Judicial Notice: April 17, 2021

Notable 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.

Welcome, new readers — and there are quite a number of you. I’m happy to report that the week of April 11 was Original Jurisdiction’s best week since launch in terms of adding new subscribers. Thanks to all of you, new and old, for signing up.

I credit this to two bits of positive publicity. First, on Monday, I had the pleasure of joining David French and Sarah Isgur on their Advisory Opinions podcast, which I’ve praised before in these pages. We talked about Justice Breyer’s possible retirement, President Joe Biden’s commission on the Supreme Court, and other topics of interest to SCOTUS aficionados. Feel free to give it a listen if you haven’t done so already.

Second, also on Monday, I received another mention from media columnist Ben Smith of the New York Times, this time in a piece he wrote about Substack, the platform I use to produce Original Jurisdiction. He listed me among a group of writers who have turned to writing on Substack “full time” — which contains a little bit of personal news, if you read the reference closely enough.

Two years ago, I left Above the Law (“ATL”), the legal news website I founded in 2006, to become a legal recruiter at Lateral Link. Although I’ve enjoyed my time at Lateral Link, where I’ve worked with amazing colleagues, I realized during the pandemic that writing is my true passion. So as of the end of this month, I’m leaving the world of legal recruiting and returning to full-time writing.

I still need to make a living, so my departure from recruiting will coincide with my turning on paid subscriptions here at Original Jurisdiction. If you appreciate the content I currently produce on OJ — or that I produced over the past 17 years, at ATL and Underneath Their Robes before that — please consider lending your support when the time comes.

Now, on to the news.

Lawyer of the Week: Kristen Clarke.

Last week was actually a bit slow in legal news (after a few extremely busy weeks), so there wasn’t too much competition in the LOTW category. Some contenders:

  • Christopher Schroeder, Kenneth Polite, and Anne Milgram, nominated by President Joe Biden on Monday to three top Justice Department posts, leading the Office of Legal Counsel, the Criminal Division, and the Drug Enforcement Administration, respectively; and

  • Sen. Ed Markey (D-Mass.), House Judiciary Committee Chair Jerrold Nadler (D-N.Y.), Rep. Hank Johnson (D-Ga.), and Rep. Mondaire Jones (D-N.Y.), the four lawyer-legislators who on Thursday introduced a bill to expand the Supreme Court in size from nine justices to 13.

But nothing has happened yet on the nominations of Schroeder, Polite, and Milgram, which appear fairly uncontroversial (at least as of now). And the SCOTUS expansion bill probably isn’t going anywhere, since House Speaker Nancy Pelosi (D-Cal.) and Senate Judiciary Committee Chair Dick Durbin (D-Ill.) seem… less than enthusiastic.

So Lawyer of the Week is Kristen Clarke, President Biden’s embattled nominee to lead the Civil Rights Division of the Department of Justice. She has come under fire for a number of reasons, ranging from her views on the police to actions she took and statements she made back in college.

Republican senators asked Clarke whether she supports defunding the police, citing a Newsweek op-ed she wrote last year entitled “I Prosecuted Police Killings. Defund the Police—But Be Strategic.” She was also asked about her decision, while serving as president of Harvard’s Black Students Association, to host an event with Professor Tony Martin, a notorious anti-Semite who a year earlier had written a book entitled The Jewish Onslaught. Giving someone like Martin a platform is “not something I’d do again,” Clarke said in a recent interview.

Also while in college, Clarke co-wrote a letter to The Harvard Crimson addressing the controversy over The Bell Curve, a book discussing purported racial differences in IQ scores. In her letter, Clarke claimed, among other things, that “melanin endows Blacks with greater mental, physical and spiritual abilities.” Clarke told the senators that the letter was satire, explaining that “what I was seeking to do was to hold up a mirror and put one racist theory alongside another.” (Feel free to read the letter here.)

Will Kristen Clarke be confirmed? Right now it’s hard to say. She’s had some harsh tweets about various senators — including Sen. Joe Manchin (D-W.Va.) and Sen. Lisa Murkowski (R-Alaska), critical voters when it comes to nominations — but she doesn’t seem to be in Neera Tanden territory just yet, so she just might make it through.

Runner-up: Seth Stoughton, a former police offer and current professor at the University of South Carolina School of Law, who was the final witness for the government in the prosecution of Derek Chauvin for the killing of George Floyd (a past Litigation of the Week). Stoughton testified for almost three hours about standards for the use of force by police, a critical issue in the case.

Judge of the Week: Judge Sandra Feuerstein.

Judge Sandra Feuerstein (E.D.N.Y.) was a trailblazer who served in the state and federal judiciaries for more than three decades. She served in the New York State judiciary from 1987 to 2003, becoming the first woman from the Tenth Judicial District to serve in the Appellate Division. In 2003, she was appointed by President George W. Bush to the U.S. District Court for the Eastern District of New York. She was sworn into that role by her mother, Judge Annette Elstein, and the two are believed to be the first mother-daughter judges in the United States.

Tragically, earlier this month, Judge Feuerstein was killed in a hit-and-run accident in Boca Raton, Florida. In a statement, acting U.S. Attorney Mark Lesko praised her for her “unwavering commitment to justice and service to the people of our district and our nation.”

Judge Feuerstein, 75, is survived by her two sons, Seth Feurstein and Adam Feurstein. May her memory be a blessing.

Runners-up for Judge of the Week:

  • Justices Sonia Sotomayor and Neil Gorsuch. Despite coming from opposite sides of the ideological spectrum, the two justices stressed the need for civil discourse in our democracy, in remarks they delivered as part of a conversation sponsored by the Center for Strategic and International Studies.

  • Vice Chancellor Kathaleen McCormick. Because of the high number of companies incorporated in Delaware, its Court of Chancery is the most important venue for questions of corporate law in the country. And Vice Chancellor McCormick, selected by Gov. John Carney to replace outgoing Chancellor Andre Bouchard, will be the first woman to hold the position of Chancellor, if confirmed.

Judge of all time: according to the readers of SCOTUSblog, it’s Chief Justice Earl Warren, author of such landmark rulings as Brown v. Board of Education and Loving v. Virginia, who just defeated Chief Justice John Marshall in the final round of the site’s first-ever SCOTUS bracketology tournament.

Finally, before we leave the topic of judges and justices, check out the Columbia Law Review’s excellent “in memoriam” tribute issue dedicated to the late Justice Ruth Bader Ginsburg, a former CLR editor herself. The roster of contributors is star-studded, including, among others, Chief Justice John Roberts, Justice Stephen Breyer, and Senator Hillary Clinton.

Ruling of the Week: In re Courtney Wild.

Congratulations to the Eleventh Circuit, which is handing down some extremely interesting decisions these days. For the second week in a row, it takes Ruling of the Week honors.

Courtney Wild was one of more than 30 women who was victimized by Jeffrey Epstein, the late financier and notorious sex trafficker. In 2008, she filed a freestanding civil action against the federal government, arguing that federal prosecutors violated her rights under the Crime Victims’ Rights Act (CVRA) by secretly negotiating and entering into a non-prosecution agreement with Epstein in 2007.

On Thursday, the Eleventh Circuit, sitting en banc, ruled that Wild cannot bring a freestanding civil action to vindicate her rights under the CVRA (as opposed to filing a motion for relief within a preexisting judicial proceeding). Judge Kevin Newsom wrote the majority opinion for six judges, Judge Elizabeth Branch filed a vigorous dissent on behalf of four judges, and Judge Frank Hull, who joined Judge Branch’s dissent, filed an additional dissent of her own.

The opinions in In re Wild, which also include three additional concurrences by Chief Judge William Pryor, Judge Gerard Tjoflat, and Judge Newsom, total almost 200 pages. Judge Newsom and Judge Branch, authors of the majority opinion and the principal dissent, respectively, are both excellent writers, and they lay out their positions clearly and cogently. Kudos to them for so deftly navigating through a number of challenging and complex issues.

Speaking for myself, I believe that Judge Newsom has the better of the argument — but this isn’t an easy case, for at least two reasons. First, the CVRA is not a well-drafted statute. It strikes me as one of those statutes that Congress passed to “send a message” — in this case, “we care about crime victims” — without carefully thinking through how to operationalize its noble sentiments. Second, it’s a hard case because the result that’s likely the legally correct one — the conclusion reached by the majority — is distasteful to so many of us (including Judge Newsom, who wrote a separate concurrence to basically say “I really really really hate this result”).

Litigation of the Week: abortion battles in the Sixth Circuit.

The other big en banc ruling of the week was the Sixth Circuit’s decision in Preterm-Cleveland v. McCloud. You can access the 111 pages of opinions here, and you can read media commentary and coverage here and here (via How Appealing). Short Circuit offers this nice, concise summary:

Ohio prohibits doctors from performing an abortion when they know that the woman’s reason for the abortion is that her fetus has Down syndrome and she does not want a child with Down syndrome. [The Ohio law] is constitutional, according to the en banc Sixth Circuit. Eleven opinions span 111 pages addressing a host of arguments, including originalism, eugenics, and whether Ohio’s law burdens a woman’s right to abortion at all.

Who wrote? Uh, who didn’t write? The lineup has a very “who’s on first” quality.

Wow. I haven’t seen that kind of judicial train wreck since… last week, when the Fifth Circuit treated us to Brackeen v. Haaland.

So yes, Preterm-Cleveland is a hot mess — but it’s an important mess. Like the Eight Circuit’s decision in Little Rock Family Planning Services v. Rutledge, a Ruling of the Week from January, Preterm-Cleveland is yet another lower-court case that might pave the way for the Supreme Court to revisit its abortion jurisprudence, now that conservatives have a solid 6-3 majority at One First Street.

And Preterm-Cleveland wasn’t even the only en banc battle over abortion in the Sixth Circuit this month. On April 9, in Bristol Regional Women’s Center, P.C. v. Slatery, the court took the unusual step of going straight to en banc review of a Tennessee law requiring a 48-hour waiting period before an abortion. This provoked a scorching dissent from Judge Nelson Moore, who accused her colleagues of “endorsing this game of procedural hopscotch” by state officials who, in her telling, wanted to skip past review by a three-judge panel because they didn’t like who was on that panel.

I can see Judge Moore’s point. On the other hand, given the Sixth Circuit’s sensitivity on abortion cases, as reflected in Preterm-Cleveland, combined with the interest in resolving the constitutionality of abortion regulations in an expeditious manner, it’s probably a wise use of judicial resources to fast forward through the three-judge-panel process if you know the Tennessee statute is going to wind up en banc anyway.

Deal of the Week: Microsoft’s acquisition of Nuance Communications.

On Monday, Microsoft announced its acquisition of Nuance Communications Inc., for the tidy sum of $16 billion (including the assumption of about $3.7 billion in debt). The big price tag, plus the sexy industries — Nuance is a leading player in speech recognition and artificial intelligence — make this my pick for Deal of the Week. Congratulations to the legal advisors: for Microsoft, a Simpson Thacher team led by Alan Klein and Anthony Vernace, and for Nuance, a Paul, Weiss team led by Scott Barshay, Rachael Coffey, and Steven Williams.

Law Firm of the Week: Paul, Weiss, Rifkind, Wharton & Garrison.

In looking over the list of past Law Firms of the Week, I was surprised not to see Paul, Weiss. That changes this week, with PW taking LFOW honors — for several reasons.

Advising on the Deal of Week wasn’t the firm’s only achievement this week. It also advised KPS Capital Partners on its purchase of a majority stake in the European can business of Crown Holdings Inc., for $2.26 billion.

On the talent front, the firm made some nice lateral partner hires, bringing over David Tarr from Willkie Farr & Gallagher, where he was co-chair of the finance practice, and Brian Krause from Skadden Arps, where he was a tax partner focused on cross-border transactions. And PW earned high marks in Yale Law Women’s 16th annual ranking of top firms for gender equity and family friendliness, excelling in the categories of diverse leadership and training/mentorship.

Finally, Paul, Weiss has a longstanding tradition of civic engagement, which it continued this month. As reported on Monday by the New York Times, PW chair Brad Karp took the lead in putting together a coalition of more than 60 law firms to sign a statement condemning restrictions on voting, in the wake of Georgia enacting a controversial new voting law. The signatories include some of the biggest names in Biglaw, with Cravath, Wachtell Lipton, and Skadden joining Paul, Weiss in “denounc[ing] all efforts to restrict the constitutional right of every eligible American to vote and to participate in our democracy.”

Runner-up for Law Firm of the Week: the 40-plus law firms that have joined the Alliance for Asian American Justice, a national initiative that will coordinate and deploy law firm pro bono resources to help victims obtain legal help. Special props to Gibson Dunn partner Debra Wong Yang and White & Case partner Tai Park, co-chairs of the Alliance.

Lateral Move of the Week: Fox News hiring Bernard Gugar as general counsel.

This past week was relatively slow in terms of lateral hiring news — which isn’t surprising, since the first quarter tends to be the period of peak movement. Here are two hires that jumped out to me — both in the securities/white-collar space, which many industry observers expect to pick up during the Biden Administration:

  • Simpson Thacher & Bartlett hiring Marc Berger, the former acting head of the Securities and Exchange Commission’s enforcement division, in New York; and

  • Paul Hastings hiring Kenneth Herzinger, former chair of the white-collar practice at Orrick, in San Francisco.

For Lateral Move of the Week, though, I’m picking the high-profile hiring of Bernard Gugar as general counsel and executive vice president of corporate development over at Fox News. With this move, Gugar becomes one of the most prominent Black GCs in the world of news media.

Gugar joins Fox from Google, where he served as the U.S. Head of Industries for Google Cloud’s Deal Pursuit Organization. Before Google, he served as general counsel of Oprah Winfrey’s privately-held global media company, Harpo, Inc. He graduated from Wesleyan University and Columbia Law School, and he began his legal career at Simpson Thacher before going in-house.

At Fox, Gugar will face a number of tough issues (some of which I previously discussed with Viet Dinh, chief legal officer of Fox Corporation, parent of Fox News). These include the defamation lawsuits filed against Fox by Smartmatic and Dominion Voting Systems, two election-tech companies alleging that the network spread false claims that they were involved in voter fraud in the 2020 election.

Commenters at Fox News had interesting things to say about Gugar:

  • “I'm not sure FOX could have picked a person with a more liberal background than this person. The only liberal thing this guy wasn't involved with APPEARS to be Joe Biden's election campaign; but we'll research that reeeal quick.”

  • “Get ready for this dude to turn FOX into another LIBERAL MEDIA source! His background with Google and Oprah Winfrey’s organization give me a lot of doubts!”

I wouldn’t hold my breath waiting for Fox News to turn into another LIBERAL MEDIA source. But who knows; we live in unusual times. Keep reading Judicial Notice each week to stay on top of our ever-changing world.


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