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 on the button below. Thanks!

Looking back over my time at Above the Law, one of the things I’m most proud of is the talent I discovered. My first full-time hire was Elie Mystal, now the justice correspondent on The Nation, frequent television commentator, and author of the bestselling Allow Me to Retort: A Black Guy’s Guide to the Constitution. My second full-time hire was Kashmir Hill, now at the New York Times, who has a book of her own: Your Face Belongs to Us: A Secretive Startup's Quest to End Privacy as We Know It, published last month by Penguin Random House.

Your Face Belongs to Us is about the future of facial-recognition technology, an incredibly powerful tool with great promise and peril. The book is a story about privacy and technology, but it’s also a story about the law and legal issues. The future of facial recognition will be shaped profoundly by legal responses. Can we craft laws that allow society to take advantage of the benefits of this technology while at the same time preserving the privacy that it threatens?

In my podcast interview with Kashmir, I pushed back on some of the more dystopian elements of Your Face Belongs to Us. I pressed her on whether she might be underestimating the positive aspects of facial-recognition technology, such as its use by law enforcement (such as tracking down January 6 rioters for arrest and prosecution). We analyzed the crucial role played by lawyers in the story of Clearview AI, the mysterious startup at the heart of the book; they include Paul Clement, Floyd Abrams, Federal Trade Commissioner Alvaro Bedoya, and attorneys at the American Civil Liberties Union (ACLU). And we explored stories of facial-recognition technology gone wrong, including innocent people arrested for crimes they didn’t commit because of false positives on Clearview and similar software.

Thanks to Kashmir for joining me, as well as for her important work exploring the legal and policy aspects of a transformative but troubling technology.

Show Notes:

* Kashmir Hill bio, author website

* Kashmir Hill archives, The New York Times

* Your Face Belongs to Us: A Secretive Startup's Quest to End Privacy as We Know It, 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 [email protected].

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 on the button below. Thanks!

It’s great to have friends that you can have heated discussions with about controversial topics, without worrying about whether it will affect your friendship. For me, one of those friends is Brian Fitzpatrick. We’ve known each other for almost a quarter-century, during which we’ve argued about more sensitive subjects than either of us can remember, and I’ve learned so much from our spirited debates.

This might be because Brian is no slouch. He earned a B.S. in chemical engineering from Notre Dame, summa cum laude, and graduated from Harvard Law School, first in his class. He then clerked for Judge Diarmuid O’Scannlain of the Ninth Circuit, which is where we first met, followed by the late Justice Antonin Scalia. In 2007, Brian joined the faculty of Vanderbilt Law School, where he holds the Milton Underwood Chair in Free Enterprise. In 2019, the University of Chicago Press published his book, The Conservative Case for Class Actions, which won praise from across the ideological spectrum.

In our interview, Brian and I touched on topics that are of great interest to readers of Original Jurisdiction. We covered attorneys’ fees, which Brian is a leading expert on, followed by affirmative action in higher education and free speech in the legal academy. Brian is brilliant and bracingly candid, so I hope you enjoy this discussion—as I know you will.

Show Notes:

* Brian Fitzpatrick bio, Vanderbilt Law School

* Fitzpatrick Matrix Adopted for Setting D.C. Attorneys’ Fees Awards, by Bernie Pazanowski for Bloomberg Law

* The Conservative Case for Class Actions, official website

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 [email protected].

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 on the button below. Thanks!

As a new academic year gets underway, many of us are wondering: what law-school scandals lie in store? To discuss current hot-button issues facing legal academia, including free speech, intellectual diversity, and affirmative action, I could think of no better podcast guest than Professor Amy Chua. As a longtime member of the Yale Law School faculty, she’s had a front-row seat to—and personal involvement in—several of YLS’s recent controversies.  

Yale Law insanity aside, there was another reason I wanted to interview Amy, the author of two New York Times bestsellers—most notably, her 2011 memoir, Battle Hymn of the Tiger Mother (2011). This month, Minotaur Books, Macmillan’s mystery- and thriller-focused imprint, is publishing her first novel, The Golden Gate. I devoured it in two days, and I can attest that it’s a great read—a historically rich page-turner that will teach you about California history while keeping you on the edge of your seat.

One other thing: loyal listeners might notice this episode is going up on Thursday rather than its usual day of Wednesday. There’s a good reason for that: my sound engineer Tommy Harron and his wife just welcomed their second child to the world. Congratulations to them on this great news.

Show Notes:

* Amy Chua bio, Yale Law School

* The Golden Gate, Amazon

* All About Amy (Chua), The Law Professor We Can't Stop Talking About, by David Lat for Original Jurisdiction

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 [email protected].

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 on the button below. Thanks!

Are you having a hard time keeping track of all the Supreme Court ethics episodes? You’re not alone—and some of us have to do it as a job.

With the Court out of session and the justices scattered to the four winds, now is a good time to take stock of the controversies, before the new Term gets underway. And I can think of few better authorities on SCOTUS ethics than Gabe Roth of Fix the Court (FTC), who has spent the better part of the last decade focused on this subject—well before it was en vogue. Indeed, Roth seems to get quoted in practically every article about alleged ethical lapses of the justices.

But Roth and FTC have their critics. From the right, the Wall Street Journal editorial page recently took Fix the Court to task for screwing up its own financial disclosures, despite constantly harping on the justices’ mistakes in this area. The WSJ castigated FTC as a “left-wing outfit” trying to “weaponize ethics and disclosures” in order to “diminish conservative influence on the Court.” Meanwhile, some on the left complain that the organization’s “fixes” or proposed reforms simply aren’t bold enough to deal with what progressives view as the systemic rot permeating One First Street.

In our interview, I pressed Roth on why Fix the Court is viewed as left-wing, despite claiming to be nonpartisan, and on whether we are unfairly judging the justices based on new standards. And then we took a deep dive into all the recent—and some not-so-recent—SCOTUS ethics controversies. If you’ve ever wanted an expert to review all nine justices and score them on their “scandals,” then this episode is for you. Thanks to Gabe for his time, insight, and candor.

Show Notes:

* Gabe Roth bio, Fix the Court

* The Fixes, Fix the Court

* Complaint filed over US judge's ‘strange’ Southwest religious liberty training order, by Nate Raymond for Reuters

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 [email protected].

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 on the button below. Thanks!

One of the most important developments in the legal world in the past decade has been the rise of litigation finance, which has emerged from relative obscurity—and even illegality in certain states—to become a multibillion-dollar industry. Initially viewed by many with either skepticism or befuddlement, litigation finance has gone mainstream, and today numerous Am Law 100 firms and Fortune 500 companies work with funders for mutual benefit.

But litigation finance remains controversial in some quarters, and its rapid growth has led to calls for greater regulation or disclosure. Based in part on such issues, I have long been interested in the field, dating back to when I covered it for Above the Law. Recent news stories—including litigation between a top funder and a former client, followed by a high-profile trial last month in the Southern District of New York—have brought litigation funding back into the headlines, making now an opportune time to explore it on this podcast.

In picking a guest, I adhered to my approach of going straight to the top, speaking with the #1 executive at the #1 funder: Christopher Bogart, co-founder and CEO of Burford Capital, the world's largest provider of legal finance. In our conversation, Chris and I covered his remarkable legal career, in which he became the general counsel of a Fortune 50 company just seven years out of law school; the early days of litigation finance, including the founding of Burford; attacks on litigation funding, including claims that it makes litigation more widespread, long-running, and expensive; and his own firm’s public beef with Sysco, the food-distribution giant and former Burford client. If you’re not familiar with litigation finance—how it works, how it has evolved, and how it’s transforming the legal and investing worlds—you’ll want to listen to this episode.

Show Notes:

* Christopher Bogart bio, Burford Capital LLC

* An Innovator’s Journey: From Star Litigator to Litigation Finance, by Russ Banham for Carrier Management

* A $16 Billion Wall Street Lawsuit for the Ages, by Eriq Gardner for Puck

* Burford Capital Eyes Billions in Payout for Argentina Suit, 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 [email protected].

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 on the button below. Thanks!

Because I was busy welcoming our baby boy into the world, I was unable to procure an outside guest for this week’s podcast. This gave me the opportunity to do something I’ve been wanting to do since the show began: argue with my husband (and not about how to load the dishwasher, which he always gets wrong).

My guest this week is my Dear Husband, Zachary Baron Shemtob. Zach is an academic turned lawyer who has written extensively, for both scholarly publications and the popular press, about the Supreme Court, the federal judiciary, and legal theory. He has provocative opinions and unorthodox proposals about these topics, and whether or not you agree with his views—and in this podcast, I mostly disagree—they’re certainly worth some thought. (As a former academic, Zach could probably write a law-review article about each of his ideas, so this 40-minute podcast can’t do them justice.)

In this episode, Zach and I discuss “judicial celebrity,” the practice of treating judges like celebs (which Zach finds problematic, even if he would readily admit that it’s not the greatest threat to civilization); his plan to Make SCOTUS Great Again, which involves making the Court bigger and more boring; a potpourri of jurisprudential issues, including originalism, Chevron deference, and the major-questions doctrine; and, finally, movies—including but not limited to My Cousin Vinny and Everything Everywhere All at Once.

If you want more confrontation in this podcast and appreciate some good verbal sparring, then this episode is for you. Please let us know your thoughts on this different format, in the comments or by email; if this episode is popular, perhaps I’ll ask Zach to join me again, whether as a guest or a co-host. Enjoy!

Show Notes:

* Judicial Duty and the Supreme Court’s Cult of Celebrity, by Craig Lerner and Nelson Lund for the George Washington Law Review

* Our Kardashian Court (and How to Fix It), by Suzanna Sherry for the Iowa Law Review

* Celebrity Justice: Supreme Court Edition, by Rick Hasen for the Green Bag

* Reflections on Judging, by Richard A. Posner

* The Supreme Court Doesn't Need 9 Justices. It Needs 27, by Jacob Hale Russell for Time

* Testimony Before the Presidential Commission on the Supreme Court of the United States, by Akhil Reed Amar

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 [email protected].

Last month, in honor of LGBTQ Pride Month, I interviewed Alejandra Caraballo, a leading advocate for transgender rights. After that episode, I heard from listeners who asked me to interview someone on the other side. As a passionate advocate of free speech and viewpoint diversity, I agreed that it would be appropriate to do so.

My latest podcast guest is Kristen Waggoner, chief executive officer and general counsel of Alliance Defending Freedom (ADF), which describes itself as “one of the leading Christian law firms committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.” ADF’s opposition to same-sex marriage, transgender rights, and abortion rights has made it a reviled organization on the legal left.

Although Kristen isn’t popular among progressives, there’s no disputing that she is an influential and newsworthy attorney. For better or worse, ADF has won 15 cases in the U.S. Supreme Court, and three of them were argued personally by Waggoner—including 303 Creative v. Elenis, one of the biggest cases of the just-completed Term. Writing for the six conservatives, Justice Gorsuch held that the First Amendment protects Kristen’s client, website designer Lorie Smith, from being required under Colorado’s public-accommodations law to make websites for same-sex weddings, which she opposes on religious grounds.

In our interview, I posed tough but respectful questions to Kristen about the mission and legal work of ADF, including its designation as a “hate group” by the Southern Poverty Law Center; her recent win in 303 Creative, including an allegation that ADF fabricated one piece of evidence (the “Stewart and Mike” controversy); the next major goal of the conservative legal movement, in the wake of wins like 303 Creative and Dobbs; and her views on “legislating morality” or enshrining Christian views into law (where her comments might surprise you). Despite our many differences—e.g., she opposes same-sex marriage, and I’m in one—I enjoyed and learned a great deal from our conversation, and I’m grateful for her time, insight, and willingness to engage.

Show Notes:

* Kristen Waggoner bio, Alliance Defending Freedom

* Inside the Christian legal powerhouse that keeps winning at the Supreme Court, by Jessica Contrera for the Washington Post

* Meet the Lawyer Who’ll Argue at Supreme Court for Christian Baker’s Right to Free Speech, by Ken McIntyre for the Daily Signal

* The Supreme Court Doesn’t Care That the Gay Wedding Website Case Is Based on Fiction, by Melissa Gira Grant for the New Republic

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 [email protected].

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 on the button below. Thanks!

The Supreme Court has never had an Asian-American justice, but that could change with the next nomination, especially in a Republican administration. Several leading SCOTUS candidates on the right are Asian American, and the prospect of a historic “first” could make it marginally more difficult for Democrats to oppose the nominee.

One of the top prospects, and the Asian American who has come the closest to SCOTUS in the past, is Judge Amul Thapar (6th Cir.). In 2018, Judge Thapar interviewed at the White House for the seat that ultimately went to Justice Brett Kavanaugh. And one can see why Judge Thapar was considered: he’s a highly respected jurist with extensive experience as both a trial and appellate judge and an impressive, well-rounded résumé, including experience as U.S. Attorney for the Eastern District of Kentucky and in Biglaw.

Now Judge Thapar has added a new line to his CV: author. Earlier this month, Regnery published his first book, The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him. By looking at the personal stories behind some of Justice Thomas’s most famous cases, Judge Thapar argues that the justice’s originalism often leads to results that favor the powerless over the powerful—which is why Judge Thapar has dubbed Justice Thomas “the people’s justice.”

I had been wanting to have Judge Thapar on the podcast for quite some time, and his book’s publication provided an excellent occasion for welcoming him. In our conversation, we discussed his inspiring personal story as the son of immigrants, his interview for the high court, his success as a feeder judge, and The People’s Justice—including how recent controversies over Justice Thomas affect the case for him as a man of the people. Thanks to Judge Thapar for joining me, and I hope you enjoy listening to this episode as much as I enjoyed recording it.

Show Notes:

* The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him, Amazon

* Potential nominee profile: Amul Thapar, by Edith Roberts for SCOTUSblog

* Judge Amul Thapar On Discovery And The Civil Justice System, by David Lat for Above the 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 [email protected].

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 on the button below. Thanks!

I’ve had several current and former federal judges on this podcast (with more in the pipeline), but I have not yet had a state judge as a guest—even though around 95 percent of cases are filed in state court. So I was delighted to interview Justice Rolando Acosta, who during more than 25 years on the bench was one of the most prominent and respected judges in the country. He served as a trial and appellate judge in New York from 1997 until earlier this year, when he stepped down after six years as Presiding Justice of the Appellate Division, First Department. In March 2023, he joined the New York office of Pillsbury Winthrop as a litigation partner.

In our conversation, Justice Acosta and I discussed his childhood growing up in the Dominican Republic, where living under a dictatorship instilled in him a deep appreciation for democracy; his time in college as a star pitcher for Columbia, which led him to seriously consider a career in professional baseball; his community organizing and work as a Legal Aid lawyer, public service that culminated in his judicial career; and threats to judicial independence—including his candid comments on the failed nomination of Justice Hector LaSalle to the New York Court of Appeals.

My thanks to Justice Acosta—or Rolando, as he asked me to call him—for joining me. You can listen to our discussion via the embed at the top of this post, or through Apple Podcasts, Spotify, or your podcasting platform of choice.

Show Notes:

* Rolando Acosta bio, Pillsbury Winthrop Shaw Pittman

* How To Modernize an Appellate Court in Five Years, by Rolando Acosta for the New York Law Journal

* A Sitting Justice Speaks To Troubled Times: An Interview With Hon. Rolando T. Acosta, by Joel Cohen for the New York Law Journal

* As First Department Presiding Justice Acosta Plans to Retire, Lawyers Reflect on His Career and Replacement Process Starts, by Jason Grant for the New York Law 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 [email protected].

Tomorrow is the first day of June, LGBTQ Pride Month. Happy Pride!

In honor of the occasion, I interviewed Alejandra Caraballo, one of the nation’s most prominent advocates for—and authorties on—transgender rights. She is a clinical instructor at Harvard Law School, where she and Anya Marino are the first transgender women of color to teach at HLS. Before entering academia, Alejandra worked as a litigator at the Transgender Legal Defense and Education Fund and the LGBTQ Law Project at the New York Legal Assistance Group.

In my “stump speech” about free speech and ideological diversity in the legal profession, I urge my listeners to seek out and engage with people they disagree with. Following my own advice, I reached out to Alejandra, with whom I have frequently sparred on Twitter. She was kind enough to join me for a discussion that covered controversial and sensitive subjects, including trans athletes participating in girls and women’s sports, the access of children and teens to gender-affirming care, and more.

My thanks to Alejandra for her willingness to engage in good-faith debate. You can listen to our candid conversation via the embed at the top of this post, or through Apple Podcasts, Spotify, or your podcasting platform of choice.

Show Notes:

* Alejandra Caraballo bio, Harvard Law School

* Meet the First Trans Women of Color to Teach at Harvard Law, by Orion Rummler for The 19th

* Alejandra Caraballo (@Esqueer_), Twitter

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 [email protected].