Judicial Notice: December 18, 2020

Notable legal news from the week that was.

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Now, on to this week’s roundup.

Lawyer of the Week: William Barr.

Love him or loathe him, Bill Barr, the outgoing U.S. attorney general, is clearly the Lawyer of the Week. On Monday, news broke of his widely expected departure, which will take effect on December 23. The current deputy attorney general, former Kirkland & Ellis partner Jeffrey Rosen, will serve as acting attorney general until the end of President Trump’s term.

Barr is a clearly consequential figure, one of the most important and influential Cabinet members of the Trump Administration — and one of the most polarizing. You don’t need to look far for criticisms of his tenure as he heads for the exit. See, for example, Matt Ford’s piece in the New Republic, declaring that Barr “will go down in history as Trump’s worst enabler.”

Bill Barr isn’t beloved by everyone on the right either. Many, including President Trump, fault Barr for not revealing federal investigations into Hunter Biden before the 2020 presidential election. Acknowledging in an interview with the Associated Press that there was no widespread, outcome-changing election fraud also didn’t increase Barr’s popularity in certain conservative circles.

But Bill Barr has his defenders, including influential organs of mainstream conservative thought. See the Wall Street Journal’s editorial, Thank You, Bill Barr, or the National Review’s, Well Done, Mr. Attorney General.

Judge of the Week: Judge Thomas Kirsch.

Congratulations to Judge Kirsch, who was just confirmed by the Senate on Tuesday, by a vote of 51-44, to fill Justice Amy Coney Barrett’s seat on the Seventh Circuit. Prior to becoming a judge, Kirsch served as U.S. Attorney for the Northern District of Indiana for three years, from October 2017 to December 2020.

A Hoosier through and through, Kirsch was born in Hammond and earned his B.A. in economics and political science from Indiana University in 1996. He spent three years out of Indiana, earning his J.D. from Harvard in 1999, before returning to clerk for Judge John Daniel Tinder (then of the Southern District of Indiana, later of the Seventh Circuit — and, in a happy coincidence, former occupant of the seat Kirsch now holds). After clerking, Kirsch served as an assistant U.S. attorney from 2001 to 2008 in the Northern District of Indiana, the office he would later lead as U.S. attorney.

Given his excellent credentials, Kirsch himself was not terribly controversial, unanimously rated “well qualified” rating by the American Bar Association. So why did he receive just 51 votes? His confirmation by a lame-duck Senate — after the Republicans lost the White House, and might still lose the Senate — did not sit well with many on the left. See, e.g., this Slate piece by Dahlia Lithwick and Tobias Barrington Wolff (and for a rebuttal to Lithwick and Wolff, see this National Review piece by Ed Whelan).

Ruling of the Week: Texas v. Pennsylvania.

Not much contest here: the most important ruling since last week’s installment of Judicial Notice was the Supreme Court declining to hear Texas v. Pennsylvania, which came down on the evening of Friday, December 11 (shortly after I filed last week’s roundup, annoyingly enough). For my thoughts on the decision, see Texas v. Pennsylvania: What’s The Deal With That?

Runner-up: another original jurisdiction case brought by the Lone Star State, Texas v. New Mexico, an interstate water dispute over the Pecos River. Once again, Texas lost, this time in a 7-1 ruling by Justice Brett Kavanaugh — whose opinion about a seemingly dry subject is a surprisingly good read. (Justice Barrett, who wasn’t on the Court yet when the case was argued, did not participate.)

Litigation of the Week: sparring over the Trump Administration’s plan to exclude unauthorized immigrants from certain Census numbers.

This litigation over an extremely important topic — which could cause a state like California, home to many undocumented immigrants, to lose two to three seats in the House, as well as certain federal funding — will continue. Today, by a vote of 6-3, the Supreme Court dismissed a challenge to the Trump Administration’s plan, concluding that “judicial resolution of this dispute is premature.”

As noted by Adam Liptak in the New York Times, “The practical effect of the ruling may be limited because Census Bureau officials have said they may not be able to produce data on unauthorized immigrants before Mr. Trump leaves office.” But if the Trump Administration somehow obtains the data and somehow tries to implement the policy, expect continued litigation. As Dale Ho of the American Civil Liberties Union promised, “If this policy is ever actually implemented, we’ll be right back in court challenging it.”

Deal of the Week: AstraZeneca’s acquisition of Alexion Pharmaceuticals.

This is the Deal of the Week because it involves big bucks — a cool $39 billion — and some major M&A machers. Freshfields Bruckhaus Deringer represented AstraZeneca, Wachtell Lipton represented Alexion, and Macfarlanes worked with Wachtell on U.K. aspects of the deal. (AstraZeneca is a British-Swedish multinational company headquartered in Cambridge, England.)

Ethan Klingsberg, the high-priced hire that Freshfields lured away from his longtime home of Cleary Gottlieb, led the AstraZeneca team — so he’s already paying back the investment in him. Meanwhile, the Wachtell Lipton team, taking on the firm’s favored role of representing targets, was led by Dan Neff — one of Wachtell’s two leaders, co-chair of the Executive Committee along with Ed Herlihy.

The deal comes at an interesting time for AstraZeneca, which is in late-stage development of a Covid-19 vaccine in partnership with Oxford. But it’s not directly related to the coronavirus pandemic. Alexion focuses on developing therapies for people with rare disorders — and Covid-19 is anything but rare.

Law Firm of the Week: Irell & Manella.

In my recent deep dive into goings-on at Boies Schiller Flexner, I noted that many firms can shrink quite a bit but still survive and even thrive. One of the firms I had in mind: Irell & Manella.

Since 2014, the firm has shed about half of its headcount, going from roughly 160 lawyers to 80. It made an intentional decision to shift away from transactional work and focus on high-end commercial and intellectual-property litigation, for which it has long been known (thanks to the legendary Morgan Chu, one of the most celebrated IP litigators in the country).

And you know what? It seems the strategy is working. Irell just handily beat the Biglaw bonus scale — nice news for its associates, but more importantly, a reflection of the slimmed-down firm’s continued success.

Lateral Move of the Week: Perkins Coie picking up 17 white-collar lawyers from Richards Kibbe & Orbe.

Observers have been wondering for a while about the fate of Richards Kibbe & Orbe, one of New York’s leading boutiques, with an enviable roster of financial-services clients. RKO has long been known for hosting top-tier talent, but succession planning has been a bit of a question mark for several years.

Now the firm’s path forward is becoming clearer. On January 1, 17 lawyers from RKO — including name partner and co-founder Lee Richards, and former litigation co-chair David Massey — will join the New York office of Perkins Coie. The Perkins office is only nine years old, but it’s growing rapidly (and it’s in a lovely space, for when folks return to the office; I attended a reception there last year).

As for Richards Kibbe & Orbe, it will change its name to Kibbe & Orbe and focus on transactional and regulatory work going forward. This reflects the expertise of the three remaining co-founders, Jon Kibbe, Bill Orbe, and Michael Mann.

Non Sequiturs

  • Congratulations to Michael Kaufman and Robert Schapiro, just selected as the new deans of the Santa Clara University School of Law and the University of San Diego School of Law, respectively.

  • Tom Kirsch, our latest Judge of the Week, was confirmed on Tuesday — and he isn’t even the newest Trump appointee to the federal bench. Yesterday the Senate confirmed Charles Edward Atchley Jr. (E.D. Tenn.) and Zachary Somers (Cl. Ct.), meaning that Trump has appointed more than 220 judges over his four years.

  • Senate Majority Leader Mitch McConnell’s “leave no vacancy behind” approach will give President Joe Biden much less latitude to carry out his own transformation of the federal judiciary. For a closer look at this topic, see Zoe Tillman’s very thorough BuzzFeed News piece.

  • Why are federal judges so important? They stand up for the rule of law, as Linda Greenhouse just wrote in the New York Times, looking at the judiciary’s rejection of Trumps’s repeated attempts to overturn the 2020 election.

  • And judges keep the other branches in check — as Elizabeth Slattery argues the Supreme Court needs to do in Massachusetts Lobstermen’s Association v. Ross, which calls upon SCOTUS “to resolve a curious circuit court split to clarify that the ocean is not land, up is not down, and words have meaning.”

  • Speaking of land, if you’re not done with your holiday shopping and have $23 million to spare, here’s an idea: why not buy David Boies’s Diamond B Ranch, a 1,100-acre ranch, vineyard, and vacation retreat?

Thanks again for your readership, which is the greatest of gifts to me, and happy holidays to all.


Thanks for reading Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction on 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.

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