godfrey partner, to work with Wachtell Lipton on the case. The Tinder founders are represented by another legal heavyweight, Orin Snyder of Gibson Dunn. Assuming it goes to trial, which is looking increasingly likely, this is definitely one to watch.
Sines v. Kessler. On Monday, what is expected to be a four-week jury trial will get underway in this civil case against the white supremacists behind the deadly “Unite the Right” rally in August 2017 in Charlottesville. The plaintiffs are represented by a star-studded legal team, including Roberta Kaplan of Kaplan Hecker & Fink, Karen Dunn of Paul Weiss, and Alan Levine of Cooley.
Deal of the Week: Trump Media and Technology Group’s go-public SPAC merger.
If you were hoping to be done with Trump-related news for the week, then I apologize. But I aim to bring you the biggest and most interesting stories in these pages—and once again, the “former guy” is making real news.
On Wednesday, Trump announced that his new company, Trump Media and Technology Group, would be merging with a SPAC named Digital World Acquisition—which turned prominent hedge funds like D.E. Shaw and Saba Capital into backers of the latest Trump venture, much to their surprise. The plan of the post-merger company is to launch a Twitter-esque social media app sometime next year.
Despite the involvement of the bankruptcy-prone Trump, his latest business might actually succeed—or at least that’s what some investors seem to think. By the end of the week, the share price of Digital World Acquisition had climbed by more than 800 percent. Those gains are, for lack of a better word, “YUGE.”
Which law firms worked on this deal? Trump turned to John Haley, a corporate finance and securities partner in the Miami office of Nelson Mullins (who I wouldn’t be surprised to see protested or boycotted by law students in the wake of this news). Meanwhile, Ellenoff Grossman, the leading SPAC boutique, advised Digital World, and Loeb & Loeb represented the underwriters of Digital World’s SPAC registration.
Law Firm of the Week: Allen & Overy.
As the economist Paul Romer once said, “A crisis is a terrible thing to waste.” The difficulties presented by the pandemic offer law firms a chance to evolve with the times, by developing new and innovative ways to serve their clients.
On Tuesday, Allen & Overy accepted this invitation by announcing the U.S. launch of Peerpoint, its “global flexible resourcing platform, connecting top lawyers with world-leading organizations.” Here’s how the Magic Circle firm describes the program, which has grown to include more than 350 lawyers worldwide since its launch back in 2013:
Peerpoint provides progressive lawyers with an alternative career path and in-house legal teams an alternative solution for high quality, specialized interim legal support backed by A&O’s resources. The platform appeals to lawyers who want more control and choice in their careers without compromising on the quality of work or clients they engage with. Clients benefit by gaining access to experienced lawyers with sophisticated legal skills on an interim or project basis.
Roy Strom of Bloomberg Law compares Peerpoint to Axiom Law, which sounds right to me, but the Allen & Overy connection gives Peerpoint additional benefits. An existing A&O client who needs lawyers on a project basis might turn to Peerpoint first, since the Peerpoint lawyers can rely on their A&O colleagues for help—and since A&O partners are ultimately responsible for the Peerpoint work. If Peerpoint succeeds in the U.S., it should allow Allen & Overy to keep revenue that might otherwise go to alternative legal services providers, to strengthen the bonds between A&O and its clients, and to maintain access to talented lawyers who might someday return to a more traditional Biglaw environment—which, in today’s tight lateral market, is no small advantage.
In other positive news for A&O in the U.S., its IP litigation practice won a nice victory on behalf of its client Wonderland, the maker of Graco car seats (which happens to be the brand we own). After a remote trial, a federal judge in Delaware ruled that Wonderland was entitled to damages for rival Evenflo’s infringement of three Wonderland patents. The team that won the case consists of lawyers who recently joined Allen & Overy from White & Case, to help launch A&O’s two new California offices, so it seems that the firm’s hiring is already paying dividends.
Runner-up for Law Firm of the Week: Orrick, which just announced that it will be extending its public-interest fellowship program for at least three more years. Fellows get to work at nonprofit organizations for a year—while earning their standard Biglaw salaries. Nice work if you can get it!
Lateral Move of the Week: Paul Weiss hires former chancellor Andre Bouchard.
Another week, another marquee hire by Paul Weiss. The latest star to join the powerhouse firm is Andre “Andy” Bouchard, who served as chancellor of the Delaware Court of Chancery—the top judge of the top court in the country for corporate law—from 2014 until his retirement earlier this year. He’s a litigation partner based out of the Wilmington office, which now boasts six lawyers.
Bouchard, who was a name partner at a top Wilmington boutique before taking the bench, surely had no shortage of options for his post-Chancery career. His picking Paul Weiss reflects the firm’s continued ascendancy under chairman Brad Karp. And building out its practice in so-called “Delaware litigation,” i.e., M&A- and takeover-related litigation, makes sense as part of the continued evolution of Paul Weiss, which has been on the rise in the world of dealmaking since hiring Scott Barshay away from Cravath back in 2016.
Runner-up for Lateral Move of the Week: Wilson Sonsini hiring Jordan Jaffe away from Quinn Emanuel in San Francisco. Jaffe is just the latest in a string of litigation partners who have joined Wilson Sonsini in recent months, as the firm, famous for its transactional work on behalf of top tech companies, grows in litigation.
Corporate work is driving Biglaw profitability right now, but you never know when the tide will turn. So it’s smart of firms like Paul Weiss and Wilson Sonsini to continue to expand in litigation, which can be somewhat countercyclical. The evolution of the legal world can be unpredictable—which is part of what makes it so much fun to follow, each week in the pages of Judicial Notice.
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.
Paul Romer left Stanford years ago; he's now at NYU
Harlan has the makings of a great litigator. Rule 1: keep your thumb on the check.