Judicial Notice: January 8, 2021

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.

Hey 2021, 2020 called, and it wants its drama back.

Here we are, just one full week into the new year. And based on the terrible and traumatic events of this past Wednesday, the new year so far looks every bit as depressing and dramatic as the last one. Let’s hope things improve — quickly.

Lawyer of the Week: Ted Cruz.

The early leader for Lawyer of the Week was Cleta Mitchell. A top conservative lawyer, Mitchell made headlines last Sunday when the Washington Post broke the news of her participation in President Donald Trump’s call with Brad Raffensperger, Georgia’s secretary of state, in which Trump urged Raffensperger to “find” the 11,780 votes needed to change the outcome of the presidential election in Georgia. An uproar ensued, and by Tuesday, Cheata Mitchell was out at Foley & Lardner, where she had been a prominent partner for many years.

(I’ve long been fascinated by Mitchell, well before her most recent brush with fame — or infamy. See my 2013 profile of her, Cleta Mitchell: An Anti-Gay Gay Icon?)

On Wednesday, we learned of the twin victories of the Rev. Raphael Warnock and Jon Ossoff in the U.S. Senate runoffs in Georgia, giving Democrats control of the chamber when President-elect Joe Biden assumes office. This would have been good reason to give LOTW honors to Stacey Abrams, whose legal, legislative, and advocacy work paved the way for these wins. But Abrams was named Lawyer of the Week not long ago, and although there’s no rule against winning a second time, the bar is higher for a repeat win in such a short timeframe.

This is also why I won’t give the Lawyer of the Week trophy to Senator Josh Hawley (R-Mo.), even though there’s a strong argument that he was the most consequential counselor of the past week. I named him LOTW last week for his decision to challenge the results of the 2020 election — and what happened on Wednesday at the Capitol is very much a direct consequence of that challenge.

Instead, I’m going to name Senator Ted Cruz (R-Tex.), Hawley’s partner in crime, as Lawyer of the Week. It’s not clear that Hawley’s challenge to the Electoral College results would have fomented the rioting and insurrection that it ultimately did if Cruz hadn’t quickly announced his intention to back the challenge, then rustled up additional support from other Senate Republicans. And Cruz then joined Hawley in continuing to object to the election results, even after Wednesday afternoon’s events (or “irregardless” of those events, as Hawley might say — for which he got called out by grammar guru Bryan Garner).

It’s especially appropriate to give Lawyer of the Week honors to Cruz because of what Peggy Noonan — writing for the Wall Street Journal editorial page, no bastion of left-wing thinking — described as his “lawyerly” approach to objecting to the election results. Cruz said, in essence, “There are these allegations of election fraud, and some people believe them. I’m not necessarily saying they’re true. But can we just have an investigation, in the name of due process?”

Taking this position allowed Cruz to endear himself to the Trump supporters he hopes will support his 2024 presidential bid. But he was also trying to preserve some amount of plausible deniability, so he could later say to non-MAGA folks, “Oh, I wasn’t saying there was actual fraud. I just wanted an investigation, that’s all!”

The deniability wasn’t that plausible, since the fraud allegations had no real support (which is why dozens of judges, including many Trump appointees, roundly rejected them). But Cruz’s approach was lawyerly and legalistic — and for this, he’s Lawyer of the Week.

Judge of the Week: Judge Merrick B. Garland.

On Wednesday, before it was overtaken by word of the attack on the Capitol, news broke of President-elect Biden’s selection of Judge Merrick Garland as his nominee for U.S. attorney general. As I noted on Twitter, service as attorney general would constitute a great capstone to Judge Garland’s distinguished legal career — the capstone he was unfairly denied when the Senate refused to act on his 2016 nomination to the Supreme Court.

But not everyone is thrilled. Some on the left fear that Garland, a former prosecutor who has been fairly pro-government as a judge, won’t be very progressive as AG.

But my response to these objections is that one must be realistic. Even with the Georgia wins, the Democrats barely control the Senate — and that’s including Senator Joe Manchin (D-W.V.), who’s barely a Democrat. Judge Garland, in addition to being incredibly qualified, is eminently confirmable. Even a conservative Republican like Senator Lindsey Graham (R-S.C.) believes Garland is a “sound choice.”

Congratulations to Judge Garland, who should soon be confirmed as the 86th attorney general of the United States, and good luck to him as he seeks to restore confidence in the Justice Department among those who lost such confidence in recent years.

Ruling of the Week: Little Rock Family Planning Services v. Rutledge.

On Tuesday, the Eighth Circuit issued a seemingly mundane but actually important abortion ruling. The unanimous panel affirmed district court injunctions against enforcement of Arkansas bans on abortion (1) after 18 weeks or (2) due to a Down Syndrome diagnosis. The panel consisted of three Republican-appointed judges, with the opinion written by the conservative Judge James B. Loken. But the panel, like the district court, found the case squarely controlled by existing Supreme Court and Eighth Circuit precedent.

Sounds straightforward — but as is often the case, the interesting stuff is in the concurrences. Judge Bobby E. Shepherd wrote a concurrence joined by Judge Ralph R. Erickson, and Judge Erickson wrote a concurrence joined by Judge Shepherd. The gist of both concurrences: the Supreme Court should revisit its jurisprudence about viability as set forth in cases like Planned Parenthood v. Casey, holding that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” generally regarded as taking place at 24 weeks.

Why? According to Judge Shepherd, “the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children.” As argued by Judge Erickson, viability “overlooks harms that go beyond the state’s interest in a nascent life alone” — such as the harm presented by a “new eugenics movement” that threatens “the great glory of humanity… its diversity.”

I agree with Howard Bashman’s prediction that Arkansas will seek Supreme Court review, especially in light of two concurrences that cry out for the Court to revisit its viability precedents. And if it does, I think there’s a decent chance that SCOTUS, now with a 6-3 conservative majority, will revisit and revise its abortion jurisprudence.

Litigation of the Week: Dominion Voting Systems, Inc. v. Powell.

(Sorry to burden you with yet another election-related lawsuit. But hey, January 20 is less than two weeks away….)

Earlier today, prominent First Amendment lawyer Tom Clare filed a defamation lawsuit on behalf of Dominion Voting Systems against Sidney Powell, the high-profile conservative lawyer who has repeatedly and publicly claimed that Dominion was part of an effort to rig the 2020 presidential election in favor of Joe Biden. The 124-page complaint claims that Dominion’s reputation and resale value have been harmed by Powell’s “viral disinformation campaign” — and seeks $1.3 billion in damages.

The involvement of Tom Clare and Clare Locke LLP, the litigation boutique that he and his wife Libby Locke founded after leaving Kirkland & Ellis, is particularly notable. Clare Locke is most well-known for representing conservative figures like Sarah Palin in lawsuits against liberal (or perceived to be liberal) defendants like the New York Times or the Southern Poverty Law Center.

So it would be hard to claim that this lawsuit is politically motivated, as opposed to just a straight-up defamation lawsuit. As Tom Clare told the National Law Journal, in “decades of practice as a defamation lawyer, I have never seen clearer and more convincing evidence of actual malice.”

Deal of the Week: the Fastcase/Casemaker merger.

Today’s Deal of the Week might not be a billion-dollar blockbuster, but it will likely have practical implications for more than a million lawyers. On Tuesday, leading legal technology journalist Bob Ambrogi reported:

In news akin to a wedding announcement jointly issued by the Hatfields and the McCoys, two longtime competitors in the legal research market, Casemaker and Fastcase, have merged, creating a single company under the Fastcase brand that has an estimated subscriber base of more than three quarters of all lawyers in the United States….

Now, the combined company’s subscriber base will include the bar associations of all 50 states, the District of Columbia, the U.S. Virgin Islands, and four-dozen metropolitan, county and specialty bar associations, for a total number of users of more than 1 million lawyers, out of an estimated 1.3 million lawyers in the country.

Going up against the Westlaw/Lexis duopoly — aka “Wexis,” as the law librarians like to say — is a major challenge. But now that they’ve joined forces, maybe Fastcase and Casemaker have a shot.

Law Firm of the Week: Davis Polk & Wardwell.

As reported on Monday by the American Lawyer, Davis Polk topped Refinitiv’s 2020 M&A league tables, advising on a whopping $448 billion in deals last year. DPW also kicked off 2021 by announcing its involvement in a number of noteworthy transactions, including deals for Anvil/Smith-Cooper International and Cerberus.

This alone might be enough to give Davis Polk the crown. But wait, there’s more.

Also on Monday, DPW announced its hiring of Daniel Stipano as a partner in its market-leading Financial Institutions & Regulation Group, based out of the D.C. office (for whenever we return to the office). As noted by Roy Strom of Bloomberg Law, Stipano’s hiring from Buckley LLP is a sign that Davis Polk “is following through on a more aggressive lateral hiring strategy it laid out last year with its departure from strict lockstep compensation.”

Davis has long been known for being one of the whitest of white-shoe firms, a strong adherent to tradition. But in the past decade or so, it has definitely changed, by engaging in more lateral hiring and by becoming a market leader in compensation, two things it wasn’t previously known for.

As I observed back in 2013, “This isn’t your father’s Davis Polk.” So keep your eye on DPW (and not just because of its attractive lawyers).

Lateral Move of the Week: Rex Heinke leaving Akin Gump for the California Appellate Law Group.

The first quarter is a peak period for lateral movement, so it should come as no surprise that this past week brought news of many major moves. Two noteworthy ones include Kirkland & Ellis luring away Andrea Agathoklis Murino from Goodwin, where she had been co-chair of the firm’s Antitrust & Competition Law practice, and Quinn Emanuel launching an Austin office, picking up two partners from other firms (Scott Cole from McKool Smith, and Asher Griffin from Scott Douglass & McConnico).

The move I find most interesting, though, is Rex Heinke leaving Akin Gump, where he served as co-head of its Supreme Court and appellate practice for nearly 20 years, and joining the California Appellate Law Group, a top appellate boutique. He was accompanied by Jessica Weisel, senior counsel at Akin Gump and now of counsel at CALG.

Heinke’s move reflects two trends. First, it shows how mandatory retirement policies, like the one Heinke was facing at Akin Gump, are starting to affect partners who are by no means ready to retire. Second, it reflects the move of many prominent practitioners from Biglaw to boutiques, where they often enjoy greater rate flexibility, fewer conflicts, and less pressure to produce.

Non Sequiturs

  • The sad year of 2020 ended with more sad news: on December 31, at the age of 25, Harvard 2L Tommy Raskin lost his long-running battle with depression. His parents, Rep. Jamie Raskin (D-Md.) and Sarah Bloom Raskin, published a beautiful and moving tribute to him.

  • And now Tommy Raskin’s call to do good deeds is being heeded by hundreds, who have done such things as donating toys to a Baltimore hospital, taking diapers and formula to a D.C. diaper bank, and helping a friend through a divorce. You can add your name and good deed to this Google document, which has almost 500 entries as of this writing.

  • In the wake of the Democrats’ wins in the Georgia runoff races, liberals and progressives have a message for Justice Stephen G. Breyer, who will turn 83 later this year: “Justice Breyer, please retire!

  • Speaking of retirements, on January 31, James C. Duff will retire as director of the Administrative Office of the U.S. Courts, the central support entity for the federal judiciary. He will be succeeded by Chief Judge Roslynn R. Mauskopf (E.D.N.Y.), the first woman in the role.

  • After more than three decades at USA Today, during which he covered the White House, Congress, and the Supreme Court, Richard Wolf announced his retirement. He plans to enjoy being a husband and father — you know, the old D.C. “spend more time with the family” thing — and work on autism awareness.

  • The indefatigable Tony Mauro — one of Wolf’s predecessors on the SCOTUS beat at USA Today, who in theory retired last year — continues to do great work. Check out Mauro’s Texas Lawbook profile of Judge James Ho (5th Cir.) and Ho’s wife, high-powered appellate advocate Allyson Ho, co-chair of the nationwide appellate practice at Gibson Dunn & Crutcher. (Fun fact: Allyson Ho is a former law clerk to Judge Jacques Wiener, whose contretemps with Judge Ho recently won both of them Judge of the Week honors.)

  • Sorry, I know y’all are sick of hearing about Senator Hawley, but this is worth reading: Irina Manta’s USA Today piece about the time she ran (unsuccessfully) against Josh Hawley for the presidency of the Yale Federalist Society, way back in 2005 — and what light it sheds on today’s events.

  • Speaking of Fed Soc, Manta has this interesting explanation of why she — a woman, an immigrant, a registered Democrat — first got involved, and remains involved, with the Federalist Society.

  • Richard “Dick” Thornburgh, former Pennsylvania governor and U.S. attorney general, rest in peace.


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.