Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Twenty years ago today, on August 30, 2006, I launched Above the Law. This anniversary led me to reflect on how the world of legal media has changed dramatically over the past two decades—ATL included.

If you look back at my inaugural post on Above the Law, you’ll see my initial vision for the outlet was focused heavily on gossip and humor. And while there are still traces of that DNA at ATL—hello, Biglaw Biter1—it’s fair to say the Above the Law of 2026 is a more serious and substantive publication than the self-described “legal tabloid” of 2006. For instance, I doubt the original ATL would have been the subject of a 1,600-word feature by Elizabeth Williamson of The New York Times (gift link).

As for me, I left ATL in 2019, tried out legal recruiting, and almost died of COVID. That near-death experience made me realize I wanted to return to full-time writing—which I did in May 2021, by activating paid subscriptions here at Original Jurisdiction.

When I launched OJ, I felt the same anxiety I did when I started ATL: Will this flop? Fortunately, like ATL, OJ thrived—and I owe it all to you, my subscribers and sponsors.

Today, I do four things for a living: publish this newsletter, write a Bloomberg Law column, host a podcast, and do some paid speaking. I’m professionally happier than I’ve ever been, and for the first time, I’m not looking for “the next big thing.” My current plan is to keep doing exactly what I’m doing—until I retire, die, or get replaced by AI. To my readers, listeners, and sponsors, I have just two words: thank you.

A programming note: the next OJ podcast episode will air on September 9, instead of September 2 (because of having to schedule the recording around the crazy schedule of my next guest, one of the busiest lawyers in America). But I’ll still have plenty of content for you, possibly including a Supreme Court clerk hiring post; if you’re aware of any hires not included in my last report, please drop me a line.

Now, on to the news—ridiculously busy for the last full week of August.

Lawyer of the Week: Beth Wilkinson.

In a podcast interview I recorded last week with Jacob Robinson for Law of Code (teaser here), he asked me if I’d ever return to practicing law. Although I keep my New York law license active—mostly to keep my mother honest when she tells people, “My son is a lawyer”—I no longer practice, and I have no desire to return to practice.

There are, however, two things I’d be willing to return for, on a temporary basis: to argue before the U.S. Supreme Court, or—more realistically—to try a case to a jury, all the way to verdict (even a boring case, and even as the most junior person on the trial team). And if I drew up a short list of the litigators I’d want to work for, it would include Beth Wilkinson of Wilkinson Stekloff, trial lawyer extraordinaire.

Oh, you want to work with Beth Wilkinson? Take a number. Right now she’s handling three of the biggest litigations in the country, as noted in Jessica Toonkel’s recent profile of Wilkinson in The Wall Street Journal (gift link):

Wilkinson has successfully defended the National Football League and pharmaceutical giant Pfizer, as well as Supreme Court Justice Brett Kavanaugh against accusations of sexual assault in his confirmation hearings, making her a go-to trial lawyer in high-stakes cases. She has won about 60 cases and lost four jury verdicts, two of which were set aside and one settled. She has never had a client pay a judgment.

She is now in the middle of the three most high-stakes media battles in years…. In addition to working for Paramount [in its litigation against state attorneys general trying to block its $81 billion acquisition of Warner Bros. Discovery], Wilkinson is also representing TV station operator Nexstar Media Group in defending its $6.2 billion acquisition of competitor Tegna, a deal state attorneys general have also sued to block, and Walt Disney Co. ABC in its fight with the Federal Communications Commission over the network’s broadcast licenses.

If ABC v. FCC rings a bell, it should: filed by Wilkinson and leading Supreme Court litigator Paul Clement, it was last week’s Litigation of the Week.

Given the many famous cases she has handled over her long career, some of which we discussed in our podcast interview—including, of course, her successful prosecution of the Oklahoma City bombers—Wilkinson has many individual wins to celebrate. But as she told me in our conversation (and later wrote in a Bloomberg Law piece), what excites her most at this point in her career is mentoring and developing younger colleagues, then sitting back and watching them thrive.

In that sense, one of the biggest signs of Wilkinson’s success is a fourth case in the headlines, People of the State of California v. Meta Platforms Inc. This litigation settled in the middle of trial, for $17 billion—which many analysts see as an excellent outcome for the defense (for reasons discussed below, under Litigation of the Week).

Wilkinson Stekloff was trial counsel for Meta, alongside Covington & Burling and Davis Polk—but Wilkinson wasn’t her firm’s main courtroom lawyer. Instead, if you look at Meta’s written filings and news stories about key cross-examinations, you’ll see mention of colleagues like Brian Stekloff and Moira Penza. And that is, in my view, a testament to the team that Beth Wilkinson has helped build at Wilkinson Stekloff: a firm so formidable that clients like Meta will trust it with matters of existential importance—whether or not Beth Wilkinson herself is personally involved.2

Other lawyers in the news:

• Speaking of legendary litigators who have appeared on my podcast, David Boies, still going strong at 85, had a good week:

  • On Thursday, Judge Jed Rakoff (S.D.N.Y.) approved Bank of America’s $72.5 million settlement with Jeffrey Epstein victims who alleged that B of A aided in Epstein’s sex trafficking. Judge Rakoff also signed off on a 30% fee request for the lawyers—including Boies, Sigrid McCawley, and Andrew Villacastin, of Boies Schiller Flexner, and Brad Edwards, of Edwards Henderson.

  • On Friday, Judge Richard Seeborg (N.D. Cal.) awarded almost $147 million in attorneys’ fees to Boies and his co-counsel in a privacy class action against Google that covered 98 million people and resulted in a $425 million jury verdict. Judge Seeborg said the one-third fee was high but justified, given counsel’s “exemplary performance.” The lawyers included David Boies, Alexander Boies, and Mark Mao of BSF; Bill Carmody, Amanda Bonn, and Shawn Rabin of Susman Godfrey; and Ryan McGee of Morgan & Morgan.

• Will Scharf, who will assume the role of White House counsel on September 1, was profiled by Luke Broadwater for The New York Times (gift link via Howard Bashman’s How Appealing). The article struck me as neutral to positive, maybe 6/10; ChatGPT agreed (6.5/10), while Claude dissented (4/10).

• Who’s replacing Will Scharf in the influential role of White House staff secretary? A fellow lawyer: current deputy staff secretary Benjamin “Ben” Moss, who graduated from the University of Chicago Law School and previously served as general counsel to then-senator JD Vance (R-Ohio).

• Speaking of job changes, Kerry Abrams will step down as dean of Duke Law after more than eight years in the role. Query whether she can resolve the DOJ investigation into alleged racial discrimination in Duke’s admissions before she departs at the end of the 2026-27 academic year.

• Abrams is leaving the deanship voluntarily, while staying on at Duke as a member of the faculty. In contrast, Nathaniel Cullerton—the Wachtell Lipton partner caught making out with an associate in Central Park, in a viral video—“is being forced out by the elite law firm,” per The New York Post.

• In the August 23 edition of Judicial Notice, I discussed Department of Homeland Security General Counsel James Percival, his thread on X criticizing four judges who ruled against DHS, and an ethics complaint filed against Percival by 128 retired judges, including Nancy Gertner and J. Michael Luttig. In a reader poll that drew almost 600 votes, 65% of you expressed support for the complaint. For additional views, see (or hear) Sarah Isgur of Advisory Opinions, who criticized the complaint as “barfare” (weaponization of the attorney ethics process), or Professor Steve Vladeck of One First, who argued that the real issue isn’t the ethics complaint, but the “abominable” nature of Percival’s conduct.3

In memoriam: assistant U.S. attorney Andrew Haden (S.D. Cal.) passed away on August 19, at 48. Initial reports didn’t specify the cause of death, but last week, the San Diego County Medical Examiner’s Office confirmed that he died by suicide. If you or someone you know is experiencing a mental-health crisis, please call the National Suicide Prevention Lifeline (988) or contact a lawyer assistance program in your state. As someone who is all too familiar with the devastating toll of suicide,4 I encourage you to donate to the American Foundation for Suicide Prevention or a similar charity focused on suicide prevention.

Judges of the Week: Judges Rita Lin and Noël Wise.

Last week, I wrote that the Northern District of California is one of the five most important district courts in the country right now, thanks to its popularity as a venue for (1) big-ticket cases involving Big Tech and (2) challenges to Trump administration policies. I picked Chief Judge Yvonne Gonzalez Rogers (N.D. Cal.) as the most recent Judge of the Week based on her handling of a major tech case, People of the State of California v. Meta Platforms Inc. (discussed below). And now I’m bestowing Judge of the Week honors on two of her colleagues, Judges Rita Lin and Noël Wise, based on their benchslaps of the Trump administration: In the span of roughly 24 hours, these two relatively new Biden appointees ruled against the federal government in a pair of high-profile cases, both based on the First Amendment.

On Thursday, in Anthropic PBC v. U.S. Department of War, Judge Lin blocked the Pentagon’s blacklisting of Anthropic. After the AI giant refused to allow its Claude AI models ​to be used by the U.S. military for surveillance or autonomous weapons and publicly criticized the government’s views on AI safety, the government took action against Anthropic—including designating the company “a supply chain risk.” Represented by WilmerHale, Anthropic sued, alleging it was retaliated against for its speech in violation of the First Amendment. In a 59-page opinion, Judge Lin agreed, declaring that the Trump administration’s actions were “illegal and baseless.” In one of the opinion’s most widely quoted lines, she wrote, “The empty invocation of national security is not a blank check to punish and retaliate against government critics.”

On Friday, in Stanford Daily Publishing Corporation v. Rubio, Judge Wise ruled that the Trump administration violated the First Amendment by arresting, detaining, and deporting noncitizen students for expressing pro-Palestine views. In a 90-page ruling that Reuters described as “blistering,” she wrote that “in the United States, freedom of speech belongs to the people” and “is not the government’s to take.” As Conor Fitzpatrick of the Foundation for Individual Rights and Expression, counsel to the plaintiffs, told The Times (gift link), “Today’s ruling proves that free speech isn’t a privilege, but the inalienable right of every man, woman, and child.”

In other news about judges and the judiciary:

• Josh Morrow, a partner at Lehotsky Cohn, conducted an interesting analysis (posted by Professor Eugene Volokh on the Volokh Conspiracy). Morrow ran 2,250 published opinions from federal appellate courts from 2026 through Pangram, an AI-detection tool, and found that more than 50 showed signs of AI authorship. He then took roughly 300 opinions published in January 2022 by federal circuit courts and fed them into Pangram—and found no signs of AI-generated text. Some folks I discussed this study with were troubled by its findings, but I wasn’t. First, 50 opinions out of 2,250 is a shade over 2%, a tiny percentage. Second, signs of AI authorship simply suggest that AI generated the prose; they don’t denote the presence of hallucinations or other errors.

• Justices Clarence Thomas and Samuel Alito overlapped at Yale Law School for two years. Why weren’t they friends? As Thomas recounted to Senator Ted Cruz (R-Tex.) on his podcast, Alito said to Thomas, “Clarence, you were scary.” What did he mean by that? During their YLS years, Alito was the introverted, nerdy conservative that he still is today—while Thomas was “a left-wing radical,” in Cruz’s words, who wore bib overalls and combat boots around 127 Wall Street.

• If you’re trying to get rid of your Indiana state criminal case by forging a dismissal order signed by a judge, pick a jurist other than Chief Justice John Roberts. A Colorado man named Joshua Culver learned this the hard way—and now he faces federal charges of impersonation and forgery as well.

In memoriam:

• Judith Kreeger, who served as a judge in Miami-Dade’s 11th Judicial Circuit Family Division for more than 25 years, passed away at 85.

• Barbara McDermott—who served for almost 14 years as a judge in Philadelphia’s Court of Common Pleas, spending a majority of that time handling homicide cases—passed away at 71.

May they rest in peace.

Job of the Week: an opportunity for an of counsel in trademark litigation.

Lateral Link is working with a global IP practice seeking an exceptional litigator (6+ years) to join as of counsel, handling sophisticated trademark disputes. This is a fantastic opportunity for experienced litigators looking to join a top trademark practice. Prior trademark experience is not required—strong general commercial or IP litigation experience is welcome, provided the candidate has outstanding writing skills and the ability to take a meaningful first-chair role. Candidates from top litigation boutiques or Am Law 100 firms are of particular interest. This role requires proximity to one of the firm’s offices and is not intended to be fully remote. Compensation ranges from $196,000–$350,000, depending on hours, experience, qualifications, and location. To be considered, please send your résumé to Steven Rushing at srushing@laterallink.com.

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Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

At universities across the country, students are returning to campus after summer break. It’s an exciting and optimistic time for both students and their families.

Interactions with fellow students are one of the best parts of the college experience. But not all interactions are positive—and some unfortunately give rise to serious allegations of student misconduct, including sexual assault.

Title IX prohibits universities that receive federal funding from discriminating “on the basis of sex.” Not taking sexual-assault claims seriously enough can constitute sex discrimination—but so can treating accused students unfairly.

Handling these matters is fraught for schools, but handle them they must: Title IX’s implementing regulations require universities to have procedures for addressing complaints of sex discrimination.

If educational institutions mishandle these cases, they can face dire consequences, including government investigations and civil litigation.1

Universities caught in the middle

Universities must provide redress for students claiming sexual assault and fair procedures for the accused. And they can be sued under Title IX, by either the complainant or the respondent, for not striking the right balance. Two circuit opinions from last month capture this difficult position.

In Arana v. Board of Regents of the University of Wisconsin System, the University of Wisconsin-Madison was sued by a woman who alleged that the school violated Title IX by readmitting her alleged rapist after initially expelling him. Sitting en banc, the US Court of Appeals for the Seventh Circuit ruled for the school, 8-4.

In John Doe v. The Trustees of Princeton University, Princeton was sued by a male student who claimed that it ran afoul of Title IX by finding him responsible for misconduct through unfair disciplinary proceedings. The Third Circuit sided with the student, reversing dismissal of his suit.

“University disciplinary proceedings are the medium for these two people to assert claims and defenses against each other—and if they’re unhappy with the resolution, they can sue the university,” said Joshua Richards, a partner at Saul Ewing who represents institutions of higher education.

“Imagine if, every time you had litigation in federal court, you could sue the judge,” Richards continued. “There is zero incentive for institutions to get one of these cases wrong, when they know that both parties are going to consider litigation.”

A relatively new specialty

It wasn’t always this way. For decades, institutions of higher education weren’t highly regulated at all—in many areas, including student discipline.

“Largely left alone by the executive and judicial branches, schools devised what they thought were good rules to govern misconduct proceedings,” Richards explained. And their approaches were highly variable. Some schools had exclusively student-run processes. Some universities employed very informal systems; if two students had a disagreement, a dean might meet with both of them to talk through their issues.

“For 200 years, campus-discipline issues were handled by a small office within a university, in a kinder, gentler way,” said Richards. “In the past 15 years or so, there has been a monumental shift—and educational institutions have gone from being not highly regulated at all to being treated like oil-and-gas or pharmaceutical companies.”

Major changes took place during the Obama administration, which prioritized dealing with the problem of on-campus sexual assault.

“The legal landscape is so different from what existed before 2011, when the Obama administration issued its ‘Dear Colleague’ letter,” said KC Johnson, a history professor at Brooklyn College who has written widely about campus sexual assault and due process. “Before that point, federal courts were very reluctant to intervene in university disciplinary processes.”

After the 2011 letter, a 2014 report from a White House task force, and a 2015 follow-up letter, universities no longer had free rein over student discipline, at least for sexual-assault claims. The Obama administration wanted schools to take these cases more seriously, and it spelled out procedures that schools needed to put into place.

“Title IX regulation required universities to set up an internal adversarial process,” Richards said. “And when you run a quasi-legal proceeding that picks winners and losers, some people will be unhappy at the end.”

And what do unhappy people do? They sue.

A growing practice area

Justin Dillon started representing accused students in campus-discipline proceedings and Title IX cases in 2014, when he entered private practice after serving as a federal prosecutor in Washington, D.C. It was an opportune time to enter the field, with campus-discipline work taking off under the Obama administration.

Today, Dillon and Christopher Muha, his partner at Dillon PLLC, devote about 70% of their practice to representing respondents in campus-discipline and Title IX cases. They estimate that 90% to 95% of their matters are resolved during internal university proceedings, with little or no publicity.

Litigation is a last resort; in a typical year, their firm might file only one or two Title IX lawsuits in federal court. But when it’s necessary, they’re prepared to litigate—as they did against Princeton, representing the plaintiff who prevailed before the Third Circuit in John Doe v. The Trustees of Princeton University.

Hiring a lawyer to handle a campus-discipline and Title IX matter isn’t cheap (and almost never covered by any type of insurance). A typical case can cost as much as a year at an elite private college. In a complex or drawn-out matter, legal fees can easily run into six figures.

But the stakes for students are incredibly high. If a student accused of sexual assault is adjudged “responsible”—Title IX parlance for “guilty” or “liable”—he can be suspended or even expelled.2 The adjudication becomes part of his official record, affecting future educational and career opportunities, including the ability to transfer to another school if he has been expelled. Employers understandably aren’t eager to hire someone with a history of sexual misconduct, given the liability they can face for sexual harassment by employees.

So parents who can afford it are very willing to pay for top-flight legal counsel for their children. As Richards put it, “Student-discipline matters unfold in a context where if people are found responsible, it will damage them in a way that almost compels them to consider legal action.”

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‘Everyone deserves a defense’

Given the seriousness of sexual assault, I asked Justin Dillon and Chris Muha an obvious question: How do you feel about your practice, given the terrible acts some of your clients are accused of?

Their response: The vast majority of their clients are not guilty—at least not guilty of what they’ve been specifically accused of (as opposed to, say, drinking excessively).

“I’ve been doing this for 12 and a half years, and I can count on one hand the number of our clients who are not innocent,” Dillon said.

“There are so few cases where we say to ourselves, ‘He probably did it,’” Muha said.

They also emphasized the due-process points made by criminal-defense lawyers (who will generally tell you, in my experience, that most of their clients are guilty—and their primary role as counsel is securing a favorable plea agreement and sentence).

“Process is important,” Muha said. “Being sure of guilt is important before you impose life-changing consequences.”

“Everyone deserves a defense,” Dillon said. “We don’t live in North Korea.”

Guidance for incoming students

An ounce of prevention is worth a pound of cure—and even though Dillon and Muha are excellent at what they do, it’s far better to never need their services in the first place. For students starting college or graduate school this fall, what advice would they offer?

First, treat everyone with whom you have a romantic interaction with respect—before, during, and after any relationship (or fleeting encounter). Not only is it the right thing to do, but it makes it less likely that the other party will harbor ill will toward you and file a disciplinary complaint.

Second, communicate with your classmates by text message—as opposed to apps where messages disappear, like Snapchat—and save your texts. You’d be surprised by how often texts provide crucial evidence in campus-discipline cases.

Finally, tell your parents immediately if campus disciplinary proceedings are initiated against you—and have them hire a lawyer for you, ASAP. Don’t try to navigate the process on your own.3

“This is often the first major thing that these students have ever been accused of, and they’re understandably afraid of disappointing or upsetting their parents,” said Muha. “But parents are more understanding and more forgiving than you might expect.”

Slowing down, not going away

Campus-discipline and Title IX work is busy. But it’s not at its high-water mark, at least in terms of litigation.

“At a general level, the pace of litigation has slowed since the tail end of the Obama administration and the first Trump administration,” said Johnson, the history professor. Back then, according to Johnson, around 80 Title IX lawsuits involving allegations of sexual misconduct were filed each year; today, it’s closer to 40.4

Johnson attributed much of the decline to the replacement of the Obama administration’s Title IX guidance by new regulations promulgated in 2020 by the first Trump administration. The Trump regulations rejected the “single investigator” model, in which one school official could serve as both investigator and adjudicator, and provided greater protections for respondents, including live hearings with cross-examination of witnesses.

In the view of their supporters, the 2020 Trump regulations increased due process for accused students, leading to a decline in lawsuits claiming unfair treatment in campus disciplinary proceedings. These regulations remain in effect today, after Title IX regulations issued by the Biden administration were blocked by courts and then officially rolled back at the start of the second Trump administration.

In the Title IX arena, the current Trump administration has focused almost exclusively on how the statute applies to transgender issues. It hasn’t taken any major action on Title IX as applied to campus discipline.5

But even if the Trump administration isn’t active in this area, there’s no going back to the pre-Obama era, when universities enjoyed far greater discretion over how they handled sexual assault claims.6

“For decades, federal courts were reluctant to intervene in university disciplinary processes,” Johnson said. “But that has changed in recent years—and courts are no longer willing to simply defer to universities when the schools say, ‘Trust us.’”

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*Taps mic.* Anybody out there? It’s late August, and things are quiet—which is fine by me, since my fall is looking hectic.

I published one post, my podcast interview of Molly Abraham, the new general counsel of Coinbase. We discussed pending legislation affecting crypto (the CLARITY Act), how Coinbase’s legal team is using AI, and whether em dashes—which Molly and I both adore and will continue to use, even if they’re a hallmark of AI-generated writing—should be surrounded by spaces on either side. (For more on that controversial topic, see my LinkedIn post—featuring a reader poll that’s still open.)

Here’s my practical pointer for the week: Don’t touch jalapeño peppers with your bare hands; instead, use disposable gloves. If you do touch hot peppers with your bare hands, wash them thoroughly, with something other than regular hand soap. (I learned this the hard way, but I’ll spare you the embarrassing details.)

Now, on to the news.

Lawyer of the Week: James Percival.

On July 23, James Percival, general counsel of the Department of Homeland Security, posted a thread on X that opened as follows: “Every day, the brave men and women of ICE risk their lives to remove the Worst of the Worst from our country. Today, in honor of the DHS Worst of the Worst series, I am starting a new series: Worst of the Worst, District Judge Edition.” He then criticized four judges:

• Judge Matthew Kennelly (N.D. Ill.), for “enter[ing] an order staying the termination of TPS [Temporary Protected Status] for Burma…. even though these decisions are not subject to judicial review”;

• Judge Allison Burroughs (D. Mass.), for “den[ying] our request to go forward with termination of Somalia TPS notwithstanding our Supreme Court wins”;

• Judge Paula Xinis (D. Md.), for entering an order preventing the removal of Kilmar Abrego Garcia; and

• Judge Hernan Vera (C.D. Cal.), for “enter[ing] an order micromanaging DHS’s use of force policy with respect to violent anti-ICE agitators in Los Angeles.” [UPDATE (8/24/2026, 8:50 a.m.): Typo corrected: Judge Vera sits in the Central District of California, not the Northern. The typo was mine, not Percival’s.]

Percival’s thread generated blowback. Critics argued that his calling out these judges by name—during a politically polarized time, and in light of the dramatic increase in threats against judges—“could get someone killed,” as former federal prosecutor Gregory Wallance argued in USA Today. In response, Percival condemned “the absolute absurdity of the liberal media response” to his tweets, arguing that “legitimate fact-based critiques of judges and their rulings is fair game in a free society”—and adding that “the media has no issue with it if the judge is conservative.”

Now the controversy has escalated: Last Tuesday, 128 retired judges filed an ethics complaint against Percival with the Florida Bar. They argued that Percival’s “Worst of the Worst” thread “had the effect of impugning the integrity of the four sitting judges,” “mischaracterized important elements of the cases,” “increase[d] the unfounded perception that the judiciary is biased and its results unfair,” and “raise[d] the risk of threats of violence against judges.”

As a strong supporter of both free speech and the federal judiciary, I see legitimate concerns on both sides. In a free and democratic society, judicial rulings—and the judges who issue them—are not above criticism. But criticism should ideally be measured and responsible, in light of the serious and growing threats against judges.

Readers, what do you think? Read Percival’s original X thread, check out the retired judges’ complaint, and vote in this poll:

Other lawyers in the news:

• As first reported by Court Watch and picked up by Above the Law and Law360, former assistant U.S. attorney Alexander Strohmeyer was indicted on 12 charges of threatening to murder three former officials in the U.S. Attorney’s Office (M.D. Tenn.)—who were involved in his August 2024 termination from that office—as well as two of these officials’ immediate family members. The criminal complaint that preceded the indictment, which includes screenshots of threatening text messages allegedly sent by Strohmeyer, is… quite the read.

• According to a new study by Professors Lee Epstein and Eric Posner (via Adam Liptak), the 10 most active participants in Supreme Court oral arguments from 2005-2026 were nine justices and one lawyer: Paul Clement, who argued an astounding 101 cases over this 20-year span.

• Speaking of Supreme Court advocates, Amy Howe penned an interesting post for SCOTUSblog about who gets appointed by the justices to argue as amicus—or “friend of the Court”—to defend a position when a party has abandoned it.

• In a follow-up on last week’s Lawyer of the Week, Acting Deputy Attorney General Trent McCotter, might he get nominated to serve as the Senate-confirmed Deputy Attorney General? He’s in the running but has some competition, per Bloomberg Law—with Associate Attorney General Stanley Woodward, Assistant Attorneys General Harmeet Dhillon (Civil Rights) and Colin McDonald (National Fraud Enforcement), and U.S. Attorney Bill Essayli (C.D. Cal.) as possibilities.

• Not in the running: failed D.C. U.S. attorney nominee turned U.S. pardon attorney Ed Martin, who’s stepping down as pardon attorney and leaving the DOJ to fight unspecified “Legal Battles for the upcoming Midterm Election and the Presidential Election of 2028,” according to a Truth Social post by Donald Trump.

• Congratulations to Paul Caron on his reappointment as dean of Pepperdine Law, which he has led for the past nine years—making him #16 on the list of longest-serving law deans in the United States.

In memoriam: Ted Striggles—a professional dancer and a lawyer, who used his legal skills to help struggling artists—passed away at 84. May he rest in peace.

Judge of the Week: Chief Judge Yvonne Gonzalez Rogers.

This year has been a big one for Chief Judge Yvonne Gonzalez Rogers (N.D. Cal.). In May, she presided over the high-profile trial in Musk v. Altman—and dismissed Elon Musk’s case against Sam Altman, after an advisory jury issued a verdict against Musk.

In July, the 61-year-old, Oakland-based jurist took over as chief judge of the Northern District of California. In my opinion, N.D. Cal. is one of the five most important district courts in the country right now, thanks to its popularity as a venue for big-ticket cases involving Big Tech—such as Apple Inc. v. Epic Games, Inc., over which Judge Gonzalez Rogers presided, now before the U.S. Supreme Court (in part)—and challenges to Trump administration policies.

And now, Chief Judge Gonzalez Rogers is in the news once again. She’s presiding over the multidistrict litigation known as In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, thousands of cases alleging that social-media giants are putting out platforms that are addictive and harmful to children. Last week, the first trial in the MDL got underway, in People of the State of California v. Meta Platforms Inc.—a case involving claims by 29 state attorneys general that Meta is violating state consumer protection and federal privacy laws.

As she did in Musk v. Altman, Judge Gonzalez Rogers is using an advisory jury. As she explained in a pretrial order, because “the issues at play in this trial impact the daily lives of the public across the states involved,” “the Court deems it prudent to call an advisory jury to solicit the ‘standard of the community.’” But as she reminded the parties at a hearing earlier this month, “I’m ultimately the factfinder here”—which puts her in a position of great power.

Given the historic and high-stakes nature of this trial, it’s not surprising that numerous news outlets—including MLex, Law360, and CNBC—ran profiles of Chief Judge Gonzalez Rogers. Here are some takeaways:

• Her background. Although she’s lived in California for decades, she was born in Houston and grew up poor in San Antonio. She earned money for her studies by working for her family’s real-estate business, which involved cleaning houses and doing yard work. She left Texas to attend college at Princeton, before returning to the Lone Star State to attend law school at the University of Texas.

• Her path to the bench. After graduating from law school in 1991, she moved to San Francisco and started working at Cooley. She was the firm’s first Latina lawyer, and in 1999, she became Cooley’s first Latina partner. She left the firm in 2003 to focus on her children—she and her husband, energy consultant Matt Rogers, have three kids—but she remained involved in the legal world. In 2008, then-governor Arnold Schwarzenegger appointed her to Alameda County Superior Court, and in 2011, then-president Barack Obama appointed her to the Northern District of California (where she became the court’s first Latina judge).

• Her approach to cases. Litigants and lawyers describe her as “smart,” “fair,” and hardworking. When she’s on the bench, she’s “tough,” “authoritative,” and “no nonsense.” In the words of Judge James Donato, a former colleague (at Cooley) and current colleague (on the bench), “You’re not going to get away with bluster, posturing or a fake front in her courtroom.” Or as Steve Berman of Hagens Berman put it, “If lawyers give her bulls**t, she just goes after them.”

In other news about judges and the judiciary:

• Two years ago this month, Judge Kenneth King appeared in these pages as Judge of the Week, after he allegedly ordered a 15-year-old girl to be handcuffed, put in a jail uniform, and locked in a detention cell for several hours (for the offense of dozing off during a school field trip to his courtroom). The girl’s mother sued on her daughter’s behalf, alleging Fourth Amendment violations and various torts under Michigan law. Judge David Lawson (E.D. Mich.) denied Judge King’s motion to dismiss—and last Friday, a unanimous panel of the Sixth Circuit affirmed (via Orin Kerr).

• Last week, I praised a recent opinion of Judge Stephanos Bibas (3d Cir.) for its highly engaging introduction. What are some of Judge Bibas’s writing tips? Check out his interview with Avalon Zoppo of Law.com.

• For more writing lessons from judges, see this fun SCOTUSblog post by Ross Guberman—“Six justices, five techniques: writing lessons from the 2025-26 term”—and Judge David Weinzweig’s great new book, Zen and the Art of Persuasive Writing.

In nominations news, Trump announced 11 new judicial nominees, nine on Tuesday and another two on Thursday:

• North Dakota Solicitor General Philip Axt (D.N.D.);

• Kentucky 34th Circuit Court Judge Daniel Ballou (E.D. Ky.);

• Magistrate Judge Richard Bennett (S.D. Tex.);

• First Assistant U.S. Attorney Courtney Coker (N.D. Tex.);

• Littler Mendelson shareholder Bradford “Brad” Kelley (E.D. La.);

• First District Court of Appeal Judge Robert “Bobby” Long (M.D. Fla.);

• Peter Mansfield (E.D. La.), chief of the Civil Division in the U.S. Attorney’s Office;

• Jesus Osete (W.D. Mo.), principal deputy assistant attorney general for the DOJ Civil Rights Division;

• Trevor Pemberton (E.D. Okla.), a former Oklahoma state-court judge and general counsel to Governor Kevin Stitt (R-Okla.);

• Magistrate Judge Kyle Reardon (D. Alaska); and

• Zach West (N.D. Okla.), director of special litigation in the Oklahoma Attorney General’s Office.

Based on the state of the Senate calendar, they probably won’t get confirmation votes until the lame-duck session, according to Nate Raymond of Reuters.

In memoriam: Walter Braud—the first Black judge in Illinois’s 14th Judicial Circuit, who later served as the circuit’s chief judge—passed away at 86. May he rest in peace.

Job of the Week: an opportunity for a real estate associate in Atlanta.

Lateral Link is partnering with an Am Law 100 firm seeking a 3rd–5th year real estate associate for its Atlanta office. The group represents developers—primarily on the borrower side, with select lender work—across acquisitions, dispositions, development, and related financings, giving the role broad exposure to the full transaction life cycle (roughly 80% real estate, 20% finance). Candidates should have solid commercial real estate transactional experience, ideally with some real estate finance or lending exposure. Open to attorneys currently in Atlanta or willing to relocate. To apply, send your résumé and law school transcript to Marion Wilson at mwilson@laterallink.com.

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Cryptocurrency is at a critical point in its evolution. The existential questions have been answered—crypto is here to stay—and now the main issues relate to how it will be regulated (and by whom). Last year, Congress passed the GENIUS Act, landmark legislation governing a particular category of crypto called stablecoins. And when it returns from its August recess, the Senate will consider the CLARITY Act, a comprehensive market-structure bill covering the entire digital-asset ecosystem.

So Molly Abraham, who became the new general counsel of Coinbase last month, assumes her new role at an exciting time for her company—the nation’s largest cryptocurrency exchange—and for the crypto industry more generally. After reviewing her impressive legal career (and reminiscing about Wachtell Lipton), we covered the CLARITY Act, how Coinbase’s legal team is using AI in innovative ways, and how Molly believes the raging litigation over prediction markets will be resolved.

Thanks to Molly for joining me, and congratulations to her on becoming the GC of Coinbase.

Show notes:

• Molly Abraham bio, Coinbase

• Coinbase’s New GC Sees AI as Legal Department’s Biggest Opportunity and Risk, by Michael Gennaro for Law.com

• Molly Abraham of Coinbase on Legal Leadership, Flying Cars, and The Art of Questioning Everything, by GC AI

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.

David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the 103rd episode of this podcast, recorded on Friday, August 14.

Thanks to this podcast’s sponsor, NexFirm. NexFirm helps small and midsize law firms offer Biglaw-caliber benefits at small-firm prices. To learn how NexFirm can improve your employee benefits program, call 212-292-1002 or email betterbenefits@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

Last month, Molly Abraham became the new general counsel of Coinbase—the nation’s largest cryptocurrency exchange, as well as the first crypto company to join the Fortune 500 and the S&P 500. And she’s taking on this high-profile new job at an interesting and important time for the crypto industry. When the Senate returns from its August recess, it will consider the CLARITY Act, which would establish a comprehensive federal framework for regulating crypto markets.

In our podcast conversation, I asked Molly for her thoughts about the CLARITY Act, of course. But we also covered more foundational matters, for listeners who might not be that familiar with crypto—including what exactly crypto is, what some of its use cases are, and why Molly is bullish on its future.

We also talked about a number of other topics in the news—including AI, which Coinbase is using in innovative ways, and litigation over who can regulate prediction markets, an industry in which Coinbase is now a player. Without further ado, here’s my conversation with Molly Abraham.

Molly, thank you so much for joining me.

Molly Abraham: Thank you so much for having me, David. I’ve been looking forward to this all week.

DL: Tell us about your background and upbringing. Where did you grow up?

MA: I grew up in a little town called Edina in Minnesota. I’m a Midwesterner, born and raised.

DL: And did you have any lawyers in the family or any early exposure to law?

MA: I didn’t. My parents are not lawyers, I have no lawyers in the family, and my parents actually quite actively discouraged me from going to law school. But I was a policy debater in high school, so I got my real first exposure to legal issues in cases then and just totally fell in love.

DL: Why did your parents discourage you? You mentioned that you had no lawyers in the family, but you also said you didn’t have much exposure to the legal system. Did they have some kind of bad experience? Was it stereotypes about lawyers?

MA: It’s a great question; I might need to ask this at Thanksgiving. I think they just didn’t have that much exposure to it and didn’t know if this would be an area where I could reliably make a good living. And they had this thought that if I went into a more technical field like engineering, which is what they ultimately pushed for, that would better set me up for long-term independence and success. So for whatever reason, they had this mindset, and as a result, I am a chemical engineer practicing law.

DL: My parents actually encouraged me to go to law school, but I don’t know that they had a good understanding of what I did when I did practice law. Are your parents good with your current career?

MA: They find it super interesting. Every so often they’ll see Coinbase in the news. They’ll send me the article as though maybe I missed it, and I really enjoy that.

DL: You mentioned you are an engineer practicing law. After college, you actually did work in that field, correct?

MA: I sure did. I had done some internships at Procter & Gamble and then went to P&G full time as a product development engineer coming out of college. I worked for Pampers, their baby division, and had a great experience there.

DL: Excellent. And you always knew, I believe, that you wanted to go to law school during that whole time?

MA: I did. It was an interesting experience. I was living in Cincinnati. I didn’t know a soul. And so I would go to P&G during the day, and then I would quickly run over to the local Starbucks at night, where I would tutor students for the LSAT and work on my own applications, saving money for law school. And I always had my eye on law school.

DL: You went to the University of Chicago for law school. I have such huge respect for it as an institution. What did you think of your experience there?

MA: I really treasure my experience at UChicago. I actually married a classmate as well, so it has a special place in my heart for more than one reason. The law school community is such a special place. The intensity and rigor of thinking there is so unique. The principles-based reasoning that they instill from day one of that first class is really impactful.

Fun fact: every legal leader at Coinbase has been an alum of the University of Chicago Law School. We had Juan Suarez, Brian Brooks, and of course, most recently, Paul Grewal. I think there’s something about that rigor of thinking and that principles-based framework that meshes well with an industry like crypto.

DL: I definitely want to explore that; that’s an intriguing observation. But let’s finish up your career. Where did you go after Chicago Law?

MA: I joined Wachtell Lipton as an associate, a place I know we both hold near and dear to our hearts. When I interviewed at Wachtell, it was my second trip ever to New York City. It was before people were using iPhones, and I remember having to try to map out the directions of the firm; I still have the piece of paper, the map I printed out.

And when I left the building—really knowing almost nothing about corporate law, never having heard of a poison pill outside of a classroom—I thought, “I just have to work here.” The people, the intensity, and the intellect of everyone in that building—it’s just palpable. I’m so curious if you have a similar feeling or a recollection of it; it’s just such a special place.

DL: Yes, I totally agree about the intensity and the rigor. People would just get really into their work—you could argue maybe to a fault—and were just so enthusiastic about the issues they were grappling with. I suspect there are probably some commonalities between UChicago and Wachtell culturally.

MA: There are. And it’s funny because as you said that, I thought you were also going to say Coinbase, because it does feel so challenging and intellectual and rigorous here. The culture is very similar; it’s what’s made me love Coinbase the way I love Wachtell and UChicago. One of the unique culture points that folks may not know about the firm is this concept of attorney dinner. Do you remember doing that?

DL: Yes!

MA: Of course. And going to attorney dinner, you’d see the partners, because the partners were still there every night; they didn’t go home and leave the associates working the long hours by themselves. The partners at Wachtell are in it just as much as the associates. So everyone would take a break and go have dinner together and talk about the interesting legal issues they were working on. And there was just this intellectual curiosity and love of the game that everyone there has that is just so unlike anywhere else.

DL: I totally agree, and I do have those memories. The attorney dining room has been relocated from where it was in my time, but I remember the tax people would sometimes have their code books at the dinner table. It was a very… “intense” is definitely the right word. You spent quite a bit of time at Wachtell, right?

MA: I did—almost seven years. I got to work on some really interesting cases. I was a litigator while I was there, even though I left my litigation days behind a while ago, and I got to work on some really interesting cases—including seeing a jury trial all the way through to a verdict, which is not typical for many associates and was just a ton of fun.

DL: Where did you go after Wachtell?

MA: So we had made a move out to the West Coast. My husband—whom I met in law school, he’s a J.D./M.B.A. from Chicago—got a great job on the West Coast. We had had our first son. And so out to California we came, and I joined a company called Kitty Hawk, which made flying cars. It’s a company co-founded by Google X founders, including Sebastian Thrun, who is the CEO and was originally responsible for the self-driving car project at Google. So we took it to the skies. It was an absolute blast.

DL: You got an in-house job after working at a law firm. During my brief stint in recruiting, I quickly learned that in-house jobs were what everyone at a firm was aspiring to—the golden ticket, the Valhalla, or whatever you want to call it. How did you land that job?

MA: Honestly, it was a lot of conversations, but I’m going to share a career tip for folks in this moment. We moved out to the West Coast. I actually left the firm without having gotten a new job—you’ll be shocked to know it’s not actually possible to bill 3,000 hours a year and search for a job on a different coast. So I went ahead and said, “Leap of faith—I know I’ll find something great.”

So we moved to the West Coast, and I just started meeting people. And I think so often people approach networking as, “Oh, well, keep me in mind if you ever hear about something interesting.” I took a different approach, which I recommend to anyone looking for an in-house job.

To every meeting, I brought an 8.5 by 11 piece of paper, and I divided it into company stages—early-stage startups; pre-IPO, late-stage companies; and public companies—and then a couple of different areas of tech that I was interested in. And I basically used this chart, and I wrote down company names. And I would say to someone, “These are the companies I’m thinking about that could be interesting, in terms of what I want to explore. What company is missing from this list?” Everyone has ideas, and when they see a chart, their inclination is to help fill it in. And then I would say, “Is there anyone from one of these companies you can introduce me to?” And it turns out nobody wants to say, “No, in fact, I’m completely unconnected. I have no introductions for you.” And so every one of those meetings would turn into at least two introductions. My parlor trick is I would say, “Would it be helpful if we just shot those emails off right now? I have a draft that you could send about me.” And from each of those meetings, it was super helpful.

I got more intros, and it was a second- or third-order intro where I spoke with someone from Kitty Hawk and then ultimately was introduced to the company. And when I walked in and met with the team, I had that same feeling when I walked into Wachtell, and ultimately later when I walked virtually into Coinbase, which was, “These are people I want to spend every day with.”

DL: And what was your role at Kitty Hawk?

MA: So I joined as their second lawyer, and within about a year I became the general counsel. I was there for about four years. My legal team was tiny, but mighty. We were just about five folks total. Although I also, slowly over time, was placed into the “this woman can get s**t done” category—excuse my French. And so I also took on finance and HR and basically all of operations.

Ultimately, it was an incredibly important experience career-wise for me, for two reasons. One, it really taught me that I love to lead large teams and that being a subject-matter expert is not the end-all be-all. I don’t have a finance background, but I was effective at leading the finance function because I knew what mattered to our founders and the rest of the exec team, so I could help the finance team figure out how to translate the way that mattered. So that really led me to loving to lead large teams. And then the other thing that I did there was I truly became a deal lawyer instead of a litigator. I led our company through a significant M&A transaction with Boeing where we created a joint venture that ultimately Boeing wholly acquired years later, and just this week Archer acquired. So I had the opportunity to approach deals having been a litigator, understanding all of the ways deals can go wrong, which I think has also really shaped me as a deal lawyer.

DL: Interesting because, again, a lot of people who do get in-house opportunities come from more of a transactional background. So it’s interesting, what you were saying about how that litigation background helped you. So where did you go after Kitty Hawk?

MA: After Kitty Hawk, I joined Coinbase. Let me offer one more unsolicited career tip, which explains how I originally chose Coinbase. It’s very easy to think about, “What do I want for my career two years from now, or one year from now?” But I think the right arc to think about is actually the five- to eight-year mark. So when I was leaving Kitty Hawk, I knew that what I really wanted to do was to ultimately be the GC of a public company, whether it was to take a company public or to become the GC of a public company. And in talking to recruiters, I learned that a really key part of a late-stage private company wanting to hire a GC is public-company experience. So I approached my search at that time as, “I need to find a place that’s a great fit for me”—which is number one, for me, always about the people—“but I’m also building towards a longer career arc.” And it might mean that this particular path or role is not exactly the next sequential step on that ladder and maybe a bit more sideways, but it’s all part of collecting these pieces to give me the experience for what I ultimately want to do.

So when I joined, I interviewed with a number of super-late-stage or late-stage private or early-stage public companies, and Coinbase was getting ready to but had not yet gone public. And when I interviewed with my then-manager at the time, they were doing tons of hiring, and I said, “What kind of roles do you have?”—I was not interviewing for a specific role—and she said, “Our commercial team is most in need of support.” And pure commercial deals were not my bread and butter, but she said, “This is the area that most needs to scale,” and scaling is my bread and butter. So I said, “Sign me up. Sounds great. It may not be the exact role I would have designed for myself or chosen, but the company was right and the people were right.” So I tried to maintain some flexibility in how I thought about the role itself.

DL: That’s such an important career point, because a lot of times people think, “Oh, I just need the perfect thing.” But sometimes you can sort of, I don’t know—I’m not a sailing person, but people say it’s like navigating a sailboat: You tack this way and tack that way, and you’re not necessarily always going directly to the point you want to get to. So I understand what you’re saying.

MA: My other favorite analogy is it’s like looking for an apartment in New York (so maybe this is speaking our language, David). You can’t have the perfect location, the perfect unit, and a great price; you’re going to compromise on one of the three. And I tell folks who are interviewing for various roles this all the time, which is it’s not going to be the perfect company, the perfect role, and the perfect comp; you’re going to compromise on something. So just figure out what’s most important to you. What’s most important to me is finding people that I want to be in the trenches with every day. I’m an intense workaholic; I want to be with people who are that excited as well. And that’s been consistent across the companies I’ve joined.

DL: When you joined Coinbase, what experience did you have with crypto? What was your knowledge or familiarity level with crypto?

MA: It was zero. I signed up for my Coinbase account during the interview process. I had been reading about the company; I heard great things. I bought the book Crypto for Dummies; it’s still sitting on my desk as a memento. I’ve never opened it because I learned so much on the job immediately. And the thing that I’d always coach my team on is you have to use the products to be able to understand the legal issues related to them. So I just started really using the products, any trader or salesperson who was willing to get on the phone with me and walk me through their favorite product or how it worked, and I really used that as my basis. I felt that the company was doing interesting things; I felt it was mission-aligned. So the love of crypto came second to me, after attraction to the team, the people—and to be honest, just Paul’s amazing reputation as a legal leader, as a judge in the legal community, that was a really big draw for me more than crypto. But the crypto has definitely kept me here; I love it a lot.

DL: Let’s explore that. I’m often surprised by how many people either don’t know that much about crypto or just don’t have much familiarity with it. If you were at Thanksgiving with your relatives—non-lawyer, non-finance, non-tech relatives—what is crypto? Give us your sort of elevator explanation for it. And how is it useful? Because another thing you’ll hear about crypto for people who are not that familiar with it is, “Oh, isn’t it just used by criminals for illicit purposes?” So what is crypto?

MA: Crypto is digital money. It’s part of an open financial system for the internet. One way to think about it is just like the web gave everybody equal access to information and really democratized information access, crypto gives everyone equal access to money. You could have direct ownership of your assets. You don’t have to have a middleman. You can transfer value more easily and without permission.

And maybe to make it a little more real, let me talk about a couple of baby use cases or how I use crypto, if you will. I buy Bitcoin; I’m buying the dip right now. It’s a great time to buy. And I also use it for payments. If we’re throwing a baby shower for someone at work, we all just transfer money to someone’s wallet, instead of Venmo. It’s instantaneous, it’s cheap, it’s fast. We have our own layer-two blockchain that we’re able to have these sub-second transactions on.

Another area that I’m particularly passionate about are stablecoins. Stablecoins are cryptocurrency that are literally stable. They’re pegged—for example, USDC is pegged to the U.S. dollar, and so it’s always worth a dollar. It’s a really easy way to transact without necessarily investing, for example, in Bitcoin, which changes in value. And so we saw the GENIUS Act passed last summer, it was “Stablecoin Summer,” and I think it’s only going to continue to increase. I think it’s going to really replace a lot of financial rails. If you think back to TradFi concepts, if you’ve heard of “T+3” or “T+2,” when people use those phrases, they are referring to how long it takes to settle money—for example, the idea that a wire takes two days. Crypto changes all of that. It makes it instantaneous, and it’s way more accessible.

DL: You mentioned Venmo. I think traditional finance institutions have tried to make their payments go through more quickly too. You have Venmo and Zelle and Quickpay and what have you. So what is different or better about crypto versus, I guess—did you call it TradFi? Is that traditional finance?

MA: Traditional finance—I’m so used to that phrase at this point. But yes, with crypto, it’s sub-cent, sub-second transactions. So it’s cheaper, it’s faster, and it doesn’t require a middleman. You and I could send crypto back and forth to one another, and it could be USDC. It could be stablecoins, stable value. I could pay you for a contribution to a baby gift, and it’s going directly to you. It’s not getting routed through multiple different parties, which in and of itself can introduce different risks. So I find it to be really powerful. I think stablecoins were a huge initial use case, and it’s also a great way for people to get started if you’re not as interested in trading in assets that change in value.

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So you mentioned buying the dip, and what you’re referring to is that right now the crypto market is in the doldrums. The total cryptocurrency market cap is estimated at around $2.1 or $2.3 trillion. At one point, it was as high as $4.3 trillion. So with the caveat that nothing on this podcast is investment advice, and nothing is legal advice, it sounds like you are long-term bullish on crypto?

MA: Oh, I’m super bullish. It’s interesting. There’s actually a really cool chart—I’ll have to find it and send it to you—where basically the ups and downs of crypto over time are on this graph. And it’s not like a sine curve—I’m sorry to totally “enginerd” out on you—where it’s just up and down and up and down in a steady state. Yes, there are ups and downs—I think that the crypto market can feel more volatile at times, or it feels like it has these deep peaks and valleys—but these peaks and valleys are all on an upward slope. So I think that the long-term future of this market is super strong. I’m super bullish on it. I think that the passage of legislation like the GENIUS Act and the forthcoming (hopefully) passage of legislation like the CLARITY Act is only going to continue to increase adoption and make this something that’s increasingly accessible to a wider swath of consumers.

DL: Full disclosure to my listeners: I share your optimism. Every month, I put a small amount into crypto—I have the Coinbase app—again, a very small amount, but I do it every month.

So you alluded to regulation. You talked about the GENIUS Act, which was passed last year, which regulates stablecoins. And then right now the Senate is in recess, but when they return, they might vote on the CLARITY Act, which you mentioned just now. And if passed, that would be the second major piece of legislation in two years, after last year’s GENIUS Act. So can you explain, in a nutshell, what is the CLARITY Act, and what would it do? And does Coinbase have a position on it?

MA: Coinbase is super supportive of the CLARITY Act. We have long been advocating for clear rules for this industry. Just to take us back a step, at one point, Coinbase advocated and sought for the SEC to do rulemaking—and first it was silence. We ultimately took them to court to at least get them to answer the question, “Will you do this?” And after they lost in the Third Circuit, eventually they effectively said no. They sued Coinbase and other exchanges instead—and ultimately withdrew those cases with prejudice. It has been a wild ride in that sense. So I think it’s important context because there was this era of regulation by enforcement. And so part of what CLARITY helps do is set the stage going forward. Yes, we have ended the era of regulation by enforcement, but it’s important to show, on a go-forward basis, that there is a clear set of rules for this industry.

And so CLARITY does that. It’s one of the most important and strongest bipartisan bills the crypto industry has ever seen. It has the backing of a really interesting variety of players that have all come together, whether it’s law enforcement groups, the White House, you name it. And very recently, a lot of progress has been made to resolve a variety of open issues. And now it will be up for a vote—I think it’s September 15th, don’t quote me on that, but I think that’s what the Senate said as their timing when they return from recess. What’s important about CLARITY is it will help bring uniform U.S. rules and oversight under a number of different agencies. And so it just really sets predictable and clear standards going forward, which is what Coinbase has always advocated for.

DL: Does it identify a primary regulator for the crypto industry? Because as you mentioned, the SEC was very active in this space, and then it suffered a number of setbacks, and some people have also advocated for the CFTC to be a big regulator. Does the CLARITY Act clarify who has jurisdiction over crypto?

MA: So the answer is a little bit of both. It does address, on a topic by topic basis, who the right regulator is. The CFTC has a very significant role regulating crypto spot markets, and the SEC will also have an important role as it relates to the potential for crypto securities. And so the good news is we have a hundred years of experience in this country navigating between different types of asset classes, and crypto is not just one thing. I think that the power of tokenization or digitizing different types of asset classes is that it cuts across asset classes. For example, you could have tokenized securities. We just launched them out of Abu Dhabi this week, to be able to have tokenized equities—so you can have a tokenized version of NVIDIA, for example—but there’s also a variety of spot and derivative products. And so there’s a huge range, and I think that there are federal regulators who are ready to step up to the plate and provide clarity for this whole industry.

DL: Let’s turn to your new role. You very recently became the GC of Coinbase, and you mentioned earlier that your goal was to become the GC of a public company, so congratulations. What would you identify as some of your priorities in your first year?

MA: One of the really exciting parts about taking the GC role at this time in Coinbase’s history is that Paul Grewal, my beloved former CLO here, really paved the path to get us out of this period of regulation by enforcement. He won the SEC battle. He was able to help shape how far we’ve come on legislation. And so now I have this amazing greenfield in which to seek all of these opportunities for the company. And so while sign me up for litigation as it comes—my Wachtell days will stand me in good stead—the thing that really makes me most excited about this next phase for the legal team is what product opportunities we can unlock.

So that’s things like coming up with the way that we were able to do tokenized equities out of Abu Dhabi to be able to give a full set of shareholder rights in a tokenized form. Super interesting securities laws issues, and it’ll be more of things like that where we’re able to do innovative products to really delight our customers and find new ways to use crypto. The reason I love this field is because it’s so new, just like flying cars. There’s no perfect set of existing laws for it. So you’re always operating a little bit in the interpretation zone and it makes it really, really interesting and really hard, which I love.

DL: On the flip side of opportunity, there is of course danger or threat. What are the things that keep you up at night in your GC role?

MA: The number one thing keeping me up at night—and I hope it’s the same thing keeping everyone else up at night—is AI. Honestly, every so often I will be driving down the road and I’ll say to myself, “Why am I so stressed right now?” And it really will be because I think we’re wanting to adopt AI faster. I think that some of the work that we’re doing to adopt AI at Coinbase is probably on the cutting edge of what I’ve talked to any other legal team about, and I still feel like it’s too slow. I wish I had all the time in the world just to focus on the technology—and it’s hard to do that on top of leading the legal team and dealing with whatever crisis comes my way. Part of the way I’m going to try to solve that is I’m in the process of hiring a full-time engineer for the team, to be a forward-deployed engineer who will help us really set up this framework. But even though we’re going so fast, it does not feel fast enough.

DL: So it seems like your anxiety is not taking full advantage of AI, as opposed to “it’s going to bring about the downfall of human civilization” or “the robots are going to take our jobs” or something like that.

MA: Spot on. I think it’s amazing. I’m definitely in the camp that AI is not about replacing existing jobs; it’s about replacing routine tasks, and it’s going to create more economic activity. It’s going to make every company more successful, as opposed to making every company as successful as they currently are with less resources. This is about more economic activity and more productive teams and doing more strategic work, as opposed to anything else.

DL: I do, I think, partake somewhat of your optimism. I hope we’re right. Let me ask you this then. You talked about how you believe your in-house legal team at Coinbase is really at the forefront in some ways of integrating AI into your work. Can you give me some examples or some use cases or some things you’re doing with AI at Coinbase that might be new or different or that maybe a couple of years ago you never would’ve thought possible?

MA: Absolutely. I’ll share two examples. One is that we’ve come up with agents that literally are replacing entire tasks or a whole scope of work of a human. For example, we have a very, very active investment portfolio. It’s the type of thing where we get hundreds of emails a day. It then requires doing a variety of legal documentation related to all of these inbound documents. At this point, we used to have multiple people triaging this every single day, in a very manual way. Now it’s all just a single agent. And now those folks are able to do other, harder, more interesting work. And so we have a number of agents—I will tell you my biggest issue right now is figuring out a naming convention for them, so I’ll take any and all great ideas—but these are agents that we have active in our Slack. We interact with them, we ask questions, we give feedback, it’s a super powerful tool, and it’s really freed people up to do more exciting work and more interesting work. So that’s one.

And then the other I’ll share is that I considered writing to be my superpower as a lawyer. I think that I’m able to write in a way that can translate complex legal concepts to an executive, non-legal audience. I think I can do it with brevity: “If I had had more time, I would’ve written you a shorter letter.” And the thing that I said was, “AI could never write like me.” It turns out it can, and I’ve created an agent to do all of my drafting and editing at this point. By feeding it a ton of instructions and some of my best precedents and writing samples, as part of an iterative process, now the first draft of just about any document I do is AI-based. And my team uses it, because I used to edit other people’s work quite a bit before, for example, it would go to an exec audience; I would say, “Okay, here, I’ll take my red pen to it.” Now they put their drafts through the agent, and I have no comments. So it’s freed me up in a really significant way to do other things and to take on this big challenge as GC.

DL: You must have trained it very well, because a lot of people complain about AI writing; they say it sounds stilted or all sounds the same. But you have probably created some kind of “Molly Writing Agent.”

MA: That’s exactly what it’s called, it’s the Molly Writing Agent, and it’s very specific to my writing style. I will say the one downside is I’ve been an em dash user my whole life and it’s one of the tells of AI, but it’s also a Molly tell. And so I will not give up the em dashes just for the sake of not having it look like AI.

DL: I agree with you. I actually also love the em dash; it’s a very versatile and useful piece of punctuation. But let me ask you this burning question, which I’m actually going to post on LinkedIn: Do you put spaces before and after the em dash, or no?

MA: Absolutely not! Do you?

DL: I don’t currently, but I write this column for Bloomberg Law, and they have changed their house style to do that, and now I’m wondering whether I should do that on Original Jurisdiction.

MA: Absolutely not. I’m deeply opposed. I feel more strongly about this than any topic we’ve discussed today.

DL: So let me ask you this. You are clearly using AI for a ton of stuff at Coinbase. Has it changed your approach to hiring outside counsel?

MA: The outside counsel piece is interesting and challenging because outside counsel is struggling with how they cabin data. I think they have a data governance challenge that they are very much working through, because as they want to use AI and train AI, they have a lot of ethical obligations to not use your data in particular ways. I’ve had some really interesting conversations with different firm chairs about how they’re approaching the data-governance issues. As you and I both know, law firms don’t always run exactly like a business. And so the idea that all of a sudden they have to become incredibly technologically savvy is hard. We do have expectations of outside counsel in terms of their AI practices, both in terms of protecting our data and the fact that we want them to use it for certain types of tasks. It’s part of our firm billing guidelines at this point.

But I would say the most radical change I have seen vis-à-vis AI and outside counsel is just a change in where we’re using OC. We used to ask outside counsel to do a first-pass legal memo on a new and challenging new product—for example, when that implicated some particular area of law. Today, we would no longer ever ask them for a first draft; we know that we’re more attuned to the various AI tools and the ability to create a first draft. Now what we’re asking them for is to review our own AI-drafted memo. And so I think it’s going to have to change how law firms bill. I don’t think they’ve yet figured this out, and it’s still the case that I think a great partner in any given law firm is able to give such strategic advice, based on having seen such a volume of different types of situations, that would be very, very hard to replace. But in terms of some of the associate-level or more rote drafting work, at this point, my expectation for my team is that they do it themselves—and if they need an outside-counsel check on something bespoke, that’s fine.

DL: Do you expect your overall outside counsel spend to decrease, or are you just going to get more work for the same amount of money?

MA: I expect it to go down. I’m paying for this engineer just out of savings from first-half-of-the-year outside counsel fees, to be totally honest, because we have already changed how we’ve approached things, and it’s been enough to be able to fund bringing on this full-time engineer and maybe more.

DL: Interesting. So I don’t know—maybe some of my law firm listeners will be a little concerned. You mentioned the issue of data governance. Does your standard engagement letter, retention letter, what have you, have a provision about that? Or if you are using a law firm’s form, do you have a particular requirement as to how your data is treated?

MA: We do. And it’s not just for law firms; it’s also for any of our vendors. And I think that both as a note to your law firm listeners and to all of your GCs and in-house legal listeners, one of the most important things that every in-house lawyer needs to do is make sure that you are protecting your company’s data. Reddit had some really interesting lawsuits along these lines.

And even for us, one of the first things I did when AI started to become more common a couple of years ago was have our commercial team do a scour of all of our agreements, in terms of the ability to use our data to train other people’s models, because either I don’t want that happening without my consent or you can pay me for it. And that’s really important.

There was a company, I want to say about 18 months ago, that tried to just send an email notice to all of its clients that it was going to be using thousands of companies’ data to train its model and that this was going to be an exciting new product, and the backlash was immediate. And so I think that it’s really important that any GC is viewing AI through a couple of different lenses. One is a protector of your company’s data. One is an enabler of your company, because there are so many legal issues that come up as companies try to use more and more AI tools, so you want to be able to enable that quickly. It’s using it to scale your legal function. And then it’s being an individual super user. I’ve talked to a lot of GCs who have said, “My team is using it. I haven’t really figured out my personal use case though yet.” My super-user era came later than my general excitement about AI, and it wasn’t until I was using it in my daily work that I fully appreciated that power was going to bring.

DL: On the one hand, I can understand your being concerned about your Coinbase client data being used by a law firm to train AI tools, but I have wondered: do we have some kind of “pay it forward” duty as users of AI? We all understand that the AI is only as good as the stuff it’s trained on. To what extent do we have a responsibility to help make the AI better? Because if everybody says, “Oh, you can’t train on my stuff,” are they going to have anything to train on?

MA: Well, I feel like you’re going to the heart of the open-source question. These companies are not largely making their models open source. That needs to be led at the LLM level; my use of particular data is downstream of that.

But right now, if I were to let folks train on data, whether it’s my personal data or it’s company data, to what end? To make their model better, so they can go charge a different company for it? And this is where I do think the open-source question matters. I’m not 100% up to speed on the latest in that debate, but it’s a fascinating one. And it’s going to be really important because this is going to be one of the biggest technological innovations of our time, and how people are able to partake in it is a really critical question.

DL: With the rise of AI, have you changed your billing arrangements with law firms? You mentioned that it has affected your billing guidelines or your protocols, but I guess what I’m asking is, are you using the billable hour less, or not really?

MA: We have largely moved away from the billable hour as a company. We really do seek to do alternative fee arrangements, and that is increasingly a demand of law firms—to really think thoughtfully about outcome-based and other types of fee arrangements. And I would say that’s pretty independent of AI. We have a tremendous legal ops leader who’s been really at the cutting edge of all of this. To the extent that the law firms have been able to hold onto the billable hour for this long, I think the day may have come. I think it may be over.

DL: So let me ask you just a very open-ended or general question. How well do you think outside law firms are using AI? I don’t know what you’d say if you were to give them a letter grade. Or what are some cool things you’ve seen them do? Or things that they should be doing with AI that they’re not?

MA: Honestly, I don’t think they get a very good grade right now. I truly think they’re still trying to sort out how best to use it. And I think that firms are trying to use it enough to show recency and relevance, but I don’t think they’ve figured it out yet. I really don’t. It’s really going to distinguish the firms that become successful businesses from those that don’t.

We’re in really, really early innings, though—the warm-up stage of the game when it comes to law firms and AI, to be honest. And look, part of it is demanded by their clients. There are certain clients out there who won’t allow a firm to use AI. We’re seeing this with the law schools, right? No one’s really sure of the right thing to do; everyone’s experimenting a little bit. Some law schools are banning the use of AI; others aren’t taking a stand yet. I like what UChicago is doing: They effectively are saying, “We want you to embrace it in certain settings, and in others, we want you just to come to the room with your mind and nothing else.” And so I don’t think the law firms have figured it out. I don’t think the law schools have figured it out. Those who can be thought leaders in this space will be well-equipped for success.

DL: That’s totally right. And there has been research showing that in-house legal departments are actually ahead of law firms in AI adoption. So there you go.

MA: That tracks.

DL: So one thing that we’ve been hearing about a lot is the rise of prediction markets, like Kalshi or Polymarket, where people can essentially, I guess you could say, “bet”—I put that in quotes—on the outcomes of real-world events. And I believe Coinbase has announced something in this space?

MA: Yes. So we have a prediction-markets feature; we have it live in the app. Check it out in your app after this call, David. It’s a really interesting way to engage in event contracts. And litigation over prediction markets is quite intense. I think there are lawsuits in over 25 states. And part of the reason for this is for many years, various states have regulated this space or adjacent spaces, if you will. And with the advent of prediction markets, prediction markets are swaps under the Commodity Exchange Act, and so there’s a single federal regulator for swaps, and that is the CFTC. And so this issue has really come to a head with the growing success of companies like Kalshi and Polymarket’s U.S. version of their product and a number of other companies, Coinbase and many more, have also integrated this into our apps.

I swear, six months from now, we’re probably going to have part two of this conversation because this is going to the Supreme Court, David. We have a circuit split developing. The Third Circuit decided in favor of the prediction markets that, yes, there is exclusive federal jurisdiction. It’s the only appellate court to rule so far. But cases in the Fourth, the Ninth, and the Sixth Circuits have all been argued, not decided. So this is brewing for a really interesting case when it comes to whether the CFTC does have exclusive jurisdiction. We think they do. The CFTC chair has been very clear about their jurisdiction here and has stepped in. The clear answer is one federal regulator, but we’ll see a lot more lawsuits before we’re able to ultimately resolve that question.

DL: Again, I’m not an expert in this issue, but my gut is it does seem like these event contracts, which involve people and issues from across the country or the world, do seem ripe for one regulator, as opposed to 50 different regulators—that just seems kind of like a nightmare. But as you were saying, the litigation is crazy. It’s even hard to keep track of: “Okay, this state sued the federal government and the federal government sued them back, and the state is prosecuting Kalshi, and Kalshi wants a declaratory judgment against the state.” It’s very confusing.

MA: It’s complicated. I probably get at least one update per day on a development in one of these prediction-market cases. But one thing that is really refreshing, and that helps a lot, is when this litigation started, the CFTC had not yet shared its explicit view. The CEA is quite clear that the CFTC is the exclusive regulator for this space, but the CFTC had not yet spoken up. And they have since, and they have taken a really active role in this litigation. I think they’re actively litigating in maybe eight or nine of the states to protect their exclusive jurisdiction and the integrity of these markets nationwide. The result you would have otherwise, as you mentioned, would be messy. It would be chaotic. It would mean that if as you go from one state to the next, you would have to close positions. It’s not what’s best for consumers. It’s not what the CEA calls for. And so I’m hopeful that this gets resolved sooner than later, but it is a fascinating area to watch.

DL: Is there any talk of federal legislation, or do you think the resolution is going to come from the Supreme Court? Or how is this issue, at least in the near term, going to be resolved?

MA: I think it will be resolved by the courts. The CEA is already pretty clear that swaps are exclusively regulated by the federal government and specifically by the CFTC. And so it could be the case that we don’t have a circuit split, to be totally honest, because it could be the case that the Fourth, the Ninth, the Sixth also come out in favor of the prediction markets. The only decision so far has been in favor of exclusive jurisdiction. So maybe it gets more quickly resolved in that way, but I have no doubt that folks will appeal as well.

DL: Now let’s turn to my speed round. These are four standard questions, and they’re the same for all my guests.

My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

MA: EDGAR is just such an arcane system, but I have a different one: PACER. It makes me crazy that given the open nature of our court system, and the fact that we almost never have closed proceedings, you still need this fancy login that changes from one jurisdiction to the next, and you pay 10 cents per page to download something. If I were ever to do a startup of my own, and maybe it would just be a nonprofit, I would open-source all court pleadings and decisions and make it more easily accessible. Maybe LLMs will be our answer. But it makes me absolutely crazy how difficult and inaccessible tools like PACER are.

DL: I totally agree. And there are definitely organizations out there like Fix the Court, which are quite focused on this issue, so maybe we’ll see some progress.

My second question is, what would you be if you were not a lawyer?

MA: So I’m not going to say engineer here; I’m actually going to say doctor. I also took all of the classes to be able to go to medical school because I just like hard, intense things. I don’t know—maybe I’ll be a doctor in my 50s.

DL: That’s funny. My husband Zach had a law school classmate in his 50s who was a former doctor, so you could go the other way.

My third question is, how much sleep do you get each night?

MA: Six and a half hours exactly, and without fail.

DL: Wow. Do you have a fixed bedtime and wake-up time?

MA: I do. I wake up every day at 4:38, and I’ve figured this out quite exactly, David—it’s been the unlock of productivity for me—which is that 22 minutes is how much time I need to get up, get dressed, brush my teeth, read the news, and get ready for a 5:00 a.m. workout. I have found that if I can start my day that way, having cleared the decks and then exercised, it makes me a much more pleasant parent and manager.

DL: Well, I’m going to have to talk to you offline about tips on that. My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

MA: Yes. Make yourself dispensable. I think that too often people view their roles at companies, at law firms, you name it, as, “This place needs to fall apart without me, or I won’t be valued, or I won’t have career security.” And the thing that I have really about 10 years ago taken the point of view on is if I can make myself dispensable because I’ve scaled myself so well, I’ve trained people around me to be able to take tasks, I’ve given people visibility, it actually has been the reason that I’ve been able to take on more at every turn. So I would say, make yourself dispensable.

DL: Well, that is definitely a new and unusual perspective—but as to this conversation, you were indispensable. Molly, thank you so much for joining me.

MA: It was a pleasure. Thank you so much, David.

DL: Thanks so much to Molly for joining me, and congratulations to her on becoming the GC of Coinbase.

Thanks again to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm helps boutique law firms offer Biglaw-caliber benefits at small-firm prices. To learn how NexFirm can help your firm attract and retain exceptional talent, call 212-292-1002 or email betterbenefits@nexfirm.com.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, September 2. Until then, may your thinking be original and your jurisdiction free of defects.

[UPDATE (8/29/2026, 11:12 p.m.): For more about Molly Abraham, see Brian Baxter’s profile of her for Bloomberg Law, which covers a number of the topics we discussed in our conversation.]

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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It’s hard to believe, but summer is almost over (and for the school-age kids of some of my friends who don’t live in the northeast, summer already is over, as I see from their back-to-school posts on social media). Summer is my favorite season—not because I love the heat, but because I appreciate the season’s more relaxed vibe—so I’m sad that it’s coming to an end.

The highlight of last week for me was guest-hosting the Advisory Opinions podcast, together with my husband Zach—aka Zachary Baron Shemtob, executive editor of SCOTUSblog. Sarah Isgur and David French left huge shoes to fill, so Zach and I enlisted some help. For Tuesday’s episode, we were joined by Amy Howe, co-founder and primary reporter of SCOTUSblog; for Thursday’s episode, our guest was Adam Feldman, author of Legalytics. Thanks to Sarah and David for the opportunity, and thanks to Zach, Amy, and Adam for the company.

Every now and then, I offer a practical tip in Judicial Notice, so here’s the latest. Last month, I almost fell for a scam, which began with a call informing me of fraudulent charges on my credit card—something that has happened to me many times over the years, which is partly why it was initially convincing. Fortunately, I figured out in the middle of the call that they were scammers (by consulting with my pal Claude).

I was disturbed by how much personal information the scammers had about me. So after hanging up on them, I froze my credit, to make it harder for unauthorized parties to open new credit accounts in my name. To learn why and how to put a credit freeze in place, check out this FTC article.

Now, on to the news.

Lawyer of the Week: Trent McCotter.

In the wake of Todd Blanche’s confirmation to serve as U.S. attorney general, who has taken on the critical duties he handled as deputy attorney general? As the #2 person at the U.S. Department of Justice, the DAG oversees the DOJ’s day-to-day operations and serves as the AG’s right hand.

For now, while we await a nominee, the duties of the DAG are being discharged on an acting basis by Principal Associate Deputy Attorney General Trent McCotter—a graduate of UNC Law, former federal law clerk and prosecutor, and former associate at Jenner & Block, interestingly enough (given the firm’s adversarial relationship with the administration nowadays). McCotter was also a partner at Boyden Gray PLLC, the prominent conservative boutique—and one of his former colleagues at the firm, Boyden Gray managing partner Michael Buschbacher, praised McCotter’s selection, declaring that “there’s no one better that Todd Blanche could have picked."

In less happy news for McCotter, he was on the receiving end of a benchslap last Monday, as reported by The New York Times (gift link). McCotter had the unenviable task of handling the controversial dismissal of an indictment leveling corruption and other charges against Gautam Adani, India’s richest man, and seven other defendants. Why was it controversial? Back in May, The Wall Street Journal (gift link) reported that Adani’s lead lawyer, Sullivan & Cromwell co-chair Robert Giuffra—who’s also one of Donald Trump’s personal attorneys—told DOJ officials that the case against Adani was preventing him from investing $10 billion in the United States.

In response to McCotter’s motion, Judge Nicholas Garaufis (E.D.N.Y.) dismissed some of the counts—including all the counts against Adani—but not all counts against all defendants. And in his 47-page opinion, the judge had harsh words for McCotter:

As noted throughout this opinion, the irregularities in the decision to dismiss the Indictment are concerning. On the current record, McCotter appears to have eschewed the professional opinions of innumerable officials from various federal offices and replaced them with his singular judgment. The fact that McCotter came to this decision largely in collaboration with defense counsel, and seemingly without input from the FBI and SEC agents who investigated the alleged misconduct, or the attorneys from the Department, SEC, and U.S. Attorney’s Office who brought the case, appears to be highly unusual. McCotter’s refusal to meet the procedural requirements of Rule 48(a)—even after the court’s clear direction to do so—evinces a lack of respect for the Judiciary as a co-equal branch.

On the bright side for McCotter and the government, Judge Garaufis rejected the speculation that the Trump administration dismissed the charges because Adani promised to invest $10 billion—and declared himself “satisfied that Defendant Gautam Adani's $10 billion investment promise was, in fact, a ‘non-consideration.’” So one can say of this case something that could be said of many matters handled by the Trump DOJ: it didn’t go particularly well, but it could have been much worse.

In other news involving a top Trump administration lawyer, I mentioned last week Trump’s selection of Will Scharf as his next White House Counsel, effective September 1. For profiles of Scharf, see, e.g., Bloomberg Law and Law360. As noted by Politico, Scharf will play an “incredibly important” role—especially if Democrats take control of the House in the midterms, then use Congress’s investigative and oversight powers to put the Trump administration through the wringer.

In memoriam: Professor Randal “Randy” Picker, a faculty member at the University of Chicago Law School since 1989, passed away at 66. May he rest in peace.

Judge of the Week: Judge Andrew Oldham.

How is a judicial opinion like a thriller? It’s important to hook the reader from the opening. Judge Britt Grant (11th Cir.) garnered favorable mentions on social media for the first paragraph of her opinion in Renfroe v. USAA General Indemnity Co., which managed the impressive feat of making an insurance case interesting:

A father and daughter owned a house together. But it was not as idyllic as it might sound—each warned the insurance company that the other would likely burn the house down. Remarkably, the insurer issued and maintained the policy anyway. Less remarkably, the house burned down a month later.

I also enjoyed the way that Judge Stephanos Bibas (3d Cir.) began his opinion in Blasingame v. Malibu Boats, LLC, a case about allegedly defective boats that he heard while sitting by designation in the District of Delaware:

The two best days in a boater’s life are the day he buys his boat and the day he sells it. Boating, while thrilling, can be expensive and even dangerous.

But who is to blame when a boat fails to live up to expectations? Plaintiffs allege that boats manufactured and sold by Malibu Boats did not perform as advertised.

Meanwhile, Judge Andrew Oldham (5th Cir.) took some flak for two recent introductions of his. Here’s the opening of State of Mississippi v. Department of Energy, which was about whether the DOE could promulgate new regulations on home cooking appliances through a “Direct Final Rule” (i.e., without going through the standard notice-and-comment process):

The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful. See, e.g., Louisiana v. DOE, 90 F.4th 461 (5th Cir. 2024). As part of that effort, one official even proposed banning gas stoves. See Ari Natter, US Safety Agency to Consider Ban on Gas Stoves Amid Health Fears, Bloomberg (Jan. 9, 2023), https://perma.cc/7E2V-DFN5 (quoting statement of Consumer Product Safety Commission official Richard Trumpka [sic], Jr.). These efforts generated significant controversy and public backlash. [UPDATE (8/17/2026, 10:06 a.m.): I moved the citation to Ari Natter, which I had erroneously placed before the reference to the official’s comment about gas stoves. Also, that official’s surname is “Trumka,” not “Trumpka”—Freudian slip?]

And here’s the intro to La Union del Pueblo Entero v. Abbott, a lawsuit arguing that a Texas election law was inconsistent with the Americans with Disabilities Act:

It has long been established that mail-in ballots are prone to fraud. See, e.g., Veasey v. Perry, 71 F. Supp. 3d 627, 676 (S.D. Tex. 2014) (“Mail-in ballots are not secure.”), aff’d in relevant part, 830 F.3d 216, 256 (5th Cir. 2016) (en banc). That is why voting by mail jeopardizes election integrity and democracy itself.

These rather “Trumpy” openings—the first attacking the Biden administration, the second tying voting by mail to election fraud—led some observers to suggest that Judge Oldham, a top Supreme Court contender in the current administration, might be “auditioning” for the next SCOTUS opening.

To be honest—and with all due respect to Judge Oldham, whom mutual friends have praised—I’m not a fan of such strongly opinionated intros, especially when they run the risk of coming across as political. Readers, what do you think?

In other news about judges and the judiciary:

• What do I share in common with Chief Justice John Roberts? Sadly for me, not much, but there’s this: we’ve both written for Substack. For a series on American presidents appearing in the pages of In Pursuit, the Chief Justice wrote an excellent essay on William Howard Taft (via Howard Bashman’s How Appealing).1

• Speaking of Chief Justice Roberts, the current format of SCOTUS oral arguments has made him a less active questioner, according to a new study by Professors Lee Epstein and Eric Posner (via Adam Liptak).

• Speaking of notable new research, Professors Stephen Choi and Mitu Gulati have posted a pair of interesting papers to SSRN: Trump v. Biden Judges: Is the Gap Closing?, an update of their earlier research into how well different judges perform on the bench, and The Last Casebook Hero, an examination of which judges are writing opinions that are making their way into casebooks.

• In case you missed it, I indulged in some Friday fun and published a post asking readers to rank the circuit courts by importance.

In nominations news, last week brought word of two new nominees. First, Trump nominated Judge Lee Rudofsky (E.D. Ark.) to the Eighth Circuit (as I predicted). According to Michael Fragoso of National Review, “Between Lee’s credentials, his career, his record on the bench, and his support for the conservative legal movement, he’s a tremendous pick for the Eighth Circuit.” Over the years, the Eighth Circuit has been something of a sleepy court; but in Fragoso’s words, it’s “on the verge of being made truly great, following the strong appointments of Judges Traynor, Smith, Kobes, Stras, and Grasz”—and now Rudofsky.

Second, Trump nominated a White House lawyer, Samuel “Sam” Adkisson, to the Eastern District of Tennessee. Senator Bill Hagerty (R-Tenn.) praised Adkisson, noting his tenure “as a law clerk for U.S. Supreme Court Chief Justice John Roberts, as well as two outstanding federal appellate judges [Judges Amul Thapar and Gregory Katsas], not to mention his service as associate counsel to the most demanding client in the world—the president of the United States.”

A 2018 graduate of Yale Law School, Adkisson will be criticized by Democrats as inexperienced, but I expect he’ll be confirmed by the Senate (which Republicans control until January, regardless of what happens in the midterms). As noted by Professor Rob Luther, who worked on nominations in the first Trump administration, youth in judicial nominees is a feature, not a bug—with young district judges serving as “a blueprint of the next Republican President’s Court of Appeals judges.”

In memoriam:

• Justice John Carro—who spent 25 years serving on the New York State bench, becoming the first Puerto Rican named to the Appellate Division’s First Department—passed away at 98. (One of his four children who went into the law, Justice Gregory Carro, is now presiding over the state-court prosecution of Luigi Mangione, discussed below.)

• Judge Frank Bullock, Jr. (M.D.N.C.), who served on the federal bench for more than two decades, passed away at 87.

May they rest in peace.

Job of the Week: an opportunity for midlevel to senior corporate associates in Dallas.

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Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

It’s a Friday afternoon during the dog days of August, so I won’t hit you with anything heavy. Instead, I bring you a Notice and Comment post — in which I tee up a topic and invite all of you, my readers, to debate and discuss. The comments section will be open to all readers, not just paid subscribers (as is always the case with N&C posts).

Earlier this week, I had the pleasure of co-hosting the Advisory Opinions podcast (along with my husband, SCOTUSblog executive editor Zach Shemtob). For Tuesday’s episode, we were joined by Amy Howe, co-founder and primary reporter of SCOTUSblog. For yesterday’s episode, our guest was Adam Feldman, author of the Legalytics newsletter on Substack.

If you listened to Thursday’s episode, you received advance notice of our subject for today. From my reader mailbag:

I hope all is well! I’ve been a longtime reader of Original Jurisdiction.

I’m currently clerking for a federal appellate judge, and my co-clerks and I recently got into a friendly debate about how to rank — or, perhaps more appropriately, group — the federal appellate courts by importance.

The conventional view seems to put the D.C. Circuit at the top, followed by the Second and Ninth Circuits. But the picture gets more complicated from there.

The Fifth and First Circuits, for example, can play an outsized role in challenges to government action, depending on the administration in power. The Eleventh Circuit seems to have a particularly large number of feeder judges whose opinions are cited widely outside the circuit. The Third Circuit doesn’t produce a huge volume of published opinions, but the opinions it does publish seem to be particularly well-cited. And the Seventh Circuit seems to have gone relatively quiet over the last few years.

I’m not sure whether this has come up on OJ recently, but I thought it was an interesting question. I’d be very curious to hear your thoughts on how you would rank or group the circuits, and what factors you think are most useful in measuring a circuit’s broader influence.

Before I turn over the floor to my readers, I’d like to share with you some data. To kick things off, here are the circuit courts ranked by the populations they cover:

1. Ninth Circuit: 67.1 million

2. Eleventh Circuit: 38.7 million

3. Fifth Circuit: 38.0 million

4. Sixth Circuit: 33.5 million

5. Fourth Circuit: 32.9 million

6. Seventh Circuit: 25.3 million

7. Second Circuit: 23.8 million

8. Third Circuit: 23.4 million

9. Eighth Circuit: 21.9 million

10. Tenth Circuit: 19.0 million

11. First Circuit: 14.1 million

12. D.C. Circuit: 678,972

13. Federal Circuit: N/A

Of course, population isn’t everything; a court’s docket matters too. As noted by my correspondent, the D.C. Circuit is generally regarded as the most important circuit court — based on the high-profile cases it hears involving federal agencies, national security, and executive power — even though it covers the smallest population. And I’d argue that during the second Trump administration, it has only grown in importance, as a result of the many challenges to federal government action it has had to hear.1

In terms of the size of different courts’ dockets — i.e., caseloads — here are the circuits ranked by cases filed during the 12-month period ending June 30, 2026, based on data from the Administrative Office of the U.S. Courts (noting parenthetically how each circuit’s caseload ranking differs from its population ranking; “-” signifies no change):2

1. Ninth Circuit (-): 9,047

2. Fifth Circuit (+1): 5,481

3. Eleventh Circuit (-1): 4,756

4. Fourth Circuit (+1): 3,443

5. Sixth Circuit (-1): 3,419

6. Second Circuit (+1): 3,360

7. Eighth Circuit (+2): 2,632

8. Third Circuit (-): 2,514

9. Seventh Circuit (-3): 2,408

10. Tenth Circuit (-): 1,735

11. Federal Circuit: 1,362

12. First Circuit (-1): 1,136

13. D.C. Circuit (-1): 1,081

[UPDATE (8:49 p.m.): A commenter pointed out to me that the Federal Circuit’s caseload stats are available; they’re just contained in a separate report. So the ranking above was revised to add 1,362 for the Federal Circuit (it was previously listed as “N/A”), and this revision bumped the First and D.C. Circuits down by one spot each.]

But not all cases are created equal; the content or nature of a court’s docket matters too. As noted by my correspondent, the Second Circuit historically has been seen as a top-three court in significance, based largely on how it has decided many major business cases over the years. But it could be argued that as the business docket has waned, so has the Second Circuit’s importance.

I also agree with my correspondent’s point that in recent years, the First and Fifth Circuits have become more influential, based on how often they’ve been called upon to rule on challenges to federal government action. Challenges to Biden administration policies were often filed in Texas districts, which sent them to the Fifth Circuit; challenges to Trump administration policies are often filed in blue states like Massachusetts, New Hampshire, and Rhode Island, sending them to the First Circuit.

I’ll conclude my comments here, lest I taint the jury pool. Readers, what do you think? Please opine in the comments — which are open to everyone, not just subscribers. Thanks!

[UPDATE (5:17 p.m.): I made minor tweaks to this post to improve the logical transitions between the paragraphs discussing dockets and caseloads. In addition, on New Hampshire, please see the discussion in the comments about how it’s more of a purple state: although it has voted Democratic in every presidential race for two decades, Republicans currently control state government.]

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

A shorter version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that didn’t appear in my Bloomberg Law column — a form of bonus content for Original Jurisdiction subscribers.

Last month, star litigator William Savitt left Wachtell Lipton Rosen & Katz, where he had co-chaired both the executive committee and litigation department, and joined Gibson Dunn & Crutcher. Five other litigation partners moved with him, reducing Wachtell’s litigation partnership by more than a quarter.1 Today, only 17 of the firm’s 73 partners are litigators, according to its website.2

This made me wonder: With so few litigation partners left, should Wachtell Lipton just spin off its litigation department? Put another way, should Wachtell’s remaining litigators leave to launch their own boutique?

It’s not a completely crazy idea. After all, Wachtell lawyers spend much of their time advising clients on divestitures, spinoffs, and other such moves.

“In the corporate world, companies acquire and spin off divisions all the time,” said Bruce MacEwen, legal consultant and president of Adam Smith, Esq. “There’s no good economic reason why we don’t see this more with law firms.”

The idea of firms parting ways with particular practices, such as their patent prosecution or trusts and estates groups, isn’t new. These splits tend to involve practices that are relatively less lucrative or no longer core to a firm’s identity. This is arguably the case with litigation at Wachtell — “first and foremost a transactional platform,” as Rose Corbett, a managing director at search firm Macrae, put it.3

In some instances, firm leaders pressure partners in the disfavored group to depart; in others, the lawyers leave of their own free will. And some situations lie somewhere in between: The partners depart on their own, but perhaps because they no longer felt as welcome as they used to be at the firm.4

I worked as a litigation associate at Wachtell from 2000 to 2003, and I had a great experience.5 But it was clear to me that M&A was the heart and soul of the firm, with litigators playing more of a secondary or supporting role.6

M&A was, and still is, the primary driver of Wachtell’s profitability — which is why I suspect that spinning off litigation would actually increase the firm’s already astounding $12 million in profits per equity partner. It would also allow the firm to focus even more on its corporate practice, in an increasingly competitive market for deal work.

Wachtell would occasionally need litigation support for its transactions, such as defending deals in Delaware Chancery Court. In these situations, the Wachtell dealmakers could simply work with their former partners at the litigation spinoff — just as Kirkland works as co-counsel with its ex-partners who left to launch Clement & Murphy, and Paul Weiss handles cases alongside its former partners who departed and founded Dunn Isaacson Rhee.

Having their own firm could also benefit the former Wachtell litigators. First, they’d no longer feel like they’re playing second fiddle. Lawyers are highly status-conscious, and I can’t help thinking that at least some of the litigators who have left Biglaw to launch boutiques wanted to step out of the shadow of their corporate counterparts.

Second, the ex-Wachtell litigators could accept a broader range of cases and clients. They would no longer be reliant upon their corporate colleagues for much of their work, constrained by the client conflicts of a large transactional practice, or pressured to maintain profitability commensurate with a market-leading M&A practice. Indeed, boutique founders have cited fewer conflicts and greater rate flexibility as virtues of their model.

Third, the former Wachtell litigators could take with them most if not all of the litigation matters they worked on at their former firm. This would be rocket fuel for the launch of their boutique, allowing them to have plenty of revenue coming in the door while they get their new firm up and running.

Even Wachtell’s clients could benefit. Imagine a situation where a transaction handled by the firm winds up in litigation. Today, that deal would likely be defended by Wachtell litigators, and that’s usually fine. But as a matter of legal ethics, occasionally a client’s interests exist in tension with the firm’s interests — such as situations where the adequacy of the firm’s transactional advice is at issue. In those cases, clients of a post-spinoff Wachtell would be required to retain an independent, entirely conflict-free firm.7

“To the extent that this enables clients to have more choice, it could be an advantage,” said University of Houston law professor Renee Knake Jefferson, an expert in legal ethics. “With no longer any presumption that the client will use Wachtell’s litigation team, there’s a built-in, structural autonomy for the client.”8

So that’s the argument for a litigation spinoff at Wachtell Lipton. Will it actually happen? Probably not.

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For starters, the idea of spinning off litigation doesn’t take into account the full scope of work performed by litigators at Wachtell and other corporate firms.

Professor John Coates of Harvard Law School, a former corporate partner at Wachtell, reminded me that litigators at transaction-focused firms do much more than litigate cases in court. A key part of their work is providing ongoing advice and consultation about litigation-related issues in deals — which is far more difficult to do when the deal lawyers and litigators don’t work at the same firm.

“Even if Wachtell and the spun-off firm had a good ongoing relationship, the quality of quick advisory consults would become less reliable,” Coates said. “And the need to do conflict checks and to retain a separate firm could impede even the ones that still made sense.”9

And what about the Wachtell litigators? They have many reasons for staying — millions of them.

“It’s an interesting idea, but I’m skeptical,” said a former Wachtell litigator who’s now at another firm, speaking anonymously to protect ongoing business relationships. “While the litigators at Wachtell are absolutely top-shelf, they’re not generally used to generating their own cases. It’s hard for me to see how they suddenly start doing that, let alone doing so in a way that allows the spun-off firm to match Wachtell compensation.”

A Wachtell spokesperson said in a statement: “Wachtell Lipton is performing at its highest level across every metric. The Firm is having a record year, continues at the top of all the league tables and is as strong as it has ever been. We remain steadfast in our commitment to the same standards of excellence and elite client service in each of our practice areas, including our premier litigation group, that have defined the Firm for sixty years.”10

Yes, Wachtell’s litigation practice is small. And it could get smaller, especially if its remaining stars start returning calls from the recruiters who are now circling.11

But don’t expect it to disappear completely. Even the best M&A firms need a few good litigators.

The footnotes — which contain more detailed discussion and inside baseball about Wachtell Lipton, exceeding the original article in word count — are available below for paid subscribers to Original Jurisdiction.

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This week’s Judicial Notice is sponsored by

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In the last edition of Judicial Notice, the most-clicked link was—to my surprise—the photo I used to illustrate the post, featuring the Wachtell Lipton Rosen & Katz letterhead as of March 2000. And when I posted an image of my former firm’s letterhead on LinkedIn, it went viral (by law-nerd standards), garnering more than 185,000 pageviews.

Given this surprising interest in the WLRK letterhead—which back then listed associates as well as partners, making it something of a curiosity—I updated last week’s Judicial Notice to swap in a more legible and somewhat more recent version (from 2003). If you’re interested, you can click here to view it. (See if you can find my name, as well as those of other Wachtell alumni you might recognize.)

Now, on to the news.

Lawyer of the Week: Jeanine Pirro.

On July 31, U.S. Attorney Jeanine Pirro (D.D.C.) moved to dismiss her office’s indictment of former Olympic canoeist David “Davey” Hearn, whom it had charged with felony destruction of property for allegedly vandalizing the Lincoln Memorial Reflecting Pool. According to her motion, the evidence “strongly suggest[s]” that damage to the lining of the Reflecting Pool was caused not by vandalism, but by a “rushed and botched installation” by the contractor.

This didn’t sit well with her boss, Donald Trump, who has repeatedly blamed the many problems with the Reflecting Pool’s renovation on vandals. He publicly criticized Pirro, historically his staunch ally and loyalist, for “choking” and “folding like an umbrella”—and summoned her to a White House meeting, along with Interior Secretary Doug Burgum (whose office Pirro had blamed for providing incorrect information about the work done on the Reflecting Pool).

The meeting, which took place last Monday, was an “Oval Office showdown,” according to The New York Times (gift link)—“a high-drama, face-to-face meeting” that was “worthy of two decorated veterans of confrontational reality TV.” Here’s more, from Tyler Pager, Glenn Thrush, and Katie Rogers of The Times:

Ms. Pirro came prepared. She entered the White House from the West Executive driveway in a bright red blazer that matched her fight-back mood, schlepping a white box containing evidence, plus a black box with documents, on wheels.

Waiting for her in the Oval Office, along with the president: Mr. Trump’s chief of staff, Susie Wiles, and David Warrington, the White House counsel. After about an hour of intense back-and-forth, Ms. Pirro emerged with her job intact, for now.

Emphasis on “for now.” According to C. Ryan Barber, Josh Dawsey, and Meridith McGraw of the Wall Street Journal (gift link), “People close to the president said it is too early to say whether Pirro’s job is safe, noting that Trump remains angry that his longtime ally publicly undercut him.”

Critics of the Trump administration faulted Pirro for not realizing at an earlier stage, based on publicly available information, that the vandalism claims were far-fetched—and generally viewed the whole situation as “a complete catastrophe for the U.S. Attorney’s Office and the administration,” as Ken White said on Serious Trouble.

On the other hand, from a “better late than never” perspective, Pirro did eventually drop the charges—showing that, in White’s words, “even Jeanine Pirro has limits to the extent to which she’ll get kicked around for doing stupid stuff for Donald Trump.” Or as longtime defense attorney Joe Flood told Salvador Rizzo, who wrote an impressively balanced profile of Pirro for the Washington Post (gift link), Pirro should “get[] some credit for standing up to Trump.”

Speaking of standing up to Trump, might we see more of that from Todd Blanche—confirmed as U.S. Attorney General on Saturday, 50-49? That was part of the justification that Senator Bill Cassidy (R-La.) gave for casting the deciding vote for Blanche, expressing the hope that being a Senate-confirmed AG would give him “greater leverage to push for things that should be pushed for.”

Other lawyers in the news:

• I’ll surely have more to say about this news in next week’s Judicial Notice—it broke just as I was putting the finishing touches on this edition—but at around 5:30 p.m. on Sunday (today), Donald Trump announced on Truth Social that effective September 1, Will Scharf will succeed David Warrington as White House Counsel (and Warrington will return to the private sector).
  
  As some of you might recall, Scharf—a Harvard Law School graduate, former federal law clerk and prosecutor, and former personal lawyer to Trump—currently serves as White House staff secretary, an influential role once held by Brett Kavanaugh. Back in June, Scharf was Lawyer of the Week for persuading Trump not to (1) suspend habeas corpus for unlawful immigrants or (2) invoke the Insurrection Act to deal with domestic protests.
  
  If anyone has additional info on this transition in the White House Counsel’s Office—e.g., whether Scharf had much competition for the job (I’m guessing no), or where Warrington is headed next (I’m guessing a conservative boutique like his former firm, Dhillon Law Group)—please drop me a line.

• Last Friday, the Senate used its relatively new en bloc process to confirm a fifth batch of second-term Trump nominees, 51-47. This group of over 70, whose names can be viewed on the Senate website, included a number of lawyers, such as a new Department of Justice Inspector General, Donald Berthiaume; four U.S. attorneys, namely, Kenneth Sorenson (D. Haw.), Timothy VerHey (W.D. Mich.), Sean Costello (S.D. Ala.), and Christopher Nassar (N.D. Okla.); and two members of the National Labor Relations Board (NLRB), James Macy and David Prouty, whose arrival will give the NLRB a quorum.

• A year ago last month, Louis Capozzi became Missouri Solicitor General—and, at age 30, the youngest state SG in the country. He spoke about his first year in office, including growing his team from five lawyers to 15, with the National Law Review and Law360 (which wrote about the rise of state SG’s offices more broadly, in an article titled “How State SG Offices Became A Judicial Pipeline”).

• Speaking of successful young lawyers, congratulations to Bloomberg Law’s latest 40 Under 40 honorees, as well as to Law360’s 160-plus Top Attorneys Under 40.

Judge of the Week: Judge Jennifer Mascott.

Last week, Daniel Barnes and Jacob Wendler wrote a piece for Politico about an unusual situation involving Judge Jennifer “Jenn” Mascott (3d Cir.). Here’s the opening of their piece, titled “‘Is she even allowed to be doing this?’: Inside a federal judge’s side gig running a PR firm”:

A Trump-appointed federal appeals judge spent months running a Washington public affairs firm after being appointed to the bench last year, an arrangement that contributed to an exodus among the firm’s staff and clients and only ended when the firm went out of business at the end of June.

Jennifer Mascott, a former conservative law professor who sits on the 3rd Circuit Court of Appeals, was deeply involved in daily operations at the firm, Adfero, for at least six months after she was confirmed as a judge in October 2025, according to 14 former employees and clients granted anonymity to discuss internal details of the firm’s final months.

Nine of the former employees said Mascott, who inherited her ownership stake in the firm from her late husband in 2023, worked at least once a week out of Adfero’s office in Washington and oversaw the firm’s staffing, business development efforts and client relations in between her full-time judicial duties in Wilmington and Philadelphia.

Readers who alerted me to the Politico piece expressed surprise at this arrangement. In general, to avoid ethical issues, federal judges don’t take on non-judicial employment (setting aside teaching and writing books, which they’re allowed to do). If judges do decide to take positions outside the judiciary, they almost always resign from the bench (as former judge Gregory Van Tatenhove (E.D. Ky.) did last month, before becoming dean of the University of Kentucky’s Rosenberg College of Law).

But interestingly enough, the Code of Conduct for United States Judges provides that a judge “may serve as an officer, director, active partner, manager, advisor, or employee of a business,” as long as the business is “closely held and controlled by members of the judge’s family.” This provision allowed Mascott to run Adfero as managing trustee, as requested by her late husband Jeff Mascott—who tragically passed away in 2023 at 48, from pancreatic cancer. As Judge Mascott told Politico:

Consistent with those fiduciary and legal and ethical duties, I endeavored to keep the company going while that was viable and also routinely consulted with long-time firm HR lawyers and other advisors and legal and ethical experts about how to comply with all requirements and how to evaluate whether the company should be wound down, sold, or otherwise entrusted to other firm leadership.

[UPDATE (8/22/2026, 10:05 p.m.): Former federal judge Nancy Gertner wrote to me after the publication of this post, highlighting the following commentary to Canon 4, the provision relied upon by Judge Mascott: “A judge’s participation in a closely held family business, while generally permissible, may be prohibited if it takes too much time or involves misuse of judicial prestige or if the business is likely to come before the court on which the judge serves.”]

Not surprisingly, responses to Politico’s report varied based on one’s political leanings. Senator Chris Coons (D-Del.), a prominent Democrat on the Senate Judiciary Committee, announced that he’s thinking about filing a judicial misconduct complaint against Mascott (whose nomination to a Delaware-based seat on the Third Circuit he opposed). Meanwhile, conservatives assailed the Politico piece as “disgusting” (Ilya Shapiro) and a “hit job” (Eric Wessan).

I’m friendly with Judge Mascott; I like her personally (based on admittedly limited interactions), and I have a positive opinion of her as a judge (based on her limited tenure on the bench). That said, I wouldn’t call the Politico article a hit piece; it struck me as a legitimate piece of investigative journalism, reporting on an unusual situation that certainly raises ethical questions (but doesn’t appear to involve any ethical violation, based on the code provision mentioned above).

I don’t know the specifics of the situation that Mascott was thrust into by the shockingly sudden passing of her husband—who was diagnosed in 2022 and died in 2023, leaving behind Jenn Mascott as the sole parent to four young children. As a general matter, though, I’d suggest that judges should probably try to avoid situations where they’re involved in the running of outside businesses, even closely held family concerns. And I wonder whether Judge Mascott—with the benefit of hindsight, which is admittedly 20/20—regrets not immediately selling Adfero (perhaps to its employees with an earn-out), in light of the fact that the business ultimately closed its doors.

In other news about judges and the judiciary:

• In an interview with James Taranto of the Wall Street Journal (gift link via Howard Bashman’s How Appealing), Justice Samuel Alito confirmed what we already knew (thanks to things like his clerk hiring): “Obviously I’m here for another term.”

• Speaking of SCOTUS, a new Marquette Law School Poll (via Adam Liptak’s The Docket) found that 47% of adults approve of the way the Court is handling its job, while 53% disapprove (pretty much unchanged from May—so the final merits rulings of OT 2025 didn’t move the needle).

• Judge Brantley Starr (N.D. Tex.)—yes, he’s related to the late Ken Starr (his uncle)—received a lot of attention for the colorful footnotes in his recent opinion in CFTC v. TMTE, Inc. Some readers enjoyed them—like Peter Beck and Seamus Hughes of Court Watch, who wrote that “the entire opinion… is a ride, complete with a reference to the greatest Christmas movie ever produced (footnote 37).” But I did hear privately from others who found the opinion self-indulgent—especially footnote 51, which apparently references a 4chan Meme (or so Reddit tells me). I also wonder whether Judge Starr’s opinion is what Judge Stephen Dillard had in mind when he tweeted, a few days later, “There may be cases where it’s necessary (or at least reasonable) to include an emoji, meme, or the like in a judicial opinion. But I do think judges should avoid using them in a way that appears to be gratuitous.”

• In the past year or so, Fifth Circuit judges have started dissenting from grants of rehearing en banc, issuing opinions that some call “disgrantles” or simply “grantals.” Perhaps this will become a trend in other circuits, now that it has been covered by folks like Jacqueline Thomsen of Bloomberg Law and Avalon Zoppo of Law.com. I’m not sure how I feel about this; readers, what do you think?

In nominations news, the Senate confirmed eight judges to the D.C. Superior Court and Court of Appeals—the District’s local courts—but no new Article III judges. The senators will return from their August recess on September 14.

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Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Happy Friday. And it’s a happy Friday here at Original Jurisdiction, since I have a new installment of everyone’s favorite feature: a fresh Supreme Court clerk hiring roundup.

This post has three parts:

• my traditional demographic analysis of the Supreme Court law clerks for October Term 2026, now that their identities have been confirmed by the Court’s Public Information Office;

• a letter from the chambers of Justice Ketanji Brown Jackson outlining the process for selecting her next class of clerks, which I publish in these pages around this time every year (note the fast-approaching deadline of September 4); and

• my lists of law clerks hired for OT 2026, OT 2027, and beyond.

We’ll start with the demographics:

1. Gender. The OT 2026 class contains 38 clerks—four for each active justice, plus one each for retired Justices Anthony Kennedy and Stephen Breyer.1 Of the 38 clerks, 25 are men and 13 are women—66% and 34%, respectively.

The OT 2026 class is less balanced in gender than the OT 2025 crop of clerks (53% men and 47% women). In fact, the new class is the least balanced since OT 2022—which also consisted of 25 men and 13 women, for the same 66% to 34% split.

In historical terms, such a gender ratio is not unheard of. During the first dozen years of the Roberts Court (2005-2017), only a third of SCOTUS clerks were women.

But it’s worth noting that in 2016, women became a majority of law school students, and today, women represent around 56% of U.S. law students. So to have men constituting two-thirds of SCOTUS clerks, in an age when women account for well over 50% of American law students, is notable.

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2. Feeder schools. Fourteen different law schools sent graduates into OT 2026 clerkships at the Court. This is higher than in the preceding five Terms—12 for OT 2025, 11 for OT 2024, 13 for OT 2023, 10 for OT 2022, 12 for OT 2021—and it’s the highest figure since OT 2018 (which also featured 14 feeder schools). Speaking for myself, I think it’s a good thing to have more law schools in the mix.

Here’s the ranking of schools, with the number of clerks noted parenthetically:

• Harvard: 11

• Chicago: 5

• Yale: 4

• UVA: 4

• Columbia: 3

• NYU: 2

• Penn: 2

• Scalia: 1

• Stanford: 1

• Northwestern: 1

• Duke: 1

• BYU: 1

• Notre Dame: 1

• Howard: 1

So Harvard was #1 with 11 clerks, Chicago was #2 with five clerks, and Yale and UVA tied for #3, with four clerks. Last Term, I wondered whether Harvard’s falling outside the top three schools in the U.S. News rankings in recent years—#6 in 2026 and 2025, #4 in 2024, and #5 in 2023—might start hurting its ability to feed clerks to SCOTUS. At least based on the OT 2026 class, that’s not turning out to be the case.

Here are the top three schools for the past five Terms, OT 2022 through OT 2026 (listing four schools for OT 2026 because of a tie for third place):

Even though only five schools have made the top three in the past five Terms, there’s significant variation from year to year. Only two schools, Harvard and Yale, made the top three in all five Terms. Chicago was in the top three in OT 2026 and OT 2025—but came up empty in OT 2024, with zero clerks. Stanford made the top three in OT 2022 and OT 2023, and it was #4 in OT 2025, with five clerks—but in OT 2026, it almost got shut out, placing only one clerk at One First Street.

If you’re a prospective law student who dreams of clerking for SCOTUS, you might think, based on the raw numbers, that you should go to HLS or YLS (assuming you’re fortunate enough to get admitted). But as I’ve pointed out before, Harvard’s graduating J.D. class hovers at around 600, compared to approximately 200 for Chicago, Stanford, and Yale. So on a per-capita basis, Yale is the clear #1 school for minting SCOTUS clerks, and Harvard is probably comparable to Chicago and Stanford. (UVA has historically been the #5 law school in producing SCOTUS clerks—but note that its J.D. class size is around 300, so on a per-capita basis, it’s not quite at the level of Yale, Chicago, or Stanford.)

3. Feeder judges. The 38 clerks for OT 2026 completed 75 prior clerkships with 47 different judges—a higher number of feeder judges than OT 2025 (39 judges), while roughly in line with OT 2024 (47 judges), OT 2023 (48 judges), OT 2022 (43 judges), and OT 2021 (46 judges). Again, as with law schools, I favor having a larger and more diverse group of feeder judges (and I like seeing new feeders emerge—e.g., Judge Patrick Bumatay of the Ninth Circuit).

Here are the 20 feeder judges with more than one clerk at the Court for OT 2026:

• Katsas: 6

• Oldham: 3

• Stras: 3

• Thapar: 3

• Kovner (E.D.N.Y.): 3

• Bibas: 2

• Bumatay: 2

• Friedland: 2

• Grant: 2

• Heytens: 2

• Lohier: 2

• Menashi: 2

• Pillard: 2

• W. Pryor: 2

• Rao: 2

• Sutton: 2

• Wilkinson: 2

• Boasberg (D.D.C.): 2

• Chhabria (N.D. Cal.): 2

• Furman (S.D.N.Y.): 2

Judge Gregory Katsas (D.C. Cir.) was the clear #1, with six clerks at One First Street right now2—twice as many as each of the four judges tied for #2: Judges Andrew Oldham (5th Cir.), David Stras (8th Cir.), Amul Thapar (6th Cir.), and Rachel Kovner (E.D.N.Y.).

Here are the top three feeder judges for the past five Terms, OT 2022 through OT 2026 (listing more than three in cases of ties):

Given how Republican appointees outnumber Democratic appointees at SCOTUS, 6-3, and given the reality that Republican-appointed justices tend to hire clerks from Republican-appointed feeder judges (and vice versa), it shouldn’t be surprising to see how Republican appointees have dominated the ranks of top feeder judges over the past five Terms. In the past five Terms, only three Democratic appointees—Chief Judge Sri Srinivasan (D.C. Cir.), Judge Raymond Lohier (2d Cir.), and Chief Judge James “Jeb” Boasberg (D.D.C.)—have cracked the top three.

I recently had an interesting exchange on X / Twitter about why Republican shortlisters are often feeder judges, while Democratic shortlisters are often not. Feeder judges tend to be some of the most well-regarded lower-court judges, so you’d expect them to be well-represented among SCOTUS shortlisters—and on the Republican side, they are (as long as they’re sufficiently young and conservative).

But when Democratic presidents pick SCOTUS nominees, they take into account factors other than judicial reputation, with diversity as a key consideration. As a result, Democratic appointees who are well-regarded feeder judges generally don’t get SCOTUS buzz if they don’t promote demographic diversity—e.g., Judges Toby Heytens (4th Cir.) and Jesse Furman (S.D.N.Y.).

So that’s it for the demographic analysis. Let’s turn to our next topic: Justice Jackson’s letter to clerkship applicants, explaining how she’ll be selecting her OT 2027 clerks and what applicants should include in their submissions.

Justice Jackson has a distinctive application process, which I’ve described—and praised—in the past. In general, it’s more regularized, transparent, and meritocratic—or at least less connections-based—than the processes of certain other justices. Note this language from her letter (boldface type in the original): “Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.”

Here’s the letter. If you’re thinking of applying to KBJ, don’t delay: her deadline of September 4 is only a month away.

LETTER FROM THE CHAMBERS OF JUSTICE KETANJI BROWN JACKSON TO CLERKSHIP APPLICANTS - OCTOBER TERM 2027 LAW CLERK HIRING

Dear applicant:

Thank you for your interest in applying for a clerkship in Justice Jackson’s chambers. Justice Jackson seeks clerks with excellent legal research and writing skills, proficiency managing complex and competing workflows, and the ability to overcome challenges. Justice Jackson is also interested in applicants who demonstrate a commitment to pursuing equal justice under law. Finally, she values clerks who bring to chambers significant personal and professional experiences relevant to the work of the Supreme Court, including pre- or post-clerkship legal practice experience. At minimum, applicants must have completed an appellate clerkship at the state or federal level by January 1, 2027 to be considered.

Justice Jackson will begin considering applicants for OT 2027 in September of 2026. All materials must be emailed to JusticeJackson_Clerkships@supremecourt.gov on or before September 4, 2026. Applicants who previously submitted materials will be reconsidered if they resubmit a complete and updated application. The subject line of the email and the name of the attached PDF file of materials should be in the following format: Last Name, First Name OT 2027 Clerkship Application. Materials must be combined into a single PDF file in the order listed below:

· Cover letter of no more than 500 words. Successful applicants will use the cover letter to explain their interest in clerking for Justice Jackson and to highlight, in narrative form, the skills and characteristics identified in the first paragraph above. The most effective cover letters will provide different insight into an applicant’s experience from other application materials.

· Resume of no more than two pages.

· Official law school transcript.

· Official transcripts from undergraduate and any other graduate institutions.

· List of professional references. The list should include at least four, but no more than six, professional references. Please briefly explain how long and in what context you have worked with each reference. Please also indicate at least two, but no more than four, of the listed references who will provide a letter of recommendation.

o All recommendation letters must be emailed by the recommender to JusticeJackson_Clerkships@supremecourt.gov on or before September 4, 2026. The subject line of the email and the name of the attached PDF letter should be in the following format: Applicant Last Name, Applicant First Name OT 2027 Letter of Recommendation, Recommender Last Name, Recommender First Name.

o The most effective recommendation letters will speak directly to the skills and characteristics identified in the first paragraph above, on the basis of the recommender’s first-hand experience. In particular, recommenders should highlight the applicant’s ability to orally communicate complex concepts.

Justice Jackson may later ask some applicants to provide existing writing samples or to draft an original sample in response to a prompt.

No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application. Failure to follow this instruction may disqualify an application from further consideration.

Justice Jackson thanks you for your interest in clerking for her and looks forward to reviewing your application materials in due course.

Best regards,

The Chambers of Justice Ketanji Brown Jackson

Finally, for paid subscribers to Original Jurisdiction, here are the OT 2026 and OT 2027 clerk rosters, as well as the handful of post-OT 2027 hires that have already been made (not yet numerous enough to justify breaking out separate lists). There are a number of new hires since my last roundup, including six clerks hired by Justice Elena Kagan last month (four clerks for OT 2027 and two for OT 2028).

Of the three Democratic appointees, Justice Kagan hires the earliest, and she’s also willing to hire for future Terms once she’s filled the upcoming Term. In the last cycle, Justice Kagan completed her OT 2026 hiring before the end of July 2025—whereas Justice Jackson hired her OT 2026 clerks in December 2025, and Justice Sonia Sotomayor filled her OT 2026 class in January 2026. (The hiring timetables of the conservative justices aren’t as clear, with a number of them hiring on more of a rolling basis—and often quite far in advance.)

Some quick things to note:

• You might see slight changes to the clerk names listed below compared to my hiring roundup from July—e.g., “Thomas A. Koenig” (current) versus “Thomas Koenig” (previous). This is because I’m now using the “official” names provided by the Public Information Office (PIO), which often include middle initials that I didn’t have before.

• If you see a name in quotation marks—e.g., Ting “Juliana” W. Chang—what appears in quotation marks comes from me, not the PIO. Thanks to my sources, I sometimes know nicknames or other names that clerks go by, which can deviate from the official names from the PIO. So I’ve inserted those nicknames after each clerk’s given name, otherwise leaving the official name intact—e.g., “Ting W. Chang” (official name) versus “Ting ‘Juliana’ W. Chang” (official name with nickname added). This is useful info because if you were to try and research some of these clerks online, you’d sometimes get better results if you know the names they actually go by. For example, on LinkedIn, Ting Chang goes by Juliana Chang and Andrew Gu goes by Andy Gu.

• If you see a name in parentheses, that’s a former name, often a name the clerk used prior to marriage. E.g., “Chandler (Cole) Brinkmann.”

• Please note the key at the bottom:

  • ? = the clerkship is believed to be filled, but the identity of the clerk is not known to me

  • ??? = the clerkship may or may not be filled

• When a clerk’s name is hyperlinked, the link goes to an article specifically about that person getting hired as a SCOTUS clerk (as opposed to a firm bio page, LinkedIn profile, etc.).

• Please note that only the OT 2026 hires have been confirmed by the Supreme Court’s Public Information Office. Hires for all other Terms have not been confirmed by the PIO (but they have been confirmed by the standards that I employ when deciding that a hire is reportable).

Please reach out with any hires that I have not yet reported (or any corrections, of course). You can contact me at davidlat@substack.com or 917-397-2751 (texts only—no calls). Make sure to include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or first words of your text. Thanks!

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Earlier:

• Supreme Court Clerk Hiring Watch: Meet The October Term 2025 SCOTUS Clerks

• Supreme Court Clerk Hiring Watch: Meet The October Term 2024 SCOTUS Clerks

• Supreme Court Clerk Hiring Watch: Meet The October Term 2023 SCOTUS Clerks

• Supreme Court Clerk Hiring Watch: Meet The October Term 2022 SCOTUS Clerks

• Supreme Court Clerk Hiring Watch: Meet The October Term 2021 SCOTUS Clerks

• Supreme Court Clerk Hiring Watch: Meet The October Term 2020 SCOTUS Clerks

Read more

On Wednesday, May 6, I had the pleasure of moderating an excellent panel discussion dedicated to exploring these developments. It featured three great experts: Eva Cole, co-chair of the antitrust and competition practice at Winston Taylor; Evan Meyerson, managing director at Burford Capital; and Avi Weitzman, co-chair of the complex litigation and arbitration practice at Paul Hastings.

I’m now pleased to share our conversation with you as a special episode of the Original Jurisdiction podcast. You can listen using the embed above, or you can read the transcript below.

Thanks to the panelists for the time and insight, and thanks to Burford Capital for organizing this great event.

Show Notes:

• Defense-Focused Biglaw Moves Into Plaintiff-Side Work, by David Lat for Original Jurisdiction

• Turning In-House Legal Departments Into Revenue Generators, by David Lat for Original Jurisdiction

• Survey of in-house counsel on commercial opt-out claims, by Burford Capital

• Litigation economics: CFOs and GCs weigh in on best practices in optimizing legal department value, by Burford Capital

Sponsored by:

Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.

Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.

Avi Weitzman: There’s a lot of tunnel vision when you’re the lawyer. There’s a lot of risk that you are so bought in to your client’s case that you’re not seeing the other side. The litigation funders who do due diligence think about the cases in a very sophisticated way.

Evan Meyerson: Leaving this value on the table is not in the interest of your shareholders if you’re a public company or private owners, if you’re not.

Avi Weitzman: The clients increasingly have become much more sophisticated to see the power of affirmative litigation.

Eva Cole: What funding offers is a way to mitigate some of that risk.

Evan Meyerson: If you have a meritorious legal claim, that is an asset. It is an uncertain asset. We don’t know how much you’ll make from it at the end of the day. We don’t know how valuable it will be. But it is an asset nonetheless that you can finance.

Eva Cole: A lot of companies are becoming more sophisticated in looking at potential affirmative cases from a business perspective and thinking about how it can impact business strategy from a larger perspective.

Evan Meyerson: Whether or not we can finance a case, at the end of the day, it’s a math problem.

David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to a special edition of this podcast, sponsored by Burford Capital.

The economics of legal services are changing. As affirmative litigation opportunities and alternative fee arrangements gain traction among corporate clients, traditionally defense-oriented global law firms are expanding into plaintiff-side and contingency work to differentiate their practices and drive growth. Legal finance is playing an increasingly important role in enabling firms to manage risk and scale these efforts.

To explore these developments, I moderated a panel on Wednesday, May 6, at the Harvard Club of New York. Titled “Biglaw’s Embrace of Contingency Litigation,” it featured three experts: Eva Cole, a litigation partner at Winston Taylor; Evan Meyerson, a managing director at Burford Capital; and Avi Weitzman, co-chair of the complex litigation and arbitration practice at Paul Hastings.

Without further ado, here’s my conversation with Eva Cole, Evan Meyerson, and Avi Weitzman.

Good morning. On behalf of myself and Burford Capital, I’d like to welcome you to this morning’s Burford Briefing. Our topic today is Biglaw’s Embrace of Contingency Litigation, which I actually wrote about for Original Jurisdiction last month. As affirmative litigation opportunities and alternative fee arrangements gain traction among corporate clients, traditionally defense-oriented firms are expanding into plaintiff-side and contingency litigation, enabling them to differentiate their practices and drive growth. Certainly legal finance has been a very important part of that development, and we’re going to learn about that in today’s discussion.

Today we have a fantastic group of panelists to explore this topic. I have to apologize in advance if I keep on confusing their names because we have Avi, Eva, and Evan, and I’m David. So between four panelists, our names use all of six letters of the alphabet. So again, apologies if I keep stumbling. I’m going to introduce them only briefly, because you’re going to learn about them and their practices in the course of our conversation.

Starting to my immediate left, Avi Weitzman is the co-chair of complex litigation and arbitration at Paul Hastings here in New York. He is a former federal prosecutor here in the Southern District of New York, and he has, over the course of his 25-plus year career, handled more than 20 trials and arbitrations.

To Avi’s left is Eva Cole. She is co-chair of the antitrust and competition practice at Winston, also based out of New York. She focuses her practice on civil antitrust litigation, class actions, and international cartel investigations.

And then to Eva’s left is Evan Meyerson. Evan is a managing director at Burford Capital, where he oversees the underwriting, origination, and portfolio-management functions. He previously practiced at Sullivan & Cromwell and Paul Weiss.

So, Eva, as a litigation partner at a major firm, what have you or your firm handled in terms of plaintiff-side or contingency work? You certainly had one very interesting plaintiff-side matter in the news recently—maybe you can talk about that too.

Eva Cole: Yes, I’m happy to start with that one. Most recently, we were brought in to represent the state AGs in the monopolization trial against Live Nation and Ticketmaster. So I would say that’s probably one of the more recent and high-profile plaintiff-side cases that we have handled. I will say that historically, at least at Winston, we have always had a small bucket of plaintiff-side work. Some of that has grown out of our sports practice; we do a lot of work on behalf of the players’ associations and sports players. So a lot of that has been plaintiff-side. But we’ve also historically represented sophisticated commercial clients that have affirmative antitrust claims against their competitors, against their customers in some instances. And so we’ve always handled a little piece of that as well.

David Lat: Avi, what about yourself? What have you or your firm handled in terms of plaintiff’s side or contingency litigation?

Avi Weitzman: My firm has always handled some level of plaintiff-side work because we have a thriving patent practice—and when you have a thriving patent practice, you often will bring affirmative litigation. That said, we’ve expanded our plaintiff-side work considerably in the four years that I’ve been at Paul Hastings. And we’ve done that in part by accepting more litigation finance and also sometimes just contingency work.

So we represent, for example, the largest group of opt-outs in the Blue Cross Blue Shield antitrust litigation. We represent plaintiffs in founder’s disputes; for example, I’m representing a founder of a large unicorn AI company who was cheated out of shares worth $150 million. We represent plaintiff-side clients in trade secret cases. One of the plaintiff-side cases that my firm brought about a year and a half ago involved a founder who developed a technology that Coca-Cola stole—and so he has a large dispute, a billion-dollar dispute, against Coca-Cola.

There’s a range of disputes. Sometimes they are small or smaller companies who can’t afford large firms and will bring in litigation financing for that, or sometimes they are bigger companies who can afford our fees and either want to do a contingency fee arrangement or want to bring in financing and pay hourly.

David Lat: Avi, have you noticed a change in the mindset of clients when it comes to being the plaintiff? Because historically people might think that large corporations don’t like to be in the headlines for litigation—and when you’re the plaintiff, you’re the one who’s generating the headlines in a way. Have you noticed a change in client attitudes about that?

Avi Weitzman: Clients have become much more sophisticated. Typically, large corporations are fairly conservative: they’re on the defense side, they don’t want to get sued, they’re trying to avoid lawsuits, and they’re not trying to bring lawsuits or develop law that can hurt them later. But clients are increasingly seeing that affirmative litigation can have positive business effects—not just positive bottom-line financial effects, but also positive business effects: it can be a way to develop technology, or address anti-competitive conduct, or whatever it may be. It can have a real positive effect, not just be a distraction.

There are still lots of clients with concerns. We went around to dozens and dozens of hospitals when we were doing the Blue Cross Blue Shield recruiting process, and lots of them said, “Wait, you want us to sue our insurance provider?” And we said, “You already sued the insurance provider; you just didn’t know it. So yes, we want you to opt out now, because the settlement was a bad settlement.” There’s a lot of reluctance sometimes to being adverse to business partners. And so with clients, it takes some coaching, it takes some cajoling at times—but clients increasingly have become much more sophisticated to see the power of affirmative litigation.

David Lat: Eva, what about from where you sit? Have you had issues or challenges in terms of convincing clients? Or have clients been coming to you asking for help, asking how to negotiate or navigate some of the trickier aspects that Avi described?

Eva Cole: I’d agree with Avi that at least from my perspective, a lot of companies are becoming more sophisticated in looking at potential affirmative cases from a business perspective and thinking about how it can impact business strategy from a larger perspective. And particularly in the antitrust space where I practice, because there’s been so much regulatory activity that has been favorable to a lot of big companies going up against other big companies, these companies don’t want to get left behind, in terms of being able to take advantage of the benefits of some of those regulatory outcomes. So they’ve been much more open to exploring avenues to be plaintiffs—and what litigation financing offers them is a way to manage their litigation budgets. There’s a whole host of things that they have to be dealing with when they are defendants. So it’s certainly a little bit more challenging for a business to take on an affirmative case, where they’re unilaterally deciding to bring a lawsuit that’s going to be expensive and that’s going to potentially take a lot of years, especially in the antitrust space. What funding offers is a way to mitigate some of that risk.

David Lat: So I have an interesting follow-up question for you, Avi. You mentioned the Blue Cross Blue Shield litigation, which was actually an antitrust litigation, and of course antitrust law sometimes involves the government. You were a former federal prosecutor. Is the antitrust space affected by the eagerness or not-eagerness of government to be involved? Or more generally, is some of this plaintiff-side activity being driven by government perhaps stepping back?

The Live Nation case is interesting, Eva... this is a fascinating case, by the way, people should look it up if they haven’t followed it. Basically, the federal government was suing Live Nation for antitrust violations—and in the middle of a trial, with a jury already seated, the feds basically settled and were like, “Good luck!” But there were all these plaintiff states that wanted to continue litigating. So they tapped Eva and Jeff Kessler and Winston to basically step in, on a week’s notice or something, to handle this giant case.

Eva Cole: Eight days. Lots of time!

David Lat: Eight days….

Eva Cole: Plenty of time!

David Lat: Okay, more than a week—they had eight days—so that was just a crazy case. But, yes, I guess my question is about government and the role of regulation: is government action—or inaction—playing any role in that?

Avi Weitzman: I do think that there is always interest in government investigations that can help cajole defendants, frankly, into settling. If you can get the government involved as a plaintiff, you’re halfway there, because the last thing companies want is civil or criminal investigations, and when government gets involved, suddenly they see the wisdom of settling with the plaintiffs. That said, you lose a lot of control over a lawsuit when the government comes in—you could lose control over the False Claims Act claims, whatever it may be. So you have to measure what your litigation strategy is and decide whether government is helpful or not. The wheels of government sometimes turn very slowly, in every administration—and you as a plaintiff may want to go a lot faster, especially if you have litigation financing, where the payout to the litigation-finance company or funder sometimes increases as time elapses.

David Lat: Actually, that’s a good note on which to bring in Evan. Evan, I would be curious about what role legal finance playing in all of this. How is it contributing to the increased interest of defense-oriented firms to venture into the plaintiff space?

Evan Meyerson: I wouldn’t call it a full-scale evolution over the last half decade. But when you imagine the transition in thinking among what are naturally very conservative organizations, both law firms and corporate entities, I would like to think that much of that is driven by the idea that Burford pushes into the market every day, which is if you have a meritorious legal claim, that is an asset.

It is an uncertain asset. We don’t know how much you will make from it at the end of the day. We don’t know how valuable it will be. But it is an asset nonetheless that you can finance, just like you can finance your real estate or cash, and what we do should be a familiar form of corporate finance at the end of the day. Now, that’s easier said than done, when you are effectively selling into what has traditionally been the most risk-averse audience you can possibly sell into, which are in-house legal departments and major law firms who have, in fairness, done very, very well with the billable hour in the last many decades.

Nonetheless, when you’re thinking about a pie-expansion opportunity, we’ve found a lot of interested minds and even success in talking to companies. So let’s start there, with the idea that leaving this value on the table is not in the interest of your shareholders, if you’re a public company, or your private owners, if you’re not. And there’s a symbiosis between what a corporate entity could do to bring those claims and the interest of the law firms in retaining those institutional clients.

So if you think about corporate entities that 10 years ago would be on the rare side of the spectrum in terms of pursuing affirmative litigation, there were often the same few law firms that would be willing to represent those corporate entities—and it wasn’t Paul Hastings, and it wasn’t Winston. So what we allow is a smoothing of the path to corporate entities, thinking about a world of opportunity costs where we don’t have to have hard conversations with our CFO or C-suite about building budget in for affirmative claims, we can have places like Burford help us, and law firms saying, “I don’t want to lose Fortune 500 client X to the Quinn Emanuels of the world. I want to retain them within the blanket of the firm. And to do so, I have to be able to compete with the economics offered by contingency-driven law firms.” But as a partner, I can’t go to firm management tomorrow and say, “We are suddenly a contingency law firm.” So how do I do that? I go to a funding source to allow some smoothing of our path to taking on more risk, but not taking all of that risk. And so that combines for an ecosystem that allows litigation finance to play a role.

David Lat: A lot of our audience is familiar with the general mechanics of litigation finance. Evan, can you just briefly describe how it might work sort of at a pretty general level, but then also for the folks who are already somewhat familiar with just, say, how it might work in a straightforward, single-case kind of funding, what are some of the things that are emerging more recently in the market in terms of, I guess you could say, innovations in finance?

Evan Meyerson: Sure. So the memory tool I use, which my team will roll its eyes at because I’m really trying to make it happen, is “two-two-two.” Burford does a lot of things. The vast majority of what we do falls into a bucket that you can describe as two potential counterparties to our deals, either a law firm or its clients; two potential sources of what we’d call collateral or things we’re investing in, either a single case, one single piece of litigation, or a group of litigations packaged together, which we call a portfolio; and two forms that our financing can take.

The most vanilla traditional version is funding the costs of a litigation, the fees and expenses that go into pursuing that. And the other is what we call monetization deals, where unrelated to how expensive or not a given litigation will be, if you have a claim that is advanced or more valuable than others in the funder’s view, we might write you—and you again can be a client, the corporate entity, or a law firm—a check. And those funds might be paid all upfront or over time, but basically in advance of either the damages you’ll get later in time or the contingency fee that you’ve agreed upon with your client. So that sort of forms the universe in which we typically operate.

In terms of innovations, a lot of that is driven by the same thing we just talked about, which is some realization that this really is just a familiar form of corporate finance in a less familiar asset class, which is legal claims (and not in bankruptcy, because this has existed in some way in the bankruptcy space for decades). A healthy company that otherwise could afford pursuing litigation might actually seek outside financing in order to keep budgets and resources focused on the thing that company does best, which is almost always not litigation.

That is a surprisingly novel thought: the idea that I could take my advanced antitrust opt-out that has various indicators of success, from the class action proceeding or from government involvement, and say, “Instead of taking out a mortgage on this real estate my company owns, let me use this legal claim to find some non-dilutive financing solution to inject capital into my company.” It seems obvious to Burford—we pound the pavement on that all the time—but that is a novel thought for most corporate entities. So we’re seeing that change happen in real time. It may not be happening as fast as we want it to, but getting people in a room like this to think about it goes a long way.

David Lat: Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. To learn more, please visit burfordcapital.com.

I can definitely see the argument for working with a legal-finance firm from the corporate perspective. You have duties to shareholders to maximize shareholder value, and if you have a valid litigation claim, that’s an asset, and if you just leave it there, not doing anything with it, you could perhaps be breaching duties to your shareholders. And certainly companies have core businesses, and they want to focus on their core businesses; they don’t necessarily want to spend large amounts of money on a litigation, since that’s not the business they’re in. So I understand from the corporate perspective why working with a company like Burford could be advantageous.

Avi, from where you sit at a law firm, and also as someone who’s involved in firm leadership and administration, what are the considerations and perhaps advantages that you see for firms in terms of working with legal-finance firms?

Avi Weitzman: So they’re twofold. One Eva already mentioned, which is it really smooths out the economics of the dispute. Most disputes will take years if they don’t settle early. And the law firm model is one where you bill every 30 days and you collect hopefully within 30 or 60 or 90. That’s how lawyers get paid. That’s how law firms count their receivables and their profits per equity partner. And it becomes a bit harder to do that where you’re not getting any money for years down the road. It does smooth out the downside risk and also the economics for the law firm.

The second benefit, and I cannot overstate this, is that you have an incredibly sophisticated legal team at the litigation funders who are evaluating the claims alongside you. There’s a lot of tunnel vision when you’re the lawyer. There’s a lot of risk that you are so bought in to your client’s case that you’re not seeing the other side. The litigation funders who do due diligence think about the cases in a very sophisticated way. They’re familiar with the judges, they’re familiar with the courts, they’re familiar with the defenses, and they’re really thinking, “Is this going to be a winnable claim, and how are you going to win it?” And they’re really a partner often to the law firm and to the lawyers in thinking about the claims and how to monetize them.

And so getting the buy-in from the litigation funder is a vote of approval to your management that we should bring these claims. But it also increases the level of sophistication to your claims and to your legal strategy.

Eva Cole: Avi really hit the nail on the head. From a firm management perspective, it really is managing the risk of the dollars coming in the door, particularly for long-term cases. So it’s a much easier sell to management in some ways if you can come in and say, “Look, the client really wants to do this. They’d like to do it on some kind of contingency. This is a very important relationship to the firm. However, we’re going to have a way, by using a funder, to have dollars coming in the door throughout the lifetime of the case.”

David Lat: As opposed to just a full contingency, where your partners on the transactional side are like, “Wait, we’re not getting paid?” So I guess I can kind of see that.

Eva Cole: Yes.

David Lat: And going to your point, Avi, it seems that in an age where everyone’s talking about lawyers charging $3,500 an hour, or someday a $10,000 an hour rate, the rates also make working with a legal-finance firm more attractive, it seems.

Avi Weitzman: Yes, when you sit in Eva’s position or my position at a law firm, we have to think, “Well, is this case worth my time?” Because if I’m not working on this case, I might be working on a different case, where a client is paying our rack rates. And we really have to evaluate what’s worth our time and what’s worth the law firm associates’ time and the counsel’s time. And so it’s really quite important to do that evaluation and to think about it in a long-term way.

I haven’t heard about a $10,000 rate—I hope we do not get there, I really do. That would be shocking to me. But we’ll see.

David Lat: I went to a breakfast event with a bunch of legal technologists, and they were talking about how AI is going to disrupt anything. And there was sort of a betting pool on when are we going to get to $10,000 an hour. And the argument was, “Look, as AI just takes over a lot of very rote tasks, there will be fewer human lawyers. But the lawyers who are there, who have the ability to do the things that the AI can’t, like stand up and argue in front of a jury or exercise judgment over all of this stuff that the AI has processed in hours or days, which used to take weeks or months—that person will be extremely valuable.” And so people have been asking, “Is it going to be alternative fee arrangements, or is it going to just be very high billable-hour rates?” But we’ll see.

Avi Weitzman: You raise a good point, which is how AI’s disruption of the legal industry will help the Burfords of this world and plaintiff-side law firms. Because the challenge is, how do you control the cost and expense of a plaintiff-side case? Because you can blow your budget so quickly when the defendants, they’re paying hourly or every six minutes, whatever it is, and they’re just throwing everything at you, and you’ve got to figure out a way to deal with that as a plaintiff, in an efficient and economical way. We’re not there yet entirely, but I do think that AI is going to make it much more attractive to bring plaintiff-side cases.

David Lat: Actually, I want to pick up on that in a sec, but what you just mentioned, Avi, actually goes to a question that was submitted by an audience member in advance. In addition to the Q&A we’ll have at the end live, we did solicit questions from you when people registered, and there were a couple of interesting questions.

And I guess I’ll pose this question to Eva. If you’re doing something on a contingency, whether full or partial because of help from legal finance, how do you manage your budget? When you are billing by the hour, it’s easy because it’s sort of a cost-plus arrangement. It’s just, “Well, the hour costs this much, and we bill it out at that much, and there’s just that built-in profit.” Do you have thoughts on how to manage a budget in a case that is on full or partial contingency?

Eva Cole: It’s a great question, and it is one of the big challenges for traditionally defense-side firms to handle these cases. I would also say that very sophisticated companies who are thinking about these cases in a lot of ways still expect a defense-side firm to provide the same kind of quality and level of detail and attention on a plaintiff-side case as they would on a defense-side case. So you really have the pressure coming from both aspects.

So there are a few things, and I’ve seen different partners handle this differently. I’ve practiced with some partners whose philosophy actually is, “It doesn’t matter. Do the case exactly the way that you would do the defense-side case. Have confidence in that. Know that you’re ultimately going to get the win and that you will recoup that investment.” It takes a lot of confidence to take that position.

The more balanced approach is really thinking about budgeting in a way that defense-side lawyers usually don’t. And so I’ve seen all kinds of things. For example, we have a pricing department at Winston that’s terrific, and they can help you put together a budget on a per-project basis where you can really break it down and tell associate X, “You have X number of hours to work on this particular project. Do your best within that amount of time, and then let’s revisit and see where you are.”

So you just have to take a much more affirmative approach on the front end, in terms of organizing the time and prioritizing—that’s a big piece of it too. What needs to get done now? What’s an optional project that you might be able to wait a little bit longer to do, when the things that are higher priorities are finished? That’s how we tend to look at it, just being much more rigorous about setting the budget on the front end.

David Lat: Avi, anything you’d add to that?

Avi Weitzman: No, that’s right. I’ve taken the approach in some of my cases where I say, “Guys, don’t let efficiency be the enemy here. Because we could litigate this case on the cheap and we might lose as a result, and so losing however many X millions of dollars is worse than winning and spending a lot more.” So I take an approach on every decision, “Is this going to make the difference between potentially winning the case and potentially losing the case?” And if it could make the difference, then I say invest the resources.

David Lat: So this is really interesting. It actually goes to a comment that you made to me, Evan, when I was reporting my piece on this, where you said something like, “Look, even if a defense-side firm starts to do some plaintiff’s work, they’re not going to transform themselves into a traditional plaintiff-side, contingency-fee-oriented firm overnight. They’re still going to have a certain kind of mindset and orientation towards the billable hour.” And the column I published in Bloomberg Law today was actually about plaintiff’s lawyers and just how they think of things differently.

And one of the plaintiff’s lawyers I interviewed, Alex Walsh—she had her own firm, now she’s at Anapol Weiss—was saying that it’s a different way of thinking of things. Because when you are in Biglaw and at a defense-side firm, you can explore every legal issue. You have an economic incentive to review every document or take every deposition because you’re being paid by the hour. Whereas plaintiff’s firms that are handling a range of cases, if you’re at a Susman or a Quinn or a plaintiff-side firm, your time is not limitless. And so you have to prioritize. “Do we really need that witness? Do we really need that depo? Do we really need that tranche of documents?”

So I guess, Evan, can you say more about what you meant when you said, “Look, the mindset is not going to change overnight”?

Evan Meyerson: Yes. Going to Eva’s point, a lot of this comes down to client interest, and I can talk about how the financing world intersects with client interest. If your client is interested in a non-monetary outcome that may require a scorched-earth affirmative-side approach, then you do what your client asks, so long as they’re willing to pay for your time.

For Burford, and we try to instill this in our law firm partners as well, whether or not we can finance a case, at the end of the day, it’s a math problem. On the one hand, it will not make sense for a firm to take on a contingency fee if the more likely outcome is you will spend so much time on this case that you actually would have been better off getting paid your hours than the percent of the case you negotiated. That defeats the purpose of this pie-expansion idea of taking risk. And on the other hand, this is an anecdote that is very true at Burford, we will say no to a dead-to-rights liability case where the damages are insufficient to make our funding make sense. You are going to win this case. It is very, very likely you win this case. The damages are not sufficient to justify a $10 million commitment from Burford, because of the return we’ll need intersecting with the amount of damages you’ll get. We will say no to that case because the spending on it doesn’t make sense for the value.

And so that is key, right? No matter what your client’s interest is, it is incumbent on firms to figure out the math, and we can help here. This goes to Avi’s point: we want to be a resource. It is incumbent on the firms advising these clients to show people that the idea of spending $60 million for a case where if we go all the way through trial, maybe it’ll generate $100 million, but more likely you’ll settle for $40 million—that makes no sense. And so that does require some change in thinking among the Biglaw firm advisors who did spend most of their careers perhaps thinking about defense. To be clear, that does not mean that we want lower quality.

The other most important thing to Burford is the team that we are backing. We talk about that all the time, right? The facts are the facts and more times than not, litigation will be determined by the quality of the lawyering involved in that litigation. And it’s immensely important to us that we back teams that we have faith can be good stewards of our own capital. So we’re surely not looking for less quality representation, but it does require a bit of a different mindset in making the economics work when you’re on the plaintiff’s side versus the defense side.

David Lat: In terms of the aspect of counseling and advising clients, Avi, are you seeing clients asking you about the possibility of legal finance, or is this something you are raising with them on your own, or is it something that’s not really quite on people’s radar yet on the client side? How would you describe that?

Avi Weitzman: It depends on who the client is, and it will come in either direction. Lots of smaller companies and individual clients will absolutely raise the issue of litigation financing in the first instance. The larger companies are not as used to it. They have not had to dip into it. And so sometimes we’ll raise litigation funding as an ability, an opportunity to offset their risk and enhance their own budget.

One of the things that I say to clients when we’re trying to bring them in as plaintiffs, for example, is there’s an advantage to hiring a traditional defense-side firm as opposed to the traditional plaintiff-side firm (and I’m not really talking about a firm like Quinn Emanuel, which I really think of as an Am Law 10 firm). It’s not really the plaintiff-side firms that we think about in a traditional sense, whether it’s a Bernstein Litowitz or whatever it may be.

In a way, at a firm like ours, we know what the defense bar will do in a case better than many plaintiff-side firms. But the fear that a lot of companies have is that if they hire a traditional plaintiff-side firm, they’re going to get this scorched-earth approach, and it’s going to disrupt relationships with vendors, partners, or others. And boards—especially at public companies, but also at private companies—are worried about that type of disruption to business relationships.

And so what a defense-side firm can do is give them the comfort that we know how to litigate without that scorched-earth approach. We understand where the levers are and where the pressure points are, but we’ll also be sensitive to their business needs, because we interact with boards all the time. We understand what the boards really care about. And so we want to moderate sometimes our positions to the client’s advantage, not disadvantage. And that’s a very different approach, comparing what a traditional defense-side firm can do when it handles a plaintiff-side case versus what the traditional plaintiff-side, class-action law firm might do.

Eva Cole: I agree with that wholeheartedly. And clients very much understand that, and that’s what makes hiring a defense-side firm for an affirmative case very attractive to them, particularly for the larger claims, particularly when it comes to litigating cases against their business partners. They want that sensitivity brought to bear, and they want kind of a broader business strategy as part of the overall litigation picture to be contemplated.

Also, picking up on another point that Avi made, there is a huge advantage because the defense-side firms know what’s coming around the corner from the actual defense in a plaintiff’s side case, because we’re on that side all the time. So when it comes to drafting a complaint that can withstand a motion to dismiss, we are equipped in a very different way from some of the plaintiff-side firms to do that, and we’re equipped to anticipate some of the more nuanced arguments that the defense-side litigators are going to make in any given matter.

David Lat: Let’s turn to the other side. What are some of the challenges you face as lawyers who do a lot of defense work moving over to the plaintiff-side? Are there challenges in terms of your partners and associates understanding a certain mentality? Do you have a hard time shifting mindset? What are some of the things that might be more difficult or tricky about this?

Avi Weitzman: Probably the biggest challenge is it’s not so much our partners, it’s more so our associates. I always say to the team, “Guys, we’re the plaintiff here. Stop playing defense. Let’s play offense.” I say that all the time to the team. “What’s our strategy? What are we doing? Let’s look ahead. Let’s carry the ball forward 10 yards every day, and let’s figure out how to get into the end zone.” (I fortunately did not mix up my sports metaphors; maybe I should have gone with the Knicks on that one, “Let’s figure out how to get 140 points.”)

But I always say, “We’ve got to think like a plaintiff. What is our strategy here? How do we get them to settle? How do we press the pressure points to bring them to their knees? How do we get to the board, get them to change their mindset?” Whatever it may be, I tell my associates, “We’ve got to think like plaintiffs.” It is very different than thinking like a defendant.

Eva Cole: To that point, I will share an amusing anecdote. So I had a plaintiff-side case that I handled a few years ago. And again, it’s always been kind of a piece of my practice, but a small piece. So we got a proposed pretrial schedule from the other side, the defendants in the case. And I opened it. It’s in the middle of my day. I’m looking at a bunch of other emails. I open it, I scan it, and my first instinct is, “Oh, this seems like an extremely reasonable schedule.” And then I stopped and said, “Oh no, wait a minute. This is a case where I’m the plaintiff. This is a terrible schedule. This is going to take way too long.” So there is a mind shift that you have to have: you have to think like a plaintiff and you have to be a little bit more aggressive, which is fun.

Another fun but also challenging aspect is that as a plaintiff, you are thinking a little bit more about the PR piece in a way than on the defense side, where it’s very much damage control when you’re thinking about PR. On the plaintiff-side, you’re thinking about how PR can help advance your positions and your claims and the way that your case is viewed in the marketplace more broadly. And that’s a piece of it that adds a very interesting strategic layer, when you’re working often with PR firms and thinking about how to shape the public-facing story of a particular case.

Evan Meyerson: Eva’s point about schedule is enormously important. And there’s two sides to that coin. On the one hand, when we are in the market talking about what Burford does, again, to what can be one of the most conservative audiences one can have in any market, the mindset often of the people we’re speaking to are, “How do I prevent a loss? How do I not lose money?”

Eva Cole: Definitely.

Evan Meyerson: And the thing that we want people to think a little bit more about is, “Obviously we don’t want you to lose. That is bad for everyone, no question about it. But the thing that our capital can help with is also duration.” Burford is exceptionally good at many things, and we’ve told the market this many times. The thing that we, even as the experts in our space, admittedly continue to struggle with—and this will probably resonate with some in this room—is predicting with much certainty the schedule for how a litigation will resolve. There are so many unknowns in the various inflection points that get you from the start of filing a claim to resolving that claim that the duration of litigation weighs very, very heavily on every financing decision.

And so to Eva’s very well taken point, the thing that Burford is constantly talking to our law firm partners about is, don’t blindly accept every extension request on your litigation schedule, even if you would have sought the same extension as a defendant. Time is money, and letting these litigations go on for three, four, five, seven years, it is in no one’s interest, least of all your client’s, certainly not in Burford’s. So pushing the schedule and trying to overcome the duration uncertainty that’s attendant on every litigation is enormously important when thinking about being on the plaintiff-side.

David Lat: The duration point is actually very interesting to me. This is perhaps a little bit of a digression, but Evan, I had a very interesting conversation with one of your colleagues, Aviva Will, about this—and maybe this is a little bit of a plug for Burford—but Burford is a public company.

Evan Meyerson: We love those. Aviva’s right there, too.

David Lat: Burford’s a public company. It has its own capital. And so if a case does take longer than expected, Burford actually has the financial wherewithal to stick it out. A lot of other litigation finance firms operate on a kind of fund model, where there’s a particular period of time, a particular duration, there’s a window for the investors to get their capital back. And so at a certain point, a funder other than Burford might kind of get a little antsy, and they may have reasons or incentives to do certain things that maybe are not in the interest of the litigation. I don’t know if you agree with Aviva on that.

Evan Meyerson: Well, I agree with Aviva on everything, and certainly that. That is, of course, true about Burford. And I would say two things. One is it is certainly right that one of the distinguishing features for us as a business, Burford specifically as a business, is that we are a public company. And that means a couple of things for every counterparty or potential counterparty to one of our deals. One is you can see into our business in a way you can’t with a private fund. We have quarterly and annual reporting obligations, and we put out 10-Qs and 10-Ks, and you can read all about us. And that level of transparency is very unique in our market.

It also means that you can have a greater level of certainty because of that transparency in knowing that Burford’s ability to fund what can end up being pretty long-duration events won’t be dictated by our ability to raise the next fund. Oftentimes in any litigation funding deal, we are committing to a multi-year event. We’re saying, “We will give you up to $10 million towards your litigation that may take four years.” And when we make that commitment, Burford is a bit unique in being able to say, “You can look at our balance sheet and see that we’ll be able to fund it,” as opposed to, “You’ll have to take a leap of faith that we’ll be able to raise a new fund in two years to actually be able to afford doing it.”

The second big point—one that Avi made earlier, which applies to our industry as well—is comfort and trust. One of the big sales points for why a client should stay with the law firm that does their defense work is that the firm knows the client in and out better than any other firm on the planet. And that goes a long way to being an effective representative in a plaintiff-side litigation. The same can be true of your litigation funder.

What I tell people all the time, and this is often the most eyeroll-worthy part of our pitch, is that we are genuinely smart money, and we are a partner. And then oftentimes we get the response, “Yes, but what does it cost?” There’s a certain level of dismissiveness that I get when we make that pitch. But what I try to tell people—and it’s always a little bit hard—but those who have worked with us get it, and it’s that you can always figure out who can you negotiate with that you can make cheaper at the margins. That tiny amount of money you saved upfront is going to mean nothing when you have to have the hard conversation about a budget overrun or litigation taking too long or whether to settle a case. And so what you should be thinking about at the outset is, “Who do I want to have the hard conversations with?” Not, “Who do I want the cheapest capital from?” And that is something our repeat counterparties have experienced with Burford more times than not.

David Lat: Eva or Avi, any final observations you wanted to make?

Eva Cole: What I would say is that litigation funding really offers a new way for longstanding firm clients to think about taking advantage of potential affirmative claims. I would say from the firm perspective, having a process in place for how to think about litigation funding, contingency funding, what cases you’re going to take, having somebody who understands how the process works is really helpful because so many of our partners are not familiar. So I would say if it’s something that your firm is interested in, I would take the time to invest on the front end in terms of getting your ducks in a row, thinking about the process, thinking about who’s going to become the expert on this particular subject, because it will make all the other cases that you fold in under the umbrella go along much more smoothly.

Avi Weitzman: We’re talking about dollars and cents, and fundamentally litigation funding does provide the opportunity to become a plaintiff. I want to talk about something else, which is how much fun it is to be the plaintiff. I was a federal prosecutor for many years in the Southern District of New York, and it was the privilege of a lifetime. I got to be the plaintiff over and over again, standing up in court and saying, “It’s a privilege and an honor to represent the United States of America in this criminal case,” or whatever it was.

And every case, whether it’s a trade-secret dispute or an antitrust dispute, is about prosecuting wrongdoing. It’s about prosecuting wrongdoers. And there’s always a narrative of wrongdoing that you get to stand behind and say, “It’s a privilege and an honor to represent this client as they’re trying to remedy this evil scourge of this wrongdoing,” whatever it may be. And I love that. I love standing up and saying that I’m doing something that’s important for society as the plaintiff or important for my client. There’s always something bigger than just my client.

And I thank litigation funding for giving me that opportunity because normally I’m playing defense, and it’s a very different narrative when you’re on the defense. You’re going second, you’re not going first, you’re not able to persuade the jury in the same way or the judge in the same way. It’s very hard on the defensive side as a result. It’s a lot of fun, but it’s also a bigger challenge on the plaintiff’s side. A defendant sometimes can throw up 10 arguments and has to win just one. We have to run the table on the plaintiff’s side in order to win: we have to run the table on liability, we need to run the table on damages, and that’s very challenging and very strategic. And I just think it’s a blast to be a plaintiff.

David Lat: Thanks so much to Eva, Evan, and Avi for joining me. I enjoyed and learned a great deal from our conversation, and I hope my listeners did as well.

Thanks to Burford Capital for sponsoring this special edition of the Original Jurisdiction podcast. Burford helps companies and law firms unlock the value of their legal assets. To learn more, please visit burfordcapital.com.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

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The next episode should appear on or about August 19, 2026. Until then, may your thinking be original and your jurisdiction free of defects.

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Greetings from the Garden State. Zach and I returned home to New Jersey last night, after spending a week up in Provincetown with our boys. We had a great vacation, which even some midweek rain couldn’t ruin.

The drive back from Massachusetts wasn’t fun, taking much longer than it should have—which partly explains this somewhat delayed edition of Judicial Notice. As usual when I publish JN on a Monday, this news roundup reflects developments through Sunday night, but not Monday (and, as usual, it bears Sunday’s date).

Now, on to the news.

Lawyers of the Week: William “Bill” Savitt and Sarah Eddy.

Star litigators William “Bill” Savitt and Sarah Eddy are having an exciting year. In May, they scored a huge victory for OpenAI and its CEO Sam Altman in Musk v. Altman, successfully trying the case before a jury in Oakland (N.D. Cal.)—and, in Bill Savitt’s case, skillfully cross-examining Elon Musk. This was Savitt’s second major win over Musk; he previously led the Wachtell Lipton Rosen & Katz team that forced Musk to close his $44 billion acquisition of Twitter. (Disclosure: I once worked at WLRK, and I’m friendly with Savitt.)

Now Savitt and Eddy are in the news again. Along with four other litigation partners—Randall Jackson, Ryan McLeod, Anitha Reddy, and Brad Wilson—they left Wachtell Lipton and joined the New York office of Gibson Dunn & Crutcher, where Savitt is now a co-chair of the litigation practice group. Savitt’s move was especially notable because he had been a co-chair of WLRK’s executive committee since 2023 and had worked at the firm since 2000, joining not long after clerking for the late Justice Ruth Bader Ginsburg. First reported by Oliver Barnes and Sujeet Indap of the Financial Times, Savitt’s move garnered coverage well beyond legal outlets—from the likes of Andrew Ross Sorkin and Lauren Hirsch of The New York Times and Erin Mulvaney of The Wall Street Journal (gift links).

The FT reported an interesting additional tidbit: “The group of defectors would have included Wachtell partner Nathaniel Cullerton, but his hiring was scrapped after he was filmed in a viral TikTok video in an apparent romantic embrace” with an associate in Central Park. According to the New York Post, Cullerton’s partner in the so-called “Wachtell lip-lock” was a junior associate who worked directly under him, on the same team—and having a relationship with someone who reported to him might have led to him losing his Gibson Dunn offer (and being placed on leave at WLRK).

And wait, there’s more: per the Post, Bill Savitt and Sarah Eddy were also in a relationship at one point. But this was less problematic than Cullerton’s situation, for a few reasons: (1) Savitt and Eddy are both partners; (2) Savitt was separated from his (soon-to-be-ex) wife when the relationship began, and Eddy, a divorcée, is single (Cullerton is married); (3) Savitt and Eddy are no longer together; and (4) Wachtell doesn’t have a non-fraternization policy, so their romance didn’t violate any firm rules. (A certain very senior partner at WLRK has married at least two former colleagues.)1

Here’s the other thing inquiring minds want to know: how much is Gibson paying Bill Savitt? The Post cited sources who tossed out the figure of $32 million a year, guaranteed for three years—but then quoted another source who said this wasn’t “even in the ballpark of close.” The WSJ was less specific, reporting simply that Savitt will earn “at least $20 million a year” at his new firm. According to The American Lawyer, the top of GDC’s partner compensation scale is just above $20 million (but that’s not dispositive, since sometimes laterals receive short-term guarantees that diverge from—and exceed—the hiring firm’s standard compensation scheme).

I have much more to say about this move, which raises broader issues for Wachtell Lipton, Gibson Dunn, and Biglaw. But I’ll stop here for now, saving my remaining observations for Law Firm of the Week and Move of the Week (see below).

Other lawyers in the news:

• Last Wednesday, Dr. Anthony Fauci, former head of the National Institute of Allergy and Infectious Diseases, testified before the Senate Homeland Security and Governmental Affairs Committee. After he invoked the Fifth Amendment more than 100 times, Senator Rand Paul (R-Ky.), a longtime Fauci foe, said he would call for a vote to hold Fauci in contempt of Congress. At one point in the proceedings, Fauci’s lawyer, David Schertler, tried to jump in to explain his client’s invocation of the privilege—but Senator Paul wouldn’t let him speak, ultimately ordering security to remove Schertler from the committee room. (Was Dr. Fauci justified in taking the Fifth as much as he did? Professor Michael Dorf, a leading liberal law professor, expressed some doubts.)

• Speaking of Senate drama, what’s the latest in the confirmation process of Acting Attorney General Todd Blanche, nominated by Donald Trump to serve as the permanent AG? It’s unclear. Senators John Cornyn (R-Tex.) and Thom Tillis (R-N.C.), who must vote for Blanche in order for his nomination to make it out of the Senate Judiciary Committee, didn’t immediately declare their support, citing concerns over (1) Trump’s Anti-Weaponization Fund and (2) the scope of an additional agreement to shield Trump and his associates from tax audits. In response, Trump dug in his heels, threatening on Saturday to revive the fund if Blanche isn’t confirmed. But on Sunday night, Blanche posted two documents on social media, which appear to provide written assurances that (1) the $1.8 billion fund “is rescinded and shall have no force or effect,” and (2) only Trump, two of his sons, and the Trump Organization would be immune from tax audits. [UPDATE (4:43 p.m.): Earlier today, Senators Cornyn and Tillis announced their support for Blanche, based on his written assurances “addressing concerns that multiple of our Republican colleagues share.”]

• In more positive news for the Trump administration, the Senate confirmed Jay Clayton as Director of National Intelligence, by a vote of 51-47. And the judges of the Southern District of New York appointed James M. McDonald to succeed Clayton as U.S. attorney (S.D.N.Y.). Because Jamie McDonald was Trump’s pick for the role, having represented Trump while practicing at Sullivan & Cromwell, he wasn’t immediately fired (which is what has happened when judges have selected U.S. attorneys not in line with Trump’s wishes).

• As expected, former Supreme Court advocate Tom Goldstein filed a notice of appeal in his criminal case. Last week, he was sentenced to six years in federal prison for tax and false-statement offenses.

Judges of the Week: Judges Joan Ericksen, Timothy DeGiusti, Karin Immergut, Kenneth Karas, and Sara Lioi.

Judges Joan Ericksen (D. Minn.), Timothy DeGiusti (W.D. Okla.), Karin Immergut (D. Or.), Kenneth Karas (S.D.N.Y.), and Sara Lioi (N.D. Ohio) serve in judicial districts across the country. What do they share in common? They’re all members of the Alien Terrorist Removal Court, with Ericksen serving as its chief judge.

The what? As explained on the ATRC’s website, “In 1996 Congress created the Alien Terrorist Removal Court as a specialized court and authorized the Chief Justice of the United States to designate five U.S. district court judges to review applications for the removal from the United States of alien terrorists.”

It’s understandable if the ATRC doesn’t ring a bell. As noted by Adam Liptak in The Docket (via Howard Bashman’s How Appealing), until last month the court hadn’t heard a case since it was established three decades ago, in the wake of the Oklahoma City bombing. But as reported by Josh Gerstein of Politico, that just changed: the Trump administration has turned to the court to try to deport Haji Zada, a 47-year-old mother of seven from Afghanistan. The government alleges that Zada is “the matriarch of an ISIS-sympathizing family aiding in a plot to launch a mass casualty attack on American voters on Election Day.” (Zada’s son and son-in-law, arrested before the scheme was carried out, both pleaded guilty to terrorism-related offenses.)

Why has the Trump administration decided to resurrect what some have called a “zombie court”? The procedures of the ATRC allow the government to do things it can’t normally do, such as rely upon unlawfully obtained evidence or not share all of its evidence with the defendant. But are these procedures constitutional? At a hearing last Thursday before Chief Judge Ericksen, assistant federal defender Matthew Farley, counsel to Haji Zada, argued that “[t]his entire scheme is a violation of due process and unconstitutional.”

Will judges agree? We shall see. Litigants who lose before the ATRC can appeal to the D.C. Circuit—and, ultimately, to the U.S. Supreme Court.

In other news about judges and the judiciary:

• The Ninth Circuit isn’t the liberal bastion it once was. It’s now split 16-13, in terms of Democratic versus Republican appointees. Of the 13 Republican appointees, 11 were appointed by Trump—and the Trump appointees are quite prolific, writing separate opinions more frequently than those of other presidents.

• Judge Thomas Ludington (E.D. Mich.), who pleaded no contest earlier this year to a misdemeanor drunken-driving charge, was accused of violating the conditions of his probation by not completing court-ordered drug testing during his probation’s first week. But it appears that Judge Ludington is now compliant, so the probation-violation charge against him was dismissed last week.

In memoriam: Judge Rya Zobel, the first woman to serve as a federal judge in the District of Massachusetts, passed away at 94. May she rest in peace.

Job of the Week: an opportunity for a litigation associate in Los Angeles.

Lateral Link is leading the search for an Am Law 100 firm seeking a litigation associate (2nd-4th year) for its Los Angeles office. This role offers broad litigation exposure, including hands-on experience with written discovery, motion practice, and briefing, as well as strong mentorship and professional development. The firm is open to candidates from firms of any size; what matters is litigation experience, writing and analytical skills, and the ability to juggle deadlines—not a specific pedigree. Clerkship experience is a plus, but not required. The firm offers highly competitive compensation and flexible-hours tracks. For immediate consideration, please email Ata Farhadi at afarhadi@laterallink.com or Jon Dunn at jdunn@laterallink.com.

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This week’s Judicial Notice is sponsored by

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Greetings from Provincetown, Massachusetts. I’ll be here with Zach and our two boys for the next week or so, attending LGBTQ Family Week. I’ll be following the news and checking email and social media while on vacation—but if I’m even slower than my usual slow self in responding, it’s because we’re at the beach.

Speaking of children, if you have kids in middle school or high school who’d like to learn more about law or journalism, feel free to share with them my recent appearance on Edutainment Learning. It’s a nice program that features speakers from a wide range of fields and lets students ask us about our careers.

Now, on to the news.

Lawyer of the Week: Tom Goldstein.

In January 2025, former Supreme Court advocate and SCOTUSblog co-founder Tom Goldstein was indicted on 22 tax and false-statement charges. Federal prosecutors claimed that Goldstein earned millions from playing high-stakes poker games against celebrities and business tycoons—and that he didn’t pay taxes on his winnings.

Over the next year, Goldstein’s battle with federal prosecutors transfixed the legal elite. It culminated in a dramatic jury trial that began in January 2026, featuring testimony from Hollywood actor Tobey Maguire, with whom Goldstein played poker (and also represented as a client), plus Goldstein himself. In the end, Goldstein’s biggest gamble didn’t pay off: he was convicted on 12 of 16 counts.

Last Friday, Judge Lydia Kay Griggsby (D. Md.) sentenced Goldstein to six years in prison and ordered him to pay $3.1 million in restitution. At the end of the sentencing hearing, which lasted more than six hours, Goldstein was taken into custody—asked to remove his necktie and shoelaces, then led out of the courtroom in handcuffs.

The six-year sentence was less than the eight years sought by the prosecution, but more than the zero years requested by the defense (which instead asked for a lengthy period of supervision or home confinement). It was also more than the five years the prosecution proposed when it engaged in plea discussions with Goldstein (at least according to what Goldstein told Jeffrey Toobin of The New York Times (gift link)).

I think most observers would agree with what one reader of mine opined on X: it’s a sad turn of events for someone who, despite his personal weaknesses and misdeeds, also did a lot of good. Goldstein devoted about a third of his practice to pro bono work, mentored law students and young lawyers, and founded SCOTUSblog—which Judge Griggsby praised as a “groundbreaking” resource that “has really reshaped our legal community and how we talk about the law.” As someone whose entry into legal blogging and journalism was inspired in part by SCOTUSblog—as well as other early blogs that are still going strong today, like Howard Bashman’s How Appealing and Eugene Volokh’s Volokh Conspiracy—I certainly owe Goldstein a debt of gratitude.

Other lawyers in the news:

• In other news about SCOTUS advocates, Jeremy Feigenbaum is stepping down as solicitor general of New Jersey after six successful—and eventful—years in the role. For a retrospective of his tenure, see David Wildstein’s New Jersey Globe piece. Feigenbaum hasn’t announced his next job, but he’s expected to enter private practice—and his timing is good, given the active market for appellate talent (reflected in the latest Move of the Week, discussed below).

• Sigh. It’s my job to let my readers know about what people in the legal world are talking about—so I feel obliged to flag the viral video purporting to show a make-out session in Central Park between a Wachtell Lipton partner and associate (“purporting” because in the age of AI, I can’t vouch for what’s real and what’s a deepfake). I’m troubled by the idea of filming and disseminating encounters like this one, and I don’t want to join the pile-on, so I’m intentionally not naming them. Further affiant sayeth naught. (If you want to watch the video for yourself or read more about the participants, I can’t stop you from visiting the many outlets with circulations far larger than this humble newsletter’s that have picked up the story.) [UPDATE (7/28/2026, 11:17 p.m.): This scandal has now transcended TikTok and the tabloids, making it into the Financial Times. The FT broke the news of six litigation partners leaving Wachtell Lipton, including firm co-chair William “Bill” Savitt, for Gibson Dunn—and its story about the move included this detail: “The group of defectors would have included Wachtell partner Nathaniel Cullerton, but his hiring was scrapped after he was filmed in a viral TikTok video in an apparent romantic embrace with a colleague last week, the people said. Cullerton had been placed on a leave of absence from Wachtell pending further investigation, some of the people added.”]

• In a series of X posts titled “Worst of the Worst, District Judge Edition,” James Percival, general counsel to the Department of Homeland Security, criticized four federal district judges who ruled against the Trump administration. Philip Pro, a retired Nevada federal judge, called Percival’s posts “terribly disappointing”—as well as “irresponsible,” coming from a high-level government lawyer.

• If you follow professional cycling, IP litigation, or both, you might be interested in Michael Shapiro’s piece for Bloomberg Law, A Cycling Icon Took on a Prolific Lawyer—The Dude Got Personal (referring to Floyd Landis and IP litigator Isaac Rabicoff, respectively).

• Congratulations to Jeff Wall of Gibson Dunn and Rick Pepperman of Sullivan & Cromwell, recognized as Litigators of the Week by Ross Todd of Am Law Litigation Daily. They scored a nice win for their client Boeing in a securities litigation, which the Fourth Circuit held can’t proceed as a class action.

In memoriam: R. James Woolsey—a graduate of Yale Law and former partner at Shea & Gardner (now part of Goodwin), but most well-known for his (rocky) tenure as director of central intelligence in the Clinton administration—passed away at 84. May he rest in peace.

Judge of the Week: Judge Arun Subramanian.

If you’ll allow me to invoke Judge Judy, don’t pee on Judge Arun Subramanian’s leg and tell him it’s raining. A former law clerk to the late Justice Ginsburg and former partner at the litigation powerhouse Susman Godfrey (discussed below under Law Firm of the Week), Judge Subramanian isn’t someone you can pull a fast one on.

Shortly after The New York Times reported on security concerns related to the Air Force One jet that Qatar gifted to Donald Trump, the Trump administration issued subpoenas to five Times journalists, seeking to find out the identities of the reporters’ sources. Condemning the subpoenas as “a brazen effort to intimidate the press,” The Times, represented by Debevoise & Plimpton, filed a motion to quash the subpoenas.

Last Thursday, Judge Subramanian (S.D.N.Y.) held a hearing on the motion to quash—and it wasn’t fun for the government. As Erik Uebelacker of Courthouse News tweeted, Judge Subramanian “is absolutely cooking the DOJ right now for their subpoenas of NYT reporters,” stating that “under normal circumstances, he’d start asking about sanctions for this.” Or as reported by The Times (gift link):

The hearing had just started and Judge Arun Subramanian was no longer allowing Manhattan federal prosecutors to finish their sentences.

Instead, he pressed a top prosecutor, Sean Buckley, for an explanation: Why had the U.S. attorney’s office issued subpoenas to New York Times reporters—typically the final step in a leak investigation—just two days after the publication of an article about the security concerns of the president’s plane?

“Doesn’t that turn the law and the regulations on their head?” Judge Subramanian asked.

Alas, the administration lawyers didn’t come up with great answers for why they so quickly moved to issue subpoenas to journalists—a highly disfavored method for investigating leaks, given its potential to chill protected First Amendment activity.

And the longer the hearing went on, the worse it got. Under grilling from Judge Subramanian, the assistant U.S. attorneys acknowledged multiple “errors” in the investigation, including a second round of subpoenas that should never have gone out (because they inadvertently sought the phone records not of Times reporters, but of the mother of one reporter and the spouses of two others). For more about the hearing—and how painful it was for the poor AUSAs who had to cover it—see Courthouse News, Law Dork, or Above the Law.

By the end of the hearing, the prosecutors agreed to withdraw the subpoenas. That was the right call; if the subpoenas hadn’t been withdrawn, they were going to get quashed. After the hearing was over, the DOJ issued a statement criticizing Judge Subramanian, complaining that his “conduct overrides clear longstanding principles and common sense,” and declaring that the leak investigation “remains ongoing.”

The investigation might be “ongoing,” but you know what else is “ongoing”? Judge Subramanian’s oversight. Later on Thursday, he issued an order declaring that he will retain jurisdiction over “any related matters in this investigation”—and if the government wants to reissue the subpoenas, it must “come to the Court in advance of issuance.” So if the Trump administration wants to return to The Times while investigating this particular set of alleged leaks, it will have to get past Judge Subramanian first—which strikes me as no easy feat.

In other news about judges and the judiciary:

• Speaking at the Ninth Circuit Judicial Conference, Justice Elena Kagan rejected the view that the Supreme Court is “kind of a puppet for the current administration,” calling that accusation “a bad rap” (as reported by Abbie VanSickle of The New York Times (gift link), who attended the conference).

• Speaking of Justice Kagan, Amy Howe wrote an interesting piece for SCOTUSblog, “Is Elena Kagan the stare decisis justice?” According to Howe, over the past decade, “Kagan has been perhaps the staunchest defender of precedent on the Court.”

• Speaking of SCOTUS justices, Chief Justice John Roberts is selling his home in Chevy Chase, Maryland. The seven-bedroom, five-bathroom residence hit the market on June 26, asking $3.2 million, and went into contract four days later.

• Turning to the state courts, Justice Karen Valihura retired from the Delaware Supreme Court as of July 25, as reported by Bloomberg Law (via How Appealing).

In nominations news:

• The Senate confirmed two circuit-court nominees: former Ohio solicitor general Benjamin Flowers, confirmed to the Sixth Circuit by a vote of 49-46, and Judge Daniel Traynor (D.N.D.), confirmed to the Eighth Circuit by a vote of 48-47. (Ben Flowers clerked for the late Justice Antonin Scalia in October Term 2014, and 21 clerks from that Term signed a letter supporting his nomination—including clerks to Justices Ruth Bader Ginsburg and Elena Kagan.)

• The Senate also confirmed three trial-court picks: assistant U.S. attorney Michael Martin (E.D. Mich.), Faegre Drinker partner Antonio Pozos (E.D. Pa.), and associate White House counsel Kara Westercamp (C.I.T.).

• Judge Bobby Shepherd (8th Cir.) announced that he’ll take senior status upon confirmation of his successor. After Donald Trump appoints that successor, Trump appointees will make up a majority of that court (six out of 11 judges), and Republican appointees will (still) outnumber Democratic ones, 10-1.

• Who might Judge Shepherd’s successor be? Per Mike Fragoso of National Review, possibilities include Justices Nicholas Bronni and Cody Hiland of the Arkansas Supreme Court, as well as Judge Lee Rudofsky (E.D. Ark.). I might give the edge to Judge Rudofsky, whose elevation would free up a district-court seat for Trump to fill—assuming Trump and Senate Republicans can move fast enough.

In memoriam:

• Judge John Steele (M.D. Fla.)—who served on the federal bench for more than three decades, as a magistrate and then district judge—passed away at 77. As noted by Sarah Isgur on Advisory Opinions, Judge Steele’s death came shortly after he issued a ruling that ordered the release from ICE custody of a Cuban national convicted of hijacking an aircraft. (Steele received extensive criticism from Republicans for that decision—but there’s no indication, at least as of now, that his passing was connected to the controversy.)

• Justice Ruby Sondock, the first woman to serve on the Texas Supreme Court, passed away at 100. According to Professor Nancy Rapoport, Justice Sondock was “[a] force of nature and a legal legend—and an inspiration.”

May they rest in peace.

Job of the Week: an opportunity for a communications associate in Washington, D.C.

Lateral Link is spearheading an exclusive, unposted search for a repeat client and Am Law firm seeking a communications associate for the firm’s D.C. office. The associate will work on sophisticated regulatory, transactional, and counseling matters involving satellite and space technologies, broadcast and media regulation, telecom, emerging technologies, and commercial agreements. The firm boasts a stellar culture, partners committed to mentorship, an excellent retention rate, and a three-day office requirement. The ideal candidate will possess 2-3 years of relevant experience and an interest in developing broad expertise in communications law. For immediate consideration, please email your résumé to Vered Krasna at vkrasna@laterallink.com.

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Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

The number of AI-native law firms is exploding, many of them founded by associates frustrated with Biglaw’s pace on artificial intelligence. But partners are also leaving, drawn by AI’s potential to be what Cravath partner turned boutique founder Benjamin Gruenstein called a “force multiplier.”1

The latest leading litigator to depart from a storied firm is Chris Kercher. After more than 17 years at Quinn Emanuel, where he represented clients such as Elon Musk and Ken Griffin, Kercher left to launch his own boutique, Kercher Law.

Why did Kercher leave Quinn Emanuel—one of the world’s most prestigious and profitable law firms, with more than $9 million in profits per equity partner—to hang a shingle?

The short version of his answer can be summed up in a word: AI. The long version rests on certain timeless aspects of law and the legal profession—which make Kercher confident that lawyers aren’t going anywhere.

‘The same job Abraham Lincoln had’

Kercher has spent the past three years exploring possible applications of AI in his practice as a commercial litigator, making him an early adopter in Biglaw. He founded the AI and Data Analytics Group at Quinn Emanuel, as a laboratory of sorts to explore how the firm’s lawyers could better leverage AI. He has taught classes about AI at Stanford Law and NYU Law, his alma mater.

These experiences led Kercher to reflect on the direction of his legal career. As he told me in an interview, “I’m around 25 years into my legal career, and I started asking myself: What do I want to do for the next 25 years?”

And his deep understanding of AI caused him to ask fundamental questions about the practice of law and the role of lawyers: “Where does a human fit in? Clients have Claude; clients have ChatGPT. Why are they coming to lawyers?”

“And the answer is, they have a dispute,” he said. “It’s the same job, in many ways, that Abraham Lincoln probably had: Clients come in with a problem, you advise them, you counsel them, you strategize, maybe you negotiate.”

“But at the end of the day, if you have to walk into court and advocate for them, that’s why they build courthouses. And much of that work in the middle, between the client coming in and advocating for the client in court, can be assisted and augmented by AI.”

Returning to first principles

As much as he loved his time at Quinn Emanuel, Kercher felt that starting his own firm would best allow him to explore AI’s full potential.

“To really understand what you can do with this new technology, you have to get closer to the work,” he explained. “I want to understand, as matters come in, what help do I really need? What is the right role for an associate, for a paralegal, for software or AI?”

“When you’re in a system and you’re in a process, that is the system, that is the process, and it’s difficult to reinvent from first principles,” he said. “Launching my own firm presented the rare opportunity to start with a blank slate, with something brand-new and unconstrained.”

Historically speaking, much of what clients paid for was what Kercher called “context assembly.” In a big-ticket litigation or transaction, “you had all these documents, all these facts, all these memos, all this legal research”—and clients paid for a large number of (very expensive) lawyers to put it all together.

Today, AI can handle much of this context assembly, such as document review or due diligence. This shift has profound implications for the architecture of a law firm: how matters are staffed, how work flows, how young lawyers are trained, and how clients are billed. And in Kercher’s view, building a new firm from the bottom up is the best way to integrate AI into every aspect of running a law firm and serving one’s clients.

“If you look at electrification and early industrial work, factory owners would take their factories and add a light bulb here, a motor there,” he said. “But Henry Ford designed the Highland Park plant by asking, ‘What if we build electricity throughout the factory? What if we just assume that electricity exists, so we can get its benefit in everything we do?’ And that’s how I’m looking at building, from day one, the systems to bring this all together.”

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‘Flipping the risk’

One area where AI should bring major transformation is billing, according to Kercher.

When context assembly had to be done by associates, billing by the hour made sense for law firms because it insulated them against downside risk. If a matter turned out to be more complex or difficult than originally expected—making it more expensive to service, by requiring more associates—the firm was protected, since it was getting paid for the additional billable hours. The client bore most of the risk.

But now, in Kercher’s words, context assembly “has been largely de-risked,” since it can be done primarily—and far more cheaply—by AI.

“So one simple change I’m making is just ‘flipping the risk,’” Kercher said. “I’m leaning hard into ‘fixed fee by phase’ billing, so clients can always understand the cost to get to the next level—while also knowing that they can always step off the treadmill at any time.”

Fixed-fee billing—whether by phase or by matter, which Kercher said he’s also open to discussing—limits the client’s risk (which is why clients like it), while exposing the firm to more risk. But if a case “blows up,” the impact to the firm is now limited thanks to AI, since much of the extra work “can be handled by compute, rather than associates.”2

By capping the client’s risk, fixed-fee billing provides the client with more certainty and comfort. This could make clients more willing to litigate, based on the greater predictability about what it might cost—in turn generating more work for firms.3

So as some work goes away thanks to AI, new work will emerge—which is one of the reasons that Kercher isn’t worried about the long-term future of lawyers and the legal profession.

“If you think about legal as a percentage of GDP, I really don’t think it goes down,” he predicted. “What the transition to the future looks like, including the shape of the work, is an open question. But at the end of the day, the system will work it all out. Our goals—advocating for our clients, helping them achieve their objectives—haven’t changed.”

‘It’s just going to be called litigation’

Kercher has spoken publicly about using specific, cutting-edge tools to litigate cases, such as Claude to strategize and Syllo AI to review documents.4 But at the end of the day, he has an old-fashioned view of litigation.

“‘AI-native’ is a term you see thrown around a lot, especially on the transactional side,” he said. “On the litigation side, I think it’s much more interesting—and it’s just going to be called ‘litigation.’ It’s not ‘AI-native litigation,’ but litigation with an understanding of how we can use AI and technology more generally to get more out of our work and to really extend ourselves.”

“The robots are not coming—at least not for lawyers who can stand up in court and persuade a judge, persuade a jury, and win the case,” he said. “The most protected part in law is that endpoint: the person who’s doing the advocacy, conducting the negotiation, presenting to the board.”

In the end, Kercher described himself as “incredibly bullish” on how AI will affect lawyers and the legal profession. Noting that the practice of law is one of civilization’s most enduring professions, he predicted that “it’s never going away, because it’s how we mediate conflict.”

AI might eliminate certain tasks—or, to be more precise, the ability of lawyers to make money from performing those tasks. But Kercher is confident it won’t eliminate clients’ underlying needs.

As Kercher put it, “What’s left? What’s left is human disputes. Human disputes are not going anywhere.”

And now, the time has come. In our conversation, Ben discussed three topics in the news: (1) his departure from Cravath, which has seen higher-than-usual partner turnover this year, and why he wanted to launch his own firm; (2) Fernandez v. United States, a noteworthy case that was recently decided by the U.S. Supreme Court, which Ben argued before the justices; and (3) how AI is transforming the practice of law—and the role it played in Ben’s decision to leave Biglaw.

Thanks to Ben for his insights—in our interview and more generally—and good luck to him and his colleagues at Gruenstein Law.

Show Notes:

• Benjamin Gruenstein bio, Gruenstein Law

• Cravath Partner Gruenstein Launches Boutique Firm in New York, by Meghan Tribe for Bloomberg Law

• Cravath Investigations Partner Launches His Own Boutique, by Ryan Harroff for Law.com

• Cravath Partner Launches Corporate Investigations Boutique, by Daniel Connolly for Law360

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.

David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the 102nd episode of this podcast, recorded on Thursday, July 16.

Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

As I’ve covered in the pages of Original Jurisdiction, Cravath Swaine & Moore, one of the nation’s most prestigious law firms, has witnessed a fair number of partner departures this year. Some went to other firms, some went in-house—and one decided to start his own firm.

Meet Benjamin Gruenstein—who is, upon information and belief, the first partner to leave Cravath to launch his own boutique since David Boies almost 30 years ago. A former federal prosecutor and Chambers-ranked practitioner for white-collar litigation and government investigations, Ben spent around 18 years at Cravath, where he was a founding member of the firm’s investigations and regulatory enforcement practice. Why did he decide to depart from a legendary firm to hang a shingle? That’s one of the topics we tackled in our podcast conversation—along with AI, which makes now an exciting time to strike out on one’s own.

I also wanted to have Ben on the podcast for another reason. A few weeks ago, the U.S. Supreme Court decided Fernandez v. United States—in my opinion, one of the most interesting cases of October Term 2025, even if it didn’t get as much press as some others—and Ben represented the petitioner in that case. So I wanted to talk to Ben—who clerked for the Supreme Court, but never argued before it—about what it was like to argue before the high court for the first time. Without further ado, here’s my conversation with Ben Gruenstein.

Ben, thank you so much for joining me.

Benjamin Gruenstein: Thank you, David. It’s an absolute pleasure to be here.

DL: So tell us about your background and upbringing. Where did you grow up?

BG: Sure. I grew up right here in New York City, in the Yorkville section of the Upper East Side. My father was a refugee from Nazi Germany. He came here in 1938 when he was 14 years old. My mother was the daughter of Russian Jewish immigrants. I went to Ramaz, a Jewish private school, through high school, and then once I graduated from there, I went to Harvard College and then Harvard Law School.

DL: And I actually know the answer to this question, but for the benefit of my listeners, did you have any lawyers in the family or any early exposure to law?

BG: I did, and you certainly know this all too well. I am the youngest of three boys. I have two much older brothers. My oldest brother is a hematologist-oncologist on the Upper East Side; he’s 21 years older than I am. And the brother that you are referring to cryptically is my brother David, who is 17 years older than I. He was a longtime partner at Wachtell Lipton, and I believe that he was someone that you had the pleasure of working with.

DL: Yes, that’s right. Given the age gap, though, did his being a lawyer affect your decision to go to law school? I don’t know how exposed you were to what he was doing.

BG: Well, certainly David and I have always been very close. There are 17 years separating us. What he and my other brother would tell me whenever I misbehaved is that if I continued to misbehave, they would do to me what they did to all the other brothers that were in between us. But David and I have always been very close, and I certainly was exposed to his practice of law and learned a lot from him. But in truth, it’s not clear to me that he always loved the idea of me becoming a lawyer. He had a fantastic career; he practiced at the pinnacle of the profession at Wachtell Lipton, and he found his career very satisfying and happy. But he certainly knew a lot of lawyers who weren’t, and I think he was concerned about me, as his baby brother, and whether I would find a legal career as satisfying as he did.

DL: I did have the pleasure of working with your older brother at Wachtell. He was a great mentor and supervising lawyer, and so I really do think he had a wonderful career practicing at the pinnacle, as you were saying.

What inspired your decision to go to law school? When you went to HLS, what kind of career did you have in mind for yourself?

BG: Well, with one older brother who was a doctor and one older brother who was a lawyer, it was a fun parlor game at family events for people to speculate in whose footsteps I would follow. When I went to Harvard, I took the pre-med classes for the first year and was thinking about going to medical school. In my second year, I started to take philosophy classes, in addition to the math classes I had taken my first year, and ultimately I decided to major in philosophy and math. So for me, I saw law school as a natural intellectual extension of the coursework I had done. My major as an undergrad was in logic. The topic was the liar’s paradox, which is, “This sentence is false”—which if it’s false, then it’s true, and if it’s true, then it’s false. And thinking through those sort of logical problems led me to think that law school would be something that I would intellectually enjoy and also that I would enjoy ultimately practicing law.

DL: Well, it’s interesting—I’m guessing you did very well in the logic games, which for better or worse are no longer part of the LSAT. When you went to law school, did you have a sense of what your practice might entail? Or what kind of practice environment you might prefer?

BG: No, not really. I went to Cravath as a summer associate for my second summer, and one of the reasons I went there is because I thought it would give me the truest idea of what it would be like to practice as a litigator in New York. And I certainly did get a very good sense of that from my time there. I knew that I wanted to be a litigator—I was interested in the argumentative side of law—but I didn’t really know much more than that. But I had a great time at Cravath, and it led me to think that I could see myself one day practicing law at a law firm in New York City.

DL: So you did eventually return to Cravath, but we’re getting ahead of ourselves. What was your first job out of HLS?

BG: So when I graduated in 1999, I had the pleasure of clerking for Judge Stephen Williams on the D.C. Circuit. Judge Williams was a great mentor to me. He was well-known in the law-and-economics circles for many of his opinions, and I really learned a ton from him and enjoyed the year immensely.

DL: And then after that, you did what many former law clerks to Judge Williams did and went to the Supreme Court.

BG: That’s correct. I went to clerk for Justice Souter, who also, like Judge Williams, was a great mentor to me. Really, it was the honor of a lifetime to clerk for him. He passed away in the last year and a lot has been written on him, but he truly was the most gracious, humble, smart, funny person I’ve ever had the pleasure of being in touch with.

DL: That is definitely what I’ve heard from people who knew him—he seems like a true mensch—so I’m sure that was an amazing experience. Where did you go after your clerkship with Justice Souter?

BG: After clerking with Justice Souter, I knew I wanted to come to New York, and while I was clerking, some AUSAs from the Southern District came down to the Supreme Court to recruit, and I took the bait. I was very excited about becoming a prosecutor. So I went to the U.S. Attorney’s Office for the Southern District where I became a criminal prosecutor for roughly the next five years. Most of that time I spent in the organized crime unit.

DL: It’s interesting you went straight from a clerkship to the Southern District, which at least back then was unusual. Was that through the DOJ Honors Program, or was that just through a regular career hiring?

BG: At the time, they would hire straight out of Supreme Court clerkships—and I think they still do.

DL: Yes, there are definitely exceptions to their practice of hiring experienced lawyers. Sometimes judges who were well-connected to the office would have a clerk go directly, after not that much experience. And as we have been hearing in the news, the DOJ is now willing, in theory, to hire any lawyer directly out of law school. You don’t need a SCOTUS clerkship—they are a little hard up for personnel—but again, we’re getting ahead of ourselves.

So tell us about that experience in the Southern District of New York. It’s a renowned office. There have been amazing alumni, including many I’ve had on this podcast. Tell me about your five or so years in the office.

BG: It really was a wonderful job. For me, I came into that job thinking that I was somewhat of a law guy, having done two appellate clerkships, and when I started, I learned how important it was to be a facts guy, both in the investigations and in trying cases. And one thing that I found very gratifying about trial work at the Southern District, especially because you’re trying cases before such an esteemed bench, is that you really need to bring both the facts and the law to bear. And while I certainly did focus a great deal on facts, both developing them in investigations and presenting them in trial, I felt that my focus on law and my ability to make legal arguments—not only in appellate arguments to the Second Circuit, but also to district judges, even in the midst of trial when I was dealing with, say, evidentiary objections—was very helpful. And I really loved trying cases at the Southern District. It was immensely challenging as well as immensely gratifying.

DL: So it’s interesting what you were saying about having both the law and facts in terms of the ability to argue both. That makes sense to me because the Southern District gets a lot of cutting-edge cases, including some brought under novel theories, and so I could understand why even as a trial lawyer, you would need to be on top of the law. Did you have a particular case or trial or investigation that jumps out to you as a highlight from your time at the S.D.N.Y.?

BG: I would say towards the end of my time, I did an organized crime case against the Genovese organized crime family, or members of the Genovese family—in particular, one captain who was 86 years old when we prosecuted him. He had never done any time in jail, but we prosecuted him for racketeering, extortion, and other related crimes. Ultimately, we convicted him, but that case actually came out of an investigation that we had done of the school bus union, the yellow school bus union in New York, where both the president and the treasurer were connected to organized crime, and ultimately that led to the prosecution of this captain in the Genovese crime family.

DL: Did that matter go to trial, then?

BG: It did go to trial. Another legal media giant, Elie Honig, and I tried the case together, and this captain was convicted. Unfortunately, he died a few years later in jail, but we had a very interesting rapport during trial. Usually the prosecutors and the defendants don’t talk very much to each other during trial, but he took a different approach. And I remember after I had done the summation, which I thought was a pretty hard-hitting summation, and when the jury went out, the defendant turned to me and said, “You couldn’t say one nice thing about me?” And then he said, “Even Meatballs said I was a nice guy.” He was referring to “Sammy Meatballs” Aparo, who was also a captain in the Genovese crime family, and we had played a recording of Aparo saying that this defendant was a nice guy and that he had just become a captain in the Genovese crime family. So we got along well at trial. He was a gentleman, and he certainly treated the prosecutors and the FBI agents with respect.

DL: Oh my gosh, that’s great—I love that. Elie, of course, was a guest on this podcast too, a little while ago. So tell me, then—where did you go after the Southern District?

BG: So when it came time to leave the Southern District, I reached out to Cravath, where I had been. I called Bob Joffe, who was the partner that I was assigned to as a summer associate—he had been the head of the firm—and I called him and said, “Do you have any interest in developing a white-collar practice at Cravath?” Because at the time Cravath did not have a dedicated investigations practice. And he said he would get back to me. He got back to me very soon after that and set up an interview, and I interviewed with several of the partners and then ended up going to Cravath.

DL: You then essentially founded what would turn into their white-collar defense and enforcement practice?

BG: So I started as an associate doing litigation and investigations, and when I made partner, I was the first partner who would have a dedicated white-collar investigations practice, and I worked with another partner who also did a lot of that sort of work and litigation as well. And we dubbed ourselves the investigations group because I thought it was important—both externally facing, to clients, as well as internally—that we be a dedicated practice group. Even though Cravath typically and historically has been a generalist litigation practice, I thought it was valuable to have that specialized practice and to promote that to the outside world.

DL: You’re totally right about that. That is just the way of the world, and you were picking up on a trend that has continued to this day. Did that practice end up expanding over the years, beyond you and the one other partner or colleague you mentioned you worked with?

BG: It did. We brought in some additional partners, one of whom had been an associate before he went off to DOJ. We brought in additional partners from DOJ, as well as from the SEC. So it did grow significantly.

DL: And so tell us, big picture, about your time at Cravath, as both an associate and then later a partner. How many years were you there, and what would you say was a highlight, or what were some of the highlights, of your time there?

BG: So I was there from 2008 until I left earlier this year, four months ago. I became a partner in 2012, and my practice generally was a corporate investigations practice focused on government and internal investigations, but I also did litigation. As far as the highlight, I think certainly the overall highlight was helping to develop the practice. We took the practice from the work of a few partners who would do this sort of work on a one-off basis, and we developed it into a coherent investigations practice. And certainly by the end of my time there, we were handling some very significant matters, really just as we’ve been handling throughout, and that was very gratifying.

One of the matters that I spent a fair amount of time on was the Avon FCPA investigation, which was an investigation of Avon Products related to work they had done in China. Evan Chesler and I were brought in towards the end of the investigation and ultimately helped settle that investigation, and that was a very professionally gratifying event that also led to many of the professional connections that I have today. I can trace many of my clients back to their time at Avon. They’ve since dispersed, and I’ve worked for many companies because their general counsels and the like started off at Avon.

DL: That’s interesting. I actually worked on an Avon matter at Wachtell, Lipton, although it was a civil litigation involving a large commercial lease. But anyway, small world.

So I’m curious: when you were at Cravath over those 18 or so years, what changes did you observe in the practice or the profession? Is there a particular thing that jumps out at you, in terms of what changed over that almost two-decade span?

BG: Well, there certainly were changes over time. In the litigation department, something that we saw was increased specialization. One of the great things about Cravath litigation partners is that they are primarily generalists. They can try any case. And while that does remain true, there was increased specialization. There is a very robust antitrust practice that Christine Varney, who came out of the DOJ Antitrust Division, led for a number of years. We had our investigations practice. We had a specialized IP practice. And not to say that all of these people didn’t work on other things—they all did, and many of them were generalists—but there was increased specialization within the litigation department.

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In that spirit of being a generalist and being able to do things that are a bit of a stretch, or that perhaps test different talents or cause you to explore something that maybe you hadn’t explored before, one of the reasons I wanted to have you on the podcast is that you argued a case before the Supreme Court in the last term, Fernandez v. United States, which the Court decided fairly late—so the opinion was actually issued not that long ago. Your practice at Cravath, as you mentioned, was primarily an investigations and enforcement-type practice, not a Supreme Court and appellate practice. Did you ever think, perhaps when you were clerking for Justice Souter, that you might want to someday argue before the Court?

BG: Well, certainly when I was there, that was a dream that I had that I would one day be able to argue. During the Term that I was there, Ted Olson had been the solicitor general, he was coming off the job, Seth Waxman was going into the job, and those were really two giants of the Supreme Court Bar—and Seth Waxman still is, of course. So seeing them argue certainly led me to think that this would be a dream come true. Although as you mentioned, my career did go down a different path in that I became a trial lawyer at the U.S. Attorney’s Office, and then when I went to Cravath, I was really more of a corporate investigations lawyer, and the goal of every investigation is to stay as far away from the courtroom as possible, and certainly from the Supreme Court. So yes, it was a dream, but not one that I really spent a lot of time thinking was ever going to happen.

DL: How many appellate arguments did you have under your belt by the time you stepped up to the podium at One First Street?

BG: I’d probably done around 20 at that point—mostly in the Second Circuit, from the time that I had been at the U.S. Attorney’s Office, as well as when I left the U.S. Attorney’s Office, I went on the Criminal Justice Act panel for the Second Circuit and was appointed to represent indigent defendants in their cases in front of the Second Circuit.

DL: So actually mentioning that you were on the Criminal Justice Act or CJA panel ties us into Fernandez. That was a criminal case, and it was not a white-collar case but a murder case—that’s not usually Cravath’s bread and butter. So did you receive that as a CJA case initially, I’m guessing?

BG: That’s correct. So in addition to being on the CJA panel in the Second Circuit, I’m also on the CJA habeas panel in the Southern District, and that involves assignments related to habeas and other post-conviction proceedings. In the Fernandez case, it was a motion for compassionate release. Judge Alvin Hellerstein appointed me to represent Joe Fernandez.

DL: I have written about Fernandez a little bit in Original Jurisdiction, but for folks who might not recall, what was the key issue in the case, or at least the issue that went to the Supreme Court?

BG: So the issue that went to the Supreme Court is whether, in a motion for compassionate release, one of the “extraordinary and compelling reasons” to warrant a sentence reduction, i.e., compassionate release, can include an attack on the conviction or sentence. So in Fernandez’s case, we argued for compassionate release because the judge had expressed in other proceedings, including on habeas, the view that Mr. Fernandez might actually be innocent (he has always maintained his innocence).

And we also argued that there were significant disparities between his sentence, which was life in prison because he went to trial, and the sentences of other of his co-defendants, including the alleged getaway driver who received a two-year sentence to a lesser narcotics offense, which actually was one of the key facts that led Judge Hellerstein to have significant concern that Joe Fernandez may have been innocent. And the reason was that the key cooperating witness who had testified against Joe Fernandez, and on which basis his conviction was obtained, also said that this other fellow was the getaway driver, and the fact that the government pled the alleged getaway driver down to a two-year count led Judge Hellerstein to wonder whether the government itself had doubts about the veracity of the cooperating witness and in turn the guilt of Joe Fernandez.

DL: You actually prevailed in the district court. Tell us how the case made its way to the Supreme Court.

BG: So after we prevailed in front of Judge Hellerstein, the government took an appeal. They also sought a stay of Judge Hellerstein’s ruling, which was denied. So Joe Fernandez was out of jail for around a year and a half before the Second Circuit ruled on his case. I argued the case to the Second Circuit, and then ultimately the Second Circuit reversed Judge Hellerstein’s ruling and said that questions about innocence or about sentencing disparities are really criticisms of the verdict, the conviction, and the sentence that should be raised on habeas and should not be raised through a motion for compassionate release.

DL: Just a reminder: there are actual human beings behind the captions of these cases. So your client, Mr. Fernandez, was out for a time. After the Second Circuit reversed, was he taken back into custody then?

BG: Immediately, yes—the very day.

DL: Wow. Okay. Interesting. So then the case goes up to the Supreme Court. What was it like to argue before the Court? Were you nervous?

BG: I was nervous for months before the argument, but it was really the good kind of nervousness, the type of nervousness that led me to prepare a ton for the argument. When I would have free time, I would sit on my couch at home and have Gemini ask me questions that I might receive as the lawyer for Joe Fernandez, and I thought Gemini did a tremendous job in doing that and I would practice with Gemini. Then on the actual day of the argument, I remember being in the lawyer’s lounge and thinking to myself, “I don’t feel all that nervous. I feel the same level of nerves that I do when I argue in front of the Second Circuit or appear before a district court.” And then that led me to think, “Well, what’s wrong with me? I should really be more nervous.” And that itself led me to become slightly more nervous. And then as I was talking to my other colleagues who were arguing that day, one of them told me that it was his 62nd argument in the Supreme Court, which led my blood pressure to go up a little bit. But I did feel very well-prepared and it probably was because of all the preparation, including with Gemini.

DL: So who was that lawyer on his 60-somethingth argument? I could probably just look it up on the day calendar, but I’m curious.

BG: It was David Frederick from Kellogg Huber.

DL: Oh, yes. Or Kellogg Hansen now, I guess. But go ahead.

BG: Yes, from Kellogg Hansen. He was arguing a related case to mine, and he split time with Dave O’Neil from Debevoise, and Dave had been in law school with me and clerked the same year I had. He clerked for Justice Ginsburg, and he was also at the U.S. Attorney’s Office with me. So it was nice to be there and to go through that with an old friend.

DL: So when my husband Zach Shemtob interviewed Cecillia Wang, who argued the birthright citizenship case, she said that she was nervous beforehand, but once you’re in the moment fielding those questions from those nine very engaged justices, you kind of almost don’t have time to be nervous; you’re just really in the moment, focused on their questions. Did you feel that way?

BG: Well, certainly. And you really end up having a conversation with nine different people at the same time, and your neck keeps swiveling around as you talk to the different justices. But I found it to be incredibly exciting and fun to be doing it, and very quickly the nerves went away.

DL: How many moots did you do—as in standing up with human beings, rather than Gemini?

BG: I did three moots. I did one at Georgetown, I did one at Northwestern—both at their law schools—and then I did one with a bunch of former Southern District AUSAs that are in my network, friends of mine. They all came to Cravath, and we did a moot around a conference table. All of the moots were fantastic, and that moot in particular was probably the most predictive of what the actual argument was.

DL: You and I had coffee while the case was pending before the Court, and you were not super optimistic about the bottom-line outcome. Were you surprised by the outcome of the case? And maybe you can also explain to my listeners what the court did hold in Fernandez.

BG: Sure. So ultimately what the Court held was my argument that Fernandez might be innocent really is an attack on the conviction and that had to be brought on habeas and could not have been brought on a motion for compassionate release. While I was disappointed in the ruling, I’m not sure I was surprised. During the argument, it was very clear that the Court had concerns about the “floodgates” problem, which is that if they allowed this case to go forward on compassionate release, then it is likely that the floodgates would open and that all sorts of motions for compassionate release would be made.

I was disappointed, however, for a few reasons. One, I had pitched this case very much as a textualist case, and I thought it would appeal to a textualist court. The question was whether the phrase “extraordinary and compelling reasons” could capture really anything that could be found to be extraordinary and compelling. And I was very frank with the Court during argument that I thought it would be rare that an attack on a conviction would be extraordinary and compelling in a case like this (which frankly wasn’t really an attack on the conviction because we never said there was insufficient evidence, we just said that he very well could be innocent and because of that, he had already served enough time). So it was disappointing that the Court interpreted the words “extraordinary and compelling”—which, while they do set a high bar, are very broad words—to establish what I refer to as an atextual limitation on those words.

And I was also disappointed because I really do feel strongly that judges should have the discretion, certainly in very rare cases, to exercise justice when they feel that an injustice has been done, and that’s what Judge Hellerstein did here. And while I do understand the floodgates problem, it’s unfortunate that the floodgates problem eclipsed what is another problem: in some number of cases, hopefully very rare, there is a real injustice, and the judge should be able to reduce a sentence. Here, Judge Hellerstein couldn’t after trial because it was a mandatory life sentence, but it was certainly my view that he should have the discretion to do justice down the road.

DL: The Court ultimately split 8-1, although Justice Sotomayor wrote a concurrence in the judgment, which was joined by Justice Kagan. Justice Jackson filed a dissent. And I think some of the arguments you just outlined to me, including your point about how to read the statutory text, really were very important to Jackson’s dissent.

BG: Absolutely. So Justices Sotomayor and Kagan agreed with me on the question that was presented—that an attack on the conviction or a criticism of the conviction can be extraordinary and compelling—but what they said is, “But there need to be some changed circumstances,” which there weren’t in this case. Justice Jackson agreed with us on the question, but also on the application to this case, which is whether the potential innocence of Joe Fernandez could be extraordinary and compelling. And she basically said, “Well, what could be more extraordinary and compelling than a judge being concerned that an innocent man was sentenced to life in prison? And shouldn’t the judge be able to do mercy as a matter of statutory language?” Because Congress said extraordinary and compelling. And while there was no evidence in the legislative history that they had this case in mind, Congress did refer to the statute as a safety valve, that it should be kind of a last-ditch opportunity for a judge to reduce a sentence, and Justice Jackson really did make that textual argument that the words should be read as they are understood in a dictionary. And that understanding does not allow for a categorical limitation for arguments that could have been raised on habeas.

DL: Yes, I do think that was actually one of the strongest points of her dissent. One last question about Fernandez. It’s interesting: the case was argued in November, but the opinion didn’t come down until the end of May, practically June. You’ve been on the inside of this, as a former Supreme Court clerk. Did you have any thoughts on the delay?

BG: So what I thought was going on, as I was speculating and waiting for the decision to come down, is that there would be one justice who would write both majority opinions, and that could slow things down and that they would have to be coordinated because there was another case that came down, the Rutherford and Carter decision, and it raised a very similar issue. So Justice Barrett ended up writing both of those majority opinions, and then Justice Jackson wrote the dissenting opinion in Fernandez and Justice Sotomayor wrote the dissenting opinion in the Carter/Rutherford case. So my guess is that there was some cross-case thinking that kind of took a little bit longer to get the two opinions out.

DL: Okay, fair enough. And I would urge my listeners to go and check these cases out. They’re quite interesting, even if they didn’t generate as many headlines as birthright citizenship or tariffs.

Now let’s turn to another reason I wanted to have you on the show: your recent departure from Cravath to launch Gruenstein Law. I believe you’re the first Cravath partner since David Boies left Cravath to leave the firm to go hang a shingle, so to speak. What led you to leave such a storied firm and strike out on your own?

BG: I think what you just said about David Boies is right, certainly in my memory. And you’re right that Cravath is a storied firm. It is a fantastic firm, and I had an amazing experience there. I learned a tremendous amount. I mentioned Evan Chesler earlier: he was the head of the firm for a long time, and he really taught me to be a corporate litigator. I very much valued my time as one of the founders of the white-collar practice and ultimately a senior partner in that group. And then I was also the hiring partner for the litigation department for four years before I left. So all in all, I had a wonderful experience.

Ultimately, however, starting my own firm is something that I’ve dreamed about for a long time. I very much want—and I’ve always wanted—to practice law in precisely the sort of way that I want to practice law, to take on the matters that I want to take on and the clients that I want to take on without certain constraints, to have flexibility around things like rates and conflicts, and to join forces with friends and other like-minded people who want to practice law in exactly the same way that I do.

DL: Cravath has experienced an unusually high number of partner departures this year. When I was working in private practice, I think the only way people left Cravath was in a box. Any thoughts on that?

BG: Well, I certainly wouldn’t draw any conclusions from the recent departures. Cravath is a fantastic firm, it’s doing extremely well, and everyone I’m sure has their own reasons for why they left. I certainly can speak to the reasons that I left, and certainly it has nothing to do with how the firm is doing; as I said, it’s doing great.

DL: So it’s interesting what you were talking about in terms of moving toward this opportunity to practice law in the way that you would like. One thing about Cravath is it’s a very storied firm, and it’s very traditional. People would even say—I don’t know if it was a joke or not—that they had firm conventions for how you would do a letter and where the indents would go and all of this. It’s a very traditional firm, and things have to be done “the Cravath way.”

Tell us more about why you decided to launch your firm. What are some of the things that you can do now at Gruenstein Law that you couldn’t do at Cravath—not through any fault of the firm, but just because it wasn’t the Cravath way?

BG: Well, I’m not sure I would say it wasn’t the Cravath way and that I’m looking to do anything differently. In fact, for me, Cravath was a very transformative time and led me to be the lawyer that I am today. Really what I’m talking about is having the flexibility—primarily through rates, but also avoiding conflicts—to take on any matter that I want to take on, regardless of things like whether it’s a big client or a small client, or what the rate structures or the fees might be. If there is a matter that I want to take on, I want to have the flexibility to do it.

Also, there are areas of my practice that I want to develop and hopefully will, which I was not able to do at Cravath for understandable reasons. For example, I would like to do more of a white-collar criminal defense practice in addition to the corporate investigation, to represent people in their white-collar trials. I also want to develop a criminal appellate practice, which is something that I got much more of a taste of during my Supreme Court argument, and I would love to be able to do more of that sort of work. So those are all things that I have in mind and that I look forward to doing.

DL: What’s your vision for the firm? If I check in with you five years from now, where would you like to be?

BG: Well, I don’t really have a particular vision for where I’ll be in terms of the size of the firm or the like. My number one goal is to continue doing the sort of high-quality work that I did at Cravath, to continue doing it at this firm, and to do it with the best lawyers that I can find who would be willing to join me, whether it’s associates or partners, and together we’ll serve our clients extraordinarily well. And if I’m still doing that five years from now, I will be extremely happy. I don’t expect that this firm will grow as large as Boies Schiller did in its first five years, but I would certainly expect growth. I am looking to grow, but I’m also looking to really focus on the quality of the work and the quality of the people who join me.

DL: So Boies Schiller did grow very quickly. I interviewed David about that a number of years ago, and I don’t know, they initially set up in some kind of barn or stable or something, which they very rapidly outgrew. [Ed. note: it wasn’t a barn or stable but a loft, about four miles from where David and Mary Boies lived.]

How big is your current team?

BG: Currently, we have an associate as well as a law clerk. The law clerk is a lawyer from Israel who is now studying for the bar, and she principally handles everything related to AI for the firm, and it’s great to have someone of her background. She’s very technical and can really help navigate the firm’s AI tools.

DL: That actually leads me to an additional reason I wanted to have you on the show: over the past few months, you and I have had some interesting conversations about AI and the practice of law. Besides what you mentioned earlier about helping prepare for oral argument with Gemini, are you using AI in your own practice, and if so, how?

BG: Yeah, absolutely. When I started the firm, I started completely on my own. I didn’t hire my first employee for two months. So I was using AI extensively at the beginning myself. When I had to do interrogatories and document requests, I would use Claude to help me draft it. I didn’t like using Claude to draft things start to finish—I feel like I lose too much control over the document if I ask Claude to just draft—but I would do one interrogatory at a time. I would tell Claude I want an interrogatory about X, and Claude would write it, and then I would edit it, and I would go one to 20 that way. So I was using it extensively.

Right now we are using it extensively. We’re demoing a few products to see which we like best. And ultimately, I actually think it’s going to be very similar to how firms use both Westlaw and Lexis: people have different preferences, there will be different AI tools that will appeal to different people, and firms may offer several of them. And that’s what I aspire to do—to have the right tools for anyone who joins me.

DL: That’s really interesting. I’ve been talking to a lot of lawyers about that, and that’s exactly what people are saying: the different tools often have different things that they’re especially good at, and it’s your job as a lawyer to figure that out.

Taking more of a 30,000-foot view, what do you think AI will mean for the legal industry or the business of law? And, of course, the question everyone’s wondering about is: are lawyers going to be out of jobs?

BG: Well, I think AI is going to have and already is having a profound impact on the legal industry. On the business side of law, you have to imagine that as law firms can use AI to engage in certain low-level or menial or repeated tasks, they won’t need as many human associates to do it. It just seems natural that that is going to be the outcome. Now, whether law firms can redeploy associates, whether they can use associates to do different things... I’ve always thought that associates don’t spend enough time when they’re writing briefs actually reading the cases, as opposed to just pulling out snippets to quote. So hopefully associates will find more time to think deeply about cases and read the case law. So in that way, certainly associates can do other things. But I certainly think some of the work, or even a lot of the work, that junior associates are doing can be replaced by AI, at least in part.

And for law firms, I think the question is going to be, well, how do you bill clients when it doesn’t really seem to make a lot of sense anymore to bill clients on an hourly basis, because the value you may be giving to clients may really not relate to the hours that are being worked because the AI time is really saving a lot of work. So I think those are ways in which the business can be changed.

There’s another way that I think that AI is really going to change the legal industry, which is the question of how associates are going to learn how to be lawyers at law firms. Historically, and even today, the way associates learn how to do something like document requests is that they’re told go find some templates or some samples and adapt them to the case that we’re working on. Now, that’s something that AI can do really well; AI is great at pattern recognition. So you really shouldn’t have an associate doing that from scratch. The associates should use AI.

And in my view, the way associates are going to learn is not through the 10 hours of drafting document requests, but rather in having AI do it and then going over it with the partner and the partner saying, “These are the things I like about this draft, and these are the things that I don’t like.” And what that starts to look a lot more like is the apprenticeship model, and it’s interesting to think that as technology advances, we’re actually going to go back to the apprenticeship model. But that certainly strikes me as a good thing, and it strikes me as a way in which smaller firms or boutique firms or firms with far lower leverage, a much lower associate-to-partner ratio, will be very well-equipped to work because with fewer associates per partner, it’s much easier to have that apprenticeship model.

DL: That’s such an interesting point, and it was certainly the way that I learned in many ways. If I would draft something and your brother would edit it, I might sit down with David and he would go through and explain why he made each change, and that was tremendously educational for me.

You mentioned earlier the billable hour. Your former partner, Evan Chesler, famously wrote an article years ago predicting the demise of the billable hour, and I think it has lasted longer than he expected. And I think it is still, when I talk to lawyers, the dominant method of billing for many people in so-called Biglaw. What is your own approach at Gruenstein Law to fees and to billing arrangements? How much of your work is still on the billable hour, and how much of it is on alternative fees? What can you say about that?

BG: Some of my work is still on the billable model because it’s just really too hard to predict at the beginning of a matter how long something’s going to take, but on several of my matters, I’m using alternative fee arrangements and doing flat fees because my goal is to bill clients according to the value that I provide them, and the number of hours that I work or that anyone on my team works is not necessarily correlated with the value that they’re getting out of it. So what I like to do is to hear from a client about what the problem is, what the matter is, if it’s an actual case or if it’s just advice, and to think what is the value that I can add, and then to suggest a fee that I think is appropriate.

So I think currently I’m probably doing flat fees in around a third of my matters, but I really would like that to increase as I get a better sense of the matters and how they’re going to go in the future, and I’m better able to assess the value that I’m going to be able to provide to clients. But I very much would like to work as much as possible on a flat-fee model because I want to align my interests completely with the client’s.

DL: And that’s a great point about perhaps being able to do more on alternative fee arrangements once you have more experience, because one thing that firms that are very good with AFAs have is a lot of data. They have a lot of historical data about how long a matter of this type took us. So when you’re just starting out on your own, it’s probably harder—but I’m guessing that over time, your work done pursuant to AFAs is going to increase.

BG: I think that’s right, and it really is very consistent with my overall approach, which is that I want to do the best work for the clients whose matters I want to handle, and while sometimes it’s hard to justify very high fees simply because that’s what it takes to do the work, I think it is possible to justify fees based on the value that I’m providing. And if I can bill on that basis, I think that’s something that clients would appreciate, and that’s certainly a way that I would appreciate working.

DL: Let’s now turn to my speed round. These are four standard questions, which are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

BG: On this one, the issue really relates to my corporate investigations practice, and there companies feel a very strong pressure to settle with the government when they’re undergoing investigations, and I find it frustrating that there’s such a trial penalty in the corporate space. I don’t think it’s good for companies, I don’t think it’s good for shareholders, and frankly, I don’t think it’s great for the justice system. So I wish companies would be willing to fight a little bit more when they’re under investigation.

DL: That’s a great point, and you’re not alone in that. I would refer my listeners to the writings of one of my past podcast guests, Judge Jed Rakoff.

My second question is, what would you be if you were not a lawyer?

BG: Well, I’m not sure what I would be, but I do know that if I do retire or start to slow down in the future, I really would love to open a kosher deli.

DL: Okay, that’s a good one. I had a meal today from a deli—not a kosher one, but a very good deli.

My third question is, how much sleep do you get each night?

BG: I get around seven to eight hours and often will sleep in on the weekends a bit.

DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

BG: I certainly made a big career change in the last few months, and what I would encourage your listeners to do is to enjoy their career and to try to get the most out of it. This is a very exciting profession, but they should spend time every now and then assessing what it is that they enjoy and what it is that they find satisfying and to make tweaks along the way.

DL: Well, I totally agree with that. And as someone who enjoys my career, including speaking to folks like you, thanks so much for joining me, Ben.

BG: My pleasure. It’s great seeing you, David. Thank you.

DL: Thanks so much to Ben for joining me, and congratulations to him on the launch of his firm.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, but it’s made possible by paid subscriptions to the newsletter.

The next episode should appear on or about Wednesday, August 5. Until then, may your thinking be original and your jurisdiction free of defects.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. The footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

The U.S. Supreme Court has an image problem. Last summer, the Court’s approval rating dipped below 40% for the first time. Since then, it has climbed slightly, to 42%—but it’s still well below the 60% or so that was typical in the early 2000s.1

There’s a big partisan gap in the Court’s approval rating. Democrats are especially unhappy with the Court—and some of their candidates are even campaigning on the issue.

It’s possible, however, that the Court’s unpopularity is partly—or even primarily—an optics problem. According to Professors Jack Goldsmith and Will Baude, who aren’t shy about criticizing President Donald Trump, the Court—including its three Trump appointees—has demonstrated some amount of independence from the Trump administration. Noting how the justices ruled against Trump in major cases involving tariffs, birthright citizenship, and the Federal Reserve, Goldsmith dubbed the institution the “powerful, resilient, independent Supreme Court.”

So what can the Court do to address its image problem? With all due respect to Chief Justice John Roberts—who usually assumes the role of statesman and spokesperson, especially in his year-end reports on the federal judiciary—the Court needs new “faces” for its “brand.”

Who might replace Chief Justice Roberts as the Court’s principal communicator? I hereby nominate Justices Elena Kagan and Amy Coney Barrett.2

Last Tuesday, Justices Kagan and Barrett testified before panels of the House and Senate Appropriations Committees. It was the first appearance by Supreme Court justices before Congress in seven years. But given that the two justices hit it out of the park, hopefully such testimony will become an annual tradition, as it used to be.

The official reason for the justices’ appearance was to explain and advocate for the Court’s $228 million budget request, including $14.6 million for hiring additional agents to protect the justices amid growing threats aimed at the judiciary. But the lawmakers ventured beyond the topic at hand, posing questions about controversial topics such as the Court’s emergency docket, public reputation, and ethics code—which Justices Kagan and Barrett answered with alacrity and adroitness.

Both the House and Senate hearings got off on the right foot when Justice Kagan opened with a heartfelt tribute to the late Sen. Lindsey Graham (R-S.C.), who died unexpectedly over the preceding weekend. That set a personal tone for the proceedings—a helpful reminder that the subject of security for the justices involves the safety of real people and their families.

It was reinforced when Justice Barrett, early in her testimony, recounted a recent swatting incident at her home, as well as having to explain the bulletproof vest she received at work to her 12-year-old son. “I didn’t expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one,” she said.

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The justices presented a unified front on security. But they parted ways on other topics in their testimony, including whether the Supreme Court’s code of conduct should have an enforcement mechanism. Justice Kagan reiterated her support for having the chief justice appoint a committee of lower-court judges to enforce the code; Justice Barrett described her own position as “less certain,” in light of the complexities involved.

But even when they disagreed, the justices did so in a constructive and collegial fashion. As Justice Barrett said near the end of her House testimony, “We work hard to disagree well, when we disagree—and we agree a lot of the time. And I think that kind of constructive engagement—not just throwing your hands up and saying, ‘I’m not going to deal with people with whom I disagree’—is what we need to move forward.”

And you know what else would be helpful moving forward? More regular congressional testimony from members of the Supreme Court.

Because justices hadn’t appeared before Congress since 2019, the prospect of their doing so this year was “treated as something of a novelty,” as Professor Steve Vladeck wrote. “But for most of the Supreme Court’s modern history, it was anything but,” he explained—with justices “regularly trekk[ing] across First Street to testify before Congress” on a wide range of subjects.

That was a good thing, in Vladeck’s view—and mine—because it “created a setting in which justices could be asked difficult questions,” showing their “willingness to engage with the political branches on terms beyond the court’s own choosing.” By contrast, when the justices shun appearing before Congress, it does a disservice to our democracy, which requires healthy engagement between the three branches of government.

If the Court does decide to send its members to Capitol Hill more regularly, as it did on an annual basis from 1960 through 2011, it should stick with Justices Kagan and Barrett.3 Their appearance last week demonstrated that they are superb ambassadors for the Court—especially as a team.4

First, as former professors, they excel at explaining the Court’s complex work, including to people who might not have much legal knowledge—with legislators and journalists replacing 1Ls as the audience. Second, they’re funny and charming, blessed with high EQ, people skills, and patience—perhaps honed while serving as dean of Harvard Law School (Kagan) or parenting seven children (Barrett).

Third, because they come from opposite wings of the Court—Justice Kagan was appointed by President Barack Obama in 2010, while Justice Barrett was appointed by President Trump in 2020—they can appeal to both sides of the aisle when testifying before Congress. They can show, as they did on Tuesday, that it’s possible to disagree without being disagreeable (and it probably helps that they sit at the ideological center of the Court).

[UPDATE (7/22/2026, 12:02 p.m.): On this point, Professor Josh Blackman raised an interesting possibility at The Volokh Conspiracy: Justice Kagan wearing red and Justice Barrett wearing blue—the traditional colors of the Republican and Democratic parties, respectively—“was a subliminal attempt at bipartisanship.” I wouldn’t be surprised if the justices coordinated sartorially; they did sport matching handbags, after all.]

Separation-of-powers concerns could arise if Supreme Court justices, while “singing for their supper” on Capitol Hill, wind up pandering to legislators or opining on substantive legal issues. But Justices Kagan and Barrett came nowhere close to that in their testimony—and they are, as two of the most judicious of the justices, especially well situated to avoid impropriety.

Yes, the separation of powers is critically important, and so is judicial independence. But judicial independence isn’t the same as judicial isolation. When the justices emerge from their marble palace to engage with the American people and their elected representatives, good things can happen.

This week’s Judicial Notice is sponsored by

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We live in northern New Jersey, 45 minutes outside New York City (and half an hour from where the World Cup final took place), and last week was… not very pleasant here. It was hot and humid, and our air quality was pretty terrible as a result of the Canadian wildfires. If you’re dealing with similar conditions, I feel your pain.

On a happier note, Chase celebrated his third birthday. His grandparents got him way too many gifts—because grandparents gonna grandparent—and we also had a nice pizza-and-cupcake party for him at school.

In terms of writing, I wasn’t as prolific as I had hoped. I published the Original Jurisdiction version of my recent Bloomberg Law column about Cooley’s big push into litigation—with the usual supplemental footnotes, including one posing a question about Supreme Court clerkship bonuses that perhaps some of you can answer—but I had planned to publish more. I’m hoping to make it up to you in the coming week, with three posts in the hopper (in addition to next weekend’s Judicial Notice).

Lat’s Lifehack of the Week: get a banana stand. Our two boys enjoy bananas, but they would often go bad on us. My new best friend Claude informed me that you’re supposed to hang bananas, just as they do in supermarkets. So we hopped online, coughed up $16, and acquired a handsome banana stand. Problem solved!

Now, on to the news.

Lawyer of the Week: Todd Blanche.

Last Wednesday, Acting Attorney General Todd Blanche, 51, appeared before the Senate Judiciary Committee for his confirmation hearings to serve as U.S. Attorney General. There weren’t many surprises: the Democrats harshly criticized Blanche and Donald Trump—whom Blanche represented as a criminal defense attorney before Trump’s return to the White House, and whose bidding he has done during his time at the Department of Justice (e.g., by authorizing the prosecutions of Trump’s political enemies)—while Republicans gave Blanche a warmer reception. For collected coverage, see Howard Bashman’s How Appealing.

But it wasn’t a total cakewalk for Blanche with the Republican senators—who must unanimously support his nomination in order for it to get out of committee, given the unified Democratic opposition. Senator John Kennedy (R-La.) pressed Blanche on the closeness of his relationship with Trump, asking the nominee whether he considered the president to be his friend. This led to what Professor Barbara McQuade described as “[p]erhaps the most revealing moment” of the hearing, in which Blanche responded, “I’m his lawyer”—oops—before immediately correcting himself and saying, “[I] was his lawyer.”

Senators John Cornyn (R-Tex.) and Thom Tillis (R-N.C.), who haven’t committed to vote for Blanche, asked tough questions about the $1.8 billion “Anti-Weaponization Fund,” Trump’s mass clemency for January 6 participants, and the Justice Department’s handling of the Jeffrey Epstein files. Tillis asked Blanche to meet with Epstein victims, which Blanche had declined to do up to that point—and the next day, Blanche met with Epstein victims for about an hour.

I suspect that on one level, Senators Cornyn and Tillis, who have had rocky relationships with Trump over the years, would love to “stick it to him” and torpedo the Blanche nomination. But in the end, I’m guessing they’ll vote for him (and Tillis is already telegraphing that, describing himself as leaning yes).

Why? Here’s the case for confirming Blanche, as made by former attorney general Bill Barr and former Senate Judiciary Committee lawyer Michael Fragoso: (1) Blanche is smart, competent, and experienced (not always the case with Trump nominees); (2) he’s doing the best that can be reasonably expected, given Trump’s view of the DOJ; (3) there’s no guarantee that any future AG nominee would be better than Blanche; and (4) as acting AG, Blanche can discharge the duties of AG pretty much indefinitely, so there’s not much practical point to voting against him. And so, in the words of the Wall Street Journal editorial board (gift link), Blanche is simply “a lawyer doing his best to deal with an impossible client”—and “a permanent Attorney General might have more stature to reject the wild ideas that are sure to come.” [UPDATE (7/20/2026, 3:48 p.m.): For the case against confirming Blanche, see Bill Dyer’s post in the comments.]

Other lawyers in the news:

• Former SEC chair and current U.S. Attorney Jay Clayton (S.D.N.Y.), nominated to serve as Director of National Intelligence, had a similarly contentious confirmation hearing on Wednesday. But I’m guessing that he will be confirmed in the end as well, since one could do a lot worse. (The acting DNI is Bill Pulte, director of the Federal Housing Finance Agency, whom the Associated Press described as “a housing official with no known intelligence experience… who used his previous administration perch to target perceived adversaries of the president.”)

• There continues to be upheaval among the ranks of U.S. attorneys. In the Eastern District of Virginia (Alexandria), the Trump administration named Theo Stamos, a longtime state and local prosecutor, as first assistant U.S. attorney—and the acting U.S. attorney, in the absence of a permanent U.S. attorney (whether Senate-confirmed or judicially picked). In the Western District of Washington (Seattle), the judges of that district selected former federal prosecutor Roger Rogoff as U.S. attorney—and Trump immediately fired him.

• Kathryn Ruemmler, former general counsel and chief legal officer of Goldman Sachs, testified at a closed-door hearing of the House Oversight Committee about her six years of interactions with the late Jeffrey Epstein—and described him as “a masterful liar.”

• If you were a reader of Gawker and/or Above the Law in the 2006-2008 period, you’ll want to click on this article from Town & Country (and if you weren’t… sorry, you just had to be there): “Julia Allison and Noah Feldman’s Wedding Brought Together Burning Man and Harvard.”

In memoriam:

• Johnny Brown—a longtime attorney for Miami-Dade County Public Schools, and the father of Justice Ketanji Brown Jackson—passed away at 80.

• Trial lawyer Arthur Shartsis, cofounder of the San Francisco-based law firm Shartsis Friese, passed away at 80.

May they rest in peace.

Judge of the Week: Justice Todd Eddins.

Meet Justice Todd Eddins, 62, of the Hawaii Supreme Court. Before joining the Aloha State’s five-member high court in 2020, he served as a trial judge for three years. Prior to taking the bench, he worked as a public defender and criminal defense lawyer in private practice, handling 125 jury trials and winning several notable acquittals.

As you might expect of a former public defender, Eddins is liberal—and not a fan of the conservative U.S. Supreme Court. In State of Hawaiʻi v. Wilson (2024), he wrote an opinion rejecting defendant Christopher Wilson’s constitutional challenge to his firearms prosecution—and laced into the high court’s Second Amendment jurisprudence, arguing that it “disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement.” In his view, “a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities” can’t be reconciled with Hawaii’s “spirit of Aloha.”

Eddins’s condemnation of the Court, especially his invocation of the “spirit of Aloha,” generated some criticism—from Sarah Isgur and David French of Advisory Opinions, Professor Jonathan Turley, and three SCOTUS justices. After losing before the Hawaii Supreme Court, Christopher Wilson asked the U.S. Supreme Court to step in—and although SCOTUS denied certiorari, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch issued statements respecting the cert denial that threw plenty of shade on Justice Eddins and his colleagues (while explaining that, for various procedural reasons, the Court shouldn’t get involved at this early stage of the proceedings).

It turns out that Wilson was just a warm-up act. In Granillo v. State of Hawaiʻi, Justice Eddins wrote an opinion granting a new trial to a defendant who had been convicted of kidnapping and sexual assault based on scientifically discredited forensic evidence—and Eddins devoted around nine pages of his 91-page opinion to attacking recent rulings of the U.S. Supreme Court.

Justice Eddins wrote a majority opinion for three justices, while Justice Lisa Ginoza wrote a concurrence in the judgment—in which she agreed a new trial was required, but based on different reasoning that cited certain federal cases. This led Eddins to assert that Ginoza was relying on the U.S. Supreme Court’s understanding of due process (a claim she denied, for the record). And so to delegitimize her position, Eddins sought to delegitimize SCOTUS:

We interpret the Hawaiʻi Constitution on its own terms. The United States Supreme Court’s construction of the federal Due Process Clause does not define the protections of our state’s due process clause. This court “reason[s] independently, untethered from the Supreme Court’s analysis of the United States Constitution.” State v. Wilson, 154 Hawaiʻi 8, 14 (2024).

The Court that now defines federal due process does not honor the work of 1954 [when Brown v. Board of Education was decided]. It revives the work of 1857 [when Dred Scott v. Sandford was decided]. The work of 1896 [when Plessy v. Ferguson was decided]. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405 (1857).

And he goes on—for another eight or so pages. As Justice Ginoza drolly noted in a footnote, “Although it is apparent, it is also worth noting that the majority voices disdain for recent United States Supreme Court rulings on issues that are not pertinent to this case.”

Not surprisingly, Justice Eddins’s opinion in Granillo generated blowback. Fox News collected comments from conservative commentators like Iowa Solicitor General Eric Wessan, who called it “an unhinged attack on the legitimacy of the Supreme Court,” and Jonathan Turley, who opined that it was “devoid of judicial restraint and decorum.” In National Review, Carrie Severino described it as “a nine-page broadside against the U.S. Supreme Court” that was “ugly” in tone—as well as “littered with negative parallelisms, a common hallmark of AI-generated text.”

But Justice Eddins had his defenders. In a story for Slate titled “One Judge Has the Guts to Put the Horror of This Supreme Court Term in Context,” Mark Joseph Stern praised the Granillo opinion as a “well-timed excoriation” of a Supreme Court that “has veered so far off track that even the harshest language can feel inadequate to capture the damage wrought by its most recent Term.” According to Stern, “It is a shame that so few are brave enough to speak candidly about the constitutional wreckage left by the Republican-appointed supermajority.”

What do you think? Read (or skim) the relevant section of the opinion (pp. 72-80), then take my reader poll:

In other news about judges and the judiciary:

• By issuing such a vociferous attack against the U.S. Supreme Court, which has the power to review decisions of the Hawaii Supreme Court, Justice Eddins was arguably asking to get benchslapped. Judge Lawrence VanDyke (9th Cir.) also requested some benchslaps—for his colleagues. Dissenting from the denial of rehearing en banc in Knife Rights, Inc. v. Bonta, in which the Ninth Circuit turned away a Second Amendment challenge to California’s switchblade regulations, LVD condemned his colleagues’ treatment of that amendment as “a second-class right”—then argued that to address the problem, “The Supreme Court should consider summarily reversing some of our wayward Second Amendment decisions. To put it more colloquially, it’s time for some benchslaps.”

• In their recent congressional testimony about the Supreme Court budget, Justices Elena Kagan and Amy Coney Barrett were asked about a proposal to transfer responsibility for the upkeep of certain federal courthouses from the General Services Administration, which is part of the executive branch, to the judiciary itself. They understandably declined to opine on the issue, which was outside the scope of their testimony. But I’m not so judicious, so I will offer my two cents: GSA should transfer control of all federal courthouses to the judiciary, and the judiciary should receive the funding it needs to bring crumbling courthouses up to code. First, it makes sense as a matter of separation of powers, as underscored by the controversy over Trump’s Biglaw executive orders (which could have been read as barring lawyers from the targeted firms from entering federal courthouses—property controlled by the executive branch, even though they’re where the judicial branch does its work). Second, GSA has been doing a terrible job as the federal judiciary’s landlord, at least based on the reporting of Mattathias Schwartz for The New York Times (gift link).

In nominations news:

• Last week, the Senate confirmed three judicial nominees: Sullivan & Cromwell partner Matthew Schwartz (2d Cir.), Florida Fourth District Court of Appeals Judge Jeffrey Kuntz (S.D. Fla.), and executive assistant U.S. attorney Arthur “Rob” Jones (S.D. Tex.). Schwartz represented Trump in two appeals, while Kuntz ruled in Trump’s favor on a jurisdictional issue in Trump’s lawsuit against the Pulitzer Prize Board.

• The Senate Judiciary Committee voted five nominees out of committee, sending their nominations to the Senate floor. Two of the nominees, assistant U.S. attorney Michael Martin (E.D. Mich.) and Faegre Drinker partner Antonio Pozos (E.D. Pa.), received support from some of the Democrats on the Committee.

• My fellow judiciary junkies might be interested in Judicial Finder. It’s a free, nonpartisan resource covering more than 20,000 judges, federal and state—including appointment histories, senator-by-senator roll calls for every recorded confirmation since 1989, and each seat’s succession chain, running back to 1789.

Job of the Week: an opportunity for a products-liability litigator in Atlanta.

Lateral Link is partnering with an Am Law 100 firm that is expanding its class-action and products-liability practice in Atlanta, seeking litigators with 3-5 years of experience. The ideal candidate will have significant complex litigation experience from a large law firm or reputable litigation boutique and strong analytical, research, writing, and oral advocacy skills. Prior class-action or products-liability/mass-tort litigation experience preferred. The firm welcomes interest from attorneys already in Atlanta as well as those looking to relocate to the area. To be considered, please send your résumé and law school transcript to Marion Wilson at mwilson@laterallink.com.

Read more

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

On June 29 and 30, the U.S. Supreme Court issued opinions in eight of the most high-profile cases of October Term 2025. One firm appeared as merits counsel in four of them: Cooley LLP.1

Founded in the 1920s in Northern California, the birthplace of many leading technology companies, Cooley is best known for handling the initial public offerings of tech giants such as Nvidia, Uber, and quite possibly OpenAI (which has retained Cooley, alongside Wachtell Lipton, for a possible IPO). A Silicon Valley stalwart, Cooley hasn’t historically been known for Supreme Court litigation, a Washington, D.C.-centric practice.

But since Elizabeth Prelogar returned to the firm in August 2025, after serving as solicitor general in the Biden administration, Cooley has hired 14 lawyers into its Supreme Court and appellate practice—including three former high-court clerks straight out of their clerkships. Today, the group has roughly 18 attorneys—and half of them have completed at least one Supreme Court clerkship.

Growing a national litigation practice

The expansion of Cooley’s appellate practice is part of the firm’s push into litigation more broadly. Over the past few years, as many peer firms have focused on transactional practice and deemphasized disputes, Cooley has invested in the space. Since late 2018, the litigation department’s headcount has grown by nearly 40%—and the practice’s revenue has doubled.

Ian Shapiro joined Cooley in 2003, made partner in 2010, and became chair of the litigation department early last year. He told me in an interview that Cooley aspires to be “one of a handful of elite litigation firms—and the premier litigation practice for representing technology, life sciences, and other innovative companies.”

Shapiro dates the start of the firm’s expansion in litigation to late 2018, when the practice was led by Michael Attanasio. Back then, the firm had roughly twice as many litigators on the West Coast compared to the East Coast, so it started growing its litigation practices in New York and D.C. to achieve greater balance.

Around the same time, the tech companies that make up a large portion of Cooley’s client base began facing greater government scrutiny. To help meet these clients’ needs, the firm began growing its white-collar and enforcement defense practice, adding prominent ex-prosecutors such as Andrew Goldstein—former chief of the public corruption unit at the Southern District of New York, former member of Robert Mueller’s team investigating Russian election interference, and current head of Cooley’s white-collar defense and investigations group.2

“Over time,” Shapiro explained, “these two imperatives—growing our East Coast litigation practice, and expanding our white-collar capability—evolved into a broader belief that we could emerge as one of the best litigation firms in the country.”

A go-to litigation practice for lawyers and law firms

Cooley’s increased emphasis on litigation has not gone unnoticed—by other attorneys. I’ve been struck by how many lawyers and law firms, sophisticated consumers of legal services, have hired Cooley for their most high-profile, high-stakes matters.

Last fall, after he was indicted on false-statement and obstruction charges, former FBI director James Comey hired Cooley to defend him. The Cooley team—working with Jessica Carmichael, former deputy solicitor general Michael Dreeben, and former U.S. attorney Patrick Fitzgerald—won dismissal of the charges last November. (The Trump administration is appealing.)

Following conviction at trial of federal tax and other crimes, former Supreme Court advocate Tom Goldstein added Prelogar to his legal team. She argued some of his post-trial motions (which the judge denied), and she will handle his appeals—to the Fourth Circuit and, perhaps, to the Supreme Court.

Taking on the Trump administration

As a general matter, the nine firms that settled last year with the Trump administration are focused on transactional practice, while the four firms that challenged the executive orders issued against them are more litigation-oriented. And this makes sense. Firms in the first group are under pressure to play well with the federal government to secure the many agency approvals needed for the billion-dollar deals they’re trying to close, while firms in the second group have no problem being adverse to the administration—which they do on behalf of their clients all the time.

The fighting firms hired top-flight litigation practices to represent them—so far, successfully—against the Trump administration. Perkins Coie, WilmerHale, and Susman Godfrey are represented by, respectively, Williams & Connolly, Clement & Murphy, and Munger Tolles & Olson. Williams & Connolly and Clement & Murphy are litigation-only firms, and Munger Tolles is largely a litigation firm.

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So I was struck by the fact that Jenner & Block hired Cooley for its executive-order litigation—and that Cooley took the case. Given the size and scope of its transactional practice, involving deals that require sign-offs from an alphabet soup of federal agencies, Cooley is far more exposed to possible retribution from the Trump administration than Williams & Connolly, Clement & Murphy, or Munger Tolles.

Was Cooley worried about the potential consequences for its corporate practice if it antagonized the Trump administration by representing Jenner?

“We believe a great litigation practice has to be fearless in every kind of case,” Shapiro said. “Sometimes that fearlessness involves standing up to the government or taking a difficult case for an unpopular client. That is a value that my predecessor as chair, Mike Attanasio, emphasized—and one that I have especially come to appreciate during the year and a half that I have been chair.” (Attanasio led the Cooley team that won a permanent injunction for Jenner in district court.)

I asked Shapiro whether it was difficult for Cooley’s litigators to get buy-in from their corporate colleagues before taking on Jenner as a client. He declined to discuss internal deliberations, but he did say this: “The entire firm is very proud of our representation.”

Welcoming a team from Willkie

Cooley’s willingness to take on the Jenner matter had a business benefit for Cooley. It played a key role in the decision of seven litigation partners at Willkie Farr & Gallagher—one of the nine firms that settled with the Trump administration—to bring their thriving practice to Cooley.

“Cooley’s representation of Jenner in its litigation against the executive orders was an important factor in our decision to come here,” said Simona Agnolucci, who along with Benedict Hur led the Willkie group to Cooley. “The issuance of the orders was an existential moment in our profession—one that went to the essence of the oath we take as attorneys and our greater role in society—and I was moved by Cooley’s willingness to represent Jenner.”

Agnolucci and Hur had been co-managing partners of Willkie’s San Francisco office, which they launched in 2019, and Agnolucci also served on Willkie’s executive committee. Along with five other partners, they joined Cooley in June 2025—a move covered not just by legal outlets, but by The New York Times and The Wall Street Journal. Agnolucci and Hur were eventually followed by more than a dozen associates and several staff professionals, for a total of around 25 people—and by nearly all of their clients.

“When we were thinking about moving, firms were trying to weigh two factors: the cost of standing up and potentially losing business, and the cost of not standing up and potentially losing business,” Agnolucci told me. “At the time, you couldn’t really know how the scales were going to tip at many firms; it wasn’t a knowable factor. But with Cooley, because of its defense of Jenner, we didn’t have to ask what it would do—we already knew the answer.”

A firm with ‘momentum’

Like the litigators from Willkie, Elizabeth Prelogar had many options to choose from. After serving as U.S. solicitor general, she could have gone to any number of firms—especially given the active market for appellate talent.

But after conducting a broad search—which she told me she did “in the interest of due diligence,” and also because she thought she could be picking a firm that might be her “forever home”—Prelogar returned to Cooley, where she had worked for a year before departing to serve as solicitor general.3

“I felt strongly that Cooley matched my values and wasn’t afraid to stand up for the rule of law,” Prelogar said. “The firm demonstrated that through the cases it was willing to take on.”

“What Cooley is building in the litigation space is one of the reasons I decided to come back,” she added. “It’s exciting to be at a firm with this kind of momentum.”

[UPDATE (7/16/2026, 6:03 p.m.): The third paragraph of this story was revised as follows (added text in italics): “But since Elizabeth Prelogar returned to the firm in August 2025, after serving as solicitor general in the Biden administration, Cooley has hired 14 lawyers into its Supreme Court and appellate practice—including three former high-court clerks straight out of their clerkships.”]

This week’s Judicial Notice is sponsored by

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What can I say? I’m a swamp creature. Whenever I visit Washington, D.C., I almost always have a great time—and my latest trip was no exception.

Last week, Zach and I traveled down to the nation’s capital for SCOTUSblog’s Supreme Court Term in Review, which took place on Wednesday. The proceedings kicked off with Zach’s interview of Cecillia Wang, national legal director of the American Civil Liberties Union (ACLU). They discussed Trump v. Barbara, the history-making case about birthright citizenship that Wang argued successfully before the Supreme Court, and tackled other topics as well—including the ACLU’s other big win from last Term, the Second Amendment case of United States v. Hemani.

I then took the stage for a live recording of Advisory Opinions, joining Professor Akhil Amar, Sarah Isgur, and David French for a lively discussion of October Term 2025. I tend to agree a lot with my co-panelists when it comes to the Court—but this time around, I decided to pick some fights, in an effort to keep things entertaining. Did I succeed? I invite you to listen or watch the debate, then render your verdict.

Then on Thursday night, Zach and I attended a cocktail reception hosted at the National Archives by the Pacific Legal Foundation, to celebrate America’s 250th anniversary. It featured remarks by Professor Arthur C. Brooks, author of multiple bestselling books, and Anastasia Boden, host of PLF’s new podcast In Dissent. (I was “spotted” at the event by Politico Playbook—because D.C. really is that nerdy.)

Now, on to the news.

Lawyer of the Week: Andrew Boutros.

On July 1, U.S. Attorney Andrew Boutros (N.D. Ill.) traveled from Chicago to Washington, D.C., to appear alongside Acting Attorney General Todd Blanche at a press conference. Along with other top officials of the U.S. Department of Justice (DOJ), they would announce criminal charges against alleged members of the notorious Tren de Aragua gang of Venezuela, including some from the Chicago area.

Alas, there was a minor problem, at least as to three defendants being investigated by Boutros’s office: the criminal case against them was still under seal, i.e., not supposed to be disclosed publicly. Belatedly realizing the problem, with less than 30 minutes before the DOJ news conference was scheduled to begin, prosecutors from Boutros’s office contacted Magistrate Judge Laura McNally’s (N.D. Ill.) chambers to orally request that the case be unsealed—and asked for a response in 15 minutes.

That was… less than ideal. As Ken White told Josh Barro on Serious Trouble, “There’s no circumstance in which you can tell a federal judge ‘you have to do this within 15 minutes,’ unless it’s regarding a bomb that is in the judge’s chambers.”

Not surprisingly, Judge McNally was tied up with other matters that morning, with hours of back-to-back hearings in unrelated cases. So she was unable to unseal the case that quickly—and even though the charges were still under seal, the news conference went forward. Oops.

This sequence of events left Judge McNally “unamused,” per The New York Times. Last Thursday, she required Boutros to appear before her personally—and benchslapped him in open court, as reported by Bloomberg Law and Law360. Castigating him for “a clear violation of the sealing order,” she reminded him that her orders, “in this independent branch of government, are effective until they terminate on their terms or are rescinded—and neither of those things happened here.” In response, Boutros acknowledged that the situation involving the sealing order was “all very regrettable and very unfortunate,” adding that his office would “go back and look at this from a root-cause perspective to see how we can do better.”

Fortunately for Boutros, Judge McNally didn’t sanction him or his office. But she did use the hearing as an occasion “to emphasize the critical nature of sealing orders,” which are issued to protect the integrity of investigations (among other reasons).

According to The Times, this isn’t the first time that Boutros and his office have been in hot water over the past few months:

The dispute over the sealing order was the latest in a series of incidents that have raised questions about Mr. Boutros’s stewardship of the U.S. attorney’s office in Chicago, especially on cases that have attracted attention from top Trump administration officials.

Last fall, prosecutors dropped charges against a woman who had been shot by a Border Patrol agent during an immigration crackdown amid concerns about preservation of evidence. In another high-profile case, conspiracy charges against local Democratic politicians and operatives unraveled this year after a judge called out errors in the grand jury process.

“Your sole goal is to do justice,” Judge April M. Perry (N.D. Ill.) told Mr. Boutros in a hearing over that matter. She added later, “That trust has been broken.”

Can Boutros and his colleagues regain that trust? Time will tell.

Other lawyers in the news:

• Yale University is in talks with the Trump administration, in an effort to reach a settlement that would resolve Justice Department investigations into Yale’s admissions practices for its undergraduate programs, medical school, and law school. But behind the scenes, Yale Law School Dean Cristina Rodríguez and other YLS faculty members are urging the university’s leadership not to cut a deal, according to The New York Times (gift link).

• Who’s in charge of the legal team representing Donald Trump in his personal litigation? Despite an attempt by White House Counsel David Warrington to banish Boris Epshteyn from Trumpworld—after Warrington investigated Epshteyn and concluded that he was “using his proximity to President Trump for personal financial gain”—Epshteyn today functions as Trump’s de facto general counsel, according to The Washington Post (gift link).

• Richard Rollo’s bio on the website of Richards Layton & Finger describes him as “a seasoned and tech-savvy litigator,” and RLF is one of Delaware’s top corporate law firms. So it’s surprising to see Rollo and Richard Layton on the receiving end of an order to show cause from Vice Chancellor Lori Will of Delaware Chancery Court, requiring them to explain why they shouldn’t be sanctioned for submitting a brief that included AI hallucinations.

• Congratulations to Paul Grewal, who is stepping down on July 31 after six successful years as chief legal officer of Coinbase. He helped lead the cryptocurrency exchange through the pandemic, steered its IPO in 2021, prevailed over the SEC in a fight over crypto regulation—and was paid handsomely for his work.1 Congrats also to Coinbase’s new legal leaders: Molly Abraham, who will become general counsel and secretary, and Ryan VanGrack, who will assume a newly created role as vice chairman (in which he’ll oversee compliance and corporate affairs).

• And kudos to the 25 honorees of Bloomberg Law’s Unrivaled, the outlet’s second annual list of litigators who secured major wins at trial or favorable settlements.

In memoriam:

• Senator Lindsey Graham (R-S.C.)—a graduate of the University of South Carolina School of Law, former Air Force JAG Corps lawyer, and former chairman of the Senate Judiciary Committee—passed away at 71, apparently from an aortic dissection (per the D.C. medical examiner’s office).

• William D. Zabel—a founding partner of Schulte Roth & Zabel, now part of McDermott Will & Schulte, and a civil-rights litigator who wrote a critical amicus brief in Loving v. Virginia—passed away at 89.2

• George Hutchinson—the last crier of the U.S. Supreme Court, who opened its proceedings by shouting “oyez, oyez, oyez” (before this duty was transferred to the court marshal)—passed away at 102.

May they rest in peace.

Judge of the Week: Judge Britt Grant.

Last week, Judge Britt Grant (11th Cir.) wrote a powerful majority opinion in Pernell v. Florida Board of Governors (discussed in more detail below, under Ruling of the Week). For present purposes, what you need to know is that Judge Grant, a Trump appointee, and Judge Charles Wilson, a Clinton appointee, ruled against the Stop WOKE Act—a law pushed for and signed by Governor Ron DeSantis (R-Fl.), in an effort to stop the promotion of “woke” ideas in Florida’s public colleges and universities—on First Amendment grounds. Judge Barbara Lagoa, Judge Grant’s fellow Trump appointee, dissented.

Legal commentators like Chris Geidner and Michelle Olsen took note of Pernell—and the fact that the opinion was penned by Judge Grant. As Olsen tweeted, “Like Sutton on healthcare, Grant has to know that this will take her out of SCOTUS consideration (at least [under the] current administration). It’s the job, yes, but bravo to her for upholding the Constitution.” (Olsen’s reference to “Sutton on healthcare” is a shoutout to how Judge Jeffrey Sutton, a star of the conservative legal movement, doomed his once-bright Supreme Court prospects by voting to uphold the Affordable Care Act aka Obamacare in 2011.)

A former law clerk to then-Judge Brett Kavanaugh on the D.C. Circuit, former Georgia solicitor general, former justice of the Georgia Supreme Court, and Eleventh Circuit judge since 2018, Judge Grant, 48, is also a star in the conservative legal firmament. She’s a highly respected jurist—reflected in her status as a feeder judge to the Supreme Court—and she previously appeared on one of Trump’s SCOTUS shortlists (along with Judge Lagoa). Even if Judge Grant isn’t in the top tier of Trump picks today—perhaps because, back in 2022, she sat on a panel that overturned a pro-Trump ruling by Judge Aileen Cannon (S.D. Fla.)—she could be a SCOTUS possibility under a Republican president not named “Trump.”

Or perhaps I should revise that to “could have been”: I agree with Olsen that ruling against the Stop WOKE Act has probably removed Grant as a SCOTUS prospect under a non-Trump president (especially if he’s named “DeSantis”). The Republican Party of 2026 has allowed its opposition to wokeness to override its commitment to the First Amendment, and I don’t see that changing anytime soon. But I agree with Olsen on this as well: bravo to Judge Grant for upholding the Constitution.

Judge Grant also appeared in the news for another ruling: her opinion for a unanimous panel in Akerlund v. Atlas Air, Inc., in which she benchslapped a plaintiffs’ lawyer for filing “multiple briefs replete with fake and hallucinated citations. Even after being warned. ‘Always a bad idea.’ Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary, at 6 (2023).” And props to her for this quip, which I predict will be widely quoted in AI-related benchslaps going forward: “Whatever the merits of artificial intelligence, it is no substitute for actual intelligence.”

In other news about judges and the judiciary:

• Speaking of Trump appointees making MAGA mad, Judge Timothy Kelly (D.D.C.) dismissed a January 6-related criminal case against four Proud Boys, in response to a DOJ motion—but before doing so, he called the attack on the Capitol “a perilous event,” writing that “no one should mistake the Court’s granting of the Government’s motion for its agreement” with the decision to dismiss.

• Former Milwaukee County judge Hannah Dugan—whom a jury found guilty of obstruction, after she was accused of helping an undocumented immigrant evade ICE agents—was sentenced by Judge Lynn Adelman (E.D. Wis.). She was fined $5,000, but given no prison time.

• Speaking of judges in trouble, after a parking-lot altercation in April led Judge Ryan Nelson (9th Cir.) to be charged with two misdemeanors, a pair of judicial misconduct complaints were initiated against him—one by Chief Judge Mary Murguia, and the other by the watchdog group Fix the Court. Both complaints have now been transferred to the Fourth Circuit.

• As he approaches his one-year anniversary on the bench (in September), Judge Emil Bove (3d Cir.) was profiled by Mattathias Schwartz for The New York Times (gift link). Per Schwartz, Judge Bove’s “acerbic solo dissents have irritated some judges and lawyers”—but “he has also shown a knack for persuading others,” and “some who have worked closely with Judge Bove praised his work ethic and polite manner with other judges.”3

• Speaking of judicial profiles, James Romoser wrote a piece about Justice Samuel Alito for The Wall Street Journal (gift link), arguing that Alito “is fusing establishment conservatism and the Trump movement into a new legal doctrine”—and “[h]is approach to the law may outlast them both.”

• Speaking of SCOTUS justices, I have a minor correction to last week’s Judicial Notice. I erroneously reported that the justices most often in the majority in October Term 2025 were Chief Justice John Roberts at 95%, Justice Brett Kavanaugh at 92%, and Justice Amy Coney Barrett at 89%—but those were the stats from OT 2024. For OT 2025, according to SCOTUSblog’s handy Stat Pack, the Chief and Justice Kavanaugh were actually tied for #1, at 95%, and Justice Barrett was #3, at 92%.

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Last Tuesday, June 30, the U.S. Supreme Court issued its final opinions in argued cases for October Term 2025. So it’s an ideal time to review the Term that was—and to look ahead to what’s on the docket for OT 2026.

I could think of no better guest for this project than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology, where he focused on legal decision making.

Thanks to Zach for joining me—and thanks to him and the entire team at SCOTUSblog for their excellent work.

Show Notes:

• Zachary Shemtob author page, SCOTUSblog

• Zachary Baron Shemtob, personal website

Sponsored by:

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Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.

David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the 101st episode of this podcast, recorded on Friday, July 3.

Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

Last Tuesday, June 30, the Supreme Court of the United States released its final opinions in argued cases for October Term 2025, i.e., the 2025-2026 judicial year. I wanted to interview a guest who could help me make sense of the Term, in terms of both overarching themes and individual cases and justices—and I could think of no better guest than my husband, Zachary Baron Shemtob. Zach is the executive editor of SCOTUSblog—a leading news outlet, if not the leading news outlet, about the Supreme Court. Before joining SCOTUSblog in May 2025, he practiced at two top law firms, clerked for the Second Circuit and Southern District of New York, and graduated from Georgetown Law, where he served as editor-in-chief of the law review. Prior to his legal career, Zach was an assistant professor of criminology at Central Connecticut State University, where he focused on legal decision making. Without further ado, here’s my conversation with Zach Shemtob.

Zach, thank you so much for joining me.

Zachary Baron Shemtob: I’m thrilled to be here.

DL: Well, you didn’t really have a choice, but I’m glad to have you anyway. Tell us about your background and upbringing. Where did you grow up?

ZBS: I was born and raised in New Jersey—northern New Jersey, to be exact. I am a proud Jersey boy. I was born in Morristown, New Jersey. Then my family moved a few years later to Randolph, New Jersey, and then to Mendham, New Jersey, all of which are relatively close to each other and in northern Jersey. Those locations will mean nothing to most people, but anyone from those areas will know them very well. I have to say, I’m proud of my Jersey heritage—and we, of course, live there to this day in Summit, not far from where I grew up.

DL: Did you have any lawyers in the family growing up?

ZBS: In terms of the law and lawyers, not really. My Aunt Penny handled private-injury cases and a variety of other ones. My parents, though, were certainly both very interested in the law and all other intellectual subjects. So I definitely grew up in a law-like environment—but not a lot of folks in the family, besides Aunt Penny and my Aunt Lori, who’s in family law, were lawyers, and neither of my parents is.

DL: And it sounds like the backgrounds of your aunts didn’t really bring you to law school?

ZBS: No, because, to be fair, I came to law school a little late—which I’m happy to talk about.

DL: Yes, please do.

ZBS: After college back in the day, I got a Ph.D. in criminology and was an academic for a few years, where I taught theories of punishment and a number of other subjects, including judicial decision-making. My dissertation was on the Supreme Court’s approach to the death penalty in the 1970s, first in a case of Furman v. Georgia, where they abolished the death penalty as practiced, and then only four years later brought it back in a case called Gregg v. Georgia. And so my dissertation—which you can go and find, for the two or three people that are interested in it—was on why the Supreme Court did this. It actually became a book. My dissertation advisor, Evan Mandery, wrote a book about it called A Wild Justice, which is really fascinating. But anyway, even back then, I was very interested in Supreme Court decision-making or judicial decision-making.

At some point I decided that, since I was so interested in the law, it might make sense to go to law school. I’m happy to say that you did not discourage me, which was a little surprising, given some of the negativity from the Above the Law days. But regardless, I took the plunge, with support from you and several others, and went to Georgetown University Law Center (which they should just call “Georgetown Law School,” because this “GULC” thing is absurd). I went to GULC, I got my law degree, and I really enjoyed it. I was the EIC of the law review, which I loved—and which helped prepare me for my current job. And from there, I practiced law for a few years.

DL: Where did you go into practice?

ZBS: First, I was at Cooley, where I had a great experience. I did a combination of commercial and white-collar law, both of which I enjoyed—but given my background in criminology, I leaned a little more toward the criminal side. I was at Cooley for only a year and a half to two years, because then I clerked on the Second Circuit and S.D.N.Y.—wrong order but, as you know better than anyone else, increasingly common. Then I went back to practice law at Lankler Siffert & Wohl, doing a lot of white-collar criminal defense work, and I was there for six years.

DL: I actually don’t think you did the clerkships in the wrong order. First you clerked for Judge Robert Sack on the Second Circuit, and then you clerked for Judge Ronnie Abrams on the Southern District of New York. Whenever I’m advising law students or young lawyers about serial clerkships, I actually tell them I think it makes sense to do the court of appeals clerkship first, because it’s a better transition from law school to practice to go from the circuit court, which is more like law school, to the district court, which is more like practice.

ZBS: Well, I had two amazing judges, Judge Sack and Judge Abrams. Judge Sack always tempered me, but I think if I had a little better understanding of the district courts and what they were dealing with and how they worked, I may have been a little softer, kinder, and more understanding toward them. But again, Judge Sack, being the consummate professional he is, made sure to temper any issues I had there.

DL: In terms of after your district-court clerkship and seeing how difficult that job is, you would cut district courts more slack?

ZBS: Absolutely. Occasionally I’d be like, “Oh, I think this is clearly wrong. This doesn’t make any sense.” And then I’d think about it and go back and say, “Well, given not only what they’re dealing with, but how they’re supposed to approach the law in terms of these concrete details, as opposed to simply the law as an intellectual exercise”—which I think in academia and, to a certain extent, on the circuit court, you’re very used to—you get a better understanding, after actually clerking on the district court, of how to think and what it means on that level.

DL: Fair enough. Let’s delve a little bit more into your practice experience. You mentioned you had a great, although perhaps brief, experience at Cooley, where you focused on litigation. And by the time people are listening to this, they may have seen an article that I’m working on about Cooley’s amazing litigation practice. And then you went to Lankler Siffert & Wohl after your clerkships. Tell us about your experience at Lankler.

ZBS: It’s a fantastic firm. I have only great things to say about them. I deeply enjoyed the work, and I really enjoyed my colleagues. There was so much meaning in the work I did with clients. One of the funny things was when I went into law school, my thought was, “Oh, I’m going to leave law school, and then I’m going to become an academic. I was an academic before; the goal here is to become a law professor.” But I found that—and maybe part of it was the firms I ended up at—I really enjoyed practicing.

DL: You actually practiced for quite some time, longer than I did—almost a decade. And then you made the transition into journalism and media, because you are now the executive editor of SCOTUSblog. How did you make that jump?

ZBS: It’s my third career, from academia to law to journalism—although there is a connecting thread, and that was always judicial decision-making. I did it even while practicing law: focusing on how judges think, what you could write to capture their interest, and how to persuade them.

The SCOTUSblog opportunity presented itself through a friend, as you know all too well, David. At first I was pretty hesitant, because again, I was certainly enjoying myself practicing—but I thought this could be a really unique opportunity. I want to have as many experiences as possible, and I’m in a position where I’m blessed enough to have the ability to do that. So I said, “I’ll give it a go. SCOTUSblog is incredibly valuable. It has an amazing brand, and to be a part of bringing that into the future would be pretty neat.”

DL: We are speaking a little bit after the conclusion of the Supreme Court Term, and a few weeks after your one-year anniversary at SCOTUSblog. How have you been finding it?

ZBS: It’s great. Journalism was not a profession I was expecting to enter, but the importance and focus on the Supreme Court is obviously at a peak, and being part of SCOTUSblog allows me to be a part of that.

I’m especially proud because—even though some folks won’t believe it, based on the emails I get—we really try to be as independent, nonpartisan, and analytical as possible. By the way, that’s in our reporting itself. Amy Howe, our Supreme Court correspondent, is amazing, and we have our managing editor, Kelsey Dallas, who also writes articles very down the middle. Then at the same time, we brought in a lot of outside commentators, who are also wonderful—but they have their own opinions, and they bring their own views.

DL: So during your one year at SCOTUSblog, as you mentioned, you added a wide range of commentators, including some very distinguished scholars from both the left and right sides of the aisle. You brought back the beloved Stat Pack, a statistical analysis at the end of the Term of how things at the Supreme Court shook out. Are there other highlights you would mention, from what you’ve done at SCOTUSblog and the year-plus that you and your new colleagues have been there?

ZBS: We’ve introduced a lot of different features. We completely revamped and changed the website and made it a whole lot more accessible for users. We’ve also introduced different events, including an event last year with Justice Amy Coney Barrett. So we’ve hypercharged the thing. We’ve added a lot of people and contributors and made it as blown out as possible.

DL: Yes. And again, for any of my listeners who have not checked out SCOTUSblog recently (and I suspect that’s a very small number), you should definitely go check it out—because, though I’m admittedly biased, I think you and your colleagues have really done a great job of expanding it.

Speaking of the Supreme Court, let’s turn to that—because the focus of this episode is going to be a review of October Term 2025, essentially the Supreme Court’s judicial year 2025-2026.

My own personal feeling is that Supreme Court Terms alternate between blockbuster and quiet—or I guess I should say relatively quiet, because the Court has moved more and more to the center of importance in terms of American political and social life. OT 2025 was supposed to be a blockbuster year, and it certainly seems to me that it delivered. Would you agree?

ZBS: Oh, yes. This was one of the biggest years in the recent history of the Supreme Court.

DL: Is it perhaps the biggest term since, I don’t know, OT 2021, which was the Dobbs-Bruen Term?

ZBS: Yes. I’d say OT 2021 was slightly bigger. In OT 2021—I’ll just say 2021 because this OT thing drives me nuts—you had Bruen, which was about being able to conceal-carry outside the home. It was a major Second Amendment decision, which also introduced this “text, history, and tradition” test, which has come to define originalism in the Second Amendment area. The biggest case, of course, was Dobbs, which overturned Roe v. Wade. But you also had two other big ones, from what I recall. There was Kennedy v. Bremerton, the praying-coach case, which basically overturned Lemon v. Kurtzman and remodeled the Establishment Clause. And then you had West Virginia v. EPA, where the justices turbocharged the major questions doctrine or major questions theory—which, of course, came into play in the tariffs case this year. So that combination of four cases—Bruen, Dobbs, Bremerton, and West Virginia v. EPA—was pretty huge.

DL: I had forgotten West Virginia v. EPA; in terms of its actual effect on the Court’s jurisprudence going forward, it has been huge. And then, of course, I’m very familiar with Kennedy v. Bremerton, because my old boss, Judge O’Scannlain, was involved in that case in the Ninth Circuit.

If you had to identify a theme or two for OT 2025—I actually like the OT lingo—what jumps out at you?

ZBS: Oh, it’s the Trump term.

DL: Aren’t they all the Trump term?

ZBS: No, this one is in a league of its own. The fact is, if you go case by case, all or most of the major cases involve the president in some capacity. Birthright citizenship and the executive-order case. The tariffs case. Louisiana v. Callais, the Voting Rights Act case—even though it was the state, not the administration, as the litigant, it still has huge implications for the Republican Party and how things will shake out. So the president had a major interest in that one. Then, of course, you have the administrative-agency cases, Slaughter and Cook—and that’s just the tip of the iceberg. That alone makes pretty clear to me—not even counting the interim-docket or emergency-docket cases—that this truly was the Trump term.

DL: Based on your observation of the Court, just analytically, what observations do you have germane to the debate over whether the Supreme Court is independent of Trump or beholden to him?

ZBS: “Beholden” is a little too strong. I don’t entirely understand what one would mean by “beholden,” so I don’t know if I’d use that word.

Are they sympathetic to some of Trump’s priorities? Certain of them, if not a majority at times, absolutely are. As for the unitary-executive theory, though, that was in the air well before Trump. Of course, Trump pushed these things through his executive orders, but obviously the justices—Chief Justice Roberts, Gorsuch, etc.—were sympathetic to that from the get-go.

DL: Well, let me frame the question differently. Maybe “beholden” isn’t the right word, but I guess you could say there’s been this debate over whether, just to use a colloquialism, the Supreme Court or the conservative majority is “in the tank” for Trump—overly deferential to the president and his initiatives.

And I guess it depends on what your baseline is for “overly,” but here are some data points. Jack Goldsmith at Executive Functions wrote a great piece arguing that the Supreme Court is quite independent. But then there was an online conversation at The Times recently, featuring Kate Shaw, Will Baude, and Steve Vladeck, where—poor Will—it was two-on-one. I think Professors Shaw and Vladeck were arguing—well, I’ll quote the question Kate posed to Will and Steve: “Have the emphatic six in the 6-to-3 splits that have dominated the last few weeks of decisions made clear that this Court is one devoted—and increasingly nakedly so—to an ideological project?”

So I guess my question is: discuss.

ZBS: It’s a much more complicated picture than anyone wants to let on. I think that this is no doubt a conservative-leaning court, and therefore, on the whole, they are going to vote more often than not in line with a Republican president’s agenda, whether that’s Trump or George W. Bush or whomever; that is ultimately the way that’s going to go. But that certainly does not mean that it’s going to be that way in every case. And indeed, as we saw in two of the most important cases to President Trump—the birthright citizenship case and tariffs—they voted against the president. So again, as you said earlier, it depends on what your baseline is.

DL: I was recently listening to a Law.com podcast interview of Ilya Somin, with whom you recently shared some airtime on C-SPAN, I believe. Ilya made a very interesting point, which might be right in a way. He said that a lot of this Court’s rulings can be explained by saying that they’re the rulings that a pre-Trump Republican Party would approve of. Look at tariffs: the pre-Trump Republican Party was pro-free trade. Look at birthright citizenship: the Republican Party was certainly big on immigration enforcement, but it also had this colorblindness, “we can all be Americans” aspect to it. And certainly all the other things: the unitary executive dates back to the Reagan administration, but it endured through other Republican administrations, especially that of George W. Bush. Can we explain a lot of the Roberts Court rulings, especially the recent ones, by saying it’s just the pre-Trump Republican Party?

ZBS: It also helps explain the National Guard case, which you would have trouble seeing under a prior Republican president, and in the Court, Trump basically lost on that one. So that lines up.

I would still resist the idea that the Court is purely ideological, which that framing seems to imply—that they’re not a MAGA court but rather a George W. Bush court. And while I think there is certainly truth to that, I still think there is a divide on this Court, and in general, between law and politics, as much as folks want to deny it.

DL: Oh, I would agree with you, and I suspect Ilya probably would too, so I don’t want to misrepresent or overrepresent his thesis. I guess he was saying—and I think it’s probably right—that a lot of the outcomes correlate with desired policy outcomes of the pre-Trump Republican Party. But we all know that correlation is not causation. So these cases may be coming out this way not because the justices are consciously trying to implement a pre-Trump Republican Party agenda, but because many of them came of age as lawyers and legal scholars and judges in pre-Trump Republican circles and the pre-Trump Federalist Society, with an emphasis on free markets and liberty and federalism and limited government power and all of that.

So again, I agree with you. I would not argue that the justices are just doing politics and that their politics happen to be pre-Trump Republican politics. But I just thought that was an interesting observation.

ZBS: I think that there’s absolutely some truth to it. And to me, it certainly explains more than what I’ve heard from much of the left and the right.

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Let’s look at some of the justices—and a good way of doing that is through SCOTUSblog’s invaluable and beloved Stat Pack, which is such a great resource to scholars and journalists who follow the Court. So again, thanks to Jake Truscott and Adam Feldman for putting that together. What are some of the top-line findings of this year’s Stat Pack?

ZBS: I think the top-line finding that stands out is how often the Court decided along what we call ideological lines—which is ironic, given our prior conversation—meaning Republican- versus Democratic-appointed justices, the six-three split. That happened 24% of the time this Term, whereas last Term it was 15%.

Another big statistic was that the Court was dominated by Roberts and Kavanaugh around 95% of the time. I thought one of the most intriguing parts of it was that, if you look at the lineups in closely divided cases, Alito and Kagan agreed 0% of the time, which is absolutely remarkable. And then, of course, you had the overall agreement rates, and here we had this alignment—Roberts and Kavanaugh (the power couple), Thomas and Alito, Sotomayor and Kagan, and Sotomayor and Jackson—all agreeing 94% of the time, with Sotomayor and Jackson agreeing in closely divided cases 100% of the time.

DL: By the way, I also want to give a shout-out to this really nice video explainer that SCOTUSblog and Briefly put together, which captures some of the highlights of the Stat Pack, including things like the agreement rate and who was most often in the majority, which you just highlighted.

I know the answer to this next question because I read the Stat Pack and watched the video: which justice was most frequently in dissent last term?

ZBS: Last term, it was KBJ. She’s been pretty consistent about being the lead dissenter, but she’s followed not too far off by Sotomayor and then, I believe, Kagan. But yes, KBJ was in that position the most this Term—the opposite of, again, Roberts and Kavanaugh.

DL: Let me float another proposition by you and see what you think. After Justice Ginsburg passed away and was replaced by Justice Barrett, you had this conservative supermajority of six. And a lot of people before Justice Barrett’s confirmation said Roberts was the most powerful chief justice in decades—where he was the Chief, had the assigning power when he was in the majority, and was really the swing vote in these five-four cases. But then after Barrett’s confirmation, Roberts went from being extremely powerful to being, I guess you could say, the third wheel, if you were talking about a couple, but really the sixth wheel: the conservative five could do whatever they wanted without Roberts’s help. And we saw this in Dobbs, where, as to the issue of Mississippi’s specific limit on abortion, the Chief also wanted to uphold it, but without overruling Roe officially, etc. But he was no longer essential.

I feel that in this Term, Roberts has become super powerful again, because with various combinations—either Roberts and Barrett or Roberts and Kavanaugh—Roberts controls the outcome. In the case about what we mean by Election Day, he and Barrett joined with the liberals to form the five-justice majority. In birthright citizenship, the Chief and Barrett joined with the liberals to form the five-justice majority.

ZBS: And Justice Barrett is getting a lot of criticism, as we’ve seen in the past, from some right-wing circles.

DL: Yes.

So is it fair to say that the Roberts Court is once again Roberts’s Court?

ZBS: We have a great piece by Richard Re coming out on just this—the different phases of Chief Justice Roberts—and he maintains that point, and I think he makes it brilliantly. But I’m not entirely convinced. I think this has been the Roberts Court since he first sat on it. If you look at the raw numbers of him being in the majority, even during those days—the middle period—they were still really high.

Now, it is true that in certain cases, which everyone points to, like Dobbs, they say, “Well, what about that one?” But that was Roberts trying to be his gradualist self, trying to deal with institutional concerns. Yes, there are outliers, but overall, from the get-go, I do think this has been the Roberts Court.

DL: Fair enough. That is definitely interesting. And of course, the Chief, as he tends to do, also plays a very powerful role in writing some of the most important opinions. Once again, he had no separate opinions this Term, just as was the case last Term. And he wrote some biggies here. He wrote birthright citizenship, Barbara. He wrote the executive-power and independent-agency cases. What do you make of the Chief as a justice—not in his “chiefy” role, but in his role as justice, jurist, and legal writer?

ZBS: He’s a brilliant writer. He writes so cleanly. I do get a little frustrated, because sometimes I think there’s some obscurantism, in that he can brush over some major points and when you read it you’re like, “Oh, it sounds reasonable.” And then you think about it and you’re like, “Oh, well, what about this and this?” So it’s almost too clean, or occasionally too clever by half.

He certainly wants to at least create or maintain the institutional role. I don’t know if he’s been successful in that. We look at the polling of the Court, and they’re not in a great place. That said, given the polarization in our society, I don’t know if it would be possible for the Court to be in a good place, as folks have essentially turned on every major institution, and I don’t think they see the Court as any different.

DL: Your point on his writing style really reminded me of something that Will Baude said to Dan Epps on Divided Argument recently, where Will was also, like you, praising the Chief’s writing style, but said that sometimes it can be deployed very powerfully to make substantive points, and sometimes it can be deployed very successfully to, again, elide certain things that are messy.

So, overall, returning to the 30,000-foot level, I would say that this Term was pretty predictable in terms of outcomes. We thought they would not uphold tariffs. They didn’t. We thought that they would uphold birthright citizenship. They did. Would you agree this Term was pretty predictable, at least in terms of outcomes?

ZBS: Overall, yes. There were a few surprises. One was Watson v. RNC, the mail-in ballot case, where I think most folks thought the Court would not allow these state laws—allowing votes postmarked by Election Day and received five days later—to stand. And I think a lot of folks were predicting, “Oh, since it advantages the Republican Party to get rid of these laws, they’re going to vote that way.” They did not—which, again, shows you that you cannot always predict this Court, especially along ideological lines. So that case went a little differently than we were predicting.

Exact vote breakdowns weren’t as easy to predict. I know you kind of got it right in Trump v. Barbara, but I thought that was honestly going to be a 7-2 case, and I think a lot of Supreme Court watchers did as well.

DL: Yes, I will congratulate myself. I predicted the lineups and splits in both tariffs and birthright fairly clearly.

And then didn’t we have a little bit of a surprise with the transgender athletes case—another instance of, I guess you could say, the liberals not being as liberal as maybe some hoped?

ZBS: We did. And the surprise there, to a certain extent, was that we thought the liberals might find these state laws to be a violation of Title IX, when in fact they did not. As for the issue of whether it was constitutional to ban transgender athletes from girls’ and women’s school sports, they basically would’ve kicked it back to the lower court, unlike the majority. So there, the split was kind of how folks were predicting—but that’s right, it didn’t exactly break down as we would’ve thought.

DL: Turning from opinions to arguments—which have been over for a while now, but Court watchers still really do enjoy listening to them—are there some oral arguments that you would highlight as either some of the best or the most interesting of the past Term?

ZBS: I’ll just go into one: Paul Clement—who argued an astounding number of cases this Term—and his argument in Trump v. Cook. His strategy in that case was to throw as many things at the wall as he could and see what ultimately stuck. The question was whether Trump had the power to fire Federal Reserve Governor Lisa Cook for cause, based on allegations of mortgage fraud. Basically, Clement came before the Court very casually and said, “Well, this fails for this reason and this reason and this reason and this reason.” He was just giving them so many reasons, so many hooks for his side to win on. I think that, even though the opinion that came down didn’t fully embrace all of Clement’s theories, it was really impressive—just how much he threw at them with that method of argumentation.

Now, what’s interesting in that case is that, though Lisa Cook is protected for now—since it was a case about her not receiving the correct minimal procedure—that could certainly change in the future. So it doesn’t mean that it’s going to be a permanent win. But the way Paul Clement set it up was pretty impressive.

DL: I totally agree. I wrote a Bloomberg Law column titled “Paul Clement’s Cook Argument Is a Master Class in Oral Advocacy.” To quote a line from the argument, he had “backups to his backups to his backups.” He just had so many fallback positions, and I think it ended up being vindicated, because the Court did seize upon some of his arguments in terms of how they resolved the case.

ZBS: And anytime Lisa Blatt was up there—for example, in the Hunter case—you knew it was going to be a real ride. And the thing with Lisa Blatt, whom you’ve talked with on this podcast before, is that she’s so informative but also entertaining. And you could tell the justices—and I think especially Justice Alito—just love it, as a breath of fresh air from the sternness and unforgiving seriousness of so many of the oral advocates.

DL: Yes, I totally agree with you. I think there is an argument that Paul is the GOAT, or at least the GOOT, the Greatest of Our time. (I don’t know about all these dead people because I wasn’t around for them.) And I think Lisa is the FOAT—the Funniest of All Time. I don’t think John W. Davis or Francis Scott Key or anyone was generating as many laughs as Lisa does.

ZBS: On the GOAT argument, you could also go with Daniel Webster, who I know argued 150 cases before the Supreme Court and won some major ones. But I don’t think he is in the same category as Lisa Blatt in terms of humor and bringing something special to the Court. No offense to Daniel Webster—or Lisa Blatt.

DL: We’ve heard talk lately about the Supreme Court possibly changing the format of oral argument. At some recent judicial conferences, where they spoke in their capacity as circuit justices, both the Chief Justice and Justice Alito said, “Oh, it’s getting a little long.” Any thoughts on that, in terms of predictions or, normatively, what you—if you were Chief Justice or king—would want them to do?

ZBS: Well, oral argument is way too long. Right now there are separate rounds: a free-for-all and then a seriatim round, where the justices question the advocates, one justice after the other. And what ends up happening is they just repeat the same points over and over. The justices repeat the same points. The oral advocates repeat the same points. Then you have the other advocate repeating the same points. So these arguments are just stretching and stretching and stretching. Something needs to be done. And I think that maybe it’s reducing the seriatim round, or maybe it’s just having greater control over justices going in and out—because it’s not really the advocates; it’s often the justices. The advocates have very little power in that regard. But yes, I certainly agree that oral arguments need to be reformed. They’ve reached a point where we’re getting not much of value after a certain amount of time, and I do hope that changes are instituted sooner rather than later.

DL: Okay. Well, we’ll see what happens when October Term 2026 begins.

ZBS: I’m not convinced, given how quickly the Court moves in terms of its own institutional processes, that this is going to happen anytime soon.

DL: You know what? Sometimes I do this with Sarah Isgur on Advisory Opinions: I’ll make a wager with you. I think that by OT 2026—the first Monday of October 2026—we will have a new system in place, or maybe some tweaks. Maybe they won’t overhaul the entire system, but maybe they’ll do a pilot or an experiment.

ZBS: I doubt it, just because the Court really enjoys not listening to people about institutional changes like that until they wind down. And when the Court is convinced, “Oh, everyone has shut up”—then they’ll change it.

DL: Well, again, if I will pat myself on the back, the current format is something that I actually proposed in a post, I don’t know, a couple of years ago, where I said they should have a free-for-all and then a seriatim round, combining the pre- and during-pandemic approaches.

ZBS: Right. And it made a certain amount of sense during the pandemic. I also like that it brought out Justice Thomas: it made him more comfortable speaking, because he didn’t think it was just this nonsensical free-for-all. So it served its purpose, for sure. I just think now it’s time to change it, and I certainly hope you’re right that it happens before the next round of oral arguments in the now upcoming Term.

DL: Before we go to the speed round, let’s talk about the upcoming Term.

ZBS: By the way, one of the mistakes people naturally make is the idea that this Term just ended, but technically, the Term does not end until the instant before the gavel bangs on the next Term.

DL: So OT 2026 is still upcoming because it begins officially on the first Monday of October?

ZBS: Correct.

DL: Okay. So looking ahead to the upcoming Term, what are some of the biggest cases that have been granted so far?

ZBS: I personally think the biggest cases that have been granted are the AR-15 cases. These cases have been effectively pending before the Court for so long, and everyone was wondering, “When are they finally going to grant them?” And at the end of their oral arguments, right before their summer recess—during what’s called the “cleanup conference”—they finally granted two of these cases. And the question is whether the Second Amendment protects the right to possess AR-15s, or semi-automatic rifles in general.

What’s so fascinating about these cases is not only that they’re obviously very important to Second Amendment advocates, but how the Court is going to use them to define text, history, and tradition in the wake of Bruen and originalism.

It’s going to be really interesting to see what factors they look at here. One of them is common usage. There’s no doubt that semi-automatic rifles are among the most popular guns. On the other hand, you have the argument, which a number of lower courts have accepted, that these weapons are especially dangerous. So dangerousness factors may be taken into account. And then there’s, of course, finding a historical parallel—it doesn’t have to be a historical twin, but a historical analogue—meaning, what was equivalent to possession of these types of weapons? And of course, when it comes to semi-automatic rifles, there wasn’t anything quite like them at the time of the founding. So how they carve this out—not only in terms of the substantive issue, but how they get to their decision—is going to be really important.

DL: I tend to take something of a realpolitik view on some of these things, which I talked about in my birthright citizenship post. My theory is that the Court is only willing to spend its political capital or put its institutional legitimacy on the line to a certain extent or only up to a point. My main point here—and I think Justice Kavanaugh has pointed this out in past separate opinions on the AR-15 issue—is that millions of Americans own these guns. So because of the status quo, I can’t imagine the Court coming along and essentially “taking them away.” I put that in quotes because it’s not the Court doing it; it will be the Court upholding the law passed by a legislature in a particular state. But if you had to guess, don’t you think they’re going to say the Second Amendment does not allow a state to prohibit ownership of AR-15s?

ZBS: I think this is going to be a major win for Second Amendment advocates who strongly believe that semi-automatic rifles are protected under that amendment. So absolutely, I think this is going to be a huge win in that realm.

DL: One more question before the speed round. What about cases or issues that have not yet been granted or added to the list but that you think will wind up on the Court’s docket for the next Term? I have to think there are a bunch of Trump-related issues kicking around that we think are going to make it to the Court. And actually, let me ask you this—I guess I’ve posed a compound question—what’s pending on the emergency docket right now?

ZBS: Not much of anything. There is, I believe, only one case pending at the moment. This is Students Engaged in Advancing Texas v. Paxton. The question is whether the Supreme Court should vacate a ruling that allowed Texas to enforce a state law requiring parental and age verification for downloading apps from an app store. That’s before the Supreme Court, but it’s really the only major one on the emergency or interim dockets. [Ed. note: On Monday, the Court denied the applications for stays—i.e., Texas can go ahead and enforce its law.]

We may be seeing the Trump ballroom case coming up there—but unlike last year, which was absolutely chock-full of one emergency petition after another from the administration, so far, it’s crickets. And I’m sure the Supreme Court is very happy about that. And we at SCOTUSblog, even though we love our SCOTUS cases, are happy about the break.

DL: Well, one thing I would say is that a lot of the big merits cases this past Term were cases that had percolated or reared their heads on the interim or emergency docket. Are there cases from the past year or two that reared their heads on the emergency or interim docket that we expect to come down the pike as merits cases, à la birthright citizenship? Because remember, first we had the CASA case about universal injunctions, and then we had the main event, in Barbara. So are there cases where we’ve had the appetizer, but the entrée is on its way?

ZBS: Not like last year, and I don’t honestly see the ballroom case reaching that. I will say that with this administration and the executive orders it might issue, it’s entirely unpredictable. So a month or two from now, we might say, “Oh, my gosh, there is this major blockbuster that is about to hit—or has hit—the emergency or interim docket.” Then that’s going to become a merits case, and a huge case for next Term. But right now, there’s not much there, and there’s not a great indication of what that could be.

DL: Okay, fair enough. Now let’s turn to my speed round. These are four standard questions, and they are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.

ZBS: One of the reasons—not the only reason, but one of the reasons—I ended up doing criminal defense work is that I could not stand the petty disputes in civil and commercial litigation. These fights I would be part of—where someone was sending the angriest missives, as if you had tortured and killed someone, about a petty document dispute, or one redaction that everyone knows didn’t matter—drove me absolutely nuts. And just that amount of grandstanding and mock outrage—while it was fun at first, when I was like, “Oh, you get to act and do all these things”—over time, it just wears on you, and people are not acting like adults. Whereas in the criminal-law realm, maybe because the stakes are sometimes so much bigger, everyone is often a lot nicer to each other and a lot more civil than you see in that other area.

DL: My second question is, what would you be if you were not a lawyer—or in your case, a legal journalist?

ZBS: Well, I guess I can’t say academic, since I was also that at some point. I would say—and this one might throw you for a loop—a rabbi. And I think it’s because I enjoy public speaking. I enjoy counseling people. That was indeed one of my favorite parts of practicing law. And I like talking about the big questions—the dorm-room conversations late at night where you’re going into the deep stuff—and that is all something rabbis or religious leaders do. On the other hand, I am not good with languages, so Hebrew would not be a real strength of mine, and I am not a deep believer—but in Judaism, you fake it until you make it.

DL: Fair enough. My third question—and I know about this, but I’ll ask for my listeners—how much sleep do you get each night?

ZBS: I’m one of the world’s worst sleepers. I have issues falling asleep. Then I wake up. I have sleep apnea, which is absolutely lovely. So I’d say I can generally get six to seven hours, but it’s a pretty light, unfulfilling sleep.

DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?

ZBS: Yes: take risks. I think that lawyers, especially litigators, tend to be very risk-averse, and so they will find any excuse not to do something or not to jump into something new, whether career- or life-wise. If you are able to, take the risk. Be a little crazy—not too crazy, but a little crazy—and make that jump.

DL: Well, I can’t say I disagree with that advice. Zach, thank you so much for joining me and for everything else in life.

ZBS: Oh, that’s very nice of you to say. That’s probably the nicest thing you’ve ever said to me.

DL: Thanks so much to Zach for joining me, and congratulations and thanks to him and his colleagues for all their great work at SCOTUSblog.

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I hope everyone had a wonderful Independence Day. As a birthright citizen of this great nation, I had something extra to celebrate this year: the U.S. Supreme Court’s decision in Trump v. Barbara, holding that the Fourteenth Amendment guarantees citizenship to all of us who are born in the United States, regardless of our parents’ citizenship when we were born.

Work kept me busy last week. I followed the issuance of the Court’s final opinions in argued cases from October Term 2025. I did a fair amount of reporting for an exciting Bloomberg Law column and recorded a fun podcast episode, which will both appear next week. And I published two posts, which you should check out if you haven’t already: Supreme Court Clerk Hiring Watch: Justice Alito’s Non-Retirement and 4 Takeaways From The Birthright Citizenship Decision (which was picked up by Andrew Sullivan’s Weekly Dish and SCOTUStoday—thanks to them for the links).

When readers meet me in person, they sometimes say, apologetically, that they don’t read everything I write. While writers can be vain creatures (and I include myself in this indictment), I don’t expect folks to read every story of mine. I’m unusual among legal journalists in the breadth of topics I cover; different people read me for different reasons, and the Biglaw readers aren’t necessarily interested in SCOTUS (and vice versa). But I do have a small request: even if you don’t read every post, please open my emails before archiving or deleting them, which keeps my open rate high and improves deliverability. (If you’d like to give me a belated birthday present, go back through your inbox and open a few old emails from me.)

I didn’t do much outside of work last week, other than try to stay cool. If your air conditioning isn’t working as well as expected, check the filters—and if they’re dirty, change them. I was embarrassed to discover that one of our filters hadn’t been changed in three years. How did I know this? Whenever I change the filters, I take a Sharpie pen and write the date on the filter’s edge. (Every now and then, I offer random practical advice in Judicial Notice—such as financial housekeeping tips or a recommendation to track down your unclaimed property.)

Now, on to the news.

Lawyers of the Week: Cliff Cone and Michael Sabin.

In January, funds lawyers Cliff Cone and Michael Sabin made news when they left Clifford Chance, where they had co-led the U.S.-based funds and investment management group, and joined the New York office of Sidley Austin. Now they’re in the news again—not as lateral partners, but as plaintiffs.

Represented by Duane Morris, the two partners are suing Clifford Chance, the U.K.-headquartered firm where they previously worked. Their lawsuit, filed in the Southern District of New York, offers an interesting window into the world of Biglaw in 2026, including issues of partner compensation and lateral movement.

Cone and Sabin left Clifford Chance in early January. In early March, Clifford Chance global managing partner Charles Adams sent them nearly identical letters, announcing the firm’s intent to claw back almost $4.4 million from Cone and $1.4 million from Sabin. Why? Under Clifford Chance’s global and U.S. partnership agreements, “some partners who leave for a competitor can have their compensation recalculated as if they held fewer partnership units during the prior three years,” as Sara Randazzo explained in her column for Reuters.

In their 14-page complaint, Cone and Sabin argue that the clawback provisions are unenforceable because “New York law prohibits the enforcement of law firm partnership agreement terms which impose financial disincentives, penalties, or claw backs of already-earned or paid compensation against partners withdrawing from a law firm to join a competing firm.” While they accept that their dispute with Clifford Chance must be resolved through mediation or arbitration, as provided for by the partnership agreements, their lawsuit seeks a declaratory judgment that New York law—not English law—should apply to these proceedings.

In the view of Cone, Sabin, and their lawyers at Duane Morris, application of New York law “will likely be outcome dispositive with respect to the enforceability of the claw back and forfeiture provisions” that Clifford Chance is pushing. They include as an exhibit to their complaint a recent ethics opinion from the New York City Bar Association, which declares that “law firms may not impose financial penalties or disincentives” upon lawyers who leave for competitors; such penalties run afoul of ethics rules “designed to preserve (i) a lawyer’s right to practice and (ii) ensure a client’s freedom and ability to select a lawyer of his or her choice.”

Cone and Sabin’s lawsuit is assuredly unusual, but I wonder whether someday we’ll look back on them as starting a trend. With lateral partner movement running high and partner pay continuing to climb, don’t be surprised to see more battles between partners and the firms they leave behind. As legal recruiters told Law.com, firms are increasingly playing hardball with partners who defect to competitors—especially if the firm losing the talent paid the departing partner a big pay package to join. As the old saying goes, “Mo money, mo problems.”

Other lawyers in the news:

• Goldman Sachs is (finally) moving on from its former chief legal officer and general counsel, Kathryn “Kathy” Ruemmler: it named Michael Bosworth, currently a deputy general counsel at the bank, as acting GC. Bosworth seems to have all the right credentials: he served as an assistant U.S. attorney in the Southern District of New York, clerked at the U.S. Supreme Court (for Justice Breyer), was a partner at Latham & Watkins, and is not known to have accepted $9,400 handbags from pedophiles.

• Here’s a fun Bloomberg Law profile of William Savitt—co-chair of the executive committee at Wachtell Lipton, co-chair of the firm’s litigation department, and Elon Musk’s least-favorite litigator (having defeated the gazillionaire twice, in Twitter v. Musk and Musk v. Altman). When he addresses a jury, Savitt believes it’s important “to be approachable, to be informal, to speak in a vocabulary that isn’t overly lawyerly”; but in speaking to journalist Isaiah Poritz for this article, he did drop the word “aleatory” (which apparently means “depending on an uncertain event or contingency” or “relating to luck”—thanks to Bill Savitt for teaching me a new vocabulary word!).

In memoriam:

• Prominent plaintiffs’ lawyer Paul Napoli, founder of New York-based Napoli Shkolnik, passed away at 58.

• Judah Gribetz—who served as counsel to Governor Hugh Carey (D-N.Y.) during New York City’s fiscal crisis in the 1970s, helping NYC avoid financial collapse—passed away at 97.

May they rest in peace.

Judge of the Week: Justice Amy Coney Barrett.

Trump v. Barbara came down last Tuesday, along with the Court’s final two opinions in argued cases from October Term 2025: West Virginia v. B.P.J., upholding state laws prohibiting transgender athletes from competing in girls’ and women’s sports, and National Republican Senatorial Committee v. Federal Election Commission, holding unconstitutional a provision of federal election law limiting how much political parties can spend in coordination with a candidate for elected office. These decisions were nicely summed up by a friend who texted me last Monday, after the opinions issued that day made clear what we’d be getting on Tuesday: “The final case of the Term is about whether a trans baby of an illegal alien born in the United States can contribute money to federal elections.”

Justice Amy Coney Barrett was in the majority in all three of these headline-making cases—just as she was in 89% 92% of the Court’s decisions in merit cases in OT 2025. This made her the #3 justice most often in the majority—behind only Chief Justice John Roberts and Justice Brett Kavanaugh (tied at 95%), according to SCOTUSblog’s invaluable Stat Pack for the 2025-2026 Term. [UPDATE (7/7/2026, 10:28 a.m.): Fixed to use the correct percentages for OT 2025: the Chief and Justice Kavanaugh at 95%, then Justice Barrett at 92%. The percentages that I initially published—95% for the Chief, 92% for Justice Kavanaugh, and 89% for Justice Barrett—were for OT 2024.]

Justice Barrett’s vote in Barbara disappointed—or even infuriated—some conservatives. So did her vote in the tariffs decision and her majority opinion last Monday in Watson v. Republican National Committee, in which she and Chief Justice Roberts joined with the three liberal justices in holding that federal law doesn’t prevent Mississippi from allowing the counting of absentee ballots postmarked by Election Day but received up to five days later. As a Fox News headline put it, “Conservatives revolt after Trump-appointed Barrett joins liberals in ‘shockingly wrong’ mail ballot ruling.” See also this Times article, “Amy Coney Barrett Faces Right-Wing Ire Over Recent Rulings,” and this conversation between Times writers Emily Bazelon and David French, “Amy Coney Barrett Is the Lightning Rod” (in which they discussed—but disagreed with—what French referred to as an “out of control,” potentially “dangerous” MAGA backlash against Barrett).

But Justice Barrett had her defenders, who noted that her overall record remains quite conservative. In OT 2025 alone, she voted in favor of the Republican or conservative outcome in B.P.J. (transgender athletes) and NRSC v. FEC (campaign finance laws), discussed above; Trump v. Slaughter and Trump v. Cook, concerning Trump’s efforts to fire Federal Trade Commission member Rebecca Slaughter (green light) and Federal Reserve Governor Lisa Cook (red light, at least for now); Louisiana v. Callais, the landmark Voting Rights Act case; Mullin v. Doe and Mullin v. Al Otro Lado, a pair of major immigration cases; and Wolford v. Lopez and United States v. Hemani, two rulings that came out in favor of Second Amendment claims.

As Professor Brian Fitzpatrick told Reuters, “To expect any justice to always vote the way that ​we wish things were, it's just complete fantasy, and it misunderstands the entire enterprise.” Or as the editors of National Review noted, looking at Justice Barrett’s record before OT 2025, she “has stood courageously with her colleagues in one landmark conservative victory after another,” in cases that overruled Roe v. Wade, ended racial preferences in higher education, and reined in the administrative state. In sum, they concluded that even if “we don’t always agree with her,” ACB “is an outstanding justice and a key contributor to an outstanding Court.”

Runner-up for Judge of the Week: Chief Justice Roberts. The end of a Term brings with it evaluations of the Supreme Court—and, of course, the Chief Justice as its leader. For critiques of the current conservative Court—and, implicitly, Chief Justice Roberts—see the views of Professors Kate Shaw and Steve Vladeck in this spirited debate in The Times (gift link).

I call it a “spirited debate” because of the vigorous pushback that Shaw and Vladeck received from Professor Will Baude (who clerked for the Chief). See also this post at Executive Functions by Professor Jack Goldsmith—no fan of the Trump administration—titled “The Powerful, Resilient, Independent Supreme Court.” Or if Goldsmith is too conservative a commentator for your tastes, check out this staff editorial by The Washington Post (gift link), “The Supreme Court’s not-so-MAGA majority.”

Whether or not you agree with most of the Supreme Court’s rulings or its overall direction, it’s hard to dispute that Chief Justice Roberts is extremely influential these days. After Justice Barrett replaced the late Justice Ruth Bader Ginsburg, the Chief lost some of his power; he was no longer the “swing vote,” and the five conservatives could take actions—like overruling Roe—without his support.

But now, thanks in part to the aggressiveness of the current administration’s agenda, it can sometimes be hard for Trump to muster up five votes—making the Chief once again a key vote. And because of his seniority, the Chief also wields power through his ability to assign opinions—including to himself, in key cases such as Barbara, Cook, Slaughter, and Learning Resources v. Trump (aka tariffs). So the Roberts Court is, once again, Roberts’s Court. As Adam Liptak put it in his newsletter, The Docket, “The Term was a triumph for Chief Justice John Roberts, who was in all but complete control of a Court that had not long ago threatened to slip from his grasp.”

In other news about judges and the judiciary:

• If Bad Bunny can play the Super Bowl Halftime Show, maybe he can perform a private concert for SCOTUS—because he has at least one fan at One First Street. As Amy Howe reported for SCOTUSblog, the justices released their latest financial disclosures, and the most interesting tidbit was Justice Sonia Sotomayor receiving concert tickets valued at more than $4,000, to attend a show while “on a private trip to Puerto Rico in August 2025.” She didn’t identify the artist—but the tickets were provided by the record company representing Bad Bunny, and it was previously reported that she had attended one of his concerts.

• Even after Nina Totenberg and NPR retracted their report that Justice Samuel Alito was stepping down from the Court, retirement rumors persist. But sources close to the justice “insisted,” to Abbie VanSickle and Ann E. Marimow of The Times (gift link), that no retirement announcement is forthcoming—and Justice Alito is “expected to be on the bench in October.”

• Justice Alito didn’t retire on Tuesday, but do you know who did? Mark Sherman, who did great work covering the Supreme Court for the Associated Press for 20 years. Sherman reflected on his two decades at One First Street in a final AP piece (via Howard Bashman’s How Appealing).

In nominations news, Donald Trump announced two judicial picks: Judge Anna St. John (E.D. La.), for the Fifth Circuit, and Alabama Supreme Court Justice Gregory Cook, for the Northern District of Alabama. I wasn’t surprised by St. John’s nomination, having previously identified her as a strong contender. One advantage of picking her is that, assuming she’s confirmed, Trump will be able to fill her seat on the district court—perhaps with Louisiana Solicitor General Ben Aguiñaga or Department of Veterans Affairs General Counsel James Baehr, both possibilities for the Fifth Circuit nomination that went to Judge St. John.

In memoriam:

• Judge Rosemary Collyer (D.D.C.)—who presided over a number of notable national-security cases, and who led Crowell & Moring as its chair before taking the bench in 2002—passed away at 80.

• Judge David Doty (D. Minn.)—who played a major role in shaping the modern National Football League, through his oversight of a 1993 class-action settlement between the NFL and its players—passed away at 96.

May they rest in peace.

Job of the Week: an opportunity for a funds/investment management associate in Chicago.

Lateral Link is spearheading an unposted search for a prominent Am Law 100 firm seeking a funds/investment-management associate to join its close-knit, supportive team in Chicago. The firm seeks an associate with 4+ years of fund-formation/transactional experience to play a leading role representing asset managers, hedge funds, private-equity firms, and other global market participants. The group is highly collaborative and deeply invested in its people, offering top-of-the-market compensation and a hybrid work schedule. For immediate consideration, please email your résumé to Zain Atassi at zatassi@laterallink.com.

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