Podcast appearances and mentions of David Lat

How are the federal courts faring during these tumultuous times? I thought it would be worthwhile to discuss this important subject with a former federal judge: someone who understands the judicial role well but could speak more freely than a sitting judge, liberated from the strictures of the bench.Meet Judge Nancy Gertner (Ret.), who served as a U.S. District Judge for the District of Massachusetts from 1994 until 2011. I knew that Judge Gertner would be a lively and insightful interviewee—based not only on her extensive commentary on recent events, reflected in media interviews and op-eds, but on my personal experience. During law school, I took a year-long course on federal sentencing with her, and she was one of my favorite professors.When I was her student, we disagreed on a lot: I was severely conservative back then, and Judge Gertner was, well, not. But I always appreciated and enjoyed hearing her views—so it was a pleasure hearing them once again, some 25 years later, in what turned out to be an excellent conversation.Show Notes:* Nancy Gertner, author website* Nancy Gertner bio, Harvard Law School* In Defense of Women: Memoirs of an Unrepentant Advocate, AmazonPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 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 eighty-fifth episode of this podcast, recorded on Monday, November 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.Many of my guests have been friends of mine for a long time—and that's the case for today's. I've known Judge Nancy Gertner for more than 25 years, dating back to when I took a full-year course on federal sentencing from her and the late Professor Dan Freed at Yale Law School. She was a great teacher, and although we didn't always agree—she was a professor who let students have their own opinions—I always admired her intellect and appreciated her insights.Judge Gertner is herself a graduate of Yale Law School—where she met, among other future luminaries, Bill and Hillary Clinton. After a fascinating career in private practice as a litigator and trial lawyer handling an incredibly diverse array of cases, Judge Gertner was appointed to serve as a U.S. District Judge for the District of Massachusetts in 1994, by President Clinton. She retired from the bench in 2011, but she is definitely not retired: she writes opinion pieces for outlets such as The New York Times and The Boston Globe, litigates and consults on cases, and trains judges and litigators. She's also working on a book called Incomplete Sentences, telling the stories of the people she sentenced over 17 years on the bench. Her autobiography, In Defense of Women: Memoirs of an Unrepentant Advocate, was published in 2011. Without further ado, here's my conversation with Judge Nancy Gertner.Judge, thank you so much for joining me.Nancy Gertner: Thank you for inviting me. This is wonderful.DL: So it's funny: I've been wanting to have you on this podcast in a sense before it existed, because you and I worked on a podcast pilot. It ended up not getting picked up, but perhaps they have some regrets over that, because legal issues have just blown up since then.NG: I remember that. I think it was just a question of scheduling, and it was before Trump, so we were talking about much more sophisticated, superficial things, as opposed to the rule of law and the demise of the Constitution.DL: And we will get to those topics. But to start off my podcast in the traditional way, let's go back to the beginning. I believe we are both native New Yorkers?NG: Yes, that's right. I was born on the Lower East Side of Manhattan, in an apartment that I think now is a tenement museum, and then we moved to Flushing, Queens, where I lived into my early 20s.DL: So it's interesting—I actually spent some time as a child in that area. What was your upbringing like? What did your parents do?NG: My father owned a linoleum store, or as we used to call it, “tile,” and my mother was a homemaker. My mother worked at home. We were lower class on the Lower East Side and maybe made it to lower-middle. My parents were very conservative, in the sense they didn't know exactly what to do with a girl who was a bit of a radical. Neither I nor my sister was precisely what they anticipated. So I got to Barnard for college only because my sister had a conniption fit when he wouldn't pay for college for her—she's my older sister—he was not about to pay for college. If we were boys, we would've had college paid for.In a sense, they skipped a generation. They were actually much more traditional than their peers were. My father was Orthodox when he grew up; my mother was somewhat Orthodox Jewish. My father couldn't speak English until the second grade. So they came from a very insular environment, and in one sense, he escaped that environment when he wanted to play ball on Saturdays. So that was actually the motivation for moving to Queens: to get away from the Lower East Side, where everyone would know that he wasn't in temple on Saturday. We used to have interesting discussions, where I'd say to him that my rebellion was a version of his: he didn't want to go to temple on Saturdays, and I was marching against the war. He didn't see the equivalence, but somehow I did.There's actually a funny story to tell about sort of exactly the distance between how I was raised and my life. After I graduated from Yale Law School, with all sorts of honors and stuff, and was on my way to clerk for a judge, my mother and I had this huge fight in the kitchen of our apartment. What was the fight about? Sadie wanted me to take the Triborough Bridge toll taker's test, “just in case.” “You never know,” she said. I couldn't persuade her that it really wasn't necessary. She passed away before I became a judge, and I told this story at my swearing-in, and I said that she just didn't understand. I said, “Now I have to talk to my mother for a minute; forgive me for a moment.” And I looked up at the rafters and I said, “Ma, at last: a government job!” So that is sort of the measure of where I started. My mother didn't finish high school, my father had maybe a semester of college—but that wasn't what girls did.DL: So were you then a first-generation professional or a first-generation college graduate?NG: Both—my sister and I were both, first-generation college graduates and first-generation professionals. When people talk about Jewish backgrounds, they're very different from one another, and since my grandparents came from Eastern European shtetls, it's not clear to me that they—except for one grandfather—were even literate. So it was a very different background.DL: You mentioned that you did go to Yale Law School, and of course we connected there years later, when I was your student. But what led you to go to law school in the first place? Clearly your parents were not encouraging your professional ambitions.NG: One is, I love to speak. My husband kids me now and says that I've never met a microphone I didn't like. I had thought for a moment of acting—musical comedy, in fact. But it was 1967, and the anti-war movement, a nascent women's movement, and the civil rights movement were all rising around me, and I wanted to be in the world. And the other thing was that I didn't want to do anything that women do. Actually, musical comedy was something that would've been okay and normal for women, but I didn't want to do anything that women typically do. So that was the choice of law. It was more like the choice of law professor than law, but that changed over time.DL: So did you go straight from Barnard to Yale Law School?NG: Well, I went from Barnard to Yale graduate school in political science because as I said, I've always had an academic and a practical side, and so I thought briefly that I wanted to get a Ph.D. I still do, actually—I'm going to work on that after these books are finished.DL: Did you then think that you wanted to be a law professor when you started at YLS? I guess by that point you already had a master's degree under your belt?NG: I thought I wanted to be a law professor, that's right. I did not think I wanted to practice law. Yale at that time, like most law schools, had no practical clinical courses. I don't think I ever set foot in a courtroom or a courthouse, except to demonstrate on the outside of it. And the only thing that started me in practice was that I thought I should do at least two or three years of practice before I went back into the academy, before I went back into the library. Twenty-four years later, I obviously made a different decision.DL: So you were at YLS during a very interesting time, and some of the law school's most famous alumni passed through its halls around that period. So tell us about some of the people you either met or overlapped with at YLS during your time there.NG: Hillary Clinton was one of my best friends. I knew Bill, but I didn't like him.DL: Hmmm….NG: She was one of my best friends. There were 20 women in my class, which was the class of ‘71. The year before, there had only been eight. I think we got up to 21—a rumor had it that it was up to 21 because men whose numbers were drafted couldn't go to school, and so suddenly they had to fill their class with this lesser entity known as women. It was still a very small number out of, I think, what was the size of the opening class… 165? Very small. So we knew each other very, very well. And Hillary and I were the only ones, I think, who had no boyfriends at the time, though that changed.DL: I think you may have either just missed or briefly overlapped with either Justice Thomas or Justice Alito?NG: They're younger than I am, so I think they came after.DL: And that would be also true of Justice Sotomayor then as well?NG: Absolutely. She became a friend because when I was on the bench, I actually sat with the Second Circuit, and we had great times together. But she was younger than I was, so I didn't know her in law school, and by the time she was in law school, there were more women. In the middle of, I guess, my first year at Yale Law School, was the first year that Yale College went coed. So it was, in my view, an enormously exciting time, because we felt like we were inventing law. We were inventing something entirely new. We had the first “women in the law” course, one of the first such courses in the country, and I think we were borderline obnoxious. It's a little bit like the debates today, which is that no one could speak right—you were correcting everyone with respect to the way they were describing women—but it was enormously creative and exciting.DL: So I'm gathering you enjoyed law school, then?NG: I loved law school. Still, when I was in law school, I still had my feet in graduate school, so I believe that I took law and sociology for three years, mostly. In other words, I was going through law school as if I were still in graduate school, and it was so bad that when I decided to go into practice—and this is an absolutely true story—I thought that dying intestate was a disease. We were taking the bar exam, and I did not know what they were talking about.DL: So tell us, then, what did lead you to shift gears? You mentioned you clerked, and you mentioned you wanted to practice for a few years—but you did practice for more than a few years.NG: Right. I talk to students about this all the time, about sort of the fortuities that you need to grab onto that you absolutely did not plan. So I wind up at a small civil-rights firm, Harvey Silverglate and Norman Zalkind's firm. I wind up in a small civil-rights firm because I couldn't get a job anywhere else in Boston. I was looking in Boston or San Francisco, and what other women my age were encountering, I encountered, which is literally people who told me that I would never succeed as a lawyer, certainly not as a litigator. So you have to understand, this is 1971. I should say, as a footnote, that I have a file of everyone who said that to me. People know that I have that file; it's called “Sexist Tidbits.” And so I used to decide whether I should recuse myself when someone in that file appeared before me, but I decided it was just too far.So it was a small civil-rights firm, and they were doing draft cases, they were doing civil-rights cases of all different kinds, and they were doing criminal cases. After a year, the partnership between Norman Zalkind and Harvey Silverglate broke up, and Harvey made me his partner, now an equal partner after a year of practice.Shortly after that, I got a case that changed my career in so many ways, which is I wound up representing Susan Saxe. Susan Saxe was one of five individuals who participated in robberies to get money for the anti-war movement. She was probably five years younger than I was. In the case of the robbery that she participated in, a police officer was killed. She was charged with felony murder. She went underground for five years; the other woman went underground for 20 years.Susan wanted me to represent her, not because she had any sense that I was any good—it's really quite wonderful—she wanted me to represent her because she figured her case was hopeless. And her case was hopeless because the three men involved in the robbery either fled or were immediately convicted, so her case seemed to be hopeless. And she was an extraordinarily principled woman: she said that in her last moment on the stage—she figured that she'd be convicted and get life—she wanted to be represented by a woman. And I was it. There was another woman in town who was a public defender, but I was literally the only private lawyer. I wrote about the case in my book, In Defense of Women, and to Harvey Silvergate's credit, even though the case was virtually no money, he said, “If you want to do it, do it.”Because I didn't know what I was doing—and I literally didn't know what I was doing—I researched every inch of everything in the case. So we had jury research and careful jury selection, hiring people to do jury selection. I challenged the felony-murder rule (this was now 1970). If there was any evidentiary issue, I would not only do the legal research, but talk to social psychologists about what made sense to do. To make a long story short, it took about two years to litigate the case, and it's all that I did.And the government's case was winding down, and it seemed to be not as strong as we thought it was—because, ironically, nobody noticed the woman in the bank. Nobody was noticing women in general; nobody was noticing women in the bank. So their case was much weaker than we thought, except there were two things, two letters that Susan had written: one to her father, and one to her rabbi. The one to her father said, “By the time you get this letter, you'll know what your little girl is doing.” The one to her rabbi said basically the same thing. In effect, these were confessions. Both had been turned over to the FBI.So the case is winding down, not very strong. These letters have not yet been introduced. Meanwhile, The Boston Globe is reporting that all these anti-war activists were coming into town, and Gertner, who no one ever heard of, was going to try the Vietnam War. The defense will be, “She robbed a bank to fight the Vietnam War.” She robbed a bank in order to get money to oppose the Vietnam War, and the Vietnam War was illegitimate, etc. We were going to try the Vietnam War.There was no way in hell I was going to do that. But nobody had ever heard of me, so they believed anything. The government decided to rest before the letters came in, anticipating that our defense would be a collection of individuals who were going to challenge the Vietnam War. The day that the government rested without putting in those two letters, I rested my case, and the case went immediately to the jury. I'm told that I was so nervous when I said “the defense rests” that I sounded like Minnie Mouse.The upshot of that, however, was that the jury was 9-3 for acquittal on the first day, 10-2 for acquittal on the second day, and then 11-1 for acquittal—and there it stopped. It was a hung jury. But it essentially made my career. I had first the experience of pouring my heart into a case and saving someone's life, which was like nothing I'd ever felt before, which was better than the library. It also put my name out there. I was no longer, “Who is she?” I suddenly could take any kind of case I wanted to take. And so I was addicted to trials from then until the time I became a judge.DL: Fill us in on what happened later to your client, just her ultimate arc.NG: She wound up getting eight years in prison instead of life. She had already gotten eight years because of a prior robbery in Philadelphia, so there was no way that we were going to affect that. She had pleaded guilty to that. She went on to live a very principled life. She's actually quite religious. She works in the very sort of left Jewish groups. We are in touch—I'm in touch with almost everyone that I've ever known—because it had been a life-changing experience for me. We were four years apart. Her background, though she was more middle-class, was very similar to my own. Her mother used to call me at night about what Susan should wear. So our lives were very much intertwined. And so she was out of jail after eight years, and she has a family and is doing fine.DL: That's really a remarkable result, because people have to understand what defense lawyers are up against. It's often very challenging, and a victory is often a situation where your client doesn't serve life, for example, or doesn't, God forbid, get the death penalty. So it's really interesting that the Saxe case—as you talk about in your wonderful memoir—really did launch your career to the next level. And you wound up handling a number of other cases that you could say were adjacent or thematically related to Saxe's case. Maybe you can talk a little bit about some of those.NG: The women's movement was roaring at this time, and so a woman lawyer who was active and spoke out and talked about women's issues invariably got women's cases. So on the criminal side, I did one of the first, I think it was the first, battered woman syndrome case, as a defense to murder. On the civil side, I had a very robust employment-discrimination practice, dealing with sexual harassment, dealing with racial discrimination. I essentially did whatever I wanted to do. That's what my students don't always understand: I don't remember ever looking for a lucrative case. I would take what was interesting and fun to me, and money followed. I can't describe it any other way.These cases—you wound up getting paid, but I did what I thought was meaningful. But it wasn't just women's rights issues, and it wasn't just criminal defense. We represented white-collar criminal defendants. We represented Boston Mayor Kevin White's second-in-command, Ted Anzalone, also successfully. I did stockholder derivative suits, because someone referred them to me. To some degree the Saxe case, and maybe it was also the time—I did not understand the law to require specialization in the way that it does now. So I could do a felony-murder case on Monday and sue Mayor Lynch on Friday and sue Gulf Oil on Monday, and it wouldn't even occur to me that there was an issue. It was not the same kind of specialization, and I certainly wasn't about to specialize.DL: You anticipated my next comment, which is that when someone reads your memoir, they read about a career that's very hard to replicate in this day and age. For whatever reason, today people specialize. They specialize at earlier points in their careers. Clients want somebody who holds himself out as a specialist in white-collar crime, or a specialist in dealing with defendants who invoke battered woman syndrome, or what have you. And so I think your career… you kind of had a luxury, in a way.NG: I also think that the costs of entry were lower. It was Harvey Silverglate and me, and maybe four or five other lawyers. I was single until I was 39, so I had no family pressures to speak of. And I think that, yes, the profession was different. Now employment discrimination cases involve prodigious amounts of e-discovery. So even a little case has e-discovery, and that's partly because there's a generation—you're a part of it—that lived online. And so suddenly, what otherwise would have been discussions over the back fence are now text messages.So I do think it's different—although maybe this is a comment that only someone who is as old as I am can make—I wish that people would forget the money for a while. When I was on the bench, you'd get a pro se case that was incredibly interesting, challenging prison conditions or challenging some employment issue that had never been challenged before. It was pro se, and I would get on the phone and try to find someone to represent this person. And I can't tell you how difficult it was. These were not necessarily big cases. The big firms might want to get some publicity from it. But there was not a sense of individuals who were going to do it just, “Boy, I've never done a case like this—let me try—and boy, this is important to do.” Now, that may be different today in the Trump administration, because there's a huge number of lawyers that are doing immigration cases. But the day-to-day discrimination cases, even abortion cases, it was not the same kind of support.DL: I feel in some ways you were ahead of your time, because your career as a litigator played out in boutiques, and I feel that today, many lawyers who handle high-profile cases like yours work at large firms. Why did you not go to a large firm, either from YLS or if there were issues, for example, of discrimination, you must have had opportunities to lateral into such a firm later, if you had wanted to?NG: Well, certainly at the beginning nobody wanted me. It didn't matter how well I had done. Me and Ruth Ginsburg were on the streets looking for jobs. So that was one thing. I wound up, for the last four years of my practice before I became a judge, working in a firm called Dwyer Collora & Gertner. It was more of a boutique, white-collar firm. But I wasn't interested in the big firms because I didn't want anyone to tell me what to do. I didn't want anyone to say, “Don't write this op-ed because you'll piss off my clients.” I faced the same kind of issue when I left the bench. I could have an office, and sort of float into client conferences from time to time, but I did not want to be in a setting in which anyone told me what to do. It was true then; it certainly is true now.DL: So you did end up in another setting where, for the most part, you weren't told what to do: namely, you became a federal judge. And I suppose the First Circuit could from time to time tell you what to do, but….NG: But they were always wrong.DL: Yes, I do remember that when you were my professor, you would offer your thoughts on appellate rulings. But how did you—given the kind of career you had, especially—become a federal judge? Because let me be honest, I think that somebody with your type of engagement in hot-button issues today would have a challenging time. Republican senators would grandstand about you coming up with excuses for women murderers, or what have you. Did you have a rough confirmation process?NG: I did. So I'm up for the bench in 1993. This is under Bill Clinton, and I'm told—I never confirmed this—that when Senator Kennedy…. When I met Senator Kennedy, I thought I didn't have a prayer of becoming a judge. I put my name in because I knew the Clintons, and everybody I knew was getting a job in the government. I had not thought about being a judge. I had not prepared. I had not structured my career to be a judge. But everyone I knew was going into the government, and I thought if there ever was a time, this would be it. So I apply. Someday, someone should emboss my application, because the application was quite hysterical. I put in every article that I had written calling for access to reproductive technologies to gay people. It was something to behold.Kennedy was at the tail end of his career, and he was determined to put someone like me on the bench. I'm not sure that anyone else would have done that. I'm told (and this isn't confirmed) that when he talked to Bill and Hillary about me, they of course knew me—Hillary and I had been close friends—but they knew me to be that radical friend of theirs from Yale Law School. There had been 24 years in between, but still. And I'm told that what was said was, “She's terrific. But if there's a problem, she's yours.” But Kennedy was really determined.The week before my hearing before the Senate, I had gotten letters from everyone who had ever opposed me. Every prosecutor. I can't remember anyone who had said no. Bill Weld wrote a letter. Bob Mueller, who had opposed me in cases, wrote a letter. But as I think oftentimes happens with women, there was an article in The Boston Herald the day before my hearing, in which the writer compared me to Lorena Bobbitt. Your listeners may not know this, but he said, “Gertner will do to justice, with her gavel, what Lorena did to her husband, with a kitchen knife.” Do we have to explain that any more?DL: They can Google it or ask ChatGPT. I'm old enough to know about Lorena Bobbitt.NG: Right. So it's just at the tail edge of the presentation, that was always what the caricature would be. But Kennedy was masterful. There were numbers of us who were all up at the same time. Everyone else got through except me. I'm told that that article really was the basis for Senator Jesse Helms's opposition to me. And then Senator Kennedy called us one day and said, “Tomorrow you're going to read something, but don't worry, I'll take care of it.” And the Boston Globe headline says, “Kennedy Votes For Helms's School-Prayer Amendment.” And he called us and said, “We'll take care of it in committee.” And then we get a call from him—my husband took the call—Kennedy, affecting Helms's accent, said, ‘Senator, you've got your judge.' We didn't even understand what the hell he said, between his Boston accent and imitating Helms; we had no idea what he said. But that then was confirmed.DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It's not easy, especially if your benefits don't match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.So turning to your time as a judge, how would you describe that period, in a nutshell? The job did come with certain restrictions. Did you enjoy it, notwithstanding the restrictions?NG: I candidly was not sure that I would last beyond five years, for a couple of reasons. One was, I got on the bench in 1994, when the sentencing guidelines were mandatory, when what we taught you in my sentencing class was not happening, which is that judges would depart from the guidelines and the Sentencing Commission, when enough of us would depart, would begin to change the guidelines, and there'd be a feedback loop. There was no feedback loop. If you departed, you were reversed. And actually the genesis of the book I'm writing now came from this period. As far as I was concerned, I was being unfair. As I later said, my sentences were unfair, unjust, and disproportionate—and there was nothing I could do about it. So I was not sure that I was going to last beyond five years.In addition, there were some high-profile criminal trials going on with lawyers that I knew that I probably would've been a part of if I had been practicing. And I hungered to do that, to go back and be a litigator. The course at Yale Law School that you were a part of saved me. And it saved me because, certainly with respect to the sentencing, it turned what seemed like a formula into an intellectual discussion in which there was wiggle room and the ability to come up with other approaches. In other words, we were taught that this was a formula, and you don't depart from the formula, and that's it. The class came up with creative issues and creative understandings, which made an enormous difference to my judging.So I started to write; I started to write opinions. Even if the opinion says there's nothing I can do about it, I would write opinions in which I say, “I can't depart because of this woman's status as a single mother because the guidelines said only extraordinary family circumstances can justify a departure, and this wasn't extraordinary. That makes no sense.” And I began to write this in my opinions, I began to write this in scholarly writings, and that made all the difference in the world. And sometimes I was reversed, and sometimes I was not. But it enabled me to figure out how to push back against a system which I found to be palpably unfair. So I figured out how to be me in this job—and that was enormously helpful.DL: And I know how much and how deeply you cared about sentencing because of the class in which I actually wound up writing one of my two capstone papers at Yale.NG: To your listeners, I still have that paper.DL: You must be quite a pack rat!NG: I can change the grade at any time….DL: Well, I hope you've enjoyed your time today, Judge, and will keep the grade that way!But let me ask you: now that the guidelines are advisory, do you view that as a step forward from your time on the bench? Perhaps you would still be a judge if they were advisory? I don't know.NG: No, they became advisory in 2005, and I didn't leave until 2011. Yes, that was enormously helpful: you could choose what you thought was a fair sentence, so it's very advisory now. But I don't think I would've stayed longer, because of two reasons.By the time I hit 65, I wanted another act. I wanted another round. I thought I had done all that I could do as a judge, and I wanted to try something different. And Martha Minow of Harvard Law School made me an offer I couldn't refuse, which was to teach at Harvard. So that was one. It also, candidly, was that there was no longevity in my family, and so when I turned 65, I wasn't sure what was going to happen. So I did want to try something new. But I'm still here.DL: Yep—definitely, and very active. I always chuckle when I see “Ret.,” the abbreviation for “retired,” in your email signature, because you do not seem very retired to me. Tell us what you are up to today.NG: Well, first I have this book that I've been writing for several years, called Incomplete Sentences. And so what this book started to be about was the men and women that I sentenced, and how unfair it was, and what I thought we should have done. Then one day I got a message from a man by the name of Darryl Green, and it says, “Is this Nancy Gertner? If it is, I think about you all the time. I hope you're well. I'm well. I'm an iron worker. I have a family. I've written books. You probably don't remember me.” This was a Facebook message. I knew exactly who he was. He was a man who had faced the death penalty in my court, and I acquitted him. And he was then tried in state court, and acquitted again. So I knew exactly who he was, and I decided to write back.So I wrote back and said, “I know who you are. Do you want to meet?” That started a series of meetings that I've had with the men I've sentenced over the course of the 17-year career that I had as a judge. Why has it taken me this long to write? First, because these have been incredibly moving and difficult discussions. Second, because I wanted the book to be honest about what I knew about them and what a difference maybe this information would make. It is extremely difficult, David, to be honest about judging, particularly in these days when judges are parodied. So if I talk about how I wanted to exercise some leniency in a case, I understand that this can be parodied—and I don't want it to be, but I want to be honest.So for example, in one case, there would be cooperators in the case who'd get up and testify that the individual who was charged with only X amount of drugs was actually involved with much more than that. And you knew that if you believed the witness, the sentence would be doubled, even though you thought that didn't make any sense. This was really just mostly how long the cops were on the corner watching the drug deals. It didn't make the guy who was dealing drugs on a bicycle any more culpable than the guy who was doing massive quantities into the country.So I would struggle with, “Do I really believe this man, the witness who's upping the quantity?” And the kinds of exercises I would go through to make sure that I wasn't making a decision because I didn't like the implications of the decision and it was what I was really feeling. So it's not been easy to write, and it's taken me a very long time. The other side of the coin is they're also incredibly honest with me, and sometimes I don't want to know what they're saying. Not like a sociologist who could say, “Oh, that's an interesting fact, I'll put it in.” It's like, “Oh no, I don't want to know that.”DL: Wow. The book sounds amazing; I can't wait to read it. When is it estimated to come out?NG: Well, I'm finishing it probably at the end of this year. I've rewritten it about five times. And my hope would be sometime next year. So yeah, it was organic. It's what I wanted to write from the minute I left the bench. And it covers the guideline period when it was lunacy to follow the guidelines, to a period when it was much more flexible, but the guidelines still disfavored considering things like addiction and trauma and adverse childhood experiences, which really defined many of the people I was sentencing. So it's a cri de cœur, as they say, which has not been easy to write.DL: Speaking of cri de cœurs, and speaking of difficult things, it's difficult to write about judging, but I think we also have alluded already to how difficult it is to engage in judging in 2025. What general thoughts would you have about being a federal judge in 2025? I know you are no longer a federal judge. But if you were still on the bench or when you talk to your former colleagues, what is it like on the ground right now?NG: It's nothing like when I was a judge. In fact, the first thing that happened when I left the bench is I wrote an article in which I said—this is in 2011—that the only pressure I had felt in my 17 years on the bench was to duck, avoid, and evade, waiver, statute of limitations. Well, all of a sudden, you now have judges who at least since January are dealing with emergencies that they can't turn their eyes away from, judges issuing rulings at 1 a.m., judges writing 60-page decisions on an emergency basis, because what the president is doing is literally unprecedented. The courts are being asked to look at issues that have never been addressed before, because no one has ever tried to do the things that he's doing. And they have almost overwhelmingly met the moment. It doesn't matter whether you're ruling for the government or against the government; they are taking these challenges enormously seriously. They're putting in the time.I had two clerks, maybe some judges have three, but it's a prodigious amount of work. Whereas everyone complained about the Trump prosecutions proceeding so slowly, judges have been working expeditiously on these challenges, and under circumstances that I never faced, which is threats the likes of which I have never seen. One judge literally played for me the kinds of voice messages that he got after a decision that he issued. So they're doing it under circumstances that we never had to face. And it's not just the disgruntled public talking; it's also our fellow Yale Law alum, JD Vance, talking about rogue judges. That's a level of delegitimization that I just don't think anyone ever had to deal with before. So they're being challenged in ways that no other judges have, and they are being threatened in a way that no judges have.On the other hand, I wish I were on the bench.DL: Interesting, because I was going to ask you that. If you were to give lower-court judges a grade, to put you back in professor mode, on their performance since January 2025, what grade would you give the lower courts?NG: Oh, I would give them an A. I would give them an A. It doesn't matter which way they have come out: decision after decision has been thoughtful and careful. They put in the time. Again, this is not a commentary on what direction they have gone in, but it's a commentary on meeting the moment. And so now these are judges who are getting emergency orders, emergency cases, in the midst of an already busy docket. It has really been extraordinary. The district courts have; the courts of appeals have. I've left out another court….DL: We'll get to that in a minute. But I'm curious: you were on the District of Massachusetts, which has been a real center of activity because many groups file there. As we're recording this, there is the SNAP benefits, federal food assistance litigation playing out there [before Judge Indira Talwani, with another case before Chief Judge John McConnell of Rhode Island]. So it's really just ground zero for a lot of these challenges. But you alluded to the Supreme Court, and I was going to ask you—even before you did—what grade would you give them?NG: Failed. The debate about the shadow docket, which you write about and I write about, in which Justice Kavanaugh thinks, “we're doing fine making interim orders, and therefore it's okay that there's even a precedential value to our interim orders, and thank you very much district court judges for what you're doing, but we'll be the ones to resolve these issues”—I mean, they're resolving these issues in the most perfunctory manner possible.In the tariff case, for example, which is going to be argued on Wednesday, the Court has expedited briefing and expedited oral argument. They could do that with the emergency docket, but they are preferring to hide behind this very perfunctory decision making. I'm not sure why—maybe to keep their options open? Justice Barrett talks about how if it's going to be a hasty decision, you want to make sure that it's not written in stone. But of course then the cases dealing with independent commissions, in which you are allowing the government, allowing the president, to fire people on independent commissions—these cases are effectively overruling Humphrey's Executor, in the most ridiculous setting. So the Court is not meeting the moment. It was stunning that the Court decided in the birthright-citizenship case to be concerned about nationwide injunctions, when in fact nationwide injunctions had been challenged throughout the Biden administration, and they just decided not to address the issue then.Now, I have a lot to say about Justice Kavanaugh's dressing-down of Judge [William] Young [of the District of Massachusetts]….DL: Or Justice Gorsuch, joined by Justice Kavanaugh.NG: That's right, it was Justice Gorsuch. It was stunningly inappropriate, stunningly inappropriate, undermines the district courts that frankly are doing much better than the Supreme Court in meeting the moment. The whole concept of defying the Supreme Court—defying a Supreme Court order, a three-paragraph, shadow-docket order—is preposterous. So whereas the district courts and the courts of appeals are meeting the moment, I do not think the Supreme Court is. And that's not even going into the merits of the immunity decision, which I think has let loose a lawless presidency that is even more lawless than it might otherwise be. So yes, that failed.DL: I do want to highlight for my readers that in addition to your books and your speaking, you do write quite frequently on these issues in the popular press. I've seen your work in The New York Times and The Boston Globe. I know you're working on a longer essay about the rule of law in the age of Trump, so people should look out for that. Of all the things that you worry about right now when it comes to the rule of law, what worries you the most?NG: I worry that the president will ignore and disobey a Supreme Court order. I think a lot about the judges that are dealing with orders that the government is not obeying, and people are impatient that they're not immediately moving to contempt. And one gets the sense with the lower courts that they are inching up to the moment of contempt, but do not want to get there because it would be a stunning moment when you hold the government in contempt. I think the Supreme Court is doing the same thing. I initially believed that the Supreme Court was withholding an anti-Trump decision, frankly, for fear that he would not obey it, and they were waiting till it mattered. I now am no longer certain of that, because there have been rulings that made no sense as far as I'm concerned. But my point was that they, like the lower courts, were holding back rather than saying, “Government, you must do X,” for fear that the government would say, “Go pound sand.” And that's what I fear, because when that happens, it will be even more of a constitutional crisis than we're in now. It'll be a constitutional confrontation, the likes of which we haven't seen. So that's what I worry about.DL: Picking up on what you just said, here's something that I posed to one of my prior guests, Pam Karlan. Let's say you're right that the Supreme Court doesn't want to draw this line in the sand because of a fear that Trump, being Trump, will cross it. Why is that not prudential? Why is that not the right thing? And why is it not right for the Supreme Court to husband its political capital for the real moment?Say Trump—I know he said lately he's not going to—but say Trump attempts to run for a third term, and some case goes up to the Supreme Court on that basis, and the Court needs to be able to speak in a strong, unified, powerful voice. Or maybe it'll be a birthright-citizenship case, if he says, when they get to the merits of that, “Well, that's really nice that you think that there's such a thing as birthright citizenship, but I don't, and now stop me.” Why is it not wise for the Supreme Court to protect itself, until this moment when it needs to come forward and protect all of us?NG: First, the question is whether that is in fact what they are doing, and as I said, there were two schools of thought on this. One school of thought was that is what they were doing, and particularly doing it in an emergency, fuzzy, not really precedential way, until suddenly you're at the edge of the cliff, and you have to either say taking away birthright citizenship was unconstitutional, or tariffs, you can't do the tariffs the way you want to do the tariffs. I mean, they're husbanding—I like the way you put it, husbanding—their political capital, until that moment. I'm not sure that that's true. I think we'll know that if in fact the decisions that are coming down the pike, they actually decide against Trump—notably the tariff ones, notably birthright citizenship. I'm just not sure that that's true.And besides, David, there are some of these cases they did not have to take. The shadow docket was about where plaintiffs were saying it is an emergency to lay people off or fire people. Irreparable harm is on the plaintiff's side, whereas the government otherwise would just continue to do that which it has been doing. There's no harm to it continuing that. USAID—you don't have a right to dismantle the USAID. The harm is on the side of the dismantling, not having you do that which you have already done and could do through Congress, if you wanted to. They didn't have to take those cases. So your comment about husbanding political capital is a good comment, but those cases could have remained as they were in the district courts with whatever the courts of appeals did, and they could do what previous courts have done, which is wait for the issues to percolate longer.The big one for me, too, is the voting rights case. If they decide the voting rights case in January or February or March, if they rush it through, I will say then it's clear they're in the tank for Trump, because the only reason to get that decision out the door is for the 2026 election. So I want to believe that they are husbanding their political capital, but I'm not sure that if that's true, that we would've seen this pattern. But the proof will be with the voting rights case, with birthright citizenship, with the tariffs.DL: Well, it will be very interesting to see what happens in those cases. But let us now turn to my speed round. These are four questions that are the same for all my guests, and 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 of governance.NG: The practice of law. I do some litigation; I'm in two cases. When I was a judge, I used to laugh at people who said incivility was the most significant problem in the law. I thought there were lots of other more significant problems. I've come now to see how incredibly nasty the practice of law is. So yes—and that is no fun.DL: My second question is, what would you be if you were not a lawyer/judge/retired judge?NG: Musical comedy star, clearly! No question about it.DL: There are some judges—Judge Fred Block in the Eastern District of New York, Judge Jed Rakoff in the Southern District of New York—who do these little musical stylings for their court shows. I don't know if you've ever tried that?NG: We used to do Shakespeare, Shakespeare readings, and I loved that. I am a ham—so absolutely musical comedy or theater.DL: My third question is, how much sleep do you get each night?NG: Six to seven hours now, just because I'm old. Before that, four. Most of my life as a litigator, I never thought I needed sleep. You get into my age, you need sleep. And also you look like hell the next morning, so it's either getting sleep or a facelift.DL: And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?NG: You have to do what you love. You have to do what you love. The law takes time and is so all-encompassing that you have to do what you love. And I have done what I love from beginning to now, and I wouldn't have it any other way.DL: Well, I have loved catching up with you, Judge, and having you share your thoughts and your story with my listeners. Thank you so much for joining me.NG: You're very welcome, David. Take care.DL: Thanks so much to Judge Gertner for joining me. I look forward to reading her next book, Incomplete Sentences, when it comes out next year.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, November 26. Until then, may your thinking be original and your jurisdiction free of defects. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit davidlat.substack.com/subscribe

Following the Supreme Court oral arguments in President Donald Trump's tariff case, Learning Resources Inc. v. Trump, Sarah Isgur is joined by David French, David Lat, and Latham & Watkins LLP partner Roman Martinez to explain where the legal battle will go from here. SCOTUSblog's Amy Howe also joins from the steps of the Supreme Court to relay her observations from inside the courtroom. Watch the livestream here.  Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you'd like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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.Yesterday, Southern California Edison (SCE), the utility whose power lines may have started the devastating Eaton Fire, announced its Wildfire Recovery Compensation Program. Under the program, people affected by the fire can receive hundreds of thousands or even millions of dollars in compensation, in a matter of months rather than years—but in exchange, they must give up their right to sue.It should come as no surprise that SCE, in designing the program, sought the help of Kenneth Feinberg. For more than 40 years, often in the wake of tragedy or disaster, Feinberg has helped mediate and resolve seemingly intractable crises. He's most well-known for how he and his colleague Camille Biros designed and administered the September 11th Victim Compensation Fund. But he has worked on many other headline-making matters over the years, including the Agent Orange product liability litigation, the Deepwater Horizon Oil Spill Trust, the multidistrict litigation involving Monsanto's Roundup weed killer—and now, of course, the Eaton Fire.How did Ken develop such a fascinating and unique practice? What is the most difficult aspect of administering these giant compensation funds? Do these funds represent the wave of the future, as an alternative to (increasingly expensive) litigation? Having just turned 80, does he have any plans to retire?Last week, I had the pleasure of interviewing Ken—the day after his 80th birthday—and we covered all these topics. The result is what I found to be one of the most moving conversations I've ever had on this podcast.Thanks to Ken Feinberg for joining me—and, of course, for his many years of service as America's go-to mediator in times of crisis.Show Notes:* Kenneth Feinberg bio, Wikipedia* Kenneth Feinberg profile, Chambers and Partners* L.A. Fire Victims Face a Choice, by Jill Cowan for The New York TimesPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 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 eighty-fourth episode of this podcast, recorded on Friday, October 24.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.I like to think that I've produced some good podcast episodes over the past three-plus years, but I feel that this latest one is a standout. I'm hard-pressed to think of an interview that was more emotionally affecting to me than what you're about to hear.Kenneth Feinberg is a leading figure in the world of mediation and alternative dispute resolution. He is most well-known for having served as special master of the U.S. government's September 11th Victim Compensation Fund—and for me, as someone who was in New York City on September 11, I found his discussion of that work profoundly moving. But he has handled many major matters over the years, such as the Agent Orange product liability litigation to the BP Deepwater Horizon Disaster Victim Compensation Fund. And he's working right now on a matter that's in the headlines: the California wildfires. Ken has been hired by Southern California Edison to help design a compensation program for victims of the 2025 Eaton fire. Ken has written about his fascinating work in two books: What Is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11 and Who Gets What: Fair Compensation after Tragedy and Financial Upheaval. Without further ado, here's my conversation with Ken Feinberg.Ken, thank you so much for joining me.Ken Feinberg: Thank you very much; it's an honor to be here.DL: We are recording this shortly after your 80th birthday, so happy birthday!KF: Thank you very much.DL: Let's go back to your birth; let's start at the beginning. You grew up in Massachusetts, I believe.KF: That's right: Brockton, Massachusetts, about 20 miles south of Boston.DL: Your parents weren't lawyers. Tell us about what they did.KF: My parents were blue-collar workers from Massachusetts, second-generation immigrants. My father ran a wholesale tire distributorship, my mother was a bookkeeper, and we grew up in the 1940s and ‘50s, even the early ‘60s, in a town where there was great optimism, a very vibrant Jewish community, three different synagogues, a very optimistic time in American history—post-World War II, pre-Vietnam, and a time when communitarianism, working together to advance the collective good, was a prominent characteristic of Brockton, and most of the country, during the time that I was in elementary school and high school in Brockton.DL: Did the time in which you grow up shape or influence your decision to go into law?KF: Yes. More than law—the time growing up had a great impact on my decision to give back to the community from which I came. You've got to remember, when I was a teenager, the president of the United States was John F. Kennedy, and I'll never forget because it had a tremendous impact on me—President Kennedy reminding everybody that public service is a noble undertaking, government is not a dirty word, and especially his famous quote (or one of his many quotes), “Every individual can make a difference.” I never forgot that, and it had a personal impact on me and has had an impact on me throughout my life. [Ed. note: The quotation generally attributed to JFK is, “One person can make a difference, and everyone should try.” Whether he actually said these exact words is unclear, but it's certainly consistent with many other sentiments he expressed throughout his life.]DL: When you went to college at the University of Massachusetts Amherst, what did you study?KF: I studied history and political science. I was very interested in how individuals over the centuries change history, the theory of historians that great individuals articulate history and drive it in a certain direction—for good, like President Kennedy or Abraham Lincoln or George Washington, or for ill, like Adolf Hitler or Mussolini. And so it was history that I really delved into in my undergraduate years.DL: What led you then to turn to law school?KF: I always enjoyed acting on the stage—theater, comedies, musicals, dramas—and at the University of Massachusetts, I did quite a bit of that. In my senior year, I anticipated going to drama school at Yale, or some other academic master's program in theater. My father gave me very good advice. He said, “Ken, most actors end up waiting on restaurant tables in Manhattan, waiting for a big break that never comes. Why don't you turn your skills on the stage to a career in the courtroom, in litigation, talking to juries and convincing judges?” That was very sound advice from my father, and I ended up attending NYU Law School and having a career in the law.DL: Yes—and you recount that story in your book, and I just love that. It's really interesting to hear what parents think of our careers. But anyway, you did very well in law school, you were on the law review, and then your first job out of law school was something that we might expect out of someone who did well in law school.KF: Yes. I was a law clerk to the chief judge of New York State, Stanley Fuld, a very famous state jurist, and he had his chambers in New York City. For one week, every six or seven weeks, we would go to the state capitol in Albany to hear cases, and it was Judge Fuld who was my transition from law school to the practice of law.DL: I view clerking as a form of government service—and then you continued in service after that.KF: That's right. Remembering what my father had suggested, I then turned my attention to the courtroom and became an assistant United States attorney, a federal prosecutor, in New York City. I served as a prosecutor and as a trial lawyer for a little over three years. And then I had a wonderful opportunity to go to work for Senator Ted Kennedy on the Senate Judiciary Committee in Washington and stayed with him for about five years.DL: You talk about this also in your books—you worked on a pretty diverse range of issues for the senator, right?KF: That's right. For the first three years I worked on his staff on the Senate Judiciary Committee, with some excellent colleagues—soon-to-be Supreme Court justice Stephen Breyer was with me, noted litigator David Boies was in the office—and for the first three years, it was law-related issues. Then in 1978, Senator Kennedy asked me to be his chief of staff, and once I went over and became his chief of staff, the issues of course mushroomed. He was running for president, so there were issues of education, health, international relations—a wide diversity of issues, very broad-based.DL: I recall that you didn't love the chief of staff's duties.KF: No. Operations or administration was not my priority. I loved substance, issues—whatever the issues were, trying to work out legislative compromises, trying to give back something in the way of legislation to the people. And internal operations and administration, I quickly discovered, was not my forte. It was not something that excited me.DL: Although it's interesting: what you are most well-known for is overseeing and administering these large funds and compensating victims of these horrific tragedies, and there's a huge amount of administration involved in that.KF: Yes, but I'm a very good delegator. In fact, if you look at the track record of my career in designing and administering these programs—9/11 or the Deepwater Horizon oil spill or the Patriots' Day Marathon bombings in Boston—I was indeed fortunate in all of those matters to have at my side, for over 40 years, Camille Biros. She's not a lawyer, but she's the nation's expert on designing, administering, and operating these programs, and as you delve into what I've done and haven't done, her expertise has been invaluable.DL: I would call Camille your secret weapon, except she's not secret. She's been profiled in The New York Times, and she's a well-known figure in her own right.KF: That is correct. She was just in the last few months named one of the 50 Women Over 50 that have had such an impact in the country—that list by Forbes that comes out every year. She's prominently featured in that magazine.DL: Shifting back to your career, where did you go after your time in the Senate?KF: I opened up a Washington office for a prominent New York law firm, and for the next decade or more, that was the center of my professional activity.DL: So that was Kaye Scholer, now Arnold & Porter Kaye Scholer. What led you to go from your career in the public sector, where you spent a number of your years right out of law school, into so-called Biglaw?KF: Practicality and financial considerations. I had worked for over a decade in public service. I now had a wife, I had three young children, and it was time to give them financial security. And “Biglaw,” as you put it—Biglaw in Washington was lucrative, and it was something that gave me a financial base from which I could try and expand my different interests professionally. And that was the reason that for about 12 years I was in private practice for a major firm, Kaye Scholer.DL: And then tell us what happened next.KF: A great lesson in not planning too far ahead. In 1984, I got a call from a former clerk of Judge Fuld whom I knew from the clerk network: Judge Jack Weinstein, a nationally recognized jurist from Brooklyn, the Eastern District, and a federal judge. He had on his docket the Vietnam veterans' Agent Orange class action.You may recall that there were about 250,000 Vietnam veterans who came home claiming illness or injury or death due to the herbicide Agent Orange, which had been dropped by the U.S. Air Force in Vietnam to burn the foliage and vegetation where the Viet Cong enemy might be hiding. Those Vietnam veterans came home suffering terrible diseases, including cancer and chloracne (a sort of acne on the skin), and they brought a lawsuit. Judge Weinstein had the case. Weinstein realized that if that case went to trial, it could be 10 years before there'd be a result, with appeals and all of that.So he appointed me as mediator, called the “special master,” whose job it was to try and settle the case, all as a mediator. Well, after eight weeks of trying, we were successful. There was a master settlement totaling about $250 million—at the time, one of the largest tort verdicts in history. And that one case, front-page news around the nation, set me on a different track. Instead of remaining a Washington lawyer involved in regulatory and legislative matters, I became a mediator, an individual retained by the courts or by the parties to help resolve a case. And that was the beginning. That one Agent Orange case transformed my entire professional career and moved me in a different direction completely.DL: So you knew the late Judge Weinstein through Fuld alumni circles. What background did you have in mediation already, before you handled this gigantic case?KF: None. I told Judge Weinstein, “Judge, I never took a course in mediation at law school (there wasn't one then), and I don't know anything about bringing the parties together, trying to get them to settle.” He said, “I know you. I know your background. I've followed your career. You worked for Senator Kennedy. You are the perfect person.” And until the day I die, I'm beholden to Judge Weinstein for having faith in me to take this on.DL: And over the years, you actually worked on a number of matters at the request of Judge Weinstein.KF: A dozen. I worked on tobacco cases, on asbestos cases, on drug and medical device cases. I even worked for Judge Weinstein mediating the closing of the Shoreham nuclear plant on Long Island. I handled a wide range of cases where he called on me to act as his court-appointed mediator to resolve cases on his docket.DL: You've carved out a very unique and fascinating niche within the law, and I'm guessing that most people who meet you nowadays know who you are. But say you're in a foreign country or something, and some total stranger is chatting with you and asks what you do for a living. What would you say?KF: I would say I'm a lawyer, and I specialize in dispute resolution. It might be mediation, it might be arbitration, or it might even be negotiation, where somebody asks me to negotiate on their behalf. So I just tell people there is a growing field of law in the United States called ADR—alternative dispute resolution—and that it is, as you say, David, my niche, my focus when called upon.DL: And I think it's fair to say that you're one of the founding people in this field or early pioneers—or I don't know how you would describe it.KF: I think that's right. When I began with Agent Orange, there was no mediation to speak of. It certainly wasn't institutionalized; it wasn't streamlined. Today, in 2025, the American Bar Association has a special section on alternative dispute resolution, it's taught in every law school in the United States, there are thousands of mediators and arbitrators, and it's become a major leg in law school of different disciplines and specialties.DL: One question I often ask my guests is, “What is the matter you are most proud of?” Another question I often ask my guests is, “What is the hardest matter you've ever had to deal with?” Another question I often ask my guests is, “What is the matter that you're most well-known for?” And I feel in your case, the same matter is responsive to all three of those questions.KF: That's correct. The most difficult, the most challenging, the most rewarding matter, the one that's given me the most exposure, was the federal September 11 Victim Compensation Fund of 2001, when I was appointed by President George W. Bush and Attorney General John Ashcroft to implement, design, and administer a very unique federal law that had been enacted right after 9/11.DL: I got chills as you were just even stating that, very factually, because I was in New York on 9/11, and a lot of us remember the trauma and difficulty of that time. And you basically had to live with that and talk to hundreds, even thousands, of people—survivors, family members—for almost three years. And you did it pro bono. So let me ask you this: what were you thinking?KF: What triggered my interest was the law itself. Thirteen days after the attacks, Congress passed this law, unique in American history, setting up a no-fault administrator compensation system. Don't go to court. Those who volunteer—families of the dead, those who were physically injured at the World Trade Center or the Pentagon—you can voluntarily seek compensation from a taxpayer-funded law. Now, if you don't want it, you don't have to go. It's a voluntary program.The key will be whether the special master or the administrator will be able to convince people that it is a better avenue to pursue than a long, delayed, uncertain lawsuit. And based on my previous experience for the last 15 years, starting with Agent Orange and asbestos and these other tragedies, I volunteered. I went to Senator Kennedy and said, “What about this?” He said, “Leave it to me.” He called President Bush. He knew Attorney General John Ashcroft, who was his former colleague in the U.S. Senate, and he had great admiration for Senator Ashcroft. And so I was invited by the attorney general for an interview, and I told him I was interested. I told him I would only do it pro bono. You can't get paid for a job like this; it's patriotism. And he said, “Go for it.” And he turned out to be my biggest, strongest ally during the 33 months of the program.DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It's not easy, especially if your benefits don't match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.You talk about this in your books: you were recommended by a very prominent Democratic politician, and the administration at the time was Republican. George W. Bush was president, and John Ashcroft was the attorney general. Why wouldn't they have picked a Republican for this project?KF: Very good question. Senator Kennedy told both of them, “You better be careful here. This is a very, very uncertain program, with taxpayer money used to pay only certain victims. This could be a disaster. And you would be well-advised to pick someone who is not a prominent friend of yours, who is not perceived as just a Republican arm of the Justice Department or the White House. And I've got the perfect person. You couldn't pick a more opposite politician than my former chief of staff, Ken Feinberg. But look at what he's done.” And I think to Senator Kennedy's credit, and certainly to President Bush and to John Ashcroft's, they selected me.DL: As you would expect with a program of this size and complexity, there was controversy and certainly criticism over the years. But overall, looking back, I think people regard it widely as a huge success. Do you have a sense or an estimate of what percentage of people in the position to accept settlements through the program did that, rather than litigate? Because in accepting funds from the program, they did waive their right to bring all sorts of lawsuits.KF: That's correct. If you look at the statistics, if the statistics are a barometer of success, 5,300 applicants were eligible, because of death—about 2,950, somewhere in there—and the remaining claims were for physical injury. Of the 5,300, 97 percent voluntarily accepted the compensation. Only 94 people, 3 percent, opted out, and they all settled their cases five years later. There was never a trial on who was responsible in the law for 9/11. So if statistics are an indication—and I think they are a good indication—the program was a stunning success in accomplishing Congress's objective, which was diverting people voluntarily out of the court system.DL: Absolutely. And that's just a striking statistic. It was really successful in getting funds to families that needed it. They had lost breadwinners; they had lost loved ones. It was hugely successful, and it did not take a decade, as some of these cases involving just thousands of victims often do.I was struck by one thing you just said. You mentioned there was really no trial. And in reading your accounts of your work on this, it seemed almost like people viewed talking to you and your colleagues, Camille and others on this—I think they almost viewed that as their opportunity to be heard, since there wasn't a trial where they would get to testify.KF: That's correct. The primary reason for the success of the 9/11 Fund, and a valuable lesson for me thereafter, was this: give victims the opportunity to be heard, not only in public town-hall meetings where collectively people can vent, but in private, with doors closed. It's just the victim and Feinberg or his designee, Camille. We were the face of the government here. You can't get a meeting with the secretary of defense or the attorney general, the head of the Department of Justice. What you can get is an opportunity behind closed doors to express your anger, your frustration, your disappointment, your sense of uncertainty, with the government official responsible for cutting the checks. And that had an enormous difference in assuring the success of the program.DL: What would you say was the hardest aspect of your work on the Fund?KF: The hardest part of the 9/11 Fund, which I'll never recover from, was not calculating the value of a life. Judges and juries do that every day, David, in every court, in New Jersey and 49 other states. That is not a difficult assignment. What would the victim have earned over a work life? Add something for pain and suffering and emotional distress, and there's your check.The hardest part in any of these funds, starting with 9/11—the most difficult aspect, the challenge—is empathy, and your willingness to sit for over 900 separate hearings, me alone with family members or victims, to hear what they want to tell you, and to make that meeting, from their perspective, worthwhile and constructive. That's the hard part.DL: Did you find it sometimes difficult to remain emotionally composed? Or did you, after a while, develop a sort of thick skin?KF: You remain composed. You are a professional. You have a job to do, for the president of the United States. You can't start wailing and crying in the presence of somebody who was also wailing and crying, so you have to compose yourself. But I tell people who say, “Could I do what you did?” I say, “Sure. There are plenty of people in this country that can do what I did—if you can brace yourself for the emotional trauma that comes with meeting with victim after victim after victim and hearing their stories, which are...” You can't make them up. They're so heart-wrenching and so tragic.I'll give you one example. A lady came to see me, 26 years old, sobbing—one of hundreds of people I met with. “Mr. Feinberg, I lost my husband. He was a fireman at the World Trade Center. He died on 9/11. And he left me with our two children, six and four. Now, Mr. Feinberg, you've calculated and told me I'm going to receive $2.4 million, tax-free, from this 9/11 Fund. I want it in 30 days.”I said to Mrs. Jones, “This is public, taxpayer money. We have to go down to the U.S. Treasury. They've got to cut the checks; they've got to dot all the i's and cross all the t's. It may be 60 days or 90 days, but you'll get your money.”“No. Thirty days.”I said, “Mrs. Jones, why do you need the money in 30 days?”She said, “Why? I'll tell you why, Mr. Feinberg. I have terminal cancer. I have 10 weeks to live. My husband was going to survive me and take care of our two children. Now they're going to be orphans. I have got to get this money, find a guardian, make sure the money's safe, prepare for the kids' schooling. I don't have a lot of time. I need your help.”Well, we ran down to the U.S. Treasury and helped process the check in record time. We got her the money in 30 days—and eight weeks later, she died. Now when you hear story after story like this, you get some indication of the emotional pressure that builds and is debilitating, frankly. And we managed to get through it.DL: Wow. I got a little choked up just even hearing you tell that. Wow—I really don't know what to say.When you were working on the 9/11 Fund, did you have time for any other matters, or was this pretty much exclusively what you were working on for the 33 months?KF: Professionally, it was exclusive. Now what I did was, I stayed in my law firm, so I had a living. Other people in the firm were generating income for the firm; I wasn't on the dole. But it was exclusive. During the day, you are swamped with these individual requests, decisions that have to be made, checks that have to be cut. At night, I escaped: opera, orchestral concerts, chamber music, art museums—the height of civilization. During the day, in the depths of horror of civilization; at night, an escape, an opportunity to just enjoy the benefits of civilization. You better have a loving family, as I did, that stands behind you—because you never get over it, really.DL: That's such an important lesson, to actually have that time—because if you wanted to, you could have worked on this 24/7. But it is important to have some time to just clear your head or spend time with your family, especially just given what you were dealing with day-to-day.KF: That's right. And of course, during the day, we made a point of that as well. If we were holding hearings like the one I just explained, we'd take a one-hour break, go for a walk, go into Central Park or into downtown Washington, buy an ice cream cone, see the kids playing in playgrounds and laughing. You've got to let the steam out of the pressure cooker, or it'll kill you. And that was the most difficult part of the whole program. In all of these programs, that's the common denominator: emotional stress and unhappiness on the part of the victims.DL: One last question, before we turn to some other matters. There was also a very large logistical apparatus associated with this, right? For example, PricewaterhouseCoopers. It wasn't just you and Camille trying to deal with these thousands of survivors and claimants; you did have support.KF: That's right. Pricewaterhouse won the bid at the Justice Department. This is public: Pricewaterhouse, for something like around $100 million, put 450 people to work with us to help us process claims, appraise values, do the research. Pricewaterhouse was a tremendous ally and has gone on, since 9/11, to handle claims design and claims administration, as one of its many specialties. Emily Kent, Chuck Hacker, people like that we worked with for years, very much experts in these areas.DL: So after your work on the 9/11 Fund, you've worked on a number of these types of matters. Is there one that you would say ranks second in terms of complexity or difficulty or meaningfulness to you?KF: Yes. Deepwater Horizon in 2011, 2012—that oil rig in the Gulf of Mexico blew up and killed about, I don't know, 15 to 20 people in the explosion. But the real challenge in that program was how we received, in 16 months, about 1,250,000 claims for business interruption, business losses, property damage. We received over a million claims from 50 states. I think we got probably a dozen claims from New Jersey; I didn't know the oil had gotten to New Jersey. We received claims from 35 foreign countries. And the sheer volume of the disaster overwhelmed us. We had, at one point, something like 40,000 people—vendors—working for us. We had 35 offices throughout the Gulf of Mexico, from Galveston, Texas, all the way to Mobile Bay, Alabama. Nevertheless, in 16 months, on behalf of BP, Deepwater Horizon, we paid out all BP money, a little over $7 billion, to 550,000 eligible claimants. And that, I would say, other than 9/11, had the greatest impact and was the most satisfying.DL: You mentioned some claims coming from some pretty far-flung jurisdictions. In these programs, how much of a problem is fraud?KF: Not much. First of all, with death claims like 9/11 or the Boston Marathon bombings or the 20 first-graders who died in Sandy Hook, Connecticut, at the hands of a deranged gunmen—most of the time, in traumatic death and injury, you've got records. No one can beat the system; you have to have a death certificate. In 9/11, where are your military records, if you were at the Pentagon? Where are the airplane manifests? You've got to be on the manifest if you were flying on that plane.Now, the problem becomes more pronounced in something like BP, where you've got over a million claims, and you wonder, how many people can claim injury from this explosion? There we had an anti-fraud unit—Guidepost, Bart Schwartz's company—and they did a tremendous job of spot-checking claims. I think that out of over a million claims, there may have been 25,000 that were suspicious. And we sent those claims to the Justice Department, and they prosecuted a fair number of people. But it wasn't a huge problem. I think the fraud rate was something like 3 percent; that's nothing. So overall, we haven't found—and we have to be ever-vigilant, you're right—but we haven't found much in the way of fraud.DL: I'm glad to hear that, because it would really be very depressing to think that there were people trying to profiteer off these terrible disasters and tragedies. Speaking of continuing disasters and tragedies, turning to current events, you are now working with Southern California Edison in dealing with claims related to the Eaton Fire. And this is a pending matter, so of course you may have some limits in terms of what you can discuss, but what can you say in a general sense about this undertaking?KF: This is the Los Angeles wildfires that everybody knows about, from the last nine or ten months—the tremendous fire damage in Los Angeles. One of the fires, or one of the selected hubs of the fire, was the Eaton Fire. Southern California Edison, the utility involved in the litigation and finger-pointing, decided to set up, à la 9/11, a voluntary claims program. Not so much to deal with death—there were about 19 deaths, and a handful of physical injuries—but terrible fire damage, destroyed homes, damaged businesses, smoke and ash and soot, for miles in every direction. And the utility decided, its executive decided, “We want to do the right thing here. We may be held liable or we may not be held liable for the fire, but we think the right thing to do is nip in the bud this idea of extended litigation. Look at 9/11: only 94 people ended up suing. We want to set up a program.”They came to Camille and me. Over the last eight weeks, we've designed the program, and I think in the last week of October or the first week of November, you will see publicly, “Here is the protocol; here is the claim form. Please submit your claims, and we'll get them paid within 90 days.” And if history is an indicator, Camille and I think that the Eaton Fire Protocol will be a success, and the great bulk of the thousands of victims will voluntarily decide to come into the program. We'll see. [Ed. note: On Wednesday, a few days after Ken and I recorded this episode, Southern California Edison announced its Wildfire Recovery Compensation Program.]DL: That raises a question that I'm curious about. How would you describe the relationship between the work that you and Camille and your colleagues do and the traditional work of the courts, in terms of in-the-trenches litigation? Because I do wonder whether the growth in your field is perhaps related to some developments in litigation, in terms of litigation becoming more expensive over the decades (in a way that far outstrips inflation), more complicated, or more protracted. How would you characterize that relationship?KF: I would say that the programs that we design and administer—like 9/11, like BP, plus the Eaton wildfires—are an exception to the rule. Nobody should think that these programs that we have worked on are the wave of the future. They are not the wave of the future; they are isolated, unique examples, where a company—or in 9/11, the U.S. government—decides, “We ought to set up a special program where the courts aren't involved, certainly not directly.” In 9/11, they were prohibited to be involved, by statute; in some of these other programs, like BP, the courts have a relationship, but they don't interfere with the day-to-day administration of the program.And I think the American people have a lot of faith in the litigation system that you correctly point out can be uncertain, very inefficient, and very costly. But the American people, since the founding of the country, think, “You pick your lawyer, I'll pick my lawyer, and we'll have a judge and jury decide.” That's the American rule of law; I don't think it's going to change. But occasionally there is a groundswell of public pressure to come up with a program, or there'll be a company—like the utility, like BP—that decides to have a program.And I'll give you one other example: the Catholic Church confronted thousands of claims of sexual abuse by priests. It came to us, and we set up a program—just like 9/11, just like BP—where we invited, voluntarily, any minor—any minor from decades ago, now an adult—who had been abused by the church to come into this voluntary program. We paid out, I think, $700 million to $800 million, to victims in dioceses around the country. So there's another example—Camille did most of that—but these programs are all relatively rare. There are thousands of litigations every day, and nothing's going to change that.DL: I had a guest on a few weeks ago, Chris Seeger of Seeger Weiss, who does a lot of work in the mass-tort space. It's interesting: I feel that that space has evolved, and maybe in some ways it's more efficient than it used to be. They have these multi-district litigation panels, they have these bellwether trials, and then things often get settled, once people have a sense of the values. That system and your approach seem to have some similarities, in the sense that you're not individually trying each one of these cases, and you're having somebody with liability come forward and voluntarily pay out money, after some kind of negotiation.KF: Well, there's certainly negotiation in what Chris Seeger does; I'm not sure we have much negotiation. We say, “Here's the amount under the administrative scheme.” It's like in workers' compensation: here's the amount. You don't have to take it. There's nothing to really talk about, unless you have new evidence that we're not aware of. And those programs, when we do design them, seem to work very efficiently.Again, if you ask Camille Biros what was the toughest part of valuing individual claims of sexual-abuse directed at minors, she would say, “These hearings: we gave every person who wanted an opportunity to be heard.” And when they come to see Camille, they don't come to talk about money; they want validation for what they went through. “Believe me, will you? Ken, Camille, believe me.” And when Camille says, “We do believe you,” they immediately, or almost immediately, accept the compensation and sign a release: “I will not sue the Catholic diocese.”DL: So you mentioned there isn't really much negotiation, but you did talk in the book about these sort of “appeals.” You had these two tracks, “Appeals A” and “Appeals B.” Can you talk about that? Did you ever revisit what you had set as the award for a particular victim's family, after hearing from them in person?KF: Sure. Now, remember, those appeals came back to us, not to a court; there's no court involvement. But in 9/11, in BP, if somebody said, “You made a mistake—you didn't account for these profits or this revenue, or you didn't take into account this contract that my dead firefighter husband had that would've given him a lot more money”—of course, we'll revisit that. We invited that. But that's an internal appeals process. The people who calculated the value of the claim are the same people that are going to be looking at revisiting the claim. But again, that's due process, and that's something that we thought was important.DL: You and Camille have been doing this really important work for decades. Since this is, of course, shortly after your 80th birthday, I should ask: do you have future plans? You're tackling some of the most complicated matters, headline-making matters. Would you ever want to retire at some point?KF: I have no intention of retiring. I do agree that when you reach a certain pinnacle in what you've done, you do slow down. We are much more selective in what we do. I used to have maybe 15 mediations going on at once; now, we have one or two matters, like the Los Angeles wildfires. As long as I'm capable, as long as Camille's willing, we'll continue to do it, but we'll be very careful about what we select to do. We don't travel much. The Los Angeles wildfires was largely Zooms, going back and forth. And we're not going to administer that program. We had administered 9/11 and BP; we're trying to move away from that. It's very time-consuming and stressful. So we've accomplished a great deal over the last 50 years—but as long as we can do it, we'll continue to do it.DL: Do you have any junior colleagues who would take over what you and Camille have built?KF: We don't have junior colleagues. There's just the two of us and Cindy Sanzotta, our receptionist. But it's an interesting question: “Who's after Feinberg? Who's next in doing this?” I think there are thousands of people in this country who could do what we do. It is not rocket science. It really isn't. I'll tell you what's difficult: the emotion. If somebody wants to do what we do, you better brace yourself for the emotion, the anger, the frustration, the finger pointing. It goes with the territory. And if you don't have the psychological ability to handle this type of stress, stay away. But I'm sure somebody will be there, and no one's irreplaceable.DL: Well, I know I personally could not handle it. I worked when I was at a law firm on civil litigation over insurance proceeds related to the World Trade Center, and that was a very draining case, and I was very glad to no longer be on it. So I could not do what you and Camille do. But let me ask you, to end this section on a positive note: what would you say is the most rewarding or meaningful or satisfying aspect of the work that you do on these programs?KF: Giving back to the community. Public service. Helping the community heal. Not so much the individuals; the individuals are part of the community. “Every individual can make a difference.” I remember that every day, what John F. Kennedy said: government service is a noble undertaking. So what's most rewarding for me is that although I'm a private practitioner—I am no longer in government service, since my days with Senator Kennedy—I'd like to think that I performed a valuable service for the community, the resilience of the community, the charity exhibited by the community. And that gives me a great sense of self-satisfaction.DL: You absolutely have. It's been amazing, and I'm so grateful for you taking the time to join me.So now, onto our speed round. These are four questions that are standardized. My first question is, what do you like the least about the law? And this can either be the practice of law or law in a more abstract sense.KF: Uncertainty. What I don't like about the law is—and I guess maybe it's the flip side of the best way to get to a result—I don't like the uncertainty of the law. I don't like the fact that until the very end of the process, you don't know if your view and opinion will prevail. And I think losing control over your destiny in that regard is problematic.DL: My second question—and maybe we touched on this a little bit, when we talked about your father's opinions—what would you be if you were not a lawyer?KF: Probably an actor. As I say, I almost became an actor. And I still love theater and the movies and Broadway shows. If my father hadn't given me that advice, I was on the cusp of pursuing a career in the theater.DL: Have you dabbled in anything in your (probably limited) spare time—community theater, anything like that?KF: No, but I certainly have prioritized in my spare time classical music and the peace and optimism it brings to the listener. It's been an important part of my life.DL: My third question is, how much sleep do you get each night?KF: Well, it varies from program to program. I'd like to get seven hours. That's what my doctors tell me: “Ken, very important—more important than pills and exercise and diet—is sleep. Your body needs a minimum of seven hours.” Well, for me, seven hours is rare—it's more like six or even five, and during 9/11 or during Eaton wildfires, it might be more like four or five. And that's not enough, and that is a problem.DL: My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?KF: Yes, I'll give you some career and life advice. It's very simple: don't plan too far ahead. People have this view—you may think you know what you want to do with your career. You may think you know what life holds for you. You don't know. If I've learned anything over the last decades, life has a way of changing the best-laid plans. These 9/11 husbands and wives said goodbye to their children, “we'll see you for dinner,” a perfunctory wave—and they never saw them again. Dust, not even a body. And the idea I tell law students—who say, ”I'm going to be a corporate lawyer,” or “I'm going to be a litigator”—I tell them, “You have no idea what your legal career will look like. Look at Feinberg; he never planned on this. He never thought, in his wildest dreams, that this would be his chosen avenue of the law.”My advice: enjoy the moment. Do what you like now. Don't worry too much about what you'll be doing two years, five years, 10 years, a lifetime ahead of you. It doesn't work that way. Everybody gets thrown curveballs, and that's advice I give to everybody.DL: Well, you did not plan out your career, but it has turned out wonderfully, and the country is better for it. Thank you, Ken, both for your work on all these matters over the years and for joining me today.KF: A privilege and an honor. Thanks, David.DL: Thanks so much to Ken for joining me—and, of course, for his decades of work resolving some of the thorniest disputes in the country, which is truly a form of public service.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, November 12. Until then, may your thinking be original and your jurisdiction free of defects.Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. 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Sarah Isgur and David Lat cover the Supreme Court's long conference and react to the sentencing of Justice Brett Kavanaugh's attempted assassin. The Agenda:—Ghislaine Maxwell's appeal rejected—Missouri gun laws—Hawaii's "Spirit of Aloha" gun laws—Fifth Amendment takings clause—Sentencing of Justice Brett Kavanaugh's attempted assassin—Will Obergefell be overturned? Show Notes:—Advisory Opinions on Hawaii's gun laws—David Lat's Original Jurisdiction Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you'd like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

It's still not clear what, if any, fallout the law firms that struck pro bono deals with President Donald Trump earlier this year will face. But analyzing attorney movements over the last six months provides one data point. On average, law firms that settled subsequently lost attorneys more attorneys than those who fought the president in court, according to data obtained by Bloomberg Law columnist David Lat. But there are some firms that buck this overall trend as well as plenty of caveats. Lat joins our podcast, On The Merits, to walk us through this data on law firm headcounts since Trump started targeting law firms in the spring. Lat also talks about the lawyer moves that will likely happen later this year that could give us an even clearer picture of how firms are doing and what effect the Trump deals are having on them. Do you have feedback on this episode of On The Merits? Give us a call and leave a voicemail at 703-341-3690.

Last month, the U.S. Supreme Court concluded its latest Term. And over the past few weeks, the Trump administration has continued to duke it out with its adversaries in the federal courts.To tackle these topics, as well as their intersection—in terms of how well the courts, including but not limited to the Supreme Court, are handling Trump-related cases—I interviewed Professor Pamela Karlan, a longtime faculty member at Stanford Law School. She's perfectly situated to address these subjects, for at least three reasons.First, Professor Karlan is a leading scholar of constitutional law. Second, she's a former SCOTUS clerk and seasoned advocate at One First Street, with ten arguments to her name. Third, she has high-level experience at the U.S. Department of Justice (DOJ), having served (twice) as a deputy assistant attorney general in the Civil Rights Division of the DOJ.I've had some wonderful guests to discuss the role of the courts today, including Judges Vince Chhabria (N.D. Cal.) and Ana Reyes (D.D.C.)—but as sitting judges, they couldn't discuss certain subjects, and they had to be somewhat circumspect. Professor Karlan, in contrast, isn't afraid to “go there”—and whether or not you agree with her opinions, I think you'll share my appreciation for her insight and candor.Show Notes:* Pamela S. Karlan bio, Stanford Law School* Pamela S. Karlan bio, Wikipedia* The McCorkle Lecture (Professor Pamela Karlan), UVA Law SchoolPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot 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 dot Substack dot com. You're listening to the seventy-seventh episode of this podcast, recorded on Friday, June 27.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 at nexfirm dot com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.With the 2024-2025 Supreme Court Term behind us, now is a good time to talk about both constitutional law and the proper role of the judiciary in American society. I expect they will remain significant as subjects because the tug of war between the Trump administration and the federal judiciary continues—and shows no signs of abating.To tackle these topics, I welcomed to the podcast Professor Pamela Karlan, the Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. Pam is not only a leading legal scholar, but she also has significant experience in practice. She's argued 10 cases before the Supreme Court, which puts her in a very small club, and she has worked in government at high levels, serving as a deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice during the Obama administration. Without further ado, here's my conversation with Professor Pam Karlan.Professor Karlan, thank you so much for joining me.Pamela Karlan: Thanks for having me.DL: So let's start at the beginning. Tell us about your background and upbringing. I believe we share something in common—you were born in New York City?PK: I was born in New York City. My family had lived in New York since they arrived in the country about a century before.DL: What borough?PK: Originally Manhattan, then Brooklyn, then back to Manhattan. As my mother said, when I moved to Brooklyn when I was clerking, “Brooklyn to Brooklyn, in three generations.”DL: Brooklyn is very, very hip right now.PK: It wasn't hip when we got there.DL: And did you grow up in Manhattan or Brooklyn?PK: When I was little, we lived in Manhattan. Then right before I started elementary school, right after my brother was born, our apartment wasn't big enough anymore. So we moved to Stamford, Connecticut, and I grew up in Connecticut.DL: What led you to go to law school? I see you stayed in the state; you went to Yale. What did you have in mind for your post-law-school career?PK: I went to law school because during the summer between 10th and 11th grade, I read Richard Kluger's book, Simple Justice, which is the story of the litigation that leads up to Brown v. Board of Education. And I decided I wanted to go to the NAACP Legal Defense Fund and be a school desegregation lawyer, and that's what led me to go to law school.DL: You obtained a master's degree in history as well as a law degree. Did you also have teaching in mind as well?PK: No, I thought getting the master's degree was my last chance to do something I had loved doing as an undergrad. It didn't occur to me until I was late in my law-school days that I might at some point want to be a law professor. That's different than a lot of folks who go to law school now; they go to law school wanting to be law professors.During Admitted Students' Weekend, some students say to me, “I want to be a law professor—should I come here to law school?” I feel like saying to them, “You haven't done a day of law school yet. You have no idea whether you're good at law. You have no idea whether you'd enjoy doing legal teaching.”It just amazes me that people come to law school now planning to be a law professor, in a way that I don't think very many people did when I was going to law school. In my day, people discovered when they were in law school that they loved it, and they wanted to do more of what they loved doing; I don't think people came to law school for the most part planning to be law professors.DL: The track is so different now—and that's a whole other conversation—but people are getting master's and Ph.D. degrees, and people are doing fellowship after fellowship. It's not like, oh, you practice for three, five, or seven years, and then you become a professor. It seems to be almost like this other track nowadays.PK: When I went on the teaching market, I was distinctive in that I had not only my student law-journal note, but I actually had an article that Ricky Revesz and I had worked on that was coming out. And it was not normal for people to have that back then. Now people go onto the teaching market with six or seven publications—and no practice experience really to speak of, for a lot of them.DL: You mentioned talking to admitted students. You went to YLS, but you've now been teaching for a long time at Stanford Law School. They're very similar in a lot of ways. They're intellectual. They're intimate, especially compared to some of the other top law schools. What would you say if I'm an admitted student choosing between those two institutions? What would cause me to pick one versus the other—besides the superior weather of Palo Alto?PK: Well, some of it is geography; it's not just the weather. Some folks are very East-Coast-centered, and other folks are very West-Coast-centered. That makes a difference.It's a little hard to say what the differences are, because the last time I spent a long time at Yale Law School was in 2012 (I visited there a bunch of times over the years), but I think the faculty here at Stanford is less focused and concentrated on the students who want to be law professors than is the case at Yale. When I was at Yale, the idea was if you were smart, you went and became a law professor. It was almost like a kind of external manifestation of an inner state of grace; it was a sign that you were a smart person, if you wanted to be a law professor. And if you didn't, well, you could be a donor later on. Here at Stanford, the faculty as a whole is less concentrated on producing law professors. We produce a fair number of them, but it's not the be-all and end-all of the law school in some ways. Heather Gerken, who's the dean at Yale, has changed that somewhat, but not entirely. So that's one big difference.One of the most distinctive things about Stanford, because we're on the quarter system, is that our clinics are full-time clinics, taught by full-time faculty members at the law school. And that's distinctive. I think Yale calls more things clinics than we do, and a lot of them are part-time or taught by folks who aren't in the building all the time. So that's a big difference between the schools.They just have very different feels. I would encourage any student who gets into both of them to go and visit both of them, talk to the students, and see where you think you're going to be most comfortably stretched. Either school could be the right school for somebody.DL: I totally agree with you. Sometimes people think there's some kind of platonic answer to, “Where should I go to law school?” And it depends on so many individual circumstances.PK: There really isn't one answer. I think when I was deciding between law schools as a student, I got waitlisted at Stanford and I got into Yale. I had gone to Yale as an undergrad, so I wasn't going to go anywhere else if I got in there. I was from Connecticut and loved living in Connecticut, so that was an easy choice for me. But it's a hard choice for a lot of folks.And I do think that one of the worst things in the world is U.S. News and World Report, even though we're generally a beneficiary of it. It used to be that the R-squared between where somebody went to law school and what a ranking was was minimal. I knew lots of people who decided, in the old days, that they were going to go to Columbia rather than Yale or Harvard, rather than Stanford or Penn, rather than Chicago, because they liked the city better or there was somebody who did something they really wanted to do there.And then the R-squared, once U.S. News came out, of where people went and what the rankings were, became huge. And as you probably know, there were some scandals with law schools that would just waitlist people rather than admit them, to keep their yield up, because they thought the person would go to a higher-ranked law school. There were years and years where a huge part of the Stanford entering class had been waitlisted at Penn. And that's bad for people, because there are people who should go to Penn rather than come here. There are people who should go to NYU rather than going to Harvard. And a lot of those people don't do it because they're so fixated on U.S. News rankings.DL: I totally agree with you. But I suspect that a lot of people think that there are certain opportunities that are going to be open to them only if they go here or only if they go there.Speaking of which, after graduating from YLS, you clerked for Justice Blackmun on the Supreme Court, and statistically it's certainly true that certain schools seem to improve your odds of clerking for the Court. What was that experience like overall? People often describe it as a dream job. We're recording this on the last day of the Supreme Court Term; some hugely consequential historic cases are coming down. As a law clerk, you get a front row seat to all of that, to all of that history being made. Did you love that experience?PK: I loved the experience. I loved it in part because I worked for a wonderful justice who was just a lovely man, a real mensch. I had three great co-clerks. It was the first time, actually, that any justice had ever hired three women—and so that was distinctive for me, because I had been in classes in law school where there were fewer than three women. I was in one class in law school where I was the only woman. So that was neat.It was a great Term. It was the last year of the Burger Court, and we had just a heap of incredibly interesting cases. It's amazing how many cases I teach in law school that were decided that year—the summary-judgment trilogy, Thornburg v. Gingles, Bowers v. Hardwick. It was just a really great time to be there. And as a liberal, we won a lot of the cases. We didn't win them all, but we won a lot of them.It was incredibly intense. At that point, the Supreme Court still had this odd IT system that required eight hours of diagnostics every night. So the system was up from 8 a.m. to midnight—it stayed online longer if there was a death case—but otherwise it went down at midnight. In the Blackmun chambers, we showed up at 8 a.m. for breakfast with the Justice, and we left at midnight, five days a week. Then on the weekends, we were there from 9 to 9. And they were deciding 150 cases, not 60 cases, a year. So there was a lot more work to do, in that sense. But it was a great year. I've remained friends with my co-clerks, and I've remained friends with clerks from other chambers. It was a wonderful experience.DL: And you've actually written about it. I would refer people to some of the articles that they can look up, on your CV and elsewhere, where you've talked about, say, having breakfast with the Justice.PK: And we had a Passover Seder with the Justice as well, which was a lot of fun.DL: Oh wow, who hosted that? Did he?PK: Actually, the clerks hosted it. Originally he had said, “Oh, why don't we have it at the Court?” But then he came back to us and said, “Well, I think the Chief Justice”—Chief Justice Burger—“might not like that.” But he lent us tables and chairs, which were dropped off at one of the clerk's houses. And it was actually the day of the Gramm-Rudman argument, which was an argument about the budget. So we had to keep running back and forth from the Court to the house of Danny Richman, the clerk who hosted it, who was a Thurgood Marshall clerk. We had to keep running back and forth from the Court to Danny Richman's house, to baste the turkey and make stuff, back and forth. And then we had a real full Seder, and we invited all of the Jewish clerks at the Court and the Justice's messenger, who was Jewish, and the Justice and Mrs. Blackmun, and it was a lot of fun.DL: Wow, that's wonderful. So where did you go after your clerkship?PK: I went to the NAACP Legal Defense Fund, where I was an assistant counsel, and I worked on voting-rights and employment-discrimination cases.DL: And that was something that you had thought about for a long time—you mentioned you had read about its work in high school.PK: Yes, and it was a great place to work. We were working on great cases, and at that point we were really pushing the envelope on some of the stuff that we were doing—which was great and inspiring, and my colleagues were wonderful.And unlike a lot of Supreme Court practices now, where there's a kind of “King Bee” usually, and that person gets to argue everything, the Legal Defense Fund was very different. The first argument I did at the Court was in a case that I had worked on the amended complaint for, while at the Legal Defense Fund—and they let me essentially keep working on the case and argue it at the Supreme Court, even though by the time the case got to the Supreme Court, I was teaching at UVA. So they didn't have this policy of stripping away from younger lawyers the ability to argue their cases the whole way through the system.DL: So how many years out from law school were you by the time you had your first argument before the Court? I know that, today at least, there's this two-year bar on arguing before the Court after having clerked there.PK: Six or seven years out—because I think I argued in ‘91.DL: Now, you mentioned that by then you were teaching at UVA. You had a dream job working at the NAACP Legal Defense Fund. What led you to go to UVA?PK: There were two things, really, that did it. One was I had also discovered when I was in law school that I loved law school, and I was better at law school than I had been at anything I had done before law school. And the second was I really hated dealing with opposing counsel. I tell my students now, “You should take negotiation. If there's only one class you could take in law school, take negotiation.” Because it's a skill; it's not a habit of mind, but I felt like it was a habit of mind. And I found the discovery process and filing motions to compel and dealing with the other side's intransigence just really unpleasant.What I really loved was writing briefs. I loved writing briefs, and I could keep doing that for the Legal Defense Fund while at UVA, and I've done a bunch of that over the years for LDF and for other organizations. I could keep doing that and I could live in a small town, which I really wanted to do. I love New York, and now I could live in a city—I've spent a couple of years, off and on, living in cities since then, and I like it—but I didn't like it at that point. I really wanted to be out in the country somewhere. And so UVA was the perfect mix. I kept working on cases, writing amicus briefs for LDF and for other organizations. I could teach, which I loved. I could live in a college town, which I really enjoyed. So it was the best blend of things.DL: And I know, from your having actually delivered a lecture at UVA, that it really did seem to have a special place in your heart. UVA Law School—they really do have a wonderful environment there (as does Stanford), and Charlottesville is a very charming place.PK: Yes, especially when I was there. UVA has a real gift for developing its junior faculty. It was a place where the senior faculty were constantly reading our work, constantly talking to us. Everyone was in the building, which makes a huge difference.The second case I had go to the Supreme Court actually came out of a class where a student asked a question, and I ended up representing the student, and we took the case all the way to the Supreme Court. But I wasn't admitted in the Western District of Virginia, and that's where we had to file a case. And so I turned to my next-door neighbor, George Rutherglen, and said to George, “Would you be the lead counsel in this?” And he said, “Sure.” And we ended up representing a bunch of UVA students, challenging the way the Republican Party did its nomination process. And we ended up, by the student's third year in law school, at the Supreme Court.So UVA was a great place. I had amazing colleagues. The legendary Bill Stuntz was then there; Mike Klarman was there. Dan Ortiz, who's still there, was there. So was John Harrison. It was a fantastic group of people to have as your colleagues.DL: Was it difficult for you, then, to leave UVA and move to Stanford?PK: Oh yes. When I went in to tell Bob Scott, who was then the dean, that I was leaving, I just burst into tears. I think the reason I left UVA was I was at a point in my career where I'd done a bunch of visits at other schools, and I thought that I could either leave then or I would be making a decision to stay there for the rest of my career. And I just felt like I wanted to make a change. And in retrospect, I would've been just as happy if I'd stayed at UVA. In my professional life, I would've been just as happy. I don't know in my personal life, because I wouldn't have met my partner, I don't think, if I'd been at UVA. But it's a marvelous place; everything about it is just absolutely superb.DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It's not easy, especially if your benefits don't match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits at nexfirm dot com.So I do want to give you a chance to say nice things about your current place. I assume you have no regrets about moving to Stanford Law, even if you would've been just as happy at UVA?PK: I'm incredibly happy here. I've got great colleagues. I've got great students. The ability to do the clinic the way we do it, which is as a full-time clinic, wouldn't be true anywhere else in the country, and that makes a huge difference to that part of my work. I've gotten to teach around the curriculum. I've taught four of the six first-year courses, which is a great opportunityAnd as you said earlier, the weather is unbelievable. People downplay that, because especially for people who are Northeastern Ivy League types, there's a certain Calvinism about that, which is that you have to suffer in order to be truly working hard. People out here sometimes think we don't work hard because we are not visibly suffering. But it's actually the opposite, in a way. I'm looking out my window right now, and it's a gorgeous day. And if I were in the east and it were 75 degrees and sunny, I would find it hard to work because I'd think it's usually going to be hot and humid, or if it's in the winter, it's going to be cold and rainy. I love Yale, but the eight years I spent there, my nose ran the entire time I was there. And here I look out and I think, “It's beautiful, but you know what? It's going to be beautiful tomorrow. So I should sit here and finish grading my exams, or I should sit here and edit this article, or I should sit here and work on the Restatement—because it's going to be just as beautiful tomorrow.” And the ability to walk outside, to clear your head, makes a huge difference. People don't understand just how huge a difference that is, but it's huge.DL: That's so true. If you had me pick a color to associate with my time at YLS, I would say gray. It just felt like everything was always gray, the sky was always gray—not blue or sunny or what have you.But I know you've spent some time outside of Northern California, because you have done some stints at the Justice Department. Tell us about that, the times you went there—why did you go there? What type of work were you doing? And how did it relate to or complement your scholarly work?PK: At the beginning of the Obama administration, I had applied for a job in the Civil Rights Division as a deputy assistant attorney general (DAAG), and I didn't get it. And I thought, “Well, that's passed me by.” And a couple of years later, when they were looking for a new principal deputy solicitor general, in the summer of 2013, the civil-rights groups pushed me for that job. I got an interview with Eric Holder, and it was on June 11th, 2013, which just fortuitously happens to be the 50th anniversary of the day that Vivian Malone desegregated the University of Alabama—and Vivian Malone is the older sister of Sharon Malone, who is married to Eric Holder.So I went in for the interview and I said, “This must be an especially special day for you because of the 50th anniversary.” And we talked about that a little bit, and then we talked about other things. And I came out of the interview, and a couple of weeks later, Don Verrilli, who was the solicitor general, called me up and said, “Look, you're not going to get a job as the principal deputy”—which ultimately went to Ian Gershengorn, a phenomenal lawyer—“but Eric Holder really enjoyed talking to you, so we're going to look for something else for you to do here at the Department of Justice.”And a couple of weeks after that, Eric Holder called me and offered me the DAAG position in the Civil Rights Division and said, “We'd really like you to especially concentrate on our voting-rights litigation.” It was very important litigation, in part because the Supreme Court had recently struck down the pre-clearance regime under Section 5 [of the Voting Rights Act]. So the Justice Department was now bringing a bunch of lawsuits against things they could have blocked if Section 5 had been in effect, most notably the Texas voter ID law, which was a quite draconian voter ID law, and this omnibus bill in North Carolina that involved all sorts of cutbacks to opportunities to vote: a cutback on early voting, a cutback on same-day registration, a cutback on 16- and 17-year-olds pre-registering, and the like.So I went to the Department of Justice and worked with the Voting Section on those cases, but I also ended up working on things like getting the Justice Department to change its position on whether Title VII covered transgender individuals. And then I also got to work on the implementation of [United States v.] Windsor—which I had worked on, representing Edie Windsor, before I went to DOJ, because the Court had just decided Windsor [which held Section 3 of the Defense of Marriage Act unconstitutional]. So I had an opportunity to work on how to implement Windsor across the federal government. So that was the stuff I got to work on the first time I was at DOJ, and I also obviously worked on tons of other stuff, and it was phenomenal. I loved doing it.I did it for about 20 months, and then I came back to Stanford. It affected my teaching; I understood a lot of stuff quite differently having worked on it. It gave me some ideas on things I wanted to write about. And it just refreshed me in some ways. It's different than working in the clinic. I love working in the clinic, but you're working with students. You're working only with very, very junior lawyers. I sometimes think of the clinic as being a sort of Groundhog Day of first-year associates, and so I'm sort of senior partner and paralegal at a large law firm. At DOJ, you're working with subject-matter experts. The people in the Voting Section, collectively, had hundreds of years of experience with voting. The people in the Appellate Section had hundreds of years of experience with appellate litigation. And so it's just a very different feel.So I did that, and then I came back to Stanford. I was here, and in the fall of 2020, I was asked if I wanted to be one of the people on the Justice Department review team if Joe Biden won the election. These are sometimes referred to as the transition teams or the landing teams or the like. And I said, “I'd be delighted to do that.” They had me as one of the point people reviewing the Civil Rights Division. And I think it might've even been the Wednesday or Thursday before Inauguration Day 2021, I got a call from the liaison person on the transition team saying, “How would you like to go back to DOJ and be the principal deputy assistant attorney general in the Civil Rights Division?” That would mean essentially running the Division until we got a confirmed head, which took about five months. And I thought that this would be an amazing opportunity to go back to the DOJ and work with people I love, right at the beginning of an administration.And the beginning of an administration is really different than coming in midway through the second term of an administration. You're trying to come up with priorities, and I viewed my job really as helping the career people to do their best work. There were a huge number of career people who had gone through the first Trump administration, and they were raring to go. They had all sorts of ideas on stuff they wanted to do, and it was my job to facilitate that and make that possible for them. And that's why it's so tragic this time around that almost all of those people have left. The current administration first tried to transfer them all into Sanctuary Cities [the Sanctuary Cities Enforcement Working Group] or ask them to do things that they couldn't in good conscience do, and so they've retired or taken buyouts or just left.DL: It's remarkable, just the loss of expertise and experience at the Justice Department over these past few months.PK: Thousands of years of experience gone. And these are people, you've got to realize, who had been through the Nixon administration, the Reagan administration, both Bush administrations, and the first Trump administration, and they hadn't had any problem. That's what's so stunning: this is not just the normal shift in priorities, and they have gone out of their way to make it so hellacious for people that they will leave. And that's not something that either Democratic or Republican administrations have ever done before this.DL: And we will get to a lot of, shall we say, current events. Finishing up on just the discussion of your career, you had the opportunity to work in the executive branch—what about judicial service? You've been floated over the years as a possible Supreme Court nominee. I don't know if you ever looked into serving on the Ninth Circuit or were considered for that. What about judicial service?PK: So I've never been in a position, and part of this was a lesson I learned right at the beginning of my LDF career, when Lani Guinier, who was my boss at LDF, was nominated for the position of AAG [assistant attorney general] in the Civil Rights Division and got shot down. I knew from that time forward that if I did the things I really wanted to do, my chances of confirmation were not going to be very high. People at LDF used to joke that they would get me nominated so that I would take all the bullets, and then they'd sneak everybody else through. So I never really thought that I would have a shot at a judicial position, and that didn't bother me particularly. As you know, I gave the commencement speech many years ago at Stanford, and I said, “Would I want to be on the Supreme Court? You bet—but not enough to have trimmed my sails for an entire lifetime.”And I think that's right. Peter Baker did this story in The New York Times called something like, “Favorites of Left Don't Make Obama's Court List.” And in the story, Tommy Goldstein, who's a dear friend of mine, said, “If they wanted to talk about somebody who was a flaming liberal, they'd be talking about Pam Karlan, but nobody's talking about Pam Karlan.” And then I got this call from a friend of mine who said, “Yeah, but at least people are talking about how nobody's talking about you. Nobody's even talking about how nobody's talking about me.” And I was flattered, but not fooled.DL: That's funny; I read that piece in preparing for this interview. So let's say someone were to ask you, someone mid-career, “Hey, I've been pretty safe in the early years of my career, but now I'm at this juncture where I could do things that will possibly foreclose my judicial ambitions—should I just try to keep a lid on it, in the hope of making it?” It sounds like you would tell them to let their flag fly.PK: Here's the thing: your chances of getting to be on the Supreme Court, if that's what you're talking about, your chances are so low that the question is how much do you want to give up to go from a 0.001% chance to a 0.002% chance? Yes, you are doubling your chances, but your chances are not good. And there are some people who I think are capable of doing that, perhaps because they fit the zeitgeist enough that it's not a huge sacrifice for them. So it's not that I despise everybody who goes to the Supreme Court because they must obviously have all been super-careerists; I think lots of them weren't super-careerists in that way.Although it does worry me that six members of the Court now clerked at the Supreme Court—because when you are a law clerk, it gives you this feeling about the Court that maybe you don't want everybody who's on the Court to have, a feeling that this is the be-all and end-all of life and that getting a clerkship is a manifestation of an inner state of grace, so becoming a justice is equally a manifestation of an inner state of grace in which you are smarter than everybody else, wiser than everybody else, and everybody should kowtow to you in all sorts of ways. And I worry that people who are imprinted like ducklings on the Supreme Court when they're 25 or 26 or 27 might not be the best kind of portfolio of justices at the back end. The Court that decided Brown v. Board of Education—none of them, I think, had clerked at the Supreme Court, or maybe one of them had. They'd all done things with their lives other than try to get back to the Supreme Court. So I worry about that a little bit.DL: Speaking of the Court, let's turn to the Court, because it just finished its Term as we are recording this. As we started recording, they were still handing down the final decisions of the day.PK: Yes, the “R” numbers hadn't come up on the Supreme Court website when I signed off to come talk to you.DL: Exactly. So earlier this month, not today, but earlier this month, the Court handed down its decision in United States v. Skrmetti, reviewing Tennessee's ban on the use of hormones and puberty blockers for transgender youth. Were you surprised by the Court's ruling in Skrmetti?PK: No. I was not surprised.DL: So one of your most famous cases, which you litigated successfully five years ago or so, was Bostock v. Clayton County, in which the Court held that Title VII does apply to protect transgender individuals—and Bostock figures significantly in the Skrmetti opinions. Why were you surprised by Skrmetti given that you had won this victory in Bostock, which you could argue, in terms of just the logic of it, does carry over somewhat?PK: Well, I want to be very precise: I didn't actually litigate Bostock. There were three cases that were put together….DL: Oh yes—you handled Zarda.PK: I represented Don Zarda, who was a gay man, so I did not argue the transgender part of the case at all. Fortuitously enough, David Cole argued that part of the case, and David Cole was actually the first person I had dinner with as a freshman at Yale College, when I started college, because he was the roommate of somebody I debated against in high school. So David and I went to law school together, went to college together, and had classes together. We've been friends now for almost 50 years, which is scary—I think for 48 years we've been friends—and he argued that part of the case.So here's what surprised me about what the Supreme Court did in Skrmetti. Given where the Court wanted to come out, the more intellectually honest way to get there would've been to say, “Yes, of course this is because of sex; there is sex discrimination going on here. But even applying intermediate scrutiny, we think that Tennessee's law should survive intermediate scrutiny.” That would've been an intellectually honest way to get to where the Court got.Instead, they did this weird sort of, “Well, the word ‘sex' isn't in the Fourteenth Amendment, but it's in Title VII.” But that makes no sense at all, because for none of the sex-discrimination cases that the Court has decided under the Fourteenth Amendment did the word “sex” appear in the Fourteenth Amendment. It's not like the word “sex” was in there and then all of a sudden it took a powder and left. So I thought that was a really disingenuous way of getting to where the Court wanted to go. But I was not surprised after the oral argument that the Court was going to get to where it got on the bottom line.DL: I'm curious, though, rewinding to Bostock and Zarda, were you surprised by how the Court came out in those cases? Because it was still a deeply conservative Court back then.PK: No, I was not surprised. I was not surprised, both because I thought we had so much the better of the argument and because at the oral argument, it seemed pretty clear that we had at least six justices, and those were the six justices we had at the end of the day. The thing that was interesting to me about Bostock was I thought also that we were likely to win for the following weird legal-realist reason, which is that this was a case that would allow the justices who claimed to be textualists to show that they were principled textualists, by doing something that they might not have voted for if they were in Congress or the like.And also, while the impact was really large in one sense, the impact was not really large in another sense: most American workers are protected by Title VII, but most American employers do not discriminate, and didn't discriminate even before this, on the basis of sexual orientation or on the basis of gender identity. For example, in Zarda's case, the employer denied that they had fired Mr. Zarda because he was gay; they said, “We fired him for other reasons.”Very few employers had a formal policy that said, “We discriminate on the basis of sexual orientation.” And although most American workers are protected by Title VII, most American employers are not covered by Title VII—and that's because small employers, employers with fewer than 15 full-time employees, are not covered at all. And religious employers have all sorts of exemptions and the like, so for the people who had the biggest objection to hiring or promoting or retaining gay or transgender employees, this case wasn't going to change what happened to them at all. So the impact was really important for workers, but not deeply intrusive on employers generally. So I thought those two things, taken together, meant that we had a pretty good argument.I actually thought our textual argument was not our best argument, but it was the one that they were most likely to buy. So it was really interesting: we made a bunch of different arguments in the brief, and then as soon as I got up to argue, the first question out of the box was Justice Ginsburg saying, “Well, in 1964, homosexuality was illegal in most of the country—how could this be?” And that's when I realized, “Okay, she's just telling me to talk about the text, don't talk about anything else.”So I just talked about the text the whole time. But as you may remember from the argument, there was this weird moment, which came after I answered her question and one other one, there was this kind of silence from the justices. And I just said, “Well, if you don't have any more questions, I'll reserve the remainder of my time.” And it went well; it went well as an argument.DL: On the flip side, speaking of things that are not going so well, let's turn to current events. Zooming up to a higher level of generality than Skrmetti, you are a leading scholar of constitutional law, so here's the question. I know you've already been interviewed about it by media outlets, but let me ask you again, in light of just the latest, latest, latest news: are we in a constitutional crisis in the United States?PK: I think we're in a period of great constitutional danger. I don't know what a “constitutional crisis” is. Some people think the constitutional crisis is that we have an executive branch that doesn't believe in the Constitution, right? So you have Donald Trump asked, in an interview, “Do you have to comply with the Constitution?” He says, “I don't know.” Or he says, “I have an Article II that gives me the power to do whatever I want”—which is not what Article II says. If you want to be a textualist, it does not say the president can do whatever he wants. So you have an executive branch that really does not have a commitment to the Constitution as it has been understood up until now—that is, limited government, separation of powers, respect for individual rights. With this administration, none of that's there. And I don't know whether Emil Bove did say, “F**k the courts,” or not, but they're certainly acting as if that's their attitude.So yes, in that sense, we're in a period of constitutional danger. And then on top of that, I think we have a Supreme Court that is acting almost as if this is a normal administration with normal stuff, a Court that doesn't seem to recognize what district judges appointed by every president since George H.W. Bush or maybe even Reagan have recognized, which is, “This is not normal.” What the administration is trying to do is not normal, and it has to be stopped. So that worries me, that the Supreme Court is acting as if it needs to keep its powder dry—and for what, I'm not clear.If they think that by giving in and giving in, and prevaricating and putting things off... today, I thought the example of this was in the birthright citizenship/universal injunction case. One of the groups of plaintiffs that's up there is a bunch of states, around 23 states, and the Supreme Court in Justice Barrett's opinion says, “Well, maybe the states have standing, maybe they don't. And maybe if they have standing, you can enjoin this all in those states. We leave this all for remind.”They've sat on this for months. It's ridiculous that the Supreme Court doesn't “man up,” essentially, and decide these things. It really worries me quite a bit that the Supreme Court just seems completely blind to the fact that in 2024, they gave Donald Trump complete criminal immunity from any prosecution, so who's going to hold him accountable? Not criminally accountable, not accountable in damages—and now the Supreme Court seems not particularly interested in holding him accountable either.DL: Let me play devil's advocate. Here's my theory on why the Court does seem to be holding its fire: they're afraid of a worse outcome, which is, essentially, “The emperor has no clothes.”Say they draw this line in the sand for Trump, and then Trump just crosses it. And as we all know from that famous quote from The Federalist Papers, the Court has neither force nor will, but only judgment. That's worse, isn't it? If suddenly it's exposed that the Court doesn't have any army, any way to stop Trump? And then the courts have no power.PK: I actually think it's the opposite, which is, I think if the Court said to Donald Trump, “You must do X,” and then he defies it, you would have people in the streets. You would have real deep resistance—not just the “No Kings,” one-day march, but deep resistance. And there are scholars who've done comparative law who say, “When 3 percent of the people in a country go to the streets, you get real change.” And I think the Supreme Court is mistaking that.I taught a reading group for our first-years here. We have reading groups where you meet four times during the fall for dinner, and you read stuff that makes you think. And my reading group was called “Exit, Voice, and Loyalty,” and it started with the Albert Hirschman book with that title.DL: Great book.PK: It's a great book. And I gave them some excerpt from that, and I gave them an essay by Hannah Arendt called “Personal Responsibility Under Dictatorship,” which she wrote in 1964. And one of the things she says there is she talks about people who stayed in the German regime, on the theory that they would prevent at least worse things from happening. And I'm going to paraphrase slightly, but what she says is, “People who think that what they're doing is getting the lesser evil quickly forget that what they're choosing is evil.” And if the Supreme Court decides, “We're not going to tell Donald Trump ‘no,' because if we tell him no and he goes ahead, we will be exposed,” what they have basically done is said to Donald Trump, “Do whatever you want; we're not going to stop you.” And that will lose the Supreme Court more credibility over time than Donald Trump defying them once and facing some serious backlash for doing it.DL: So let me ask you one final question before we go to my little speed round. That 3 percent statistic is fascinating, by the way, but it resonates for me. My family's originally from the Philippines, and you probably had the 3 percent out there in the streets to oust Marcos in 1986.But let me ask you this. We now live in a nation where Donald Trump won not just the Electoral College, but the popular vote. We do see a lot of ugly things out there, whether in social media or incidents of violence or what have you. You still have enough faith in the American people that if the Supreme Court drew that line, and Donald Trump crossed it, and maybe this happened a couple of times, even—you still have faith that there will be that 3 percent or what have you in the streets?PK: I have hope, which is not quite the same thing as faith, obviously, but I have hope that some Republicans in Congress would grow a spine at that point, and people would say, “This is not right.” Have they always done that? No. We've had bad things happen in the past, and people have not done anything about it. But I think that the alternative of just saying, “Well, since we might not be able to stop him, we shouldn't do anything about it,” while he guts the federal government, sends masked people onto the streets, tries to take the military into domestic law enforcement—I think we have to do something.And this is what's so enraging in some ways: the district court judges in this country are doing their job. They are enjoining stuff. They're not enjoining everything, because not everything can be enjoined, and not everything is illegal; there's a lot of bad stuff Donald Trump is doing that he's totally entitled to do. But the district courts are doing their job, and they're doing their job while people are sending pizza boxes to their houses and sending them threats, and the president is tweeting about them or whatever you call the posts on Truth Social. They're doing their job—and the Supreme Court needs to do its job too. It needs to stand up for district judges. If it's not willing to stand up for the rest of us, you'd think they'd at least stand up for their entire judicial branch.DL: Turning to my speed round, 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 a more abstract system of ordering human affairs.PK: What I liked least about it was having to deal with opposing counsel in discovery. That drove me to appellate litigation.DL: Exactly—where your request for an extension is almost always agreed to by the other side.PK: Yes, and where the record is the record.DL: Yes, exactly. My second question, is what would you be if you were not a lawyer and/or law professor?PK: Oh, they asked me this question for a thing here at Stanford, and it was like, if I couldn't be a lawyer, I'd... And I just said, “I'd sit in my room and cry.”DL: Okay!PK: I don't know—this is what my talent is!DL: You don't want to write a novel or something?PK: No. What I would really like to do is I would like to bike the Freedom Trail, which is a trail that starts in Montgomery, Alabama, and goes to the Canadian border, following the Underground Railroad. I've always wanted to bike that. But I guess that's not a career. I bike slowly enough that it could be a career, at this point—but earlier on, probably not.DL: My third question is, how much sleep do you get each night?PK: I now get around six hours of sleep each night, but it's complicated by the following, which is when I worked at the Department of Justice the second time, it was during Covid, so I actually worked remotely from California. And what that required me to do was essentially to wake up every morning at 4 a.m., 7 a.m. on the East Coast, so I could have breakfast, read the paper, and be ready to go by 5:30 a.m.I've been unable to get off of that, so I still wake up before dawn every morning. And I spent three months in Florence, and I thought the jet lag would bring me out of this—not in the slightest. Within two weeks, I was waking up at 4:30 a.m. Central European Time. So that's why I get about six hours, because I can't really go to bed before 9 or 10 p.m.DL: Well, I was struck by your being able to do this podcast fairly early West Coast time.PK: Oh no, this is the third thing I've done this morning! I had a 6:30 a.m. conference call.DL: Oh my gosh, wow. It reminds me of that saying about how you get more done in the Army before X hour than other people get done in a day.My last question, is any final words of wisdom, such as career advice or life advice, for my listeners?PK: Yes: do what you love, with people you love doing it with.DL: Well said. I've loved doing this podcast—Professor Karlan, thanks again for joining me.PK: You should start calling me Pam. We've had this same discussion….DL: We're on the air! Okay, well, thanks again, Pam—I'm so grateful to you for joining me.PK: Thanks for having me.DL: Thanks so much to Professor Karlan for joining me. Whether or not you agree with her views, you can't deny that she's both insightful and honest—qualities that have made her a leading legal academic and lawyer, but also a great podcast guest.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 at nexfirm dot 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 at Substack dot 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 dot substack dot 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, July 23. Until then, may your thinking be original and your jurisdiction free of defects. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit davidlat.substack.com/subscribe

David Lat spent years climbing the legal ladder, clerking, working at Wachtell, joining the DOJ, before realizing that the most meaningful part of his career wasn't going to happen in a courtroom. Joining Chris Batz and Howard Rosenberg, David talks through the decisions that shaped his path, from writing a cheeky anonymous blog about federal judges to launching “Above the Law” and building one of the most influential voices in legal media. He reflects on the pressure to follow prestige, the pull of creative work, and the unexpected ways his early writing opened doors he didn't even know existed.   A serious case of COVID-19 in 2020 forced him to pause and take stock. What would it look like to return to writing on his own terms? What parts of the legal world still felt worth exploring? Those questions led to “Original Jurisdiction,” a Substack newsletter where David now shares sharp, thoughtful takes on the profession he never fully left. David also opens up about parenting two young kids with his husband Zach, navigating surrogacy, and finding ways to stay engaged without burning out. This episode is a look at what it means to shift gears without losing momentum, and how the best version of your work might be the one that feels the most like you.   Episode Breakdown: 00:00 Meet David Lat: From Wachtell to Legal Media 05:41 The Birth of Underneath Their Robes 06:59 Launching Above the Law 10:54 The Rise and Reach of Above the Law 13:25 Why David Stepped Away from Legal Journalism 16:23 A Life-Changing COVID-19 Experience 18:02 Starting Over with Original Jurisdiction 27:00 Legal Parenthood, Surrogacy, and Family Life 31:45 Candid Advice for Aspiring Writers and Lawyers 39:54 Big Law, AI, and the Future of the Profession   Links Connect with David Lat: Substack: https://davidlat.substack.com/  LinkedIn: https://www.linkedin.com/in/davidlat/   Connect with Howard Rosenberg: LinkedIn profile: https://www.linkedin.com/in/hrosenberg/ Company web profile: https://www.baretzbrunelle.com/howard-rosenberg   Connect with Chris Batz: LinkedIn Profile: https://www.linkedin.com/in/chrisbatz/  LinkedIn Company page: https://www.linkedin.com/company/columbus-street/ Columbus Street website: https://www.columbus-street.com/  Podcast production and show notes provided by HiveCast.fm  

Pardon our legal nerd-out as Sarah Isgur, David French, Amy Howe, David Lat, and Zachary Shemtob—our dream team of SCOTUSBloggers and Advisory Opinions hosts—break down the biggest moments from the Supreme Court's term. What made this term so mellow? Which rulings came out of left field? And is Justice Jackson the Supreme Court's breakout star? The Agenda:—Mellow vibes all around—Emergency Docket vs. Merits Docket—Cert petition surprises and denials—Oral argument highlights—Justice Clarence Thomas' post-Dobbs influence—Looking ahead Show Notes:—SCOTUSblog's Stat Pack This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, 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/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Also, the role of bar associations in 2025. ----- According to a new survey, lawyers think their law firms are really tolerant of jerks. Are they right about that, or just overly sensitive? The DC Bar election ended in a blowout, but why? For all the complaining about some wild theories on social media, the simpler reason is that leading a bar association in 2025 means standing up to the administration and Pam Bondi's brother never convinced the members that he'd be able to do that. In fact, the right-wing fear of strong bar associations has gotten so serious that the Florida supreme court actively kneecapped their state bar. And we talk about attending David Lat's Original Jurisdiction party, which you should also be reading.

According to a new survey, lawyers think their law firms are really tolerant of jerks. Are they right about that, or just overly sensitive? The DC Bar election ended in a blowout, but why? For all the complaining about some wild theories on social media, the simpler reason is that leading a bar association in 2025 means standing up to the administration and Pam Bondi's brother never convinced the members that he'd be able to do that. In fact, the right-wing fear of strong bar associations has gotten so serious that the Florida supreme court actively kneecapped their state bar. And we talk about attending David Lat's Original Jurisdiction party, which you should also be reading. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.June is my favorite month—because it marks the start of my favorite season, contains my birthday (now a national holiday), and happens to be LGBTQ Pride Month. In recognition of the occasion, I wanted to interview a leading LGBTQ lawyer, ideally someone working on a matter in the news. A recent guest on my podcast, noted technology litigator Neel Chatterjee, gave me a great idea. In discussing a pro bono matter that he was proud of, representing a gay couple that wanted to work with an adoption agency that refused to work with same-sex couples, he talked about the privilege of working with “one of the best lawyers I've ever worked with in my life”: Shannon Minter, legal director of the National Center for Lesbian Rights (now the National Center for LGBTQ Rights—on Monday, NCLR announced its name change).Shannon was an excellent guest for another reason: he's working on a headline-making case. He represents the plaintiffs in Talbot v. United States, a challenge to the Trump administration's ban on transgender individuals serving in the military. And despite some reasons for concern, including the fact that the Supreme Court granted emergency relief to the Trump administration in a different (but distinguishable) case involving the ban, Shannon believes that when the courts take a closer look at the issue, they will be persuaded by his clients' case.Thanks to Shannon for his insight and candor, as well as his many years of tireless work in support of LGBTQ rights and equality.Show Notes:* Shannon Minter bio, National Center for LGBTQ Rights* Shannon Minter bio, Wikipedia* Shannon Minter interview, by Mason Funk for OUTWORDSPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.Is it just me, or are crises popping up all over the place? Major corporations, top law firms, and leading universities—among many other institutions—seem to be lurching from one crisis to another. And they need help—often from lawyers and law firms.So it was an opportune time for me to welcome to the podcast one of the nation's leading experts on crisis management: Debra Wong Yang, a longtime partner at Gibson, Dunn & Crutcher, where she chairs the crisis-management practice. Before joining Gibson, Debra served as U.S. attorney for the Central District of California (aka Los Angeles), and before that, she spent five years as a California state-court judge. These experiences equipped her well to help clients navigate some very challenging situations—a number of which we cover in our conversation.If you're involved in leading an organization that could face a crisis in the future—which is pretty much every organization—you'll benefit from hearing about Debra's experiences in the trenches, as well as her advice on how to prepare for a possible crisis. My thanks to Deb for taking the time to share what she's learned over her long and distinguished legal career.Show Notes:* Debra Wong Yang bio, Gibson Dunn & Crutcher LLP* Legends Limelight: Debra Wong Yang, by Katrina Dewey for Lawdragon* The Choice, by Katharine Whittemore for Boston College Law School MagazinePrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

In a special live Advisory Opinions x SCOTUSblog crossover event, Sarah Isgur was joined by David French, David Lat, Zachary Shemtob, and Amy Howe (live from the Supreme Court), to react to the oral argument in Trump v. CASA, Inc. The question: Whether the Supreme Court should stay the district court's nationwide preliminary injunction on the Trump administration's executive order ending birthright citizenship. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings, ⁠⁠⁠click here⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.I'm very proud of the guests I've hosted on the Original Jurisdiction podcast, who are some of the most interesting and influential figures in the world of law. But I recently noticed a significant gap in their ranks: I've never hosted the general counsel or chief legal officer of a publicly traded company.To remedy this, I went big: I interviewed Sandra Leung, who recently stepped down as executive vice president and general counsel of Bristol Myers Squibb (BMS), the biopharmaceutical giant that's both a Fortune 100 and S&P 100 company. Sandy worked for BMS for almost 33 years, 18 of them as GC—so she's an expert on the crucial role of in-house counsel, with lots of wise advice for GCs and CLOs. At the same time, as a former GC, she was willing to address hot-button topics that many sitting GCs might steer clear of—such as the Trump administration's executive orders targeting law firms, including how these orders should affect the thinking of GCs when considering which law firms to hire as outside counsel.This interview is also timely because May is Asian American, Native Hawaiian, and Pacific Islander (AANHPI) Heritage Month—and Sandy, a past president of the National Asian Pacific American Bar Association (NAPABA), is a longtime leader in the AANHPI community. In our conversation, we discussed why she has devoted so much of her time and energy over the years to advancing diversity—and why she believes it remains essential for organizations, despite the backlash against DEI.Thanks to Sandy for her time, insight, and many years of service to the legal profession. And congratulations to her on a long and successful tenure as GC.Show Notes:* Sandra Leung bio, NAPABA* Bristol Myers Squibb GC to Retire After 33 years With Drugmaker, by Chris O'Malley for Corporate Counsel/Law.com* Bristol-Myers GC Sandra Leung To Retire After 33 Years, by Christine DeRosa for Law360Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

The Advisory Opinions extended universe kicks off as SCOTUSblog's Amy Howe and David Lat join Sarah Isgur to discuss the St. Isidore of Seville religious charter school case and the debate over school choice. The Agenda:—A ‘public' public school or a ‘private' public school?—Justice Amy Coney Barrett's recusal—Will Chief Justice John Roberts be the swing vote?—Will birthright citizenship end?—May 15: Mark it on your calendar Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.

Sarah Isgur and David French are joined by Amy Howe and David Lat, of The Dispatch's extended legal universe, to debate whether the Supreme Court should be more transparent. Sarah and David then separate  fact from the fiction in the arrest of Judge Hannah Dugan. (Also: should there be cameras in the Supreme Court?) The Agenda:—Cameras at SCOTUS?—SCOTUS oral argument goes off the rails—Calling other lawyers the “L” word—The arrest of Judge Hannah Dugan—Immunity doctrine is a mess—Louis Vuitton and criminal contempt—Old Whig No. 5—Trump admin and disparate impact—Harvard Law Review's DEI Show Notes:—Apply to work at SCOTUSblog!—Judge helps criminal escape in 2018 Learn more about your ad choices. Visit megaphone.fm/adchoices

David Lat joins Sarah Isgur and David French to analyze what's behind the Department of Justice's motion to dismiss the case agains New York City Mayor Eric Adams. The Agenda: —Friends get benefits in the Trump admin —Attorneys operating under a dual sovereignty —How good of a narc can you be? —Listener questions! —How Rome falls —Retribution —Grading the judiciary Show Notes: —Will Chamberlain's tweet —Denise Cheung resigns —AO's emergency-ish episode on Sassoon Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.Because of my obsession with the judiciary, I have read, witnessed, and conducted countless interviews of judges over the years. And I'll be honest: as interview subjects, judges are a mixed bag. Some can't explain complex legal concepts in understandable ways. Others are too guarded, afraid of saying anything that might give rise to controversy—or recusal requests.Fortunately, the judges I've interviewed for the Original Jurisdiction podcast have been great—and if you'll indulge me briefly as I toot my own horn, part of this is because I've picked the right judges. I invite judges whom I know, based on my own interactions with them, to be thoughtful, thought-provoking, honest, and even fun.My latest guest, Judge Vince Chhabria of the U.S. District Court for the Northern District of California, continued this tradition. While not addressing any pending cases or specific legal issues that might come before him, he spoke candidly and insightfully about a number of important subjects that are in the news today—including judicial activism, judge shopping, constitutional crisis, and the state of our democracy.Thanks to Judge Chhabria for a lively and informative conversation. And thanks to him and his fellow federal judges for the important work that they do, day in and day out—which, as the past few weeks have reminded us, is essential to our democracy.Show Notes:* Vince Chhabria faculty bio, Harvard Law School* The Problem With Multidistrict Litigation (featuring Judge Chhabria), Advisory OpinionsPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.We're less than a month into the second Trump administration, and mayors of major cities are already feeling the heat. The barrage of executive orders out of the White House can be hard to keep up with—and mayors of blue cities must decide which ones to fight, which ones to go along with, and which ones to try to change.So it's an interesting—and challenging—time to be Mayor Quinton Lucas, the 55th mayor of Kansas City, Missouri. He's having to navigate what all of Trump's actions mean for the city he governs, one of the 40 largest in the country. And as a Democratic mayor in a Republican-dominated state, he has to deal with his state's government as well—sometimes confrontationally, and sometimes cooperatively.As he goes about his work, “Mayor Q” draws upon his legal training and experience—as an Eighth Circuit clerk, practicing litigator, and law professor at the University of Kansas. And he's ultimately optimistic about the future—including February 9, when his city's powerhouse football team will go up against the Philadelphia Eagles in Super Bowl LIX. Go Chiefs!Show Notes:* Meet Mayor Lucas, City of Kansas City* Post-Emption and the Mayoral Toolbox: Levers and Limits of City Resistance to State Preemption, by Quinton D. Lucas and Gavriel Schreiber for The University of Chicago Law ReviewPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.Three years ago this month, in January 2022, the constitutional lawyer and scholar Ilya Shapiro almost lost his job at Georgetown Law—over a tweet. The controversy, which I covered extensively in these pages, was followed by disruptive protests of speakers at other top law schools, including Yale and Stanford.According to Shapiro, these events reflected the “illiberal takeover of legal education”—the subject of his new book, Lawless: The Miseducation of America's Elites. I interviewed Shapiro—about Lawless, whether the intellectual climates at law schools have improved since his near-cancellation at Georgetown, and what can be done to protect and promote free speech and intellectual diversity in higher education—in the latest episode of the Original Jurisdiction podcast.Show Notes:* Ilya Shapiro bio, Manhattan Institute* Lawless: The Miseducation of America's Elites, Amazon* Shapiro's Gavel, Substack* Ilya Shapiro Resignation Letter to Georgetown University Law Center, June 6, 2022, Foundation for Individual Rights and Expression (FIRE)Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

The importance of judicial selection and confirmation is now a point of emphasis for all presidential administrations. In 2025 and going forward, what principles and considerations will govern judicial selection (and confirmation) in a new administration, with a new Senate majority. These and other important Article III issues will be considered by our panel of experts.Featuring:Mr. Michael Fragoso, Chief Counsel, Office of the Republican Minority LeaderMr. David Lat, Founder, Above the LawProf. Robert Luther III, Distinguished Professor of Law, Antonin Scalia Law School, George Mason UniversityProf. Carl Tobias, Williams Chair in Law, University of Richmond School of LawModerator: Hon. Michael B. Brennan, Judge, United States Court of Appeals, Seventh Circuit

President-elect Donald Trump is poised to further shape a federal judiciary he remade during his first term. Building on his historic number of appointments, including Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Trump will likely choose nominees that are even more reliably conservative this time around. And, because of his success moving the judiciary to the right, Democrats seeking to challenge future Trump policies have fewer options for finding a receptive forum. On this episode of our podcast, On The Merits, Bloomberg Law reporters Tiana Headley and Suzanne Monyak, along with Bloomberg Law columnist and Above the Law founder David Lat, discuss how the Trump team will select judges, who those nominees could be, and what this means for litigators. Do you have feedback on this episode of On The Merits? Give us a call and leave a voicemail at 703-341-3690.

Sarah and David kick off the podcast with (boring?) questions the Supreme Court will seek to answer this term before turning to two very American cases about education, religious schools, and guns. The Agenda: —Last week's AO episode —David Lat, we do this podcast with joy —Questions before SCOTUS —Loffman v. California Department of Education —Hanson v. District of Columbia Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including Sarah's Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWhere do I get my story ideas? Most arise organically out of the news, but some come from topic suggestions aka “pitches.” Sometimes pitches come from lawyers in the news, and sometimes they come from a lawyer or law firm's public-relations or communications team—media-savvy professionals who work for attorneys and firms to help them secure favorable press (or avoid negative coverage).Over the years, one of my best sources of pitches has been Dawn Schneider. After graduating from law school, Dawn worked in communications for two major corporations, Johnson & Johnson and Altria. She then combined her legal and media expertise and pivoted to focus on law firms, serving as director of communications at Boies Schiller Flexner. And then, ten years ago this month, she launched her own media-advisory firm, Schneider Group Media—where she continues to work for leading lawyers and law firms, as well as clients beyond the legal realm, helping them navigate a challenging, rapidly evolving media landscape.I have a fair number of readers who are interested in “alternative careers”—roles that don't involve practicing law, but where legal education and experience are valuable. So I thought it would be enlightening and enjoyable to interview Dawn, who has deployed her legal training and talent for communication in a cool and unusual way.Thanks to Dawn for joining me, and congratulations to her on Schneider Group Media's tenth anniversary.Show Notes (Dawn doesn't have much of an online presence—she prefers to keep the focus on her clients—but here's her bio, as well as pieces I've written that resulted from her work):* Dawn Schneider bio, Schneider Group Media* On The Retirement Of Miles Ruthberg And The Rise Of Litigation At Latham & Watkins, by David Lat for Above the Law* A Leading Litigation Boutique Turns 25, by David Lat for Original Jurisdiction* Boies Schiller Star's Ski Accident Tests Strength—and Builds It, by David Lat for Bloomberg LawPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.Defamation law and copyright law: I have a keen interest in both, which shouldn't be surprising given what I do for a living. So two litigations I've been following closely are (1) the various defamation lawsuits brought by Dominion Voting Systems—including its case against Fox News, which settled for a whopping $787.5 million—and (2) the copyright lawsuit brought by The New York Times against OpenAI and Microsoft.Besides being fascinating cases with the potential to reshape the modern American media landscape, what do these matters share in common? The plaintiffs have the same lawyer: Susman Godfrey partner Davida Brook. Although she's only 40, she has already been recognized as one of the nation's top trial attorneys by Forbes, The American Lawyer, Law360, Lawdragon, and many other publications.Davida and I first met years ago, when I spoke at Stanford Law School and she was a student (yes, I'm that old). So I thought it would be fun to catch up by having her on the podcast—and it was.We discussed her impressive career path; the Dominion and Times cases, including their possible societal implications; and what it was like to work with and learn from the late Steve Susman, founder of Susman Godfrey and an all-time great courtroom advocate. You can tune into our conversation, covering these and many other subjects, in this new episode of the Original Jurisdiction podcast.Show Notes:* Davida Brook bio, Susman Godfrey* Meet America's Top 200 Lawyers (2024), by Liane Jackson for Forbes* Lawyer Limelight: Davida Brook, by Katrina Dewey for LawdragonPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

The number of non-equity partners has ballooned in recent years, with some data estimating there will soon be more of them at law firms than full partners. But not all of these attorneys are happy with their job classification. There are several ongoing employment lawsuits against firms from non-equity partners who claim they get the worst of both worlds: none of the profit sharing that full partners enjoy, but also no benefits or tax withholding that's standard for most employees. The guest on today's episode of our podcast, On The Merits, says the non-equity partnership can benefit both lawyers and firms—if it's managed well. David Lat, author of the Original Jurisdiction newsletter and a Bloomberg Law columnist, talks about how firms can do make the non equity title work for everyone, and what types of attorneys can benefit. Do you have feedback on this episode of On The Merits? Give us a call and leave a voicemail at 703-341-3690.

David Lat joins Sarah and David to break down recent Supreme Court trends and discuss Lat's legal fiction novel, Supreme Ambitions. The Agenda: —Is the shadow docket problem solved? —Supreme Court approval rating —Stabilizing the Supreme Court —Lat's pick for most interesting justice —Who will win the text, history, and tradition fight? —Advice for law students —Lat's book, Supreme Ambitions —Stranger than legal fiction —Male authors writing female protagonists —Lat's favorite legal writing —The return of crime procedurals Show Notes: —Shadow docket on Biden Title IX regulations —Advisory Opinions on Presumed Innocent Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including Sarah's Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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.Here's a trivia question for devotees of Original Jurisdiction: excluding Supreme Court justices and Judge Aileen Cannon, who has been most frequently recognized in these pages as Judge of the Week? It's a tie between a pair of four-time honorees: Judge James Ho (5th Cir.), whom I've previously interviewed, and Judge Kevin Newsom (11th Cir.)—my latest guest on the Original Jurisdiction podcast.This month marks the seventh anniversary of Judge Newsom's appointment to the U.S. Court of Appeals for the Eleventh Circuit. And although seven years is not a long time by the standards of judicial service, Judge Newsom has already developed a national reputation as one of the sharpest thinkers and writers on the federal bench.How has he put himself on the map? Many of history's most celebrated jurists have done so through dazzling dissents, such as Justice John Marshall Harlan, often called “The Great Dissenter,” and Justice Antonin Scalia.But Judge Newsom has done so through a more unusual vehicle: the concurrence (including the occasional self-concurrence, i.e., a concurrence to his own majority opinion). In a series of thoughtful and scholarly concurrences, he has tackled some of the messiest doctrinal areas and knottiest problems in American law, including standing, nondelegation, complex First and Second Amendment issues, the burden-shifting analysis of McDonnell Douglas v. Green, and jurisdiction under Bell v. Hood.Judge Newsom and I discuss why he writes these concurrences—plus Justice Elena Kagan's critique of superfluous concurrences, how to hire great law clerks (and feed them to the Supreme Court), and the potential utility of AI for originalism—in the latest episode of the Original Jurisdiction podcast.Show Notes:* Judge Kevin C. Newsom bio, U.S. Court of Appeals for the Eleventh Circuit* Remarks of Judge Kevin C. Newsom, Harvard Journal of Law & Public Policy* Interview of Judge Kevin Newsom, by David Oscar Markus for For the DefensePrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!By next Thursday, August 16, creditors must vote on whether to approve the Chapter 11 liquidation plan of FTX, the once high-flying cryptocurrency exchange. FTX's former CEO, Sam Bankman-Fried aka SBF—the son of two Stanford law professors, who went on to become one of the world's youngest billionaires—is behind bars. He's in the process of appealing his convictions for fraud, conspiracy, and money laundering, as well as his 25-year prison sentence.Ryne Miller served as general counsel of FTX US, one of several corporate entities that was part of the sprawling FTX empire. Working out of New York, he was not part of SBF's high-living, Bahamas-based inner circle. But after a fateful phone call in November 2022 from SBF's father, Joe Bankman, informing Ryne of a multibillion-dollar “liquidity hole”—some $8 billion to $10 billion in FTX customer deposits that had somehow gone missing—he played a crucial role in responding to the situation. By the end of that week, FTX was in bankruptcy.Why did Ryne leave a partnership at Sullivan & Cromwell, one of the world's leading law firms, to become the GC of FTX US? Should he have noticed certain red flags at the company, such as the lack of a board or a weak compliance function? What lessons does he draw from his time at the company? And how is he putting them to work today at his new law firm, Miller Strategic Partners, which marks its one-year anniversary next month? Ryne and I covered all this and more, in the latest edition of the Original Jurisdiction podcast.Show Notes:* Ryne Miller bio, Miller Strategic Partners* Former FTX general counsel starts his own law firm, by MK Manoylov for The BlockPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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 at nexfirm dot com.

In this epidose of "Movers, Shakers & Rainmakers," David Lat and Zach Sandberg discuss the newly released 2024 Vault Rankings. How are the Vault rankings formulated? Who moved up? Who dropped down? And why? For the Move of the Week, David discusses Norton Rose's hiring of a 12 attorney team from Bryan Cave, while Zach analyzes Mayer Brown's addition of Gabrielle Levin from Gibson Dunn to co-lead their Employment Litigation & Counseling practice.

David Lat takes over the guest chair and joins Sarah to discuss recent SCOTUS decisions. The Agenda: —SCOTUS bumps bump stock case to Congress —Lily Ledbetter and the last time Congress did their job —Mifepristone decision —Trump too small? Maybe, but you can't trademark it —Justice Gorsuch and Justice Jackson's playful relationship —NLRB and defending the administrative state —Justice Alito is secretly recorded —Young Thug's messy court trial —Predicting SCOTUS decisions —Sentencing and appeals in the Hunter Biden saga Show Notes: —Peggy Noonan's response to Alito-gate —David Lat and "underneath their robes" —The Mo News Podcast Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including Sarah's Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWhat's the most widely cited legal book in the world? If you guessed Black's Law Dictionary, then congratulate yourself. Henry Campbell Black published the first edition in 1891, and today it's a must-have for every lawyer and law student. I even make an appearance in Black's as the coiner of the term “benchslap,” defined as “a judge's sharp rebuke of counsel, a litigant, or perhaps another judge.”Who decides whether a term has gained sufficient traction to make it into Black's? That would be Bryan Garner, the prominent legal lexicographer, lawyer, and legal-writing expert. In the latest episode of the Original Jurisdiction podcast, he explains how he and his colleagues determine whether a neologism has made the cut.This is actually a bonus episode of the podcast, since I posted an episode last week and I'll have another episode next week. What's the occasion? Today marks the publication of the twelfth edition of Black's Law Dictionary. If you're looking for a graduation or back-to-school gift for a law student, or maybe a Father's Day gift for a #LawDad in your life, order your copy today.Thanks to Bryan for joining me, and congratulations to him and his team on the latest edition of Black's Law Dictionary.Show Notes:* Bryan A. Garner bio, LawProse* Black's Law Dictionary (12th ed.), Amazon* Black's Law Dictionary: An Interview with Bryan A. Garner, by David Lat for Above the LawPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!After my fascinating conversation with Rodge Cohen of Sullivan & Cromwell, I wanted to interview another transactional lawyer for the Original Jurisdiction podcast. But to mix things up, I wanted to speak with an up-and-coming dealmaker rather than a senior statesperson. And because May is Asian American and Native Hawaiian/Pacific Islander Heritage Month, I was hoping to feature a lawyer of AANHPI descent.Meet Shanu Bajaj, a mergers and acquisitions partner at Davis Polk & Wardwell. Although she hasn't been a partner for long, Shanu has already been recognized as a star of the M&A bar. In February, she took the #3 spot in the MergerLinks ranking of Top Female M&A lawyers in North America. In March, The American Lawyer named Shanu one of its 2024 Dealmakers of the Year, based on her representation of ExxonMobil in 2023's largest transaction, the oil giant's $59.5 billion purchase of Pioneer Natural Resources.What drew Shanu to M&A as a practice area? What are two abilities that she views as especially important for transactional attorneys? How does she describe her personal style as a dealmaker? And what are her tips for making partner in Biglaw, during a time when the rewards are richer—but the odds are longer—than ever?Thanks to Shanu for taking the time to tackle these and many other topics with me, and congratulations to her on the well-deserved recognition of her talents. And with decades of deals ahead of her, she's just getting warmed up.Show Notes:* Shanu Bajaj bio, Davis Polk & Wardwell* The 2024 Dealmakers of The Year, The American Lawyer* Which M&A Attorneys Drove the Most Business as Deal Leads?, by Patrick Smith for The American LawyerPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

This week, on Movers, Shakers & Rainmakers, our hosts David Lat and Zach Sandberg do a deep dive on the most recent set of the American Lawyer's famed law firm rankings—both the Am Law 100 ranking, which came out last month, and the Second Hundred ranking, which was just released. Who is moving up in the world? Are there firms struggling? What factors are driving the success of the firms that are flourishing? Join our hosts as they run through numerous metrics that measure a firm's financial health and performance in this must-listen episode. For his move of the week, David follows another high-profile acquisition by Paul Weiss, which seems to be on a hiring spree, while Zach breaks down Baker McKenzie's onboarding of a major West Coast transactional team from Munger.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!It might seem odd to bestow the title of “titan” upon someone once described in the New York Times as standing five-foot-two and weighing 100 pounds wet. But if you know anything about banking M&A and regulatory work, you know that H. Rodgin Cohen, senior chair of Sullivan & Cromwell, is a true giant of the field.For more than 50 years, Rodge Cohen has practiced at the pinnacle of financial-services law. He's played a role in many historical events over the decades, including New York City's fiscal crisis, where he helped rescue the city from the brink of bankruptcy in 1975; the Iran hostage crisis, where he counseled American banks that released frozen Iranian funds, part of the deal that led to the 1981 release of the hostages; the 2008 financial crisis, where he represented the buyer or the seller in seemingly every major bank deal; and efforts last year to save Silicon Valley Bank and First Republic Bank.In my latest podcast episode, I interview Rodge about his remarkable career, including his involvement in the aforementioned, headline-making events. But we also cover his childhood in West Virginia, his advice for how to succeed as a deal lawyer, and even his theater and reading recommendations—because despite his demanding practice, Rodge somehow finds the time to see numerous shows and read tons of books. (One recent work we both recommend is Paula Vogel's Mother Play, which yesterday snagged four Tony Award nominations, including Best New Play.)For my first-ever interview of a corporate or transactional attorney (as opposed to a litigator), I wanted to get a big name—and Rodge Cohen is one of the biggest and best in the business. I guessed that he would be “too big to fail”—and if you listen to our enjoyable and wide-ranging conversation, you'll see that I was right.Show Notes:* H. Rodgin Cohen bio, Sullivan & Cromwell* H. Rodgin Cohen profile, Chambers and Partners* Trauma Surgeon of Wall Street, by Alan Feuer for the New York Times* The Banking Industry's Go-to Crisis Adviser, by DealBook for the New York TimesPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!How many Supreme Court advocates wind up with three or more arguments in the same Term? Some of my past podcast guests—like Lisa Blatt, Paul Clement, Neal Katyal, and Kannon Shanmugam—can claim this distinction. But it's very, very rare (especially if you don't work—or have never worked—in the Office of the Solicitor General).What's even more rare is having three oral arguments in your very first Term arguing before the Court. But Easha Anand, the 38-year-old co-director of Stanford Law School's renowned Supreme Court Litigation Clinic, just pulled off this feat—which is why I was so eager to have her as a guest on the Original Jurisdiction podcast.How did Easha wind up in law school, after a promising journalism career that included stints at the New Orleans Times-Picayune and the Wall Street Journal? How did she wind up with three Supreme Court arguments in the same Term? And what are her three pieces of advice for first-time SCOTUS advocates?Listen to our podcast interview to find out. Congratulations to Easha on the unanimous win in her first argued case, thanks to her for joining me, and good luck to her in what I predict will be a long and successful career arguing at One First Street.Show Notes:* Easha Anand bio, Stanford Law School* Stanford's Anand Argues Whistleblower Case in High Court Debut, by Lydia Wheeler for Bloomberg Law* Supreme Court Bar's Breakout Lawyer This Term Started Out in Journalism, by Jimmy Hoover for the National Law JournalPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

David Lat is a lawyer turned legal writer who created Above The Law and his current, legal newsletter and podcast Original Jurisdiction, which is now his full-time job. Prior to writing he was a practicing attorney and worked as a federal prosecutor in the Department of Justice under Chris Christie. David is a husband and the father of two kids. In today's conversation we discussed: * The transition from an in-house legal career to the world of writing and podcasting and what that has done for his family* Surrogacy* Important legal considerations for parents* Navigating feelings of parental guilt* How to talk to your kids about different family types and configurations* The fallacy of making logical appeals to children* His approach to interviewing for childcareListen now on Apple, Spotify, Overcast and YouTube.—Where to find David Lat- LinkedIn: https://www.linkedin.com/in/davidlat/- Twitter: https://twitter.com/DavidLat- Original Jurisdiction: https://davidlat.substack.com/ Where to find Adam Fishman- FishmanAF Newsletter: www.FishmanAFNewsletter.com- LinkedIn: https://www.linkedin.com/in/adamjfishman/- Instagram: https://www.instagram.com/startupdadpod/—In this episode, we cover[1:47] Welcome[2:04] Professional background[2:53] The decision to go from practicing law to writing about law[5:02] David's family now[5:37] Their decision to start a family[7:21] Surrogacy[9:37] Family/work balance[12:34] Was career choice influenced by becoming a dad?[14:54] Legal considerations for parents[17:32] What is a pre-birth order?[19:11] Earliest memory of becoming a dad[20:57] What emotions came up when you realized it was “real”?[22:57] Most surprising thing about becoming a dad?[25:15] Advice for younger self[28:40] His interview approach for childcare[30:17] Parental guilt[34:56] Parenting Frameworks[36:27] How has your parenting style changed over time?[38:10] Area where David and his partner don't align[40:30] Logical appeals vs. children[41:59] How do you recharge your batteries?[43:38] What is a mistake you made as a dad?[45:02] Talking to son about same-sex parenting[48:27] Follow along[49:23] Rapid fire—Show references:Clueless: https://www.imdb.com/title/tt0112697/Carly Aroldi, Good Enough Parenting: http://podcasts.apple.com/us/podcast/good-enough-parenting/id1708282417Creative Family Connections: https://www.creativefamilyconnections.com/Chris Christie: https://en.wikipedia.org/wiki/Chris_ChristieChris Christie on David's Podcast: https://davidlat.substack.com/p/chris-christie-podcast-interview-with-david-latAbove The Law: https://abovethelaw.com/BabyConnect: https://en.babyconnect.com/My Two Dads and Me by Michael Joosten: https://www.amazon.com/My-Two-Dads-Michael-Joosten/dp/0525580107Snoo: https://www.amazon.com/SNOO-Smart-Sleeper-Happiest-Baby/dp/B0716KN18Z—For sponsorship inquiries email: podcast@fishmana.com.For Startup Dad Merch: www.startupdadshop.com Production support for Startup Dad is provided by Tommy Harron athttp://www.armaziproductions.com/ This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit startupdadpod.substack.com

David Lat is a lawyer turned legal writer who created Above The Law and his current, legal newsletter and podcast Original Jurisdiction, which is now his full-time job. Prior to writing he was a practicing attorney and worked as a federal prosecutor in the Department of Justice under Chris Christie. David is a husband and the father of two kids. In today's conversation we discussed:  The transition from an in-house legal career to the world of writing and podcasting and what that has done for his family Surrogacy Important legal considerations for parents Navigating feelings of parental guilt How to talk to your kids about different family types and configurations The fallacy of making logical appeals to children His approach to interviewing for childcare — Where to find David Lat - LinkedIn: https://www.linkedin.com/in/davidlat/ - Twitter: https://twitter.com/DavidLat - Original Jurisdiction: https://davidlat.substack.com/    Where to find Adam Fishman - FishmanAF Newsletter: https://www.fishmanafnewsletter.com - LinkedIn: https://www.linkedin.com/in/adamjfishman/ - Instagram: https://www.instagram.com/startupdadpod/ — In this episode, we cover [1:47] Welcome [2:04] Professional background [2:53] The decision to go from practicing law to writing about law [5:02] David's family now [5:37] Their decision to start a family [7:21] Surrogacy [9:37] Family/work balance [12:34] Was career choice influenced by becoming a dad? [14:54] Legal considerations for parents [17:32] What is a pre-birth order? [19:11] Earliest memory of becoming a dad [20:57] What emotions came up when you realized it was “real”? [22:57] Most surprising thing about becoming a dad? [25:15] Advice for younger self [28:40] His interview approach for childcare [30:17] Parental guilt [34:56] Parenting Frameworks [36:27] How has your parenting style changed over time? [38:10] Area where David and his partner don't align [40:30] Logical appeals vs. children [41:59] How do you recharge your batteries? [43:38] What is a mistake you made as a dad? [45:02] Talking to son about same-sex parenting [48:27] Follow along [49:23] Rapid fire — Show references: Clueless: https://www.imdb.com/title/tt0112697/ Carly Aroldi, Good Enough Parenting: https://podcasts.apple.com/us/podcast/good-enough-parenting/id1708282417 Creative Family Connections: https://www.creativefamilyconnections.com/ Chris Christie: https://en.wikipedia.org/wiki/Chris_Christie Chris Christie on David's Podcast: https://davidlat.substack.com/p/chris-christie-podcast-interview-with-david-lat Above The Law: https://abovethelaw.com/ BabyConnect: https://en.babyconnect.com/ My Two Dads and Me by Michael Joosten: https://www.amazon.com/My-Two-Dads-Michael-Joosten/dp/0525580107 Snoo: https://www.amazon.com/SNOO-Smart-Sleeper-Happiest-Baby/dp/B0716KN18Z — For sponsorship inquiries email: podcast@fishmana.com. For Startup Dad Merch: www.startupdadshop.com  Production support for Startup Dad is provided by Tommy Harron at http://www.armaziproductions.com/

In this double-guest special, David Lat shares his original reporting on the exodus of Judge Aileen Cannon's clerks and its implications for Trump's classified documents case. Judge David Proctor of the Northern District of Alabama then joins to explain the history and function of the federal judiciary and its committees, including the Judicial Conference. The Agenda: —Do younger clerks just not understand hard work? —Judge Cannon's declining reputation —Delays in Trump's documents case —How the federal judiciary came to be —Rule-making process for the Federal Rules of Civil Procedure —Multi-district litigation and its criticisms Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!Chris Christie has had an interesting and eventful career in public life. He served as U.S. Attorney for the District of New Jersey from 2002 to 2008, then as Governor of the Garden State from 2010 to 2018. And he was a candidate for the 2024 Republican presidential nomination, until his January withdrawal from the race.People tend to have strong opinions about Christie. Some respect his outspoken criticism of Donald Trump, which was the centerpiece of his presidential campaign. Others do not—perhaps because they support Trump, or perhaps because they can't forgive Christie for having been for Trump before he was against him. (In some ways Christie is his own harshest critic for this, admitting in his speech withdrawing from the race that he endorsed Trump because he put personal ambition over what he knew was right.)I'm not a neutral observer when it comes to Chris Christie. I worked for him as an assistant U.S. attorney from 2003 to 2006, and I like and respect him a great deal. As we discuss at the start of this podcast episode, I'm especially grateful for how he dealt with me in the wake of the scandal over my very first blog, Underneath Their Robes. But that didn't stop me from asking him difficult questions on the podcast, including his biggest regrets—yes, he talks about Bridgegate—and whom he might vote for in the presidential election. We also review his legal career, including his advice for law students and his three biggest cases as U.S. Attorney.Congratulations to Governor Christie on his latest book—What Would Reagan Do? Life Lessons from the Last Great President, which we discuss on the podcast—and thanks to him for both his past kindness and willingness to join me today.Show Notes:* Chris Christie bio, Christie 55 Solutions* What Would Reagan Do? Life Lessons from the Last Great President, AmazonPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

David Lat is a lawyer-turned-writer, who publishes a weekly newsletter on Substack titled “Original Jurisdiction.” He joins Preet to discuss the federal judiciary, Trump's many trials, and the free speech controversies roiling universities and law schools around the country.  Plus, what would a Trump DOJ look like the second time around? How will SCOTUS' decision to consider the presidential immunity issue affect Trump's trial calendar? And can an AI chatbot testify in court?  For show notes and a transcript of the episode head to: https://cafe.com/stay-tuned/david-lat-federal-judges-trump-trials-supreme-court-free-speech/ Have a question for Preet? Ask @PreetBharara on Threads, or Twitter with the hashtag #AskPreet. Email us at staytuned@cafe.com, or call 669-247-7338 to leave a voicemail. Stay Tuned with Preet is brought to you by CAFE and the Vox Media Podcast Network. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Join David Lat and Zach Sandberg on Movers, Shakers & Rainmakers as they chat with Emily Logan Stedman, newly appointed partner at Husch Blackwell and advocate for lawyer well-being. Emily shares her journey to partnership, her commitment to mental health in the legal community, and how she balances leadership with personal well-being. She discusses the evolving role of women in law, mentoring, and her strategies for personal branding and business development. Emily also offers advice to junior associates and law students, including the use of the billable hour as a time-management tool. In Moves of the Week, we spotlight Kimberly Branscome's move to Paul, Weiss in Los Angeles, King & Spalding welcoming longtime Hollingsworth litigator Greg Chernack in DC, and Hogan Lovells hiring 23 M&A lawyers from Orrick in Italy. Tune in for insights on legal career growth, mental health advocacy, and the importance of personal branding. Don't forget to rate, review, subscribe, and share with your network!

This is a free preview of a paid episode. To hear more, visit davidlat.substack.comWelcome 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. Thanks!In part one of my two-part interview of David Boies, I asked the famed trial lawyer to do what he does best: analyze cases and controversies. In part two, we turned to a topic that's closer to home: David Boies.My husband Zach tells me that I'm too soft as an interviewer. Trying to prove him wrong, I asked David some tough questions about sensitive subjects. Do you rue the day you met Elizabeth Holmes? What do you regret about your work for Harvey Weinstein? Why doesn't Boies Schiller Flexner have an anti-nepotism policy? What will be in your Times obituary?I've interviewed David on multiple occasions over the years, and we've never had any tense moments—until now. If you usually read my podcast interviews, you might want to listen to this one.David fielded my aggressive questions thoughtfully, eloquently, and graciously—which is exactly what I expected of this legal lion. But listen for yourself and reach your own verdict on David Boies.Show Notes:* David Boies Pleads Not Guilty, by James B. Stewart for the New York Times* The Bad, Good Lawyer, by Andrew Rice for New York MagazinePrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.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.

Guest: ✨ Colin S. Levy, Author & Director of Legal at Malbek [@HelloMalbek]On Linkedin | https://www.linkedin.com/in/colinslevy/On Twitter | https://twitter.com/Clevy_LawWebsite | https://www.colinslevy.com/____________________________Host: Marco Ciappelli, Co-Founder at ITSPmagazine [@ITSPmagazine] and Host of Redefining Society PodcastOn ITSPmagazine | https://www.itspmagazine.com/itspmagazine-podcast-radio-hosts/marco-ciappelli_____________________________This Episode's SponsorsBlackCloak

Sarah joins David Lat's Original Jurisdiction to review 2023's best (and worst) legal cases and lawyers and make some hopeful (and less hopeful) predictions about the coming year. Learn more about your ad choices. Visit megaphone.fm/adchoices

Exciting news from host-in-absentia Sarah Isgur. Partisan gerrymandering. Cameras in courts. David French and guest-host David Lat have so much to cover in so little time. Here we go: -New arrivals -Purdue Pharma update -Should the Trump trials be televised? (The Davids disagree) -Wisconsin's judicial elections mess -Alabama's ongoing redistricting wars and systemic racism -Elon Musk goes after the ADL Show notes: -2020 DOJ press release on Purdue Pharma and the Sackler Family -Just Security on Judge Jones's supplemental briefing order -Caplan v. Trump (Section 3 ruling) -Charlie Sykes on the Wisconsin Supreme Court drama -Singleton v. Allen (Alabama Voting Rights Act case) -David Firestone on Alabama Voting Rights Act case -Elon Musk blames ADL for lost revenue (NBC) -Musk blames Latham for San Francisco's problems. Huh? (Reuters) -David French's NYT column on Texas age-verification law -AO episode featuring Ari Cohn on age-verification laws -Video version of this episode Learn more about your ad choices. Visit megaphone.fm/adchoices

The DnD show begins as David Lat returns to co-guest host in Sarah's absence. David and David discuss a strange First Amendment case out of the Fifth Circuit involving terrorism and COVID zombies, and: -Jan. 6 fake electors case -Non-delegation at the Sixth Circuit -Some drama with Big Law -Breaking News: Trump court date set Show notes: Georgia amicus brief opposing removal Bailey v. Iles (Fifth Circuit free-speech case) Allstates Refractory Contractors v. Su (Sixth Circuit nondelegation case) Chris Geidner on Allstates Jonathan Adler on stare decisis MoFo complaint Perkins Coie complaint Learn more about your ad choices. Visit megaphone.fm/adchoices

David Lat stands in for Host Emeritus once more to help Sarah catch up on the latest Supreme Court decisions. Too, they take a detour on penmanship. -Why the justices make us wait -On Puerto Rico's sovereign immunity and Kagan's stylistic quirk -Durham Report -Judge Newman, age, and lifetime tenure -New law school rankings just dropped Learn more about your ad choices. Visit megaphone.fm/adchoices

While host emeritus is off for a week on a mysterious mission, David Lat of Original Jurisdiction rejoins Sarah to sift through the latest Supreme Court decisions. On the docket: -Gettysburg update -Attempting to answer when individual members of Congress can go to court -The unsatisfying end to Pork Producers -Buffalo Billion, New York, and federal wire fraud -Setting the table for Title 42 Learn more about your ad choices. Visit megaphone.fm/adchoices