Bet the law-firm time

You all know the story.

Trump has issued executive orders against Perkins Coie and Paul Weiss. Perkins has decided to fight. Paul Weiss has decided to settle.

The managing partner of Paul Weiss, Brad Karp, issued this firm-wide email explaining his decision to bend the knee and settle. It's hard to blame him. Here's a snippet:

We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.

At the same time, we learned that the Administration might be willing to reach a resolution with us. So, working with our outside counsel, we did exactly what we advise our clients to do in “bet the company” litigation every day: we talked with the Administration to see if we could achieve a lasting settlement that would not require us to compromise our core values and fundamental principles.

In a matter of days, we were able to negotiate such a resolution. That resolution, the terms of which I shared with all of you on Thursday evening, had three primary components. First, we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters. Second, while retaining our longstanding commitment to diversity in all of its forms, we agreed that we would follow the law with respect to our employment practices. And third, we agreed to commit $10 million per year over the next four years in pro bono time in three areas in which we are already doing significant work: assisting our Nation’s veterans, countering anti-Semitism, and promoting the fairness of the justice system.

To be clear, and to clarify misinformation perpetuated from various media sources, the Administration is not dictating what matters we take on, approving our matters, or anything like that. We obviously would not, and could not ethically, have agreed to that. Instead, we have agreed to commit substantial pro bono resources, in addition to the $130+ million we already commit annually, in areas of shared interest. We will continue all of the existing pro bono work we already do and will continue in our longstanding role as a leader of the private bar in the pro bono and public interest sphere.

This existential crisis required the leadership of our law firm to make incredibly difficult decisions under extraordinary time pressure. In making those decisions, we were guided by two fundamental principles. First and foremost, we were guided by our obligation to protect our clients’ interests. As I mentioned earlier, we concluded that even a victory in litigation would not be sufficient to do so, because our firm would still be perceived as persona non grata with the Administration. We simply could not practice law in the Paul, Weiss way if we were still subject to the executive order. This resolution was unambiguously in our clients’ best interests.

You're the managing partner of Paul Weiss.  What would you do?

Chief Judge Pryor Issues Order on Misconduct Complaint

By John R. Byrne

There’s been a trend in multidistrict and class action litigation of federal district judges expressly seeking diversity in plaintiff-side leadership, which is court-appointed. Yesterday, Chief Judge Pryor issued an order explaining that such a practice violates the Constitution as well as certain judicial codes of conduct.

The order stemmed from a judicial misconduct complaint filed against Judge Casey Rodgers of the Northern District by influential conservative lawyer Michael R. Davis, who runs the Article III Project.

Judge Rodgers, an experienced MDL judge who is presiding over the Depo-Provera MDL, had made comments at a case management conference about striving for diversity in plaintiffs' leadership—particularly gender diversity. She said, “I think diversity is still an important thing to strive for, so diversity, you know, of all types, but particularly in this litigation, because of the Plaintiffs, I want that particular diversity reflected in the leadership. Now, that doesn't mean I'm looking for every single leader[] to be female, but females need to be adequately represented in your leadership.” Judge Rodgers later issued an order consistent with her comments. Davis filed a complaint, which led to Judge Pryor’s review.

Ultimately, the issue resolved itself, with Judge Rodgers making clear through later orders and comments that she wouldn’t be giving preference to female attorneys when appointing leadership. All the same, Judge Pryor wrote that “the Judicial-Conduct Rules, the Code of Conduct, and the Constitution prohibit federal judges from engaging in discrimination based on sex,” and went on to point out that commentators in the space were “openly encouraging [judges] who preside over these actions to consider impermissible characteristics like sex or race when they appoint leadership counsel.”

Full order below.11-25-90043 CJ Order by John Byrne on Scribd

CA9 Judge Lawrence VanDyke dissents in an 18-minute YouTube video

 Here's the video dissent, after a 147 pages of en banc opinions

"This is the first video like this I've ever made." -- Judge VanDyke at 4:45 mark of a video that goes on for over 18 minutes.

He then goes on to demonstrate with a gun.

Judge Marsha Berzon takes him to task in her concurrence, calling it "wildly improper" and saying that VanDyke “appointed himself as an expert witness” in an appeal. “Although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses, expert and otherwise."

Chief Justice Roberts tries to lower the temperature

President Trump and a number of his surrogates have called for impeachment of Judge James Boasberg, one of our great judges.  Boasberg is smart and respected by both sides of the aisle.  

Chief Justice Roberts told Trump to stop.  

"For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."

From SCOTUSblog:

Chief Justice John Roberts criticized a call by President Donald Trump for the impeachment of a federal trial judge who temporarily barred the federal government from deporting noncitizens pursuant to an executive order published on Saturday.

The rare public statement was the latest development in a fast-moving battle over Trump’s efforts to deport noncitizens alleged to be members of a Venezuelan gang pursuant to an eighteenth-century law that had been invoked only three previous times in the country’s history.

Trump’s executive order relied on the Alien Enemies Act, a 1798 law that allows the president to detain or deport citizens of an enemy nation without a hearing or other judicial review when Congress has declared war or when an “invasion” or “predatory incursion” occurs. Trump found that Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Based on that conclusion, he indicated that “all Venezuelan citizens 14 years of age or older who are members of TdA are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

On Saturday, James Boasberg – the chief judge of the U.S. District Court for the District of Columbia – prohibited the federal government from deporting any noncitizens for 14 days pursuant to the executive order published earlier in the day.

Boasberg also ordered the Trump administration to turn around any flights that had already taken off.

Despite Boasberg’s order, news outlets – including The New York Times – reported that the Trump administration had deported more than 200 noncitizens to El Salvador on Saturday night and Sunday morning. None of the planes carrying those noncitizens landed in El Salvador before Boasberg issued his written order.

 

 

Big Opinion on Firearms

 By John R. Byrne

The Eleventh Circuit just dropped another major opinion on constitutional law, this time upholding Florida’s ban on firearm purchases by individuals under 21 against a Second and Fourteenth Amendment challenge. With courts—including SCOTUS—grappling with gun rights post-Bruen, this decision adds another layer to the debate. And if you thought textualist and originalist judges would all fall on the same side of the issue, think again: Chief Judge Pryor, Judge Grant, and Judge Newsom backed the ruling, while Judges Lagoa, Luck, and Branch dissented. Read the full opinion below.

202112314.enb.op by John Byrne on Scribd

Your Friday Dose of Con Law

 By John R. Byrne

Missing your old Con Law class? Check out the Eleventh Circuit's recent decision in Littlejohn v. School Board of Leon County, Florida. The case involved a school board policy that allowed elementary school officials to develop a gender-identity-related "Student Support Plan" for a child without parental permission or involvement. The parents sued the school board, arguing that the board violated their fundamental parental due process and familial privacy rights.

The Court ultimately held that the trial court correctly dismissed the claims, reasoning that the parents were challenging "executive" action, that the "shocks the conscience" standard applies, and that the board's alleged actions didn't so shock. But the more interesting debate came in the lengthy concurrences, where Judges Rosenbaum and Newsom sparred over the continuing utility of the entire substantive due process doctrine—particularly, the differences in how it applies to legislative versus executive actions. Oh, and Judge Tjoflat thought that the Littlejohns' claim should have been allowed to proceed.

A lot to unpack here.Substantive Due Process by John Byrne on Scribd

Judge Rakoff on the trial penalty

 This is a must-read opinion about the trial penalty and why so few cases go to trial.  He explains why the acceptance provision in the Guidelines, 3E1.1(b), is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial. 

Judge Rakoff promises defendants that if they proceed to trial, they will not receive a higher sentence than if they plead guilty.  That's how our system should work, of course.  But it's still pretty amazing that he does this in an effort to eliminate the trial penalty.

I got to know Judge Rakoff a bit when I interviewed him for the podcast a few years ago.  He's a unique and impressive guy.  

KBJ speaks at ABA conference in Miami

 Here's a post that covers some of it, including "her newfound friendship with Justice Amy Coney Barrett (who threw Justice Jackson a Hamilton-themed welcome party to the Supreme Court)."

On weighty legal issues of the day, Justice Jackson, who sat on the Sentencing Commission, shared that she has long-been a proponent of rebuilding the Sentencing Guidelines from scratch. She also addressed the timely topic of presidential immunity; referencing her recent dissent in Trump v. United States, she shared her concern that “immunity is a principle engendering inequality.”

When asked about the diversity of the judiciary and its impact, Justice Jackson cited an Oliver Wendell Holmes quote that “the life of the law has not been logic, it has been experience.” Justice Jackson believes that it instills confidence in the institution when judges come from different walks of life. Justice Jackson’s life exemplifies brilliance, possibilities, hope, strength, and service. It was no surprise that as the conversation ended, many in the packed conference hall shared that Justice Jackson’s comments had been a true inspiration and flocked to buy her memoir, “The Lovely One,” titled for the translation of her name, Ketanji Onyika.