National Law Journal


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NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Mar 06, 2019
The Supreme Court begins its two-week break between February and March arguments with two justices heading to Capitol Hill tomorrow for the court's first public budget hearing since 2015. Justices Samuel Alito Jr. and Elena Kagan will appear before the House committee. We begin the break with a look behind a rare eight-page petition in a consumer case that won review last week. We also check in on Justice Clarence Thomas's continuing efforts to entice his colleagues into re-examining some of their doctrines and precedents. Thanks for reading, and contact us anytime at tmauro@alm.com and mcoyle@alm.com.
An 8-Page Petition Strikes Gold
Lawyers who file petitions in the Supreme Court usually land on 20-30 pages after taking advantage of every precious word in the rule's 9,000-word limit. But last week a rare eight-page petition hit the jackpot when the justices grantedreview in the consumer debt collection case Rotkiske v. Klemm.

Matthew Weisberg 
of Weisberg Law in Morton, Pennsylvania, was counsel of record for Kevin Rotkiske in a case involving the Fair Debt Collection Practices Act. Weisberg told us he had three things uppermost in mind when writing the petition:

>> "I never argued nor submitted a petition to the Supreme Court, so I reviewed their rules. It says about 15 times—well, a lot of times—to be concise and get to the point. I took that seriously."

>> "In drafting it, I recollected an interview with a Supreme Court justice—it was either Stevens or Souter—and that justice said they get what he called over-length briefs all the time, but every once in a while, he gets a thin one and knows that's a winner. I took that to heart."

>> "It's a relatively precise issue (whether the 'discovery rule' applies to toll the one-year statute of limitations under the FDCPA) and the question presented is short. Other than presenting why they should take it, I remembered what Mark Twain once said and why: 'I apologize for such a long letter—I didn't have time to write a short one.'"

Weisberg, whose opposing counsel is Jones Day partner Shay Dvoretzky (whose brief in opposition was 12 pages), said he is excited and daunted by next term's argument. The idea of spending hundreds of hours preparing for the argument "is daunting for someone who has a small private practice," said Weisberg who calls himself a "sole proprietor" with a number of of counsel and associated counsel relationships.

Weisberg said that within 24 hours of review being granted on Feb. 25, he had received about a half dozen inquiries from law school clinics, public interest groups and private lawyers who wanted to be co-counsel in his high court case. "They all promised tremendous collaboration but when I inquired as to details, they all wanted to be counsel of record on the brief and to argue the case," Weisberg said.

Weisberg said he is not "shutting the door" to co-counsel, but, he added, "I know the case better than anyone. I've briefed it three times already and argued it three times. But this is the U.S. Supreme Court. It's a big deal. I'm listening to what everybody has to say, but ultimately I have a client and my client knows me and we've been at it for awhile."

Weisberg has already signed up for a moot court at the Supreme Court clinic at Georgetown University Law Center and he is speaking with others about help with "the laboring oar." As for his client, Weisberg said, "He is very excited. He said he can't believe he is going down in the annals of history."
Clarence Thomas Has Many Doubts
Justice Clarence Thomas drew a fair amount of attention recently for questioning the foundations of two landmark Supreme Court decisions—Gideon v. Wainwright and New York Times v. Sullivan—and criticizing, once again, Roe v. Wade.

The justice most willing to reexamine high court precedents has yet to match his questioning record from last term—although there is still time. We went back to last term and found the following Thomas "grenades," which, like this term so far, attracted only one other justice, one time—Justice Neil Gorsuch.

>> In the Fourth Amendment cell phone location data case, Thomas challenged the "reasonable expectation of privacy" test first articulated in Katz v. United States in 1967. He wrote: "The Katz test has no basis in the text or history of the Fourth Amendment. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence."

>> 
In another Fourth Amendment case in which the court refused expand the automobile exception to search of curtilages of homes, Thomas questioned whether the exclusionary rule should be extended to the states. He said the rule is not rooted in the Constitution or a federal statute.

>> 
In an immigration case where the court found the statutory definition of crime of violence void for vagueness, Thomas said he doubted that the modern vagueness doctrine was “consistent with the original meaning of the Due Process Clause.”

>> 
In the New Jersey sports betting decision, he questioned in a concurring opinion the court's modern severability precedents saying they are in tension with "longstanding limits on judicial power." Although “no party in this case has asked us to reconsider these precedents,” he concluded, “at some point, it behooves us to do so.”

>> 
In the Texas racial gerrymander case, Thomas wrote: "I adhere to my view that §2 of the Voting Rights Act of 1965 does not apply to redistricting. Thus, §2 cannot provide a basis for invalidating any district, and it cannot provide a justification for the racial gerrymander in House District 90." He was joined by Gorsuch.

>> 
In the online sales tax decision, Thomas reiterated his view that there is no negative Commerce Clause—the doctrine that dates at least to the mid-19th century, prohibiting states from discriminating against out-of-state enterprises in favor of their own residents.

>> 
And in the travel ban case, Thomas wrote: “I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding.” 
Supreme Court Headlines: What We're Reading
• Supreme Court’s Last ‘Crier’ Has Stories to Tell About Long-Gone Justices.
 Meet George Hutchinson (above), the 95-year-old of counsel at Finnegan, Henderson, Farabow, Garrett & Dunner who holds the title as the high court's last "crier." Hutchinson shares his many memories of long-ago justices. [NLJ]

• Alito and Kagan Will Face House Members at Supreme Court Budget Hearing."For the first time since 2015, two Supreme Court justices next week will go before a U.S. House of Representatives committee hearing to answer questions about the court’s budget, an occasion that members of Congress have used in the past to raise a range of other issues." [NLJ]

• What to Make of Chief Justice John Roberts Jr.? "The actions of Roberts, now at the middle of the court's ideological spectrum, reflect the instincts of a chief justice who wants to avoid wild fluctuations in the law, as well as criticism of the court as politically motivated in an increasingly polarized America." [CNN] Bloomberg has more here.

• Jane Sullivan Roberts, Wife of Chief Justice, Opens DC Outpost for Recruiter MLegal. Legal search boutique Mlegal Group has tapped Jane Sullivan Roberts, a leading legal industry recruiter and wife of U.S. Supreme Court Chief Justice John Roberts Jr., to spearhead its move into the nation’s capital, our colleague Ryan Lovelace reports. Jane Roberts had been a partner at Major, Lindsey & Africa since 2007. [NLJ]

• Supreme Court Will Decide if USPTO Can Collect Legal Fees. The U.S. Supreme Court has agreed to hear a dispute over attorneys fees between the U.S. Patent and Trademark Office and a company led by billionaire Patrick Soon-Shiong. [NLJ]

• Justice Ginsburg Keeps Busy as U.S. High Court's Writer-in-chief. "Ginsburg has now authored four of the court’s 17 rulings in its current term, which started in October and ends in June, more than any of the eight other justices."[Reuters]

• Justice Thomas Working Behind the Scenes to Boost Trump's Court Nominee. "Supreme Court Justice Clarence Thomas is working behind the scenes to boost the prospects of Neomi Rao, one of his former law clerks, to serve on a powerful federal appeals court in Washington—speaking privately with at least two Republican senators as she faces a contentious confirmation fight." [The Washington Post]




A MESSAGE FROM THE EDITOR

Unlike many court traditions, the crier no longer exists, which is why you may not have known there ever was one. George Hutchinson, the last crier of the court, served in that role from 1952 to 1962. In a recent interview with reporter Tony Mauro, Hutchinson recalled some of his fondest memories of the job—from interactions with Thurgood Marshall, to sending a page to retrieve inning by inning scores during Game Seven of the 1960 World Series for a U.S. Supreme Court justice.

Check out this report and others below.
– Sarah Tincher, Managing Editor, The National Law Journal

CIVIL APPEALS

Supreme Court's Last 'Crier' Has Stories to Tell About Long-Gone Justices

By Tony Mauro
Unlike many court traditions, the crier no longer exists. Meet George Hutchinson, the last crier of the court, who served... Read More

CIVIL APPEALS | NEWS

The IRS Keeps Winning Marijuana Cases in US Appeals Courts

By Cheryl Miller
The Tenth Circuit ruling was the latest blow for marijuana-related businesses seeking to take the full range of tax... Read More

Three IP Diligence Challenges to Navigate in 2019

By Jonathan M. Gordon and Jesse Welsh-Keyser
With technology and intellectual property continuing to be central to many of these deals, IP diligence is a critical... Read More

CIVIL APPEALS

Appellate Judges Have a Thing About Citing 'My Cousin Vinny': Merrick Garland Edition

By Nate Robson | Mike Scarcella
A ruling from D.C. Circuit Chief Judge Merrick Garland is the latest entry in the category "appeals judges who have... Read More

GOVERNMENT | NEWS

Williams & Connolly's Allison Rushing Is Confirmed to 4th Circuit Seat

By Mike Scarcella | Nate Robson
Rushing, who was confirmed in a vote of 53-44, is one of the youngest judges President Donald Trump has gotten on the... Read More

JUDGES | NEWS

Judge Scolds Roger Stone's Defense Team Over 'Unexplained Inconsistencies'

By Nate Robson
Judge Amy Berman Jackson scolded Stone and his legal team for their delay in notifying the court that the former Trump... Read More

INTERNATIONAL - AFRICA AND MIDDLE EAST | NEWS

EU Approves System to Screen Foreign Investment, With Eyes on China

By Simon Taylor
Under the new rules, member states will have to inform the others when they are screening foreign investment projects... Read More

To the Head of the Class: Tech for Legal Educators

By Matthew Diller
'Law schools must do better to adapt their curricula to technological change. If they don't, they risk underserving... Read More







Supreme Court Will Decide if USPTO Can Collect Legal Fees

The U.S. Patent and Trademark Office did not go after attorneys' fees in special district court proceedings for more... Read More



ADMINISTRATIVE LAW

Pilot Popped for Flying With Cannabis Chocolate Bars Loses DC Circuit Case

By C. Ryan Barber
"That the marijuana was purchased in Colorado does not change the fact that marijuana is illegal under federal law and... Read More

EU Approves System to Screen Foreign Investment, With Eyes on China

By Simon Taylor
Under the new rules, member states will have to inform the others when they are screening foreign investment projects... Read More

JUDGES | NEWS

Judge Scolds Roger Stone's Defense Team Over 'Unexplained Inconsistencies'

By Nate Robson
Judge Amy Berman Jackson scolded Stone and his legal team for their delay in notifying the court that the former Trump... Read More

To the Head of the Class: Tech for Legal Educators

By Matthew Diller
'Law schools must do better to adapt their curricula to technological change. If they don't, they risk underserving... Read More

LAW FIRM MANAGEMENT | NEWS

Jane Sullivan Roberts, Wife of Chief Justice, Opens DC Outpost for Recruiter MLegal

By Ryan Lovelace
Roberts, a former Pillsbury partner, had been a recruiter with Major, Lindsey & Africa since 2007. Read More

CIVIL APPEALS

Supreme Court's Last 'Crier' Has Stories to Tell About Long-Gone Justices

By Tony Mauro
Unlike many court traditions, the crier no longer exists. Meet George Hutchinson, the last crier of the court, who served... Read More

ADMINISTRATIVE LAW

Federal Judge Hits Trump Agency for 'Illegal' Move to Stop New Pay-Data Rule

By Erin Mulvaney
U.S. District Judge Tanya Chutkan's ruling Monday was the latest blow to the Trump administration's maneuvering to block... Read More


Judge Scolds Roger Stone’s Defense Team Over 'Unexplained Inconsistencies'

Judge Amy Berman Jackson scolded Stone and his legal team for their delay in notifying the court that the former Trump... Read More

A MESSAGE FROM THE EDITOR

Jones Day, which represented President Donald Trump’s presidential campaign, sent 12 lawyers into the administration in its earliest days in January 2016, and at least five more Jones Day lawyers have since taken various federal government roles. Now, amid this weekend's announcement that Donald McGahn would be returning to Jones Day after his nearly two-year stint as White House counsel, reporter Roy Strom investigates: where have all the Jones Day Trump lawyers gone?

Check out this report and others below.
– Sarah Tincher, Managing Editor, The National Law Journal

GOVERNMENT | NEWS

Where Have All the Jones Day Trump Lawyers Gone?

By Roy Strom
Don McGahn has left the White House, but Jones Day refugees still populate many positions in President Donald Trump's... Read More

EMPLOYMENT LAW

Trump Labor Dept. Lawyer Sanctioned for 'Bad Judgment' in Litigating Private Suit

By Erin Mulvaney
Career ethics officials at the US Labor Department determined Michael Avakian, the associate deputy secretary, had "not... Read More

COPYRIGHTS | NEWS

No Shortcut to Copyright Registration, High Court Rules

By Scott Graham
Applying and paying is not enough to clear the way for an infringement suit, the U.S. Supreme Court justices ruled in... Read More

Ohio National Faces Flood of Litigation After Axing Life Annuity Commissions

At least 10 federal lawsuit claim Ohio National Life Insurance and its affiliates terminated contracts and stopped paying... Read More





DOJ Fraud Leader Tempers Defense Dreams of More Whistleblower Dismissals

“Dismissal will remain the exception, not the new rule," said Michael Granston, director of the fraud section in the... Read More

COPYRIGHTS | NEWS

'Full Costs' Doesn't Mean All Imaginable Costs, Supreme Court Rules

By Scott Graham
The court's unanimous interpretation of Section 505 of the Copyright Act will cost Oracle Corp. about $12.8 million. Read More

Lawyers, Judges at High Risk for Mental Health Issues

The problems faced by legal professionals are hardly unique. They are endemic across the general population in the United... Read More

ELECTION AND POLITICAL LAW | NEWS

Sweeping Trump Probe Spells Busy Times for These Big Law Partners

By Mike Scarcella
Here's a snapshot of some of the Big Law partners who are advising individuals and entities that got hit Monday with... Read More

LAW FIRM HIRING

Ex-White House Counsel Donald McGahn to Rejoin Jones Day

By David Bario
McGahn's tenure as White House counsel corresponded with a string of legal crises, as well as notable successes on the... Read More

LAW FIRMS - LARGE | NEWS

Giuliani, Derided as 'Trump's TV Lawyer,' Strikes Back at Michael Cohen, Lanny Davis

By Ryan Lovelace
The former New York mayor and federal prosecutor called Cohen "poorly prepared" and predicted new witnesses would soon... Read More

BAR ASSOCIATIONS | NEWS

Lawyers, Judges at High Risk for Mental Health Issues

By Dylan Jackson
The problems faced by legal professionals are hardly unique. They are endemic across the general population in the United... Read More

Sweeping Trump Probe Spells Busy Times for These Big Law Partners

Here's a snapshot of some of the Big Law partners who are advising individuals and entities that got hit Monday with... Read More



A MESSAGE FROM THE EDITOR

The Michael Cohen hearing last week in Washington made for riveting television, as tens of millions of viewers tuned in to hear what the one-time personal lawyer and fixer for Donald Trump had to say. Cohen's not-so-veiled reference to Rudolph Giuliani as "Mr. Trump's TV lawyer" didn't go over well with Giuliani, our business of law reporter, Ryan Lovelace, reports in this week's Washington Wrap. "I've tried more cases and argued more appeals than he and his lawyer combined and multiplied by 10," Giuliani says. Read more about the exchange, and check out C. Ryan Barber's new report about how U.S. Attorney General William Barr is filling out his front office at Main Justice.

Check out this report and others below.
– Sarah Tincher, Managing Editor, The National Law Journal

LAW FIRMS - LARGE | NEWS

Giuliani, Derided as 'Trump's TV Lawyer,' Strikes Back at Michael Cohen, Lanny Davis

By Ryan Lovelace
The former New York mayor and federal prosecutor called Cohen "poorly prepared" and predicted new witnesses would soon... Read More

CAREER DEVELOPMENT | NEWS

William Barr Fills Front Office With Trump White House Lawyers

By C. Ryan Barber
The personnel moves within Attorney General William Barr's front office further spotlight the key roles former Kirkland... Read More

INTERNATIONAL - LATIN AMERICA | NEWS

Arnold & Porter and Venable Clash Over Rightful Venezuelan Leadership in US Court

By Dylan Jackson
After Arnold & Porter began working for Venezuelan opposition leader Juan Guaido, Venable started representing Venezuelan... Read More

LAW FIRM HIRING

Ex-White House Counsel Donald McGahn to Rejoin Jones Day

By David Bario
McGahn's tenure as White House Counsel corresponded with a string of legal crises, as well as notable successes on the... Read More

GLOBAL LAW FIRMS | PODCAST

A Year in the Life of a Law Firm Mega Merger

By Vanessa Blum | Leigh Jones
Bryan Cave Leighton Paisner co-chairs Therese Pritchard and Lisa Mayhew discuss integration, innovation and whether... Read More

ADMINISTRATIVE LAW

Alito and Kagan Will Face House Members at Supreme Court Budget Hearing

By Tony Mauro
For years, the court's budget hearing was a major event, not because of budget minutiae but because it fostered a rare... Read More

ANTITRUST | NEWS

Banks Hit With Class Action Over Fannie, Freddie Bond Market Manipulation

By Colby Hamilton
The suit claims traders at the banks looked to rig the system that provided generous profits during the run-up to the... Read More

CIVIL RIGHTS

Takeaways From Wynn Resorts' $20M Penalty Over Sexual Misconduct Claims

By Erin Mulvaney
"There was a repeated failure to investigate and follow and enforce the policies concerning workplace harassment," one... Read More



A MESSAGE FROM THE EDITOR

In the wake of the U.S. Supreme Court’s split decision in Epic Systems Corp. v. Lewis, which further bolstered the Federal Arbitration Act, claims of persistent sexual harassment and discrimination in the workplace, fast-food workers shorted on pay and gig economy contractors fighting for employee status have all been routed to arbitration in decisions citing Epic. “[Epic] changes the dynamics in a profound way,” Gerald Maatman, a partner at Seyfarth Shaw in Chicago, told The National Law Journal. “It’s one of the most important decisions from the Supreme Court that impacts workplace issues.”

Check out this story and some of our other favorites from the week below.
– Sarah Tincher, Managing Editor, The National Law Journal

ALTERNATIVE DISPUTE RESOLUTION | ANALYSIS

'Epic' Impact: How a Major SCOTUS Decision in Favor of Arbitration Is Shaping the Landscape for Workplace Lawsuits

CRIMINAL APPEALS

Chief Justice Roberts Joins Liberal Wing to Snub Alabama Court in Death Case

GLOBAL LAW FIRMS | PODCAST

A Year in the Life of a Law Firm Mega Merger


CRIMINAL LAW | NEWS

Roger Stone's Legal Team Didn't Exactly Get Off to a Great Start in DC

By Nate Robson | Ellis Kim
Stone's Florida attorneys were allowed to appear for the not guilty plea after a magistrate judge twice said they had... Read More

GENERAL COUNSEL AND IN HOUSE COUNSEL | NEWS

In-House Leaders Can Find Opportunity in Chaotic Trade Landscape

By Phillip Bantz
Now is the time to analyze supply chains, including the supply chains of competitors that are publicly traded companies.... Read More

ATTORNEY WORK LIFE BALANCE | NEWS

Lawyers, Increasingly Busy With Billable Hours, Look to Delay Childbearing by Freezing Embryos and Eggs

By Susan DeSantis
'Thinking that I could not have my son, I couldn't even think about that,' says Jacqueline Klosek, counsel to Goodwin... Read More

ATTORNEY WORK LIFE BALANCE | COMMENTARY

Burnout Is Part of the Profession. How Can Attorneys Avoid It?

By The Young Lawyer Editorial Board
Lawyers' personalities, combined with the adversarial nature of the profession and the high-pressure environment of... Read More

LAW DEPARTMENT MANAGEMENT | ANALYSIS

The Next Recession Could Cost 10,000 Lawyers Their Jobs

By Hugh A. Simons
Thousands of layoffs are looming when the impending recession hits. Whose jobs are most at risk? Read More

CAREER DEVELOPMENT

Big Company GCs Sign On as Mentors to Foster Big Law Diversity

By Christine Simmons
General counsel at eBay, British Airways, PayPal and Peabody Energy are among those that have already agreed to serve... Read More



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