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.

 

 

Get ready for immigration cases

 New Deputy AG Todd Blanche has issued this memo to all U.S. Attorneys:

 

ABA white collar conference

 It's here for the next 3 days, folks. Lots of big firm "litigators" descending on Miami to discuss the latest white collar trends. Usually there are a bunch of DOJ officials that attend. Not this year. From Bloomberg:

Several senior Justice Department officials are last-minute scratches at a white-collar crime conference that leaders have regularly used to engage with the defense bar and reveal new policy initiatives.

The gathering, organized each year by the American Bar Association, begins March 5 in Miami and features a various panel discussions on trends in US enforcement. But most of the senior DOJ lawyers planning to appear are no longer on the schedule.

They include Glenn Leon, chief of the criminal division’s fraud section; Molly Moeser, head of a money laundering and asset forfeiture unit; David Fuhr, chief of the criminal division’s Foreign Corrupt Practices Act unit; and Michael Granston, a deputy assistant attorney general in the civil division’s commercial litigation branch.

$3,000 an hour

 That's what Alex Spiro is charging at Quinn Emanuel.  Per Reuters:

Quinn Emanuel's $3,000 top rate marks a milestone for leading U.S. law firms as lawyers' hourly fees continue to soar.
Law firms routinely raise their rates each year, and top rates at some of the largest U.S. firms have pushed past $2,500 an hour or higher in recent years, court records show.
Quinn Emanuel said in its court filings that its partners now bill between $1,860 and $3,000 an hour. It said it will charge between $1,775 and $2,725 an hour for “of counsel” attorneys at the firm, and between $1,035 and $1,665 for associates.
Billing rate increases helped drive growing revenue and profits for U.S. law firms in 2024, Wells Fargo's Legal Specialty Group said in a recent report.
Clients have been willing to accept “dramatic increases” in rates, according to a report last month by the Thomson Reuters Institute and the Georgetown Law Center on Ethics and the Legal Profession. The institute and Reuters share the same parent company, Thomson Reuters.

While you think of that, you may need a moment of zen.  So I give you Billy Joel:

Friday before trial

What do you do on the weekend before trial?  Are you cramming?  Do you try to relax a bit?  Do you spend time with the client?

An old colleague of mine at the PD's, Vince Farina, used to say -- if you don't know it by now, you don't know it.  He would go get a massage and a haircut.

Congratulations to Judge Lett!

By John R. Byrne

Congratulations to Judge Enjoliqué Lett on her investiture last Friday.  Attendees say it was a heartfelt event, with several speakers remembering Judge Marcia G. Cooke, for whom Judge Lett clerked.  

 

In addition to family and colleagues, Judge Seitz, Judge Williams, and Stephanie Casey spoke, with Judge Gayles administering the oath of office.