Oral argument before the Supreme Court is ripe with dramatic possibilities. If you doubt this, check out Arguendo, the new work by Elevator Repair Service that just received a rave review from the New York Times. I saw “Arguendo” last weekend, before I participated in an on-stage conversation with director John Collins, and I was impressed by how well the play captures the drama, comedy, and even athleticism of appellate argument. (Buy tickets here — but act quickly, since they’re going fast.)
If oral argument is a form of theater, then the U.S. Supreme Court is Broadway — the biggest and best venue in all the land. And we’ve just learned about a brilliant understudy who will be making her debut at One First Street next month.
Expectations are running high for this talented protégé of a celebrated SCOTUS litigator. Who is playing Eve Harrington to Paul Clement’s Margo Channing?
Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing to take the case make their pitch and try to persuade the client that their firm is the best suitor.
In my new book, Unprecedented: The Constitutional Challenge to Obamacare (affiliate link), I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.
How did these litigants go about choosing their counsel? Which lawyers and law firms got passed over?
The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)
The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.
That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.
Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.
(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)
So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.
Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….
Looking back, the part of last week’s arguments at the U.S. Supreme Court that stands out most for me is the last hour (DOMA merits) — a fitting finale to two days of historic argument on same-sex marriage.
The way things unfolded, the last hour is why we all came. It is why people slept on the sidewalk for days. It is why Americans tuned in and logged on for updates. It is why the attorneys signed up to argue.
We were there to discuss the future of marriage in this country, how different people see it, and where state and federal governments fit in.
The Prop 8 argument went to those core issues the day before, but in fits and starts. A muddy hybrid of standing and merits.
The last hour of DOMA went there and stayed there. Merits were the only thing on the menu, and we ate it up….
* Based on the justices’ reactions during oral arguments in Windsor v. U.S., there was no defending the Defense of Marriage Act. Not even Paul Clement, the patron saint of conservative causes, could save the day. [New York Times]
* Alas, the David Boies and Ted Olson Dream Team stole much of the spotlight from Roberta Kaplan, the Paul Weiss partner who argued on behalf of Edith Windsor in an effort to overturn DOMA. Seriously, you go girl! [WSJ Law Blog (sub. req.)]
* Dude, you’re getting a Dell! Alston & Bird and Kirkland & Ellis are the latest firms to join the Biglaw sharks (including Ho-Love, Debevoise, Wachtell, SullCrom, and Simpson Thacher) circling this major tech buyout. [Am Law Daily]
* It looks like it’s time for JPMorgan to face the music for its investments in Lehman Brothers, because a federal judge just ruled that the bank cannot “dispatch plaintiff’s claims to the waste bin.” [Reuters]
* An alleged killer’s sense of mortality: James Holmes, the suspect in the Colorado movie theater shooting, offered to plead guilty and spend life in prison in order to avoid the death penalty. [CNN]
Today, the National Law Journal released its list of the 100 most influential lawyers in America. The NLJ releases a similar list once every few years, and each time, the nation’s top lawyers — some from Biglaw, some from legal academia, some from the in-house world, and some from the trial and appellate bars — celebrate their success in creating real change in the industry. That said, the people named to this list are relatively well-known to the general Above the Law readership, but they won’t exactly be household names to laypeople.
Which legal eagles soared into the NLJ’s list this time around? Well, the NLJ selected their influential lawyers based on their political clout, legal results, media penetration, business credibility, and thought leadership. We’ve whittled the impressive list of 100 down to our own top 10.
Ed. note: We apologize for getting such a late start today, but we were experiencing some technical difficulties. Thanks for being patient with us.
* Barack Obama made some bold statements about marriage equality in his inaugural address, but the jury is still out — literally — on whether he thinks laws banning same-sex couples from marrying are constitutional. [BuzzFeed]
* You can smoke pot for sh*ts and giggles in several states, but the D.C. Circuit is siding with the DEA on this one. Marijuana is still classified as a Schedule I drug in the eyes of the (federal) law. [National Law Journal]
* With claims of prejudicial evidence, Rajat Gupta is trying to get his insider trading conviction overturned. We’ll wait for more on this story from note passer field correspondent, Benula Bensam. [WSJ Law Blog (sub. req.)]
* “Why are all high school teachers freaks in the sacks?” Sarah Jones, the cheerleader-cum-sexy teacher, cried over phrases like that yesterday during testimony in her defamation case against The Dirty. [ESPN]
* George W. Huguely V, the UVA lacrosse bro who was convicted of killing his sometimes girlfriend, has got one hell of an appellate lawyer. Perhaps famous litigator Paul Clement is a friend of the family. [Bloomberg]
The U.S. Court of Appeals for the Second Circuit, in an opinion written by a prominent conservative jurist, Chief Judge Dennis Jacobs, just voted to strike down Section 3 of the Defense of Marriage Act (DOMA). The court issued its 2-1 decision just three weeks after hearing oral argument, which is extremely fast for a case of this complexity and importance….
Right now is a great time to be a Supreme Court aficionado. There’s a big new book out about the Court, Jeffrey Toobin’s The Oath (affiliate link). And the new SCOTUS Term starts in just a few days, on Monday, October 1.
Given the time of the year, it’s not surprising that SCOTUS preview events are as common as Ninth Circuit reversals pro se cert petitions. I attended one sponsored by the Federalist Society earlier this month, where Kannon Shanmugam of Williams & Connolly offered excellent insights into October Term 2012. Our Supreme Court correspondent here at Above the Law, Matt Kaiser, went to a preview talk sponsored by the American Constitution Society (which he turned into Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term).
That sounds like more than enough SCOTUS previews. But I couldn’t help myself from attending one more, due to the starpower of the panelists: Paul Clement, the former solicitor general who’s now a partner at Bancroft, and Tom Goldstein, the noted Supreme Court advocate and founder of the invaluable SCOTUSblog.
What did Messrs. Clement and Goldstein have to say about OT 2012?
During the United States Supreme Court arguments over Obamacare, the nation got a rare treat: the chance to see (or at least hear) Paul Clement in action. Clement, a former U.S. Solicitor General and current partner at Bancroft PLLC, delivered a brilliant performance before the justices, a veritable master class in appellate advocacy. As Carter Phillips, a veteran SCOTUS litigator himself, told us here at Above the Law, Clement “did a spectacularly good job” and “was just on his game… over a much longer period of time than most of us are required to do it.”
But even Clement couldn’t save Section 3 of the highly problematic Defense of Marriage Act (DOMA) from going down to defeat in the First Circuit. Before a panel with a majority of Republican-appointed judges, in fact.
Let’s find out who was on the panel, whether there were any dissents, and what the court concluded….
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: email@example.com.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
2. In addition to clarifying your firm’s growth strategy, are you still open to the hire of a partner outside of your plan? I’ve made several placements that fit this category. The partner’s practice was not within the strategic growth plan of my client, but once the two parties started talking with each other, we all saw how it could indeed be a seamless fit. Be open to “Opportunistic Hires.” You never know where your next producing partner might come from, so you have to be open to it. I will be the first to admit that there is a quirky element of randomness in recruiting.
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