Judicial Notice (08.17.25): Maybe Happy Ending
Circuit judges trading benchslaps, the return of Kim Davis, a rescuer for a troubled firm, and a billion-dollar transaction involving... tighty whities?
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I hope you’re enjoying these last few weeks of summer. I’ve certainly been taking advantage of the season’s laid-back feel, playing hooky in the middle of the week to catch Wednesday matinees of shows like Gypsy (before Audra McDonald left) and Maybe Happy Ending (before Darren Criss leaves at the end of this month). I’ll be sad when summer, my favorite season, comes to an end.
But the fall does bring some happenings that I’m eagerly anticipating—such as SCOTUSblog’s inaugural summit, On the Merits, taking place next month at the Johns Hopkins University Bloomberg Center in Washington, D.C. It’s a one-day, invitation-only event focused on the intersection of law, power, and the modern judiciary. For more details—including the great list of speakers, such as Justice Amy Coney Barrett—check out the Summit homepage.
Programming note: I will be publishing in the coming week—results from my emergency/shadow docket poll, plus a podcast episode with a top M&A partner—but I might be hard to reach. I’m going on a self-created “writer’s retreat” to focus on some non-newsletter writing, so I’ll be trying to tune out any distractions. If you try to reach me—whether by phone call, text, iMessage, email, WhatsApp, Viber, Signal, LinkedIn, Twitter, Facebook, or Instagram—I might not respond in timely fashion, for which I apologize. Try me again after a few days (or, better yet, after Labor Day).
Now, on to the news.
Lawyer of the Week: May Mailman.
I’ve been closely following the Trump administration’s ongoing war with higher education—much of it waged on legal fronts, including investigations and litigations. So I was very interested in Michael Bender’s New York Times profile (gift link) of May Mailman, described as “the most important, least-known person behind the administration’s relentless pursuit of the nation’s premier universities.”
A 37-year-old graduate of Harvard Law School, Mailman helped develop the playbook the administration has been deploying against elite educational institutions—including pulling their federal funding, investigating them for alleged civil-rights violations, and threatening their ability to enroll (or even trying to deport) international students. And it has produced results, in the form of settlements with the University of Pennsylvania, Columbia, and Brown—with more schools expected to follow.
Mailman recently stepped down from her roles as deputy assistant to the president and senior policy strategist, as reported by CBS News. But she’ll become a special government employee, so she can see through certain matters to resolution—presumably including the administration’s battle with one of her alma maters, Harvard University. Harvard is reportedly close to reaching a settlement with the administration—over the objection of thousands of alumni, faculty, and members of the public.
So although Mailman has left the White House, she’s not leaving the policy world. She also plans to launch her own government-affairs firm and resume her pre-administration work with the Independent Women’s Forum, a conservative nonprofit. I suspect we haven’t heard the last of May Mailman.
Other lawyers in the news:
Mailman was recruited into the Trump administration by Susie Wiles, the White House chief of staff. A powerful figure in Trumpworld, Wiles also played a role in selecting Tysen Duva, a rank-and-file prosecutor in Jacksonville (N.D. Fla.), as the administration’s nominee to lead the Criminal Division of the Department of Justice (DOJ). Wiles and Duva got to know each other when Wiles served as a witness in a public-corruption case that Duva tried, and he made a favorable impression on her. So when he told her he was open to opportunities, she connected him with the presidential personnel office and the DOJ.
Speaking of prosecutorial appointments, will the judges of the Southern District of New York (S.D.N.Y.) install Jay Clayton, currently serving as interim U.S. attorney for the S.D.N.Y., as the long-term occupant of that role? We’ll find out later this month, when the judges vote on Clayton (per 28 U.S.C. § 546).
The DOJ is very short-staffed right now, thanks to a combination of resignations and firings—and it’s showing. Overwhelmed government lawyers are seeking extensions in an unusually high number of cases, according to Bloomberg Law.
Speaking of Bloomberg Law, congratulations to its 2025 class of 40 Under 40, a group of young lawyers who excel at client work, assume leadership roles in their organizations, and still make time for mentorship and pro bono work.
And congrats also to all the lawyers and law firms named as finalists for The American Lawyer’s annual Industry Awards. The winners will be announced on November 13, at Am Law’s annual gala in New York.
In memoriam:
Famed trial lawyer Gerry Spence passed away at 96. He secured courtroom wins for clients like Imelda Marcos, the former first lady of the Philippines accused of corruption, and the family of Karen Silkwood, the labor activist who called attention to health-and-safety violations at a nuclear facility. (In light of my recent defeat in traffic court, I drew consolation from reading, in his Times obituary, that even the legendary Gerry Spence couldn’t get his speeding ticket dismissed.)
Gregory H. Williams, a former dean of the Ohio State University Moritz College of Law, passed away at 81.
May they rest in peace.
Judges of the Week: Judges Karen Nelson Moore and Chad Readler.
Why do I love writing about the law? Yes, I’m fascinated by legal doctrine—but I’m also here for the drama. Dating back to my first blog, Underneath Their Robes, I’ve enjoyed chronicling clashes between larger-than-life personalities on the federal bench: Reinhardt v. O’Scannlain (9th Cir.), Cabranes v. Pooler (2d Cir.), and Boggs v. Martin (6th Cir.), among others.
In the Boggs v. Martin days, the Sixth Circuit was known as a less-than-collegial court. It’s gotten much better, and today it’s regarded as a pretty pleasant place to be a judge. But I wonder if some judges still have issues with each other—such as the latest Judges of the Week, Judges Karen Nelson Moore and Chad Readler. (Because I really try to get pronunciations right—see, e.g., my Law Firm Pronunciation Guide—I must inform you that “Readler” is pronounced “RAID-ler,” not “REED-ler.”)
In March 2021, Judges Moore and Readler shared Judge of the Week honors for trading benchslaps in unpublished opinions. Then last week, the two clashed in Mitchell v. City of Benton Harbor, which the Sixth Circuit declined to rehear en banc.
A divided three-judge panel in Mitchell allowed the plaintiffs to sue certain officials of Benton Harbor, Michigan, who allegedly violated the plaintiffs’ substantive-due-process rights by mishandling a lead-water crisis. Judge Moore, a Clinton appointee and leading liberal of her court, wrote the original panel opinion; Judge Joan Larsen, a Trump appointee and prominent conservative, wrote the panel dissent.
Benton Harbor petitioned for the case to be reheard en banc—i.e., by the entire Sixth Circuit—but less than a majority of judges voted for rehearing en banc. Judge Larsen dissented from the denial of rehearing en banc, arguing that the case should have been reheard because the panel majority’s decision “brazenly defies Supreme Court precedent” and concerns an important issue, “the constitutional liability of government officials responding to naturally occurring environmental crises.” Her dissent from denial aka “dissental” was joined by six other conservatives: Judges Kethledge, Thapar, Bush, Nalbandian, Readler, and Murphy.
Judge Moore responded by writing a concurrence to the denial of rehearing. She opened by addressing a development that raises “serious concerns” for her, namely, “a rising trend in our circuit of publishing separate statements when rehearing is denied after a poll of the en banc court.” In her view, the practice is “offensive to our system of panel adjudication,” and it “casts doubt on circuit precedent, erodes our faith in the panel system, and gives rise to our own ‘shadow docket’” (cleaned up).
Judge Moore’s criticism of dissentals prompted Judge Readler to write his own dissental—which might be called a meta-dissental, since it was a defense of dissentals. He wrote that Judge Moore’s “distaste for separate writings… appears to be a very recent phenomenon”—and followed that with a string cite referencing a dozen occasions when Judge Moore herself either wrote or joined a dissent from or concurrence in a denial of rehearing en banc. Touché.
After getting in that jab, Judge Readler made the case for dissentals. Arguing that because “[d]ebate over weighty issues is the heart and soul of the legal profession,” additional writing at the en banc stage actually “increases our Court’s legitimacy: ‘It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals’” (internal citations omitted, and cleaned up—a lot).
Furthermore, according to Judge Readler, dissentals have value because “[t]he Supreme Court relies on them in overseeing our legal system.” How? The Court faces the “daunting task” of selecting which cases to review, and dissentals help highlight strong candidates—which might explain why justices on both sides of the aisle have given shoutouts to dissentals in SCOTUS opinions. (I’d add my own observation that dissentals can be particularly helpful in flagging cases for the justices about not-so-sexy issues that might otherwise fly under the radar—e.g., “whether the Supremacy Clause protects a federal program, performed by federal contractors, from state regulation,” the subject of dissentals by Ninth Circuit Judges Patrick Bumatay and Daniel Collins in Nwauzor v. The Geo Group, Inc.)
In terms of my own views, I tend to be pro-dissental, but I’m biased. First, I clerked for Judge Diarmuid O’Scannlain, one of the most prolific dissental writers ever (and particularly skilled in highlighting Ninth Circuit cases for SCOTUS review). Second, as a journalist, I support things that “make good copy,” i.e., give me interesting material to write about—and dissentals, which often feature some of the spiciest writing in the federal judiciary, fit the bill. But I acknowledge there are valid arguments on both sides, and I thank Judges Moore and Readler for an interesting debate about an important issue—which got picked up by a number of outlets, including Law360 and The Volokh Conspiracy (by Professor Jonathan Adler).
In other news about judges and the judiciary:
The debate over dissentals was a refreshing digression from the usual diet of Trump, Trump, and more Trump. For a comprehensive but concise roundup of Trump v. Federal Judges, see Katelyn Polantz’s CNN story.
PACER and other computer systems of the federal courts have been hacked multiple times over the years, with one hack occurring this summer—and it appears that at least some of the responsibility lies with Russian entities or the Russian government itself, according to The Times and Bloomberg Law (via Howard Bashman of How Appealing).
An increasing number of younger judges are resigning from the federal bench to pursue lucrative careers in private practice. Professor Anthony Marcum isn’t a fan of this trend—and he’s written a paper on how to address it, “Curbing the Bench-to-Practice Pipeline,” which he discussed with Avalon Zoppo of Law.com.
In nominations news:
Donald Trump announced his intent to nominate Rebecca Taibleson to the Seventh Circuit. Currently chief of appeals in the U.S. Attorney’s Office for the Eastern District of Wisconsin, Taibleson clerked for then-Judge Brett Kavanaugh and Justice Antonin Scalia. I agree with Professor Josh Blackman that the well-credentialed Taibleson should have a smooth confirmation process, especially since she was one of five candidates recommended by the bipartisan nominating commission of Senators Ron Johnson (R-Wis.) and Tammy Baldwin (D-Wis.). Here’s a fun fact, noted by Blackman: Trump has nominated six individuals to the circuit courts in his second term, and four out of the six started their careers by clerking for a Trump-appointed justice (at a circuit court, SCOTUS, or both).
The Trump administration unveiled five district-court nominees in Alabama and Mississippi (parentheticals note the courts they’re being nominated to): Alabama Supreme Court Justice Bill Lewis (M.D. Ala.), Alabama Solicitor General Edmund LaCour (N.D. Ala.), Mississippi Supreme Court Justices Robert Chamberlin and James Maxwell (N.D. Miss.), and Bradley Arant partner Harold Mooty (N.D. Miss.). LaCour was nominated to the Middle District of Alabama during the first Trump administration, but his nomination didn’t proceed because then-senator Doug Jones (D-Ala.) refused to return his blue slip; now that Alabama has two Republican senators, LaCour won’t have the same problem.
Job of the Week: an opportunity for Atlanta litigators—of varying seniority.
Lateral Link is partnering with an Am Law 100 firm to grow its class-action and product-liability practice in Atlanta. The firm seeks litigators with 2–8+ years of experience, and it’s also open to considering counsel-level attorneys and junior partners. Candidates should have top-tier experience in complex litigation from a major law firm or respected litigation boutique—ideally in class actions, product liability, or mass torts—plus exceptional analytical, writing, and advocacy skills. To be considered for this outstanding opportunity to join a premier national platform, send your résumé and law school transcript to Marion Wilson at mwilson@laterallink.com.
