Judicial Notice: December 4, 2020
Notable legal news from the week that was.
Welcome to Original Jurisdiction, a new 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.
As I mentioned in my introduction to Original Jurisdiction, this new website is a work in progress. I welcome your suggestions and feedback, in terms of what you want and don’t want to see, by email to davidlat@substack.com. Please note that because of the volume of correspondence I receive, I can’t respond to every message, for which I apologize — but please know that I appreciate your emails, even if I can’t or don’t reply personally.
One feature I’ll have is a weekly roundup called “Judicial Notice.” The title comes from the legal term, but it also reflects the content. I’ll share with you developments I’ve noticed that are interesting, important, entertaining, or otherwise worth mentioning. And although I’m not a judge, I will sit in judgment, giving you my honest opinions on the good, the bad, and the ugly.
Lawyers love recognition — we miss the gold stars we got back in elementary school — so I’m structuring this weekly review around awards. But there’s going to be an idiosyncratic quality to them. The “winner” is going to be someone or something worth highlighting, not necessarily the “best” or “greatest” — as you’re about to see in the awards below, and as you’ll see in the coming weeks.
For future installments of Judicial Notice, I welcome your nominations in the different categories. Just email me at davidlat@substack.com, with the category of your nomination as the subject line (e.g., “Lawyer of the Week”). Thanks!
Weekly Awards
Lawyer of the Week: Jenna Ellis.
Yesterday, both the New York Times and the Wall Street Journal ran lengthy profiles of Ellis, the 36-year-old who’s a leading member of the (so-called) “elite strike force” of lawyers leading President Donald Trump’s (doomed) attempt to overturn his stinging loss in the 2020 election. Given this extensive publicity, Ellis is unquestionably the legal world’s “It Girl” of the week.
Critics question Ellis’s credentials and experience, and she hasn’t appeared in a courtroom or in legal filings in any of the election cases. But like her client, she has a gift for getting noticed. As Elizabeth Dye wrote in the pages of Above the Law, “Jenna Ellis makes an impression.”
Runners-up: Sidney Powell, Margo Channing to Jenna Ellis’s Eve Harrington, who Ellis and Rudy Giuliani unceremoniously shoved off center stage; and Ana Reyes, the Williams & Connolly partner who tracked down the first-grade teacher who taught her English in order to thank her, decades later. Now that’s class.
Judges of the Week: Judge Kevin Newsom and Judge Robin Rosenbaum.
As I wrote back in 2004 at Underneath Their Robes, in the blog post where I coined the term “benchslap,” “MEOW! With the possible exception of a French manicure, there is nothing Article III Groupie likes better than a good old-fashioned cat-fight.”
And in terms of cat fights, this week the Eleventh Circuit delivered. Dissenting from the court’s refusal to grant rehearing en banc in Keohane v. Florida Department of Corrections Secretary, Judge Rosenbaum slammed Judge Newsom’s opinion for “distort[ing] beyond recognition the prior precedent rule” and “remold[ing] the prior-precedent rule into an unrecognizable and dangerous form.”
Ouch. “That was way harsh, Tai.”
But Judge Newsom gave as good as he got: “More often than not, any writing’s persuasive value is inversely proportional to its use of hyperbole and invective. And so it is with today’s dissental.”
For additional commentary on this contretemps, see David Oscar Markus (via Howard Bashman), who opines that “civility is overrated.”
Rulings of the Week: anything bringing 2020 election litigation to a merciful end.
Litigation over the election? I’m so over it, and I bet you are too.
Fortunately, judges across the country feel the same way, from Wisconsin, whose Supreme Court voted 4-3 to deny review of President Trump’s challenge to the election results, to the U.S. Supreme Court, where Justice Alito tellingly set a briefing schedule falling after the “safe harbor date” for states to resolve outstanding election challenges. This strikes me as a way for Justice Alito to let Trump down easy (and escape the Twitter wrath of @RealDonaldTrump).
(Links once again courtesy of Howard and How Appealing.)
Litigation of the Week: ongoing litigation over restrictions on religious services intended to prevent the spread of the coronavirus.
The importance of this litigation, pitting the cherished First Amendment freedom of religious liberty against the need to control a deadly pandemic, is hard to overstate. And it will be with us for quite some time, I predict.
Right before Thanksgiving, the Supreme Court handed down heated opinions in Roman Catholic Diocese of Brooklyn v. Cuomo, temporarily blocking Governor Andrew Cuomo of New York from enforcing 25-person occupancy limits against houses of worship. Litigation on this subject continued into this week, with SCOTUS yesterday ordering Judge Jesus G. Bernal (C.D. Cal.) to reconsider his ruling that allowed California to impose its own restrictions on religious services in light of the New York case. As noted by Adam Liptak in the New York Times, the Supreme Court’s ruling vindicated Judge Diarmuid F. O’Scannlain, who dissented vigorously from the Ninth Circuit ruling that would have left Judge Bernal’s ruling in place.
Deal of the Week: Salesforce acquiring Slack.
It’s no secret that 2020 hasn’t been a banner year for M&A. So it’s heartening as we close out the year to see a mega-deal in the news — specifically, Salesforce swallowing Slack for $27.7 billion. Wachtell Lipton and Morrison & Foerster advised Salesforce, Latham & Watkins and Goodwin Procter advised Slack, and all four firms should enjoy nice paydays (although maybe more in 2021, when the deal is expected to close).
Law Firm of the Week: Boies Schiller Flexner.
To quote the immortal Beyonce, “You know you that bi**h when you cause all this conversation.” And right now, in terms of dominating the headlines, the Queen Bey is BSF.
On Wednesday, the WSJ broke the news of co-managing partner Nick Gravante defecting to Cadwalader. On Thursday, BSF chair David Boies and co-managing partner Natasha Harrison revealed to me the exciting news of Harrison’s likely elevation to deputy chair, making her the heir apparent to Boies himself, plus the firm’s bountiful associate bonuses this year, going as high as $450,000.
What does the future hold for Boies Schiller? We eagerly await the answer.
Lateral Move of the Week: Nick Gravante & Co. moving from Boies Schiller Flexner to Cadwalader, Wickersham & Taft.
Gravante will assume leadership of the Commercial Litigation practice at CWT. He’s moving with partners Lawrence Brandman, Karen Dyer, and Philip Iovieno, who will serve as co-leader of the Antitrust Litigation practice.
Runner-up: Detroit-based Dickinson Wright’s acquisition of Stahl Cowen Crowley Addis, a 12-lawyer firm in Chicago. Law firm consultants and other industry observers predict more such mergers and acquisitions in 2021; this is just the tip of the iceberg.
Non Sequiturs
In each installment of Judicial Notice, I’ll have a section entitled “Non Sequiturs,” where I’ll mention various things that I think are worth your time and attention. It will be like the dearly departed feature on Above the Law called Non Sequiturs, a roundup of noteworthy links, but broader in scope, including interesting news items that don’t merit full articles or upcoming events that might appeal to you.
Today I have two things to recommend, both (relatively) new podcasts:
For the Defense is hosted by David Oscar Markus, one of the country’s leading criminal defense attorneys. In each episode, he interviews fellow defense lawyers, and he’s landed some big names so far, including F. Lee Bailey, Roy Black, and Thomas Mesereau. The first episode — featuring Donna Rotunno, who had the unenviable task of defending Harvey Weinstein — is a must-listen.
Dissed is catnip to legal nerds. In each episode, Pacific Legal Foundation attorneys Anastasia Boden and Elizabeth Slattery dig deep into important dissents, past and present, and reveal the stories behind them. The pilot episode features celebrities — okay, celebrities in legal-nerd circles — like Lisa Blatt, Paul Clement, Tom Goldstein, Adam Liptak, Ed Whelan, and Judge Don Willett (5th Cir.). If you know what the heck an #appellatetwitter is, then you’ll definitely enjoy Dissed.
If you have something you’d like me to consider for inclusion in next week’s Non Sequiturs, please email me at davidlat@substack.com, subject line “Non Sequiturs.” Thanks, and Happy Friday!
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