Original Jurisdiction

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 [email protected]. This is a reader-supported publication; you can subscribe by clicking here.

If you ever get prosecuted by the U.S. Attorney’s Office for the Southern District of New York, I wish you luck—because you’ll need it. “The Office” has a very high conviction rate—and, like most U.S. Attorney’s Offices, the vast majority of its convictions get affirmed on appeal.

If you want to maximize your chances of either prevailing at trial or on appeal against the S.D.N.Y., then you should call Alexandra Shapiro (if you can afford her). She’s the rare lawyer who can go up against The Office and win—whether at trial, in the Second Circuit, or before the U.S. Supreme Court.

An alum of the S.D.N.Y. herself, as well as a former law clerk to the late Justice Ruth Bader Ginsburg, Alexandra is the co-founder (with Cynthia Arato) of a thriving boutique, Shapiro Arato Bach. Having her own firm allows Alexandra to take on cases and clients that she might not have been able to handle back when she was a partner at Latham & Watkins—whether because of client conflicts, the desire of large firms to steer clear of controversy, or Biglaw billing rates (because even if she’s expensive, she’s not Latham expensive, plus she enjoys more rate flexibility than a large firm).

Speaking of controversy, Alexandra currently represents two high-profile defendants going up against The Office: FTX founder Sam Bankman-Fried, appealing his fraud convictions to the Second Circuit, and Sean “Diddy” Combs, scheduled to go to trial in May 2025 on sex-trafficking and racketeering charges. She discusses these cases (to the extent that she can)—as well as her own interesting and impressive career, her approach to crafting appellate briefs, and her legal thriller, Presumed Guilty (2022)—in the latest episode of the Original Jurisdiction podcast.

(Programming note: as some of you might have noticed, this episode is a week early, based on my usual every-other-week schedule. But between now and the end of the year, the schedule might get a little funky because of the demanding schedules of my next few guests, plus the holidays. I will try to stick to Wednesday as the drop date, but I can’t guarantee much beyond that.)

Show Notes:

* Alexandra A.E. Shapiro bio, Shapiro Arato Bach LLP

* Shapiro Arato Bach’s Dynamite Trio: A Head-Turning Alternative to Big Law, by Emily Jackoway for Lawdragon

* Presumed Guilty, Amazon

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.

With a contentious election just around the corner, tensions are running high, and it’s easy to focus on what divides us. So my latest podcast interview, featuring Judge Kenneth Lee of the U.S. Court of Appeals for the Ninth Circuit, is quite timely. The son of immigrants from South Korea—and an immigrant himself, who came to the United States at age four—Judge Lee still believes in the greatness of America.

In our conversation, Judge Lee and I discussed his parents, including the challenges they faced after arriving in the U.S.; his high-powered legal career, including stints at Wachtell Lipton, the White House Counsel’s office, and Jenner & Block; the best and worst parts of being a judge; his philosophy of legal writing; and his approach to law clerk hiring. We also looked back on our time together at Wachtell, which is where we first met, some 23 years ago—and where Ken racked up billable hours that you’ll find hard to believe. But as his former colleague, I can attest that he works incredibly hard—now in service to the Constitution and laws of the United States.

Show Notes:

* Kenneth K. Lee bio, Wikipedia

* Kenneth Lee, Senate Judiciary Committee questionnaire

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.

On Monday of last week, the customary first Monday of October, the U.S. Supreme Court kicked off October Term 2024. So I thought it might be a good idea to offer my listeners an overview of the 2024-2025 Term—and I could think of no better guide to the new SCOTUS Term than Morgan Ratner. I met Morgan this past July, when we participated in a Supreme Court “Year in Review” panel together, and I was struck by her talent for explaining complicated cases with exceptional clarity and accuracy.

Morgan’s knowledge of the Court shouldn’t come as a surprise. She has argued before the Court in nine cases, first as an assistant to the U.S. solicitor general and more recently as a partner at Sullivan & Cromwell. She clerked for two of the Court’s current members: then-Judge Brett Kavanaugh, during his time on the D.C. Circuit, and Chief Justice John Roberts.

Morgan graduated first in her class from Harvard Law School. Current and aspiring law students will be interested in—and perhaps surprised by—her advice on how to succeed in law school.

So listen to this episode and learn more about Morgan Ratner. For SCOTUS devotees, she’s someone you should get to know.

Show Notes:

* Morgan L. Ratner bio, Sullivan & Cromwell

* 40 Under 40 - Morgan Ratner of Sullivan & Cromwell, by Lisa Helem and MP McQueen for Bloomberg Law

* 12 Lawyers Who Are The Future Of The Supreme Court Bar, by Jeff Overley and Katie Buehler for Law360

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.

Our independent judiciary has been described—accurately so, in my opinion—as “the crown jewel of our constitutional republic.” And when it comes to the federal judiciary, few of its members are as independent-minded as Judge Jed S. Rakoff.

Judge Rakoff, 81, has served on the Southern District of New York since 1996. During his almost three decades on the bench, he has authored more than 2,000 opinions—many of them groundbreaking and headline-making, and some quite controversial.

In addition to his prodigious judicial output, Judge Rakoff is a leading commentator on the American legal system. He contributes regularly to The New York Review of Books, and he wrote an excellent book of his own: Why the Innocent Plead Guilty and the Guilty Go Free, and Other Paradoxes of Our Broken Legal System (2021).

With a new Term of the U.S. Supreme Court starting next week, I thought it would be interesting to interview Judge Rakoff about his latest column for The Review, which discusses the current Court—and doesn’t pull any punches. And in our conversation, Judge Rakoff didn’t walk back any of his criticism. When I asked him if he respects the Court, he artfully dodged—and later on in our interview, he described the Court’s rulings on gun control as not only “misguided,” but “immoral.”

We found time to discuss fun stuff, too. We talked about his approach to clerk hiring—being in FedSoc is not a black mark—as well as his hobbies. In his spare time, he enjoys participating in international ballroom dance competitions (with his wife Ann), writing satirical lyrics to musical compositions, and officiating at weddings (91 and counting). Check it all out, in the latest Original Jurisdiction podcast.

Show Notes:

* Judge Jed Rakoff bio, U.S. District Court for the Southern District of New York

* Hon. Jed S. Rakoff, by Luke McGrath for the Federal Bar Association

* The Most Conservative Branch, by Judge Jed S. Rakoff for The New York Review of Books

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.

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 [email protected]. This is a reader-supported publication; you can subscribe by clicking here.

Where 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 Law

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.

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 [email protected]. 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 Lawdragon

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.

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 [email protected]. 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 Defense

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. First, this transcript 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 fifty-third episode of this podcast, recorded on Friday, August 16.

Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment 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.

So August is a slow month—and that’s fine, since it’s a good time to relax and recharge. But one thing that happened in August—August 2017, to be precise—is that Judge Kevin Newsom joined the Eleventh Circuit. And in the intervening years, Judge Newsom has emerged as one of the most thoughtful and thought-provoking members of the federal judiciary. He’s an amazing writer, but he’s also a great thinker—and he’s written a number of opinions that have influenced or will influence the development of the law in a wide range of substantive areas. Without further ado, here’s my conversation with Judge Kevin Newsom.

Judge Newsom, thank you so much for joining me.

Kevin Newsom: Thanks for having me, David.

DL: So we go way back. We probably met back in 1998 or something, and I have to thank you for being part of the class of O’Scannlain clerks that recommended hiring me and my co-clerks, since my clerkship with the judge was a career highlight. Well, I guess I don’t know that you recommended us—you just didn’t stop our hiring.

KN: Yeah, no, you have me to thank. I have good taste.

DL: Well, that’s important, and we will get to that when we talk a little bit about clerk hiring. But let’s start with you, with your childhood and your upbringing. I believe you are… now, what is the proper demonym? Is it Alabaman, or Alabamian?

KN: I’d say Alabamian. So you’re close—some mashup of the two that you tried.

DL: So I believe you are an Alabamian by birth as well as residence, right?

KN: I am—I’m a native. I was born in Birmingham and I was away for a while, but I’ve been back now for 16, 17 years.

DL: Did you have any lawyers in the family? Were there any early hints that you were going to go into law?

KN: It’s interesting. Both my parents are lawyers—were, my father has since passed away, my mother has since retired—but neither of them frankly loved the law. And so to the extent I sort of came into it, I didn’t come into it by virtue or because of them—it was more in spite, really, of their experience in the law. So I’ve got lawyers in the family, but I don’t really think that explains how I came to it.

DL: So how you did come to it, especially if you had lawyer parents who did not make you want to jump into the profession?

KN: About halfway through undergrad, I really had no idea what I wanted to do, and I stumbled into an American constitutional history class, which was very law school-ish. We read a lot of primary source materials—it wasn’t summaries, we read the Constitution itself and the Federalist Papers and Supreme Court decisions—and I just absolutely fell in love with it.

True story: Christmas break after the fall semester of my junior year, I’m at my mother’s apartment over the break, up late one night sort of watching TV, channel surfing between Sports Center reruns or something, and I literally come across a video of Akhil Amar. I’d never heard of him at that time, but Akhil Amar was giving a talk to what was, I think, the Federalist Society’s National Convention, before it was quite the hoo-ha that it is today. He was talking about incorporation, which then was his kind of baby, and I just absolutely fell in love with it. And truly, it sounds so cheesy, but I really sort of thought in that moment, wow, if I can spend my life thinking about those sorts of things, that would be great. And so it was really in that moment that I decided to go to law school. And I’ve told Akhil this story, and he understandably likes to repeat it. He’s really responsible, in a very kind of distant way, for me having decided to go to law school.

DL: And what did you think of Harvard Law School?

KN: I loved it. The honest truth, David, is I was so surprised to get in. I didn’t really know what my prospects were because I had gone to this college that no one really has ever heard of. I went to a school called Samford—not to be confused with Stanford, or frankly to be confused with Stanford, because it inures to my benefit—but I went to Samford. No one really knows about it, and I didn’t know what my prospects were. I did well enough on the LSAT, but I didn’t blow it out of the water. And so I was frankly so surprised to get in, and so thankful to get in, that I just sort of viewed it as the opportunity of a lifetime. And so I really walked around for three straight years with my eyes wide open thinking, holy cow, I can’t believe I get to …

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 [email protected]. 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 Block

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.

One of the most consequential developments of the last Supreme Court Term was the overruling of Chevron v. Natural Resources Defense Council, Inc., the 40-year-old precedent directing courts to defer to agencies’ reasonable interpretations of ambiguous statutes. It came about through two cases: Relentless, Inc. v. Department of Commerce, argued by Roman Martinez, and Loper Bright Enterprises v. Raimondo, argued by former U.S. solicitor general Paul Clement (a past podcast guest).

Today I’m pleased to be joined by Roman Martinez. One of the leading Supreme Court advocates of his generation, Martinez, 45, has argued 14 cases before the Court. But none has been as consequential—or controversial—as the aptly named Relentless.

How does Martinez respond to claims that Relentless will have relentlessly negative consequences for American society? We explore the implications of the overturning of Chevron—along with Martinez’s clerkships for then-Judge Kavanaugh and Chief Justice Roberts, his thoughts on the old versus new SCOTUS argument formats, his style as a Supreme Court advocate, and his “secret weapon” in preparing for high-court appearances—in the latest Original Jurisdiction podcast.

Show Notes:

* Roman Martinez bio, Latham & Watkins

* Roman Martinez profile, Chambers and Partners

* 40 Under 40: Roman Martinez, Washington Business Journal

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.

Are we all originalists now? Definitely not; originalism has no shortage of critics.

But as the latest Term of the U.S. Supreme Court made clear, originalism is the dominant mode of constitutional interpretation at One First Street today. As the justices debate the doctrine’s finer theoretical points, such as the proper use of history and tradition, it’s clear that the debate is no longer “originalism or not originalism,” but “which originalism” or “whose originalism.”

So it’s more important than ever to understand the originalist mindset. And if you’re looking for help on that front, I have a book recommendation: Professor Randy Barnett’s new memoir, A Life for Liberty: The Making of an American Originalist. As promised by its subtitle, the book provides excellent insight into originalism as a theory—but as an engaging and enjoyable memoir, it’s far more fun to read than any casebook or treatise.

What drew Randy Barnett to originalism? Why does he view his losses in two landmark Supreme Court cases—Gonzales v. Raich, a Commerce Clause challenge to criminalizing medical marijuana, and NFIB v. Sebelius, a nearly successful effort to topple the Affordable Care Act—as victories of a sort? Why did he decide to write a memoir—and why does he think you should, too? All this and more is revealed—on the latest episode of the Original Jurisdiction podcast.

Show Notes:

* Randy E. Barnett bio, Georgetown University Law Center

* A Life for Liberty: The Making of an American Originalist, Amazon

* Libertarianism Updated, by Randy E. Barnett for Law & Liberty

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.