The Federal Lawyer: Summer 2023

Volume 70, Issue 3

Annual Meeting & Convention SEPTEMBER 21–23, 2023 • MEMPHIS, TN

Court Time Isn’t Wasted on the Young: Federal Judges Encourage Meaningful Participation From Younger Attorneys page 31

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Volume 70, Issue 3

EDITORIAL BOARD

Editor in Chief Andrew J. Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Heather Rigby (240) 404-6488 social@fedbar.org

Summer: Annual Convention Preview!

Book Review Editors Elizabeth Kelley Peter M. Mansfield Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Kristine Adams-Urbinati Anna Archer Sara L. Gold Niles Illich Jon Jay Lieberman Bruce A. McKenna Jeffrie Boysen Lewis Amanda Thom Stewart Michael Young Columns Editor Ira Cohen Senior Proof Editor Ellen M. Denum Proof Editors John Black Leonid Feller Reid Jones Michelle Quist Kirsten Samantha Ronholt Benjamin R. Syroka The Federal Lawyer (ISSN: 1080-675X) is published quarterly, four times per year by the Federal Bar Association, 4075 Wilson Blvd., 8th Floor, Arlington, VA, 22203 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org.

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31

Court Time Isn’t Wasted on the Young: Federal Judges Encourage Meaningful Participation From Younger Attorneys

By Peter M. Mansfield

36

A District Court Dilemma: Solving the Self-Representation Problem for Single-Member LLCs in Federal Court

Also in This Issue

20 Welcome to Memphis!

21 2023 FBA Annual Meeting & Convention Preview

24 Memphis Attractions

By Benjamin R. Syroka

42 The Enforcement of

Foreign Country Money Judgments: An Overview

By David Wemhoff

Summer 2023 • THE FEDERAL LAWYER • 1

COLUMNS

PROFILES

3 President’s Message

15 Hon. Sheryl H. Lipman

Time Goes Fast

By Matthew C. Moschella

4 Beltway Bulletin

What Happened to Regular Order?

By Cissy Jackson and Dan Renberg

6 At Sidebar

The Bluebook: A Uniform System of Salvation

By Ira Cohen, Esq.

10 From the Foundation

Brother, Can You Spare a Dime?

By Aaron Bulloff

12 Diversity Docket

How We Sparked Engaged FBA Diversity Programing

By Jacqueline Johnson and Talia Sukol Karas

13 Thought Sponsor

IRS Enforcement Plan—All the Scrutiny $45.6 Billion Can Buy

By Robert J. Kovacev

Chief Judge, Western District of Tennessee

By Bryce Ashby and Sarah Stuart

17 Hon. Tu M. Pham

Chief Magistrate Judge, Western District of Tennessee

By Bryce Ashby

BOOK REVIEWS

52 The Strange Case of Dr. Paul Schoeppe

Reviewed by Christopher Faille

53 The Trial of Lee Harvey Oswald Reviewed by Randy Sue Pollock

DEPARTMENT

54 Supreme Court Previews

FBA MEMBER NEWS

64 Chapter Exchange 67 Sections & Divisions 70 Member Spotlight 73 Calendar of Events

2 • THE FEDERAL LAWYER • Summer 2023

4075 Wilson Blvd., 8th Floor Arlington, VA 22203 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • Matthew C. Moschella mcmoschella@sherin.com President-Elect • Jonathan O. Hafen jhafen@parrbrown.com Treasurer • Glen R. McMurry gmcmurry@taftlaw.com Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Ernest T. Bartol etbartol@bartollaw.com Bonnie S. Greenberg bonnie_baltimore@yahoo.com Anna W. Howard anna.howard@uga.edu Joseph S. Leventhal joseph.leventhal@dinsmore.com Adine S. Momoh adine.momoh@stinson.com Nancy Morisseau nancy.morisseau@nationalgrid.com Michelle M. Pettit michelle.pettit@usdoj.gov Rachel V. Rose rvrose@rvrose.com Kelly T. Scalise ktscalise@liskow.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members Amy E. Boyle aboyle@mjsbjustice.com Anh Le Kremer akremer@nystromcounseling.com Scott P. Lopez splopez@lawson-weitzen.com Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov Nathan A. Olin nate@oliplaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Deputy Director R. Yvonne Cockram ycockram@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Heather Rigby social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Program Coordinator, Membership & Events Marisa Beam mbeam@fedbar.org Membership Coordinator Clarise Diggs cdiggs@fedbar.org Program Coordinator Daniel Hamilton dhamilton@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Marketing Director Zac Crisco social@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Leadership Support & Board Specialist Shaniece Rigans srigans@fedbar.org Program Coordinator, Conference & Webinars Nikki Toledo mtoledo@fedbar.org Administrative Coordinator Kim Wonson kwonson@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Second Circuit Olivera Medenica Dina T. Miller

Third Circuit Christian T. Haugsby Fourth Circuit Kacy L. Hunt Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Jade K. Smarda Seventh Circuit Melissa Schoenbein Eighth Circuit David A. Goodwin Ninth Circuit Jody A. Corrales Darrel J. Gardner Tenth Circuit Kristen R. Angelos Kate Simpson Eleventh Circuit Lauren L. Millcarek Oliver A. Ruiz III D.C. Circuit Patricia D. Ryan SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Michelle Otero Valdes Alternative Dispute Resolution James N. Downey Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law John Court Bankruptcy Law Angela Sheffler Abreu Civil Rights Law Kyle J. Kaiser Corporate and Association Counsel Lawson E. Fite Criminal Law Madison Bader Environment, Energy & Natural Resources Vacant Federal Career Service Dina T. Miller Federal Litigation Andrea L. Marconi Government Contracts Vacant Health Law Thomas S. Schneidau Immigration Law Kate Melloy Goettel Indian Law Helen B. Padilla Intellectual Property Law Oliver Alan Ruiz International Law Bijan Kasraie Judiciary Hon. Karoline Mehalchick Labor and Employment Law Mary Augusta Smith Law Student Jenifer Tomchak LGBTQ+ Law Mario Choi Qui Tam Megan Mocho Securities Law Vacant Senior Lawyers Albert Lionel Jacobs Jr. Social Security Law Jerrold A. Sulcove State and Local Government Relations Vacant Taxation Daniel Strickland Transportation and Transportation Security Law Sarah Bell Nural Veterans and Military Law Frank J. McGovern Younger Lawyers Amy E. Boyle

President’s Message

Time Goes Fast

By Matthew C. Moschella

Matthew C. Moschella is chair of the Litigation Department at Sherin and Lodgen and a partner in the firm’s Litigation and Employment Departments. He represents companies and individuals in a wide variety of civil matters in state and federal courts across the country as well as in arbitration proceedings.

Moschella also represents employers concerning complaints filed against them with state and federal administrative agencies.

In addition to representing clients in various types of civil litigation, he counsels clients in a wide variety of industries on employment risk management issues. Moschella is also an adjunct professor at New England Law Boston, where he teaches contract drafting. Following law school, he was a law clerk to Hon. Judith Gail Dein, U.S. magistrate judge, U.S. District Court for the District of Massachusetts.

It is difficult to believe that nearly a year has come and gone since we were all together in Charleston last September. Due to the tremendous efforts of our association’s leaders, volunteers, and staff, we were able to accomplish many goals and advance many important issues over this past year. For example, the association was appreciative of the opportunity to work with the Judiciary Division to continue to support and advance the Daniel Anderl Judicial Security and Privacy Act, and to also take a leadership role with other bar associations in publicly and vocally supporting the passage, and now funding, of the act. The FBA did so both in written submissions to Congress and at Capitol Hill Day (one of the best attended and most productive to date). The act was passed by Congress and signed

by President Biden at the end of last year. The act prohibits federal agencies and private businesses from publicly posting certain personal information (e.g., home addresses) of federal judges and their immediate family members and also (1) requires information to be removed upon written request from the federal judge concerned, (2) prohibits data brokers from purchasing or selling such information, and (3) establishes programs to protect such information at the state and local level and to enhance security for judges.

We were also appreciative of the opportunity to work with the Judiciary Division to implement, as a National FBA Program (with full FBA support and involvement), the Judicial Intern Academy ( JIA).

The JIA is a summer internship program intended to provide an opportunity for rising 2L students who, for personal or financial reasons, cannot devote their summer to a full-time, 40-hour-per-week judicial internship. JIA interns receive the benefit of individualized feedback on research, writing, and advocacy skills. The JIA pairs interns with former federal judicial law clerks, who volunteer to help guide the JIA interns through the writing and oral advocacy assignment. Each intern’s assignment involves researching and drafting a bench memorandum regarding a motion pending before the court to which the intern is assigned. Interns are also given the opportunity to participate in mock hearings to argue their case before federal judges. Throughout the program, JIA interns are encouraged to attend court proceedings

of various types. Several Chapters and Districts have implemented the JIA in some form.

The Clerk’s Committee of the Judiciary Division also did an excellent job developing a new national award called the FBA Unsung Hero Award. The award was created to honor a person whose work exemplifies the many individuals who ensure the safety and efficient operation of the federal judiciary. The award will be presented annually to a member of the court community who, while serving in a nonlawyer or nonjudicial role at the local, state, or federal level, has—in service of the federal judiciary—demonstrated career contributions or exceptional heroics that have maintained and improved the safety and functioning of the courts and the community at large. The award will be given out for the first time at the Annual Convention in Memphis this September.

We were also able to make significant progress on the law school front. The National Board voted to make membership free for law students for the duration of their time in law school and for their first year after graduation. FBA leadership also created The Law School Engagement Working Group, which is a group that meets monthly to talk about how to best engage law students. The group created and implemented a comprehensive and methodical plan to connect with every ABA accredited law school in the country and take steps to increase the FBA’s presence at each school within the next few years. The group is comprised of: • The FBA’s three national officers; • The chair and co-chair of the Circuit Vice Presidents; • The chair and co-chair of the Section/Division Council; • The chair and co-chair of the Membership Committee; • The chair of the Judiciary Division (and several members of the division); • The chair of the Clerk’s Committee; • The chair of the Law Student Division; • The chair of the Younger Lawyers Division; and • Staff liaisons Stacy King and Mike McCarthy. continued on page 9 Summer 2023 • THE FEDERAL LAWYER • 3

Beltway Bulletin

Whatever Happened to Regular Order?

By Cissy Jackson and Dan Renberg

Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. before joining ArentFox Schiff. She also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. Jackson has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.

Dan Renberg, a former senior Senate staff member and presidential appointee, has helped numerous clients since joining ArentFox Schiff as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America.

In this month’s Bulletin, recognizing that FBA has multiple policy priorities that are difficult to enact, we examine today’s legislative process from the perspective of how it used to work.

CJ: When I began working for Senator Jones in 2018, I had to learn how Congress really worked, and it was not the Schoolhouse Rock process I learned as a child. I frequently heard laments about the days when the Senate operated under “Regular Order.” When you worked in the Senate, did it operate under Regular Order and what was that like?

DR: To me, “Regular Order” includes several factors, such as committees considering individual bills in “markup sessions” where amendments can be offered, debated, and voted on, and then having a floor procedure for the full House or Senate to consider the legislation with opportunities for amendment. I worked for a senator from 1994–98 and quite often the two leaders worked out a time agreement that would permit floor consideration of a bill and either a fairly open amendment process or a circumscribed one that would offer debate and votes on only specific amendments. Appropriations bills came to the floor annually, and senators and representatives could typically offer amendments on funding levels or policy. There were also House-Senate Conference Committees appointed to negotiate final versions of individual bills, like reauthorizations of major federal programs or the annual appropriations bills. We don’t see as much of this kind of legislating any more. Often a “must-pass” bill related to government funding or national defense ends up carrying with it completely unrelated issues because the body can’t find a way to consider individual proposals in this politically charged and partisan climate.

CJ: What are the consequences of not operating under Regular Order?

DR: From a general perspective, as the Senate and House have moved away from the Schoolhouse Rock approach to legislating, it seems that much greater authority is in the hands of the two party leaders and committee chairmen and has been lost by rank and file members. Putting together an omnibus appropriations bill consisting of 12 bills or a large-scale health policy bill that consists of multiple unique policy proposals and bringing it to the floor for what is essentially an up or down vote, not open to amendment, leads

4 • THE FEDERAL LAWYER • Summer 2023

me to see a kind of disenfranchising of rank-and-file members. As a result, there are fewer opportunities to rectify a policy a member thinks is erroneous or to have the possibility of shaping funding or other policy positions. Unless the committee chairs do a superb job of casting a wide net when formulating larger scale bills, many members sometimes see legislation come to the floor that they don’t feel includes their own imprint. I think this has caused a growing morale problem for members (and staff ). I also think that because the majority can often get its way, there is an even greater sense among members of the majority that they need to act on as many of their priority initiatives as possible, since the other party could win the majority in the next election and end their opportunity to influence policy. The procedures, therefore, reflect the permanent campaign that has taken hold of American politics.

CJ: I didn’t ever have the opportunity to work for a House member, so I was often confused about legislative process over there. It’s different from the Senate in so many ways, starting with the Rules Committee.

Can you explain the role and importance of the Rules Committee and how it has evolved over the last couple of decades?

DR: The House Rules Committee is one of the oldest standing committees, dating back to the founding of the Congress. It is the “gatekeeper” for the House floor, and because it is so critical to House procedures, the majority controls it by a 9-to-4 committee ratio, even when there is only a narrow overall House ratio difference (like today, when it’s 222-213). The Rules Committee majority members are appointed by the Speaker and are typically known for their party loyalty. The Committee considers which bills can come to the floor, recommends to the full body a list of amendments made in order, and sets the time parameters for debate on a bill. If the Rules Committee does not agree to permit debate and a vote on an amendment, the member is essentially out of luck in the House, which is far different from a Senator’s ability to insist upon a floor amendment’s consideration. Keeping some balance in the system, the recommendations of the House Rules Committee, a resolution known as the “rule” for floor debate, must receive a majority vote on the floor continued on page 9

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At Sidebar

The Bluebook: A Uniform System of Salvation

By Ira Cohen, Esq., B.A., J.D., LL.M.

Ira Cohen, Esq., B.A., J.D., LL.M., is an Intellectual Property Attorney and is the founder and principal of Ira Cohen, P.A. of Weston, FL. He is a member of the Florida and New York Bars, has been practicing law for 42 years, and is rated AV Pre-Eminent®

by Martindale Hubbell.® Attorney Cohen served as Judicial Law Clerk to the Honorable Harold J. Raby, United States Magistrate Judge for the Southern District of New York (198285). Ira also is the Immediate Past Chair of the FBA’s Intellectual Property Law Section, a proud Sustaining Member of the Federal Bar Association, a Lifetime Fellow of the Foundation of FBA, the Columns Editor for The Federal Lawyer, an FBA Moot Court Judge, a Member of FBA National Council, and an FBA Mentor. Ira can be reached at icohen@ictrademarksandcopyrights.com

I know what you’re thinking. An article about The Bluebook: A Uniform System of Citation? As dull as a butter knife.

But there’s actually quite a bit more to it. Before you depart in haste for the next article (though doubtless also worth a good read), for your consideration, I offer the following baker’s dozen of fun facts about the book that many lawyers love to hate: 1. The original color of the cover of The Bluebook was not blue.

2. The Bluebook has been the lawyers’ dependable companion for almost a century.

3. The Bluebook is a team effort by four top-shelf law schools.

4. Notwithstanding the above, for most of its (uncelebrated) history, only one law school earned any money from sales of The Bluebook.

5. The Bluebook is not the only citation game in town; a number of courts, schools, and states have designed or mandated their own systems.

6. The Bluebook was imagined to be a not-for-profit venture.

7. The Bluebook has its vocal detractors, but it also has its ardent supporters.

8. THE BLUEBOOK® is a federally registered trademark.

9. The proprietors of The Bluebook have threatened to sue third parties for trademark and copyright infringement.

10. You can buy The Bluebook on Ebay® and elsewhere at discount.

11. The Bluebook has been available online since 2008.

11. There is a mobile app (available since 2012).

13. You no longer need your hands-and-eyes to use The Bluebook.

Introduction A masterpiece of organization, a veritable gold mine of law-related information—it is a thing to marvel at, not make light of.

The Bluebook is utilized by most federal courts, so federal practitioners are well-acquainted with this behemoth. There is no reason to feel alone! It has be6 • THE FEDERAL LAWYER • Summer 2023

witched and beguiled generations of lawyers before us and will continue to far into the foreseeable future.

In the lawyer’s toolkit, there are some instruments that rarely are touched, others are of limited utility, and still others are primarily for show. The one piece that is universally needed is The Bluebook. By that metric, it has no equal, no replacement, and no substitute.

What Is The Bluebook?

Having climbed up the ladder to law school, one of our many student tasks was to learn The Bluebook to become citation literate; that is, to read and write legal citations fluently and flawlessly. Legal Citation 101 teaches us that a legal citation is a reference to a legal document such as a case, statute, law review article, or similar. It is a special language that lawyers use. Like a national tongue, or ethnic dialect, Braille, or Morse Code, citation is an efficient means for legal professionals to communicate with each other. It is, so to speak, the lingua franca of the officers of the court.

Distilled to its essence, The Bluebook is the style manual that governs how jurists, lawyers, law professors, legal scholars, and law students, craft and utilize citations in American legal memoranda, court documents, and law journals. Stated otherwise, it is the standardized format employed that permits legal professionals to refer to legal authorities and facilely locate a document, quote, legal principle, or case holding.

As for the anatomy of The Bluebook, it is a triad, comprised of three principal parts: the Blue Pages (a how-to guide for basic legal citation), the White Pages (the primary rules of citation and style), and the Tables (to be used in conjunction with the rules).1 For law review editors, most legal publishers, and judges and practitioners, too, it is like a holy book for citations. Within the framework of The Bluebook, help can be found for deciphering the rules of citation.2 As for its proper characterization, The Bluebook is not so much an authority as a legal reference system; rather, it is the authority.

Thus, The Bluebook is a sobering—and solidarity-infusing—fact of legal life for virtually all 1Ls. It may be perceived by the uninitiated as an inanimate

nemesis. In a very real sense, however, the old adage applies: “Can’t live with it; can’t live without it.”3

When, Where, and How Was The Bluebook Born?

In a not-always-cordial rivalry that may be likened to the disputes concerning the real “inventors” and “birthplaces” of such culinary crowd-pleasers as the Rum & Coke (“Cuba Libre”), Caesar Salad, and the Pisco Sour, Harvard and Yale both lay claim to the mantle of Citation Czar.

In the Legal World (according to Harvard), the blue monolith sprang forth in 1926 in its venerable halls. The apparent animus for the (then) small pamphlet was to breathe life into an evolutionary guide for the proper citation forms for law review articles in their distinguished legal journal. If we credit Harvard’s account, the antecedent for The Bluebook was humble, written by the law review editor—Erwin Griswold—to apprise legal writers of the proper citation forms for articles in the Harvard Law Review.4 Harvard University has a simple motto: “Veritas” (truth).

However, the enrobed faculty of Yale beg to differ. Yalies posit that the genesis of The Bluebook was a 1920 publication by Yale’s own Karl N. Llewellyn on how to write law journal materials.5 Additionally, they argued, in 1921, the Yale Law Journal published a blue-colored pamphlet called “Abbreviations and Form of Citation.”

Harvard’s later entries allegedly drew on material from the earlier Yale projects. Yale’s motto is “Lux et veritas” (Light and Truth). On its face, that seems to trump ”Truth” alone.

We may never get to the bottom of The Bluebook’s true provenance.

It appears undisputed, however, that the first edition of 1926 was a joint effort of the chief law journal editors then attending the Harvard, Yale, Columbia, and University of Pennsylvania law schools, chief amongst them Harvard’s Henry J. Friendly6 and Yale’s Herbert Brownell.7

Why Is It Called The Bluebook?

As Shakespeare mused, “a rose by any other name would smell as sweet.” To those that have come to fear it, The Bluebook would be as abhorrent in any color. Whilst one might surmise that the publication’s title was derived from the hue of its inaugural cover, that would be too simple—the first cover was green.

As the years passed, the covers changed like autumn leaves. The second through fifth editions (1928-1936) sported brown covers.

For the first time, in 1939, the color was changed to what has been described as a “patriotic” blue.8 To round out the cavalcade of colors, in 1967, the 11th edition showcased a white cover with a blue border.

Ever the chameleon, the book turned back to solid blue for the 20th edition in 1976 and so it remains to this day.

The Paperback Prince of Prolixity The Bluebook is the most ubiquitous legal citation system. It is an inescapable reality that lawyers are forever reading and writing. While, for many, online materials have eclipsed the leather-bound tomes, I still adhere to President Thomas Jefferson’s less-famous declaration: “I cannot live without books.”

Whether we legal craftspeople really require this extreme level of prolixity is another question entirely. Over the course of time, The Bluebook has gained girth. Longer than Tolstoy’s War & Peace, dryer than Death Valley in Summer, The Bluebook is a monumental and ever-mushrooming collection of legal technicalities, jurisprudential trivia, and textual anomalies.

Every once in a great while, the book shrinks. The rare 10th edition, for example (copyright 1958; third printing 1962), was trimmed down to 124 pages. In general, though, it has tended only to gain length and weight. To illustrate, the 19th edition stumbled into the publishing ring at over 500 pages. The 20th edition (2015) ballooned to 560. However, the current—21st—edition (2020) has been clipped down to a mere 365 pages in length. That’s a page-a-day, folks, for those of us who want to pace ourselves.

Whatever the copious content, or page numbering, of The Bluebook, would anyone think to criticize Black’s Law Dictionary for its bulk? After all, the 11th edition of Black’s (2009 ed.) takes up a massive 2,075 pages. I have not heard anyone complaining that Black’s is too comprehensive.

Variations on The Bluebook Despite its status amongst legal reference books, not all lawyers are forced to use The Bluebook—it is not the only game in town. Some states, like California, by authority of its Supreme Court, allow attorneys to use it or alternative systems, manuals, or style guides.9 Michiganders uses a separate official citation system issued as an administrative order of the Michigan Supreme Court.10 In contrast, Texas supplements The Bluebook with items that are unique to Texas courts, such as citing cases when Texas was an independent republic, petition and writ history, Attorney General Opinions, and similar issues. The Texas manual is known as “The Greenbook.”11 In the federal sphere, the Solicitor General issues a style guide that is designed to supplement The Bluebook.12 In the highest court in the land, the Supreme Court uses its own unique citation style in its opinions. This is somewhat difficult to explain because most of the justices and their law clerks went to law schools that teach to The Bluebook. In that vein, for those of you who will be appearing before the highest court in our land, I heartily recommend to you “The U.S. Supreme Court Brief Writing Style Guide.”13

Technological Advances and The Bluebook In 2008, The Bluebook went digital. Later, in 2012, it morphed into a mobile app. The mobile version allows legal practitioners to reference federal and state court rules, statutory codes, and various style manuals on their personal devices. Should a researcher need to consult a prior version of The Bluebook, the full texts of the first (1926) through the 15th edition (1991) are available on The Bluebook’s official website.

The Bluebook enjoys no special immunity to the ravages of time, the vicissitudes of the profession, or the advancements, enhancements, and improvements offered by ever-marching technology. In 2017, for example, a startup company named LegalEase launched a legal citation generator that reportedly enables its users to create citations in The Bluebook format.14 Nowadays, there are excellent computer software programs that will obligingly do all of the legal citation work for you.15 With the aid and assistance of a marvel of legal software, you can take your hand-wrought legal handiwork and render it picture perfect with software like PerfectIt.® Moreover, you may decide any fees associated with such software are paltry compared to time spent with The Bluebook.

Challengers to The Bluebook and Its Trademark On Jan. 28, 2009, the quartet of reviews and journals comprising the law school alliance filed three mark applications with the United Summer 2023 • THE FEDERAL LAWYER • 7

States Patent and Trademark Office (USPTO) for The Bluebook related marks. On Feb. 16, 2010, they secured from USPTO a Class 41 Service Mark Registration, No. 3,748,511, for THE BLUE BOOK ONLINE, for providing an online publication in the nature of a manual in the field of style for legal citation. Later, on March 9, 2010, USPTO issued THE BLUEBOOK, No. 3,756,727, as both a trademark Registration in Class 16 (for a style manual for legal citation) and service mark Registration in Class 41. Finally, on Dec. 7, 2010, they were awarded trademark and service mark Registration No. 3,886,986, THE BLUEBOOK A UNIFORM SYSTEM OF CITATION, again, in Classes 16 and 41.

All three of the foregoing registered marks seasonably were renewed by the Joint Registrants and are valid and subsisting as of the time of this writing.

For a brief period of time, around 2015–16, there was an academic uprising of sorts involving The Bluebook. A mixed group of academics and folks who champion free content hatched a plan to make it available at no cost and to be open as a source for collaboration. They hung their hats on the contention that The Bluebook’s 10th edition (1958) copyright had not been renewed and, thus, had expired and fallen into the public domain.

To rub salt into the wound, the erstwhile challenger was provocatively called “BabyBlue’s Manual of Legal Citation.” Harvardian litigators started banging their drums and rattling their sabers; they had two legal battlefronts in mind, copyright and trademark infringement, when they dispatched their written warning shot.

When faced with the reality of the law (and not just the printed words and numbers), it seems that all this amounted to a flash in the pan. On March 31, 2016, it was announced that the purported coup against the Crown of Citation had changed its name to the “Indigo Book.”

The Future of The Bluebook The future of The Bluebook is a chapter of that has yet to be written.

We ought to reasonably anticipate that our computers will work better and smarter and faster for us in times to come. How will AI change The Bluebook? In our late 21st century courts, will legal briefs be written by men and women or by electronic and digital means?

Will The Bluebook’s guiding principles be implemented by human intelligence and ingenuity or by the “minds” of machines?

Presumably, even the AI legal “minds” of 2050 or 2100 A.D. will be programmed to adhere to The Bluebook (unless they create a more advanced monolith). LexisNexis Brief Analysis already produces a powerful, fast legal argumentation insight generator using the power of AI. That said, as long as there is a requirement for legal briefs, articles, and judicial opinions, The Bluebook’s dominant perch ostensibly should remain safe. The work will be rendered neither obscure nor obsolete any time soon.

Consequently, my educated guess is that, for at least the foreseeable future, The Bluebook will continue to grace our law offices’ and Chambers’ bookshelves. Just as it has served until now, it will continue, in one form or another, to supply the coming generations of legal professionals with its unique legalistic lingo.

We all are quite cognizant that correct citations—finely formatted ones at that—are what is required in our work. Deficient citation form dilutes reader confidence in our handiwork. Mistakes in citations can jeopardize our credibility with our opponents and risk a poor result from a court.

8 • THE FEDERAL LAWYER • Summer 2023

Why should it be that many of us so despise this landmark, and hallmark, publication? I, for one, find it no different than a comprehensive dictionary, encyclopedia, glossary, or thesaurus; perhaps, more accurately, aspects of all of them rolled into one. We all want our legal papers to be proper, polished, and persuasive, do we not?

That does not happen by magic.

We lawyerly wordsmiths are, in no small manner, tethered to the power, range, and velocity of our literary firepower. We take careful aim and shoot our wise and witty and wizened words. When we fire, our words must be on-target and deadly dispositive. The Bluebook is our sidearm. Close. Reliable. No misfires. As we close in on the centennial of The Bluebook, I think it helpful to consider how many tools or weapons have passed the test of time for 100 years or more?

And, so, my FBA friends and colleagues, unless and until someone— or something—invents a better weapon for writing, I believe I can predict, with a reasonable degree of confidence, that we legal-folk will continue to reach for The Bluebook.

Endnotes The 21st edition of The Bluebook governs the style and formatting of various references and elements of a legal publication, including, but not limited to: typefaces for law reviews; subdivisions; short citation forms; quotations; abbreviations, numerals, and symbols; italicization for style and in unique circumstances; capitalization; titles of judges, officials, and terms of court; cases; constitutions; statutes; legislative materials; administrative and executive materials; books, reports, and other nonperiodic materials; periodical materials; unpublished and forthcoming sources; electronic media and other nonprint resources; services; foreign materials; international materials.

2 Some of the major changes from the 20th edition are featured in the preface to The Bluebook’s 21st edition.

3 The most frequently used style manual for citing to legal documents is The Bluebook. The APA, MLA and Chicago Manual of Style all refer to The Bluebook for citing to certain documents such as law cases.

4 Griswold served as Solicitor General of the United States under Presidents Johnson and Nixon; he later served as the Dean of Harvard Law School for over 20 years.

5 Llewellyn is remembered as a great legal scholar of the 20th century and a proponent of legal realism. He was a Columbia Law School Professor for over 25 years and one of the principal drafters of the Uniform Commercial Code (U.C.C.) 6 Judge Friendly sat as a prominent jurist on the U.S. Court of Appeals for the Second Circuit (1959-1986).

7 Brownell served as U.S. Attorney General under President Eisenhower (1953-1957).

8 There also is a story floating around that the brown color was eradicated to avoid any comparisons to the dominant brown colors that the Nazis in Germany were prone to use.

9 California used to require use of the California Style Manual. In 2008, the California Supreme Court issued a rule giving an option of using either the California Style Manual or The Bluebook. (See California Rule of Court, Rule 1.200) 10 The primary difference is that the Michigan system “omits all periods in citations, uses italics somewhat differently, and does not use ‘small caps.’”

11 Furthermore, in other states, the courts have their own citation 1

rules that take precedence over the guide for documents filed with those particular courts. While some of those local rules are simple modifications, in situations such as Delaware, the Supreme Court of that state has laid down significantly different citation rules. In still other states, it may be more of a case of attorneys customarily using The Bluebook for federal court matters and their local state-courtendorsed manuals guidelines for state court cases.

12 This guide focuses on citation for practitioners, so as an example, only two typefaces are used for law reviews, normal and italics.

The guide does state that unless explicitly specified otherwise, The Bluebook rule takes precedence in the event of conflict.

Dan Schweitzer, U.S. Supreme Court Brief Writing Style Guide, 19 J. APP. PRAC. & PROCESS 129 (2018).

14 https://legaleasecitations.com/ 15 The claim, and the promise, is that with PerfectIt, your raw text’s citations (in MS Word) can now be switched over to automatic pilot.

The software application checks for and, to the extent necessary, addresses your citation errors (e.g., incorrect capitalization, missing or extra spacing, transposed letters in court and/or reporter names).

Moreover, the system checks for appropriate use of the ever-popular id, supra, and certain other signals of subsequent case history.  13

President's Message continued from page 3

In addition to initiating outreach efforts with Chapters and law schools and working with them to develop a plan for FBA engagement, the group also developed and implemented programs at several law schools across the country focusing on the different types of federal clerkships and tips for applying and also programs on how to get your first in-house counsel job.

While we made significant progress this year, there is still much to be done on all of these fronts. The association is in excellent hands with the leaders in place for the upcoming year (and beyond), all of whom are committed to furthering these same efforts.

Thank you for the opportunity to serve as your National President. 

Beltway Bulletin continued from page 4

in order for debate on the bill to occur.

The Senate relies on a different procedure for setting the floor agenda, making the Majority Leader first among equals in terms of floor recognition and giving the Leader the chance to offer a bill for consideration. Because of the filibuster rule, Senate floor consideration often relies upon “unanimous consent” agreements by which senators agree to waive their ability to hold the floor or offer amendments and to permit a bill to be considered and voted upon without much difficulty. It seems to me that over the years, the Leaders have been less likely to attempt to bring controversial bills to the Senate floor or noncontroversial bills that could attract controversial amendments and thus individual senators are not able to pursue as many of their policy objectives. We’ve even had appropriations cycles where no bills emerged from committee and received votes and the committee was left to publish draft bills and committee reports on its website without formal consideration. That’s not good for morale or for policymaking in the long run.

CJ: What do these changes in the legislative process mean for

stakeholders like the FBA, who have an interest in a particular policy or piece of legislation?

DR: In today’s Congress, even fairly noncontroversial legislation can have a very difficult time getting from start to finish. And even if one house of Congress approves a bill, getting the other one to go along isn’t easy, regardless of whether both have the same party in the majority. What this means is that stakeholders like FBA have to work even harder to develop bipartisan support for their favored proposals. Ultimately, getting in front of members back home in their districts and states can make a big difference in convincing them to support a bill or amendment. Participating in fly-ins and video meetings with their DC policy staff is also essential. Finding allies who have their own independent connections to your legislators can also make a difference. I still believe that good policy can find its way through but, like in Olympic diving where there are different degrees of difficulty, even simple proposals are now like the toughest dives. It takes effort and practice but ultimately you can win if you persevere. 

Summer 2023 • THE FEDERAL LAWYER • 9

From the Foundation

Brother, Can You Spare A Dime

By Aaron Bulloff

Aaron Bulloff is a long-tenured FBA and National Council member who has held numerous chapter and national positions. He is a Charter Life Member of the Foundation’s Fellows and in 2015 received the Earl Kintner Award. He can be reached at canoelaw@gmail. com.

No, the Foundation is not Depression-era impoverished. It has an investment corpus of roughly $1.5 million, and last year it spent roughly $133,000 on programming. But we are nonetheless asking for your donations in this fourth of my columns about the Foundation. In this one, I will discuss how the Foundation’s funds are managed, how it was able to expend the funds for last year’s programming, and how you can financially assist the Foundation’s future efforts.

The Foundation’s investment corpus is professionally managed by Truist Financial Corporation, an American bank holding company, as it has been for the last several years. Our Truist managers meet with the Foundation Board at its quarterly meetings to present their review and preview of the market, to discuss our accounts in detail, and to answer any questions. So, I would like to introduce to you the two individuals with whom we entrust our funds: Laura Galaida is a relationship manager within the Foundations and Endowments Specialty Practice at Truist’s Washington, D.C., office and has overall responsibility for the account. Chris Komosa is the day-to-day manager for the Foundation’s funds. You can read more from them at the end of my column.

To sustain the Foundation’s investment corpus, Laura and Chris have advised that it is best practice to limit program budgeting to an annual 5% draw from the investment corpus. Although the Foundation receives modest donations from members, you might be wondering how the Foundation expended $133,000 on programming in 2022 when 5% of a $1.5 million corpus is only $75,000. The Foundation was fortunate to receive a distribution of funds from the Federal Bar Building Corporation last year. These funds covered the budget gap and saved the investment corpus from invasion. Simply put, unless and until the Foundation’s investment corpus enlarges to the point where the prudency of a 5% draw supports all programming, the Foundation can (1) sustain its current level of awards, grants, scholarships, and moot court sponsorships, (2) expand those current efforts, and (3) undertake new, different efforts that will have a national impact beyond the localized or individual impact of current activity, if, and only if, it receives donations from FBA members, the legal community, affluent individuals, and corporate

10 • THE FEDERAL LAWYER • Summer 2023

donors. The arithmetic of a 5% draw from the corpus is easy to see.

So that is why the Foundation asks for your donative support. Just think, if each FBA member donated only $20 yearly to the Foundation, it would have enough money annually to undertake all the programming discussed above to provide the value you want in FBA membership. There are several ways you can provide this support.

First, every time you see the Foundation’s QR code (included here in this column), you can point, click, and donate using your smartphone.

Second, each time you renew your FBA membership, there is a box to check to make a donation to the Foundation.

Please don’t automatically pass over it.

Third, just write a check to the Foundation and send it to National.

Fourth, solicit your firms, affluent clients, and support service companies who may be of a mind to support the FBA’s and Foundation’s efforts, be they individuals or companies.

Finally, if you are now able, or become able, please consider a specific bequest to the Foundation. We’ll wait! But the language in a testamentary document is simple. In the Specific Distributions section of my testamentary trust, the language is no more than: 3.3 (d) X Thousand Dollars to the Foundation of the Federal Bar Association, located in Arlington, Virginia.

The donations you provide will be well-managed.

They will be put to very good use. They will allow the Foundation’s purpose of serving as the FBA’s charitable arm to bring value to your FBA membership and to help advance American federal jurisprudence. So please help as you are able.

That’s my pitch.

Cheers, Aaron

Laura Galaida

Chris Komosa

I have served as the client-service lead for FBA for the past eight years.

A California native, I moved east for college at Connecticut College and earned a Bachelor of Arts in Art History and Economics. I moved to New York City, where I combined my love of art and business at Sotheby’s Auction House, working as a sale coordinator in the European Sculpture and 19th Century Furniture departments.

I loved the auction business so much that I transitioned over to Charitybuzz, an online auction company working exclusively with nonprofits. In my tenure we raised over $25M for nonprofits just by selling amazing experiences (like celebrity meet-and-greets, luxury trips, and art).

After moving to Washington, the opportunity to work with nonprofits at Truist presented itself—it brought me back to the world of finance and still allowed me to work with incredible clients doing good in the world. I went from helping nonprofits raise money to helping them figure out what to do when they got it. I now lead our client-service efforts and support my own book of clients.

No surprise, I spend a lot of my free time on boards and volunteering with arts organizations in the community: Free Arts NYC, The Phillips Collection, and The Hirshhorn and Haystack Mountain School of Crafts.

I’m a portfolio manager in the Washington office within the Foundations and Endowments Specialty Practice at Truist. I have managed the reserve assets of the FBA for the past five years.

I was born and raised in the New York City area but went south for my education; I earned a Bachelor of Arts from Washington & Lee University and a Master of Business Administration from the Darden School at the University of Virginia. I moved to the Washington area with my wife and three sons when I joined Truist.

I started my career in New York with JP Morgan Chase’s investment-consulting group and worked closely with Stanford University’s endowment. After graduate school, I joined Permal Asset Management, at the time the largest fund of alternative funds. I’ve also been a portfolio manager at Lazard Asset Management and Caxton Associates.

As an investor, I aim to follow in the footsteps of Graham and Dodd, the legendary fathers of value investing: invest with a margin of safety and avoid speculation. I have two degrees of separation from the great men—my father was among their first students after WWII, and he always reminded me of the importance of these principles. For the FBA’s assets, I utilize a global-balanced approach, a time-tested strategy. Crystal balls don’t exist, so I look for economic tailwinds to follow and headwinds to avoid. 

Move forward with Mazars

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Summer 2023 • THE FEDERAL LAWYER • 11

Diversity Docket

How We Sparked Engaged FBA Diversity Programming

By Jacqueline Johnson and Talia Sukol Karas

Jacqueline A. Johnson is the First Assistant for the Federal Public Defender Office for the Northern District of Ohio and has been a criminal defense attorney for 38 years. She lectures nationally on criminal law and diversity, equity, and inclusion issues.

She chairs the FBA Northern District of Ohio Diversity Committee. Talia Sukol Karas is an Associate Attorney in Porter Wright Morris & Arthur’s Cleveland, Ohio office. She practices in the areas of white collar criminal defense, investigations, and civil defense. Talia is the immediate past chair of the FBA Northern District of Ohio Diversity Committee and currently Co-Chairs the Continuing Legal Education Committee.

In the wake of George Floyd’s murder on May 25, 2020, and the national protests and public reckoning about violence against Black bodies that followed, the Northern District of Ohio Chapter of the FBA renewed the mission of our Diversity Committee. Utilizing the move to Zoom at the outset of the COVID-19 pandemic, we held a discussion between Judge Solomon Oliver and Magistrate Judge Thomas Parker, both of the district. Judge Oliver, who served as Chief Judge from 2010–2017, spoke about his experiences beginning with his youth as a Black child in Alabama attending segregated schools. Magistrate Judge Parker had experience exploring the impact of race on one’s perspective through his involvement with his largely Caucasian church’s joint book club with a largely Black congregation. The discussion was moderated by Marisa Darden, who also shared her experiences growing up as a young Black woman in the suburbs of Cleveland. With the support of our then-chapter president, Erin Brown, this lunchtime Zoom program launched a new era in our chapter’s Diversity Committee work.

Book Club The success of the lunch hour discussion between Judge Oliver and Magistrate Judge Parker, in combination with the national conversation about race, sparked more programming. Marisa Darden chaired the committee in its first renewed year. Given Judge Parker’s experience with book clubs, we decided to launch a diversity book club open to our membership—including judges and practicing lawyers—that has continued to present. Given the national conversation, it was helpful for us to process the history of race that brought us to present day in the United States with our colleagues in the legal community, with whom we shared certain ways of thinking. With the pandemic still in its early months, our members were also looking for opportunities to connect in meaningful ways over Zoom, and the book club supported this need. In the past three years, our selections have included Between the World and Me by Ta-Nehisi Coates, Thick: And Other Essays by Tressie McMillan Cottom, An American Sunrise: Poems by Joy Harjo,

12 • THE FEDERAL LAWYER • Summer 2023

The Underground Railroad by Colson Whitehead, and The Color of Law by Richard Rothstein.

The success of our book club dovetailed with the availability of national FBA Diversity Grants, and our chapter was awarded funds that we used to bring Northwestern University professor of history Kate Masur in for a day of programming in Cleveland during autumn 2021. Book club members read Dr. Masur’s Pulitzer Prize-nominated book, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, and participated in a special book club roundtable with Dr. Masur over lunch. Dr. Masur led the discussion, highlighting early forms of segregation that followed the end of slavery.

An early form of Jim Crow, so-called “Black Laws,” intersected with “Poor Laws” that targeted single mothers, individuals with disabilities, and people of color, generally. Following lunch, our chapter hosted a panel discussion featuring Dr. Masur and Judge Oliver in conversation about the history of racism, from the country’s birth to present. Though laws today may no longer be explicitly racist, the discussion recognized that a deep implicit racism continues to run through our legal structure.

Outreach More recently, we launched an affinity bar outreach initiative. Our first program in this effort was an African American History month program highlighting still-practicing 96-year-old federal litigator James R. Willis. We partnered with the Norman S. Minor Bar Association (NSMBA), the local African American bar association, to host an in-person seminar and reception. Judge Dan Polster generously hosted the program in his courtroom. The two-hour event gave both bar associations an opportunity to honor a local African American attorney who has argued twice before the U.S. Supreme Court. Following a color guard presentation, Willis spoke of his strategies in preparing for oral arguments and how his service as a U.S. Marine in the first all-Black regiment trained at Montfort Point in North Carolina spurred him on to excellence continued on page 14

Thought Sponsor

IRS Enforcement Plan— All the Scrutiny $45.6 Billion Can Buy

By Robert J. Kovacev

Robert J. Kovacev is a tax lawyer at Miller & Chevalier Chartered in Washington, D.C., and a former senior litigator at the Department of Justice’s tax division.

The IRS’ strategic operating plan, announced April 6, includes a new enforcement strategy backed by $45.6 billion in earmarked funding. The plan makes no secret of its intended targets: large corporations, large partnerships, and high-net-worth families.

It notes that the corporate audit rate fell to 1.7% in 2019 from 10.5% in 2011. The audit rate for high-networth families is even smaller (0.7% in 2019) and for large partnerships is almost vanishingly small (0.05% in 2019). Increasing audit rates for those groups is an explicit goal.

The funding’s effects won’t be apparent for at least two years—the IRS has hinted that audit activity may decline in the short run, as agents are trained and new systems are placed into service. This may tempt taxpayers in high-scrutiny categories to postpone any preparations for IRS audit activity, but this would be short-sighted.

Everyone expects the IRS to go on a hiring spree.

Indeed, there are already signs of stepped-up hiring for enforcement roles. But there’s much more to the new enforcement strategy than increased staffing.

There are two clear themes in the plan’s enforcement strategy: centralization and data analytics.

Specifically, Initiative 3.1 provides that the IRS “will develop a centralized, integrated approach to assess risk to inform the selection of cases and appropriate treatments.” This “centralized planning function will use risk analytics to prioritize and assign cases.”

If all goes to plan, by fiscal year 2026, taxpayers will be selected for audit “by centralized compliance planning function using new analytics systems and refined risk-based case selection and routing.”

Expect the Unexpected Centralization and data analytics are logically intertwined. To be effective, data analysis must have access to a large data set. As a practical matter, that volume of data could only be managed centrally to assure that the data set is accurate, unbiased, and comprehensive.

Data analytics expertise also is likely to be centralized within the agency. Therefore, any meaningful data analysis would require centralized coordination.

The results would then be directed to the field.

It would be impractical and unwieldly to have field agents conducting their own searches independently.

Uniform tax administration is served by a centralized approach and ensures that similar taxpayers receive similar outcomes.

Centralization has side effects, however, that will make resolving tax issues harder for many taxpayers.

A top-down approach to enforcement means field agents will have less discretion about how to conduct an audit. Information document requests will be dictated centrally, and agents will have less flexibility in tailoring those requests to the situation of individual taxpayers. Decisions on whether to disallow a position will be made globally based on policy decisions made in Washington, forcing taxpayers increasingly to challenge adjustments in the IRS Independent Office of Appeals or in court.

For all the discussion about analytics, the IRS has been tight-lipped about the precise nature of the technology it will deploy. Even without reverse-engineering algorithms, taxpayers can predict certain likely areas of IRS scrutiny. Because data analytics is statistics-based, it’s fair to assume that statistical outliers will be subject to more scrutiny.

For example, if a corporation claims research credits significantly higher than the norm for similarly situated corporations, the algorithm will likely flag that as an anomaly. Therefore, a taxpayer who recently has increased research and development activity to gain a competitive advantage over its competitors, resulting in a concomitant increase in research credits, could reasonably expect additional scrutiny based on that fact alone.

At the same time, taxpayers should expect the unexpected. The IRS has access to a treasure trove of data beyond income tax returns. Financial statements, information returns, and information obtained from international tax authorities are all fair game. Inadvertent discrepancies between reporting positions taken in the United States versus other countries will be less likely to escape detection, making consistency increasingly important for multinational corporations.

The plan indicates a strategy for increasing scrutiny Summer 2023 • THE FEDERAL LAWYER • 13

of excise and employment taxes. In particular, excise tax disputes tend to involve large sums and can be intensely fact specific. They also frequently involve industry-wide issues, so the IRS uses a coordinated approach to such cases. Taxpayers subject to significant excise taxes, particularly in the energy and transportation sectors, should likewise develop an industry-wide approach to anticipating and responding to IRS activity.

Next Steps What should taxpayers in the high-scrutiny categories do now?

The first step is to acknowledge that higher scrutiny is coming. That includes preparing C-suite executives and other decisionmakers for increased risk and making the case for growing in-house capacity.

Taxpayers also must remember the first principle of tax controversy: Substantiation is key. Many winnable tax disputes are lost because taxpayers fail to substantiate their positions. Maintaining an audit-ready file of transactions with potential tax implications both reduces the burden on taxpayers during an audit and increases chances of success in a dispute.

Awareness of the IRS’ new strategy suggests that taxpayers should be on alert for changes in the business that may trigger a statistical alert. Anything that creates a significant change in a taxpayer’s usual profile or that sets a taxpayer apart from its peers could be flagged as an anomaly by an IRS algorithm, and taxpayers must prepare for additional scrutiny.

The IRS may not meet all the benchmarks set forth in the strategic operating plan. Not all the new proposed enforcement strategies may come to pass. It’s undeniable, however, that the IRS has $45.6 billion in earmarked funds to spend.

Equally undeniable is the political support for using that money to target large businesses, large partnerships, and high-net-worthfamilies. Those taxpayers must appreciate that increased IRS scrutiny is certain, and that early preparation is the best defense.

This article was originally published by Bloomberg Law on May 2, 2023. It is reprinted here with permission.

“Thought Sponsor” is brought to you by the Federal Bar Association’s event partners. 

Diversity Docket continued from page 12

as an attorney. Magistrate Judge Amanda Knapp and NSMBA President Delanté Thomas presented Mr. Willis with a plaque.

Our chapter plans to continue outreach with other local affinity bars. In the wake of the tragic and senseless deaths of George Floyd, Ahmaud Aubery, Sandra Bland, and too many others, as well as attacks on Asian, Muslim, LGBTQ+, and Jewish communities, our initiatives increasingly spotlight our role as lawyers in protecting the most vulnerable among us.

Advice for Other Chapters and Goals for the Future It is essential for local chapter leadership to live the National FBA’s Mission Statement on Diversity and Inclusion that “recognizes diversity as a core value that is fundamental to the justice system.” The involvement of Northern District of Ohio Judges, including Judge Philip Calabrese, Judge Dan Polster, Judge Solomon Oliver, Magistrate Judge Amanda Knapp, and Magistrate Judge Thomas Parker, has lent legitimacy to the programming in addition to increased interest by federal practitioners to become involved with our work.

Judge Polster and Magistrate Judge Parker have been very active members of our committee, and Chief Judge Patricia Ann Gaughan has recognized our chapter’s value to the Northern District of Ohio court and legal community. Our chapter presidents since 2020, Erin Brown, Derek Diaz, and Magistrate Judge Amanda Knapp, have been

tremendously supportive of the Diversity Committee’s work. Buy-in from federal judges and other leaders in your district and chapter can make a significant difference in launching your program and continuing its work. The Board of the NDOH FBA has also been generous in supporting our programming.

Inclusion and equity should not be siloed from the mission of other FBA committees. In our chapter’s effort to reach more federal practitioners, we are working to broaden our membership with increased numbers of attorneys of color, attorneys working in federal agencies, women, and younger lawyers. One way to do so is to increase the visibility of attorneys in these categories, and one of our goals looking toward the future is increase the identification of diverse speakers and topics to better reflect the growing diversity of the legal profession and the communities we serve. We are also working to increase the participation and elevation of minority lawyers on our board of directors and executive leadership. By expanding membership and welcoming other voices through varied programming and outreach initiatives, we will remain relevant to the evolving nature of the profession and law itself. Our goal with the Diversity Committee, and our chapter more generally, is to shine light on the dark places that haunt our justice system in order to make the country a fairer place for all. 

Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org.

14 • THE FEDERAL LAWYER • Summer 2023

Judicial Profile

Hon. Sheryl H. Lipman

Chief Judge, Western District of Tennessee

by Bryce Ashby and Sarah Stuart

S

Bryce Ashby is an attorney with Donati Law, PLLC in Memphis, Tennessee. Bryce served as a law clerk to Judge Bernice B. Donald from 2008-2009 and as Chair for Western District of Tennessee’s Local Rules Committee.

Sarah Stuart is an associate attorney with Burch, Porter & Johnson, PLLC in Memphis, Tennessee. Sarah served as a law clerk to Judge Lipman from 2016-2017 and as a law clerk to Judge Bernice B. Donald from 2017-2018. She is presently a Board Member of the Memphis Mid-South Chapter of the Federal Bar Association.

heryl H. Lipman launched her interest in law as an eighth-grader, hosting “The Sheri Lipman You-Never-Know-What-You-Can-DoUntil-You-Try-and-Then-Its-Too-Late Comedy Hour-and-a-Half,” a show where she played bits and read odd, crazy laws that were still on the books.

Her father, Clifton Lipman, served on the board of WEVL, a Memphis-based independent, volunteer radio station. Her wit and intellect, along with the influence of her family on her character and humanity, continue to serve those who appear in her court and work alongside her as chief judge for the U.S. District Court for the Western District of Tennessee.

Judge Lipman’s story begins and continues today in Memphis, a city nestled on the Mississippi River— her chambers now overlooks it. She was born and raised in Memphis, along with her brother, Barton Lipman—a professor in the economics department at Boston University, and her sister, Elise Jordan— the executive vice president-CFO of FedEx Express.

She came to her desire to serve the community honestly and through the examples of her grandmother, mother, and father. Her grandmother, Ida Lipman, was a Russian immigrant, who as a child moved to Saskatchewan, Canada as part of a homesteader program that gave families plots of land to farm. She graduated from the Saskatoon Normal School around 1920 and worked as a teacher. Judge Lipman says that the family’s efforts at farming were met with failure, and they eventually followed relatives to Memphis.

Ida passed on a devotion to service, dedicating much of her life to helping the elderly. She was a Tennessee representative to the First White House Conference on Aging in 1961, was involved in the development of Senior Services—which later became Meritan (an organization providing a variety of senior support services in Memphis), she and helped to found Plough Towers—a federally subsidized community that provides independent housing and services for seniors in Memphis. Her grandmother was also deeply involved in B’nai B’rith, the international human rights and service organization, and she was once on a B’nai B’rith speakers’ dais with Eleanor Roosevelt!

Judge Lipman’s mother, Sandra Lipman, also instilled in her three children a need to give back to the community and a recognition of the importance of education. Sandra worked for a few years as a teacher with the Memphis City Schools and then went into administration in the Division of Human Relations, which was tasked in the early 1970s with training teachers and designing modules to handle the complex issues that came from busing (the practice of transporting children into different school districts in an effort to desegregate them). It was the early days of diversity training. Judge Lipman says that she may not have understood the exact content of her mother’s work, but that their family believed strongly in the need for busing to tear down the framework of “separate but equal.”

Clifton Lipman was also a major source of inspiration. Mr. Lipman worked as a roofer until his late-30s, and then he went to law school. He has spent much of his career working in construction law and engaged deeply in community service. He was a volunteer with Runaway House (which later became Family Services) and volunteered as a juvenile probation officer, in addition to his service on the board of WEVL. Summer 2023 • THE FEDERAL LAWYER • 15

Top: Judge Julia Gibbons administers the Oath of Office to Judge Lipman at her investiture. Bottom: Judge Lipman is joined at a lunch outing by former law clerks and former Judicial Assistant Cathy Gray.

Sheryl decided to pursue her education at the University of Michigan, where her brother was a graduate student studying economics. Although she would later come full circle, she wanted to leave Memphis and the south. In her time at Michigan, she interned with the American Civil Liberties Union’s (ACLU) Office of Legislative Affairs. In the summer of 1983, she worked under civil rights leaders Wade Henderson and John Shattuck, who would play a major role in establishing the International Criminal Tribunals for Rwanda and Yugoslavia, as well as negotiating the Dayton Peace Agreement. In her work with the ACLU, she assisted the staff in lobbying in D.C. about issues such as prayer in public schools.

After graduating, she attended New York Univeristy Law School. She found her time in the Criminal Law Clinic and the Public Interest Litigation Clinic to be incredibly rewarding and the most effective training for when she became a lawyer. She spent a summer working for a public interest law firm in Los Angeles that did a significant amount of work handling housing discrimination cases. The firm was able to provide those services by also performing tax work and representing the Church of

16 • THE FEDERAL LAWYER • Summer 2023

Scientology, which paid the bills.

After law school, Sheryl began a federal clerkship with the U.S. Court of Appeals for the Sixth Circuit’s Judge Julia Smith Gibbons, who was then serving as a district court judge in the same chambers that Chief Judge Lipman now occupies. She found this experience to be invaluable and has tried to model her demeanor now based on what she observed of Judge Gibbons. She says Judge Gibbons had a particular talent for recognizing the formality and respect that the court demands without overwhelming the attorneys and parties by stifling the personality and humanity of those before the court.

Judge Gibbons now reflects a similar admiration for her former law clerk, noting: “I have known Sheri Lipman well since she clerked for me on the district court in 1987-1988.

She has always been deeply grounded in her family and the community. She combines a servant’s heart with the intellect, lawyerly skills, and discipline to render dispassionate, thoughtful, and impartial decisions. I’m proud to have played a small role in mentoring her at the beginning of her legal career.”

After her judicial clerkship, she went to work for Reed Smith in Washington, D.C. for the next two-anda-half years, focusing on criminal white collar defense.

Then she returned to Memphis, drawn in by Memphis’s reckoning with its history and the injustices and pains of the past, knowing a challenging and interesting life could be made in the city. After working at local firms, McDonnell Boyd and Burch Porter & Johnson, she worked from 1999 to 2014 in the General Counsel’s Office at the University of Memphis, first as a senior attorney, and then after 2002 as the university’s general counsel.

Judge Lipman looks on her time at the University of Memphis with great pride and fondness. She says that the wide variety of issues she addressed on a day-to-day basis was intellectually challenging. From construction, creating an academic department, employment matters, and safety issues to NCAA compliance, every day brought a new challenge. She especially values the interactions with faculty and staff and the problem-solving opportunities that work at the university presented.

Judge Lipman is married to Dale Anderson, who retired from the U.S. Navy after 20 years as a photojournalist and retired a second time after working for the Navy as a civilian. Mr. Anderson regularly has showings of his photography work throughout Memphis.

Judge Lipman was appointed by President Barack Obama to the U.S. District Court for the Western District of Tennessee in 2013 and was unanimously confirmed in 2014. In her nine years on the bench, Chief Judge Lipman has adjusted to the more isolated nature of her work.

She benefits from the comradery of the bench in this continued on page 19

Judicial Profile

Hon. Tu M. Pham

Chief Magistrate Judge, Western District of Tennessee

by Bryce Ashby

T

Bryce Ashby is an attorney with Donati Law PLLC in Memphis, Tennessee. Bryce served as a law clerk to Judge Bernice B. Donald from 2008-2009 and as Chair for Western District of Tennessee’s Local Rules Committee.

u M. Pham serves as chief magistrate judge for the U.S. District Court for the Western District of Tennessee. Judge Pham’s chambers in Memphis are steps away from the Mississippi river, where barges and cruise ships float by the city’s downtown skyline.

Decades ago, Judge Pham’s family spent several days floating off the coast of Vietnam as they fled their war-torn country. As he (just 3 years old at the time) and his family drifted out to the South China Sea in a crowded fishing boat, a Filipino freighter passed by and, using a cargo net, lifted the refugees onto the vessel. After settling temporarily in a refugee camp in the Philippines, the family was sent to an American-run refugee camp in Guam. By the end of 1975, they landed in Fort Chaffee, Arkansas, in what became home to more than 50,000 Vietnamese refugees between May and December 1975.

Charitable organizations then took the lead on refugee settlement, and U.S. Catholic Charities, along with the Catholic Diocese in Rockford, Illinois, found a place for the family to settle in Rockford. The Diocese found his father, Tue Minh Pham, a job with a photography studio. Tu and his siblings attended St. James Catholic School, which waived the family’s tuition. St. James then rented, and ultimately bought, a house for his family. The church took donations and arranged for free medical and dental care, while parishioners quickly immersed his family in American traditions like introducing Thanksgiving, arranging a visit from Santa Claus, and showing his mother how to make hamburgers.

For the next three years, the family built a life in Rockford—until a record snowfall of 75 inches blanketed the city during the winter of 1979. His parents, who were used to a more tropical environment, did what any reasonable person would do and looked to warmer climes. His father was able to locate an old neighbor from Vietnam, who had settled in New Orleans and who encouraged the family to move down south. About a year later, the family moved to the Westbank of New Orleans, where a large Vietnamese population had taken hold.

Tue Minh Pham, despite struggling to learn

English, was able to continue working as a photographer. His specialty was restoration of old photographs, which involved using oil paint and a fine brush to re-touch cracked and damaged images by hand. Up until his passing in 2011, he spent most of his time volunteering at the local Vietnamese church by leading the choir or performing on the mandolin, accordion, violin, or one of the other dozen or so instruments he was well-versed in playing. It is no wonder that Judge Pham has always considered his father to be his greatest role model!

Tu rose through the New Orleans public school system, graduating as class salutatorian from O. Perry Walker High School in 1989. He then attended Tulane University for his undergraduate education, initially entering college with the plan to pursue a career in medicine. However, he found that he enjoyed reading and writing much more than science, so he decided to major in English. It was at Tulane that he met his wife, Linh.

Judge Pham is not sure exactly what spurred his interest in law, but he remembers one of his earliest exposures occurring in sixth grade in Ms. Gauche’s social studies class, where they were studying “law and the courts.” Ms. Gauche had the students, as part of their class, settle disciplinary issues through the Summer 2023 • THE FEDERAL LAWYER • 17

Top: Judge Pham, himself a naturalized U.S. citizen, shares the story of his journey from Vietnam to the United States during an en banc naturalization ceremony at Memphis City Hall. Right: Judge Pham visited Snowden School in Memphis, where he spoke about the federal court system and exoneration.

courts. He ran for prosecutor, which he won in a unanimous vote (He was the only candidate!); he successfully “prosecuted” his classmates for chewing gum, talking in class, and not doing their assignments. He still savors his three trial victories.

His decision to pursue a law degree caused some concern for his parents, as there were very few Vietnamese lawyers in the community at that time. They had hoped he would come to his senses and become a doctor, a recognized path for success in the Vietnamese community. They eventually supported his decision, and in the fall of 1993, he enrolled at the University of Illinois College of Law. He graduated summa cum laude in 1996, ranked in the top five of his class. During law school, he served as an articles editor for the University of Illinois Law Review, was a Harno Fellow, and received the Joseph W. Rickert Prizes for Legal Writing and Academic Excellence.

After law school, Judge William L. Garwood of the Fifth Circuit Court of Appeals selected him for a clerkship. He learned a great deal from Judge Garwood, who was pragmatic and wrote his opinions in an objective, neutral tone. Judge Pham has attempted to emulate that writing style while on the bench.

Following his clerkship, he married Linh, and they moved to Chicago where he joined the law firm of Kirkland & Ellis. The next two years were spent as a litigation 18 • THE FEDERAL LAWYER • Summer 2023

attorney, working primarily on complex litigation, antitrust, and intellectual property matters.

In 1999, despite having put down roots in Chicago, he applied for a position with the U.S. Department of Justice and interviewed with then-U.S. Attorney Veronica Coleman-Davis. Ms. Coleman-Davis offered him a position as an assistant U.S. attorney in Jackson, Tennessee. He thoroughly enjoyed his tenure in Jackson, where he prosecuted mostly drug and gun cases.

As a young attorney, he found the broad prosecutorial discretion given to him to be a particularly rewarding aspect of the job. During his time in Jackson, he had the good fortune of working alongside experienced assistant U.S. attorneys such as John Fowlkes (now a district judge), Jimmy Croom (now a bankruptcy judge), and Tommy Parker (now a district judge), among others. Judge Fowlkes, in particular, served as a mentor, co-trying cases with him, assisting him with investigations, and teaching him the “ins and outs” of federal prosecution. He also gained valuable courtroom experience from appearing before Judge James Dale Todd and Judge J. Daniel Breen.

After spending two years in Jackson, he returned to Chicago, where he continued to serve as an assistant U.S. attorney under U.S. Attorney Patrick J. Fitzgerald.

While in the Chicago office, he prosecuted defendants for racketeering, bribery, tax evasion, fraud, money laundering, and drug and gun crimes, and was later assigned to the office’s International Narcotics Unit. One of his fondest memories from his time at the Chicago office was investigating and trying cases alongside Morris “Sonny” Pasqual, who would later become the acting U.S. attorney for the Northern District of Illinois. He also had opportunities to argue cases before the Court of Appeals, with his most memorable experience being an oral argument before a panel comprised of Seventh Circuit Judges Richard Posner, Frank Easterbrook, and Ilana Rovner.

In 2003, he was appointed as a U.S. magistrate judge for the Western District of Tennessee, making him the first Vietnamese American federal magistrate judge in the United States. At the time, he was only 31 years and was the youngest federal magistrate judge in the country.

In 2020, he was designated by the district judges to be the chief magistrate judge for the district.

For the past 20 years, Judge Pham has served as one of the four magistrate judges in the Western District.

He finds that the position fits his personality in that he enjoys digging into the facts of a case, reading up on the latest developments in the law, and writing opinions. He strives to make attorneys and all parties who appear in his court feel comfortable, while balancing the decorum of the courtroom setting. Most of all, the judge wants to ensure that those who appear before him have a full and fair opportunity to be heard.

In his free time, Judge Pham focuses on his family.

His wife, Linh, works in school administration with the public school system. They have two children, Evan,

who is a recent graduate of The Ohio State University and will be attending law school, and Lauren, who is a college sophomore studying interior design. He enjoys playing tennis and rooting for the New Orleans Saints, Memphis Grizzlies, and The Ohio State Buckeyes.

Reflecting on his family’s journey from Vietnam to America, Judge Pham has a deep appreciation for the generosity shown, and the opportunities given, to him and his family. His parents were able to send all their children to college. His oldest sister studied journalism, became a television news

reporter, and won an Emmy award for a documentary about their family’s journey. His brothers studied engineering and business and became successful businessmen. His other sisters have careers in hospitality, nursing, and pharmacy. As he says, “We came to America with absolutely nothing to offer it, yet this country took us in, gave us food and shelter, and most importantly, gave us a second chance at life.” With that second chance, the judge and his family have built careers, raised strong families, and contributed to their communities—demonstrating that the American Dream is alive and well. 

Judicial Profile Writers Wanted

Hon. Sheryl H. Lipman continued from page 16

district and the judges’ collective focus on improvement to the court, even among their varying perspectives. As part of her service to the court, Judge Lipman has emphasized civics outreach, including chairing the committee that established the court’s first “Teachers’ Law School,” a day where local educators were exposed to the judiciary branch by observing a sentencing, hearing from members of the federal bar, and interacting with the bench. Over time, she has honed her approach to the bench, realizing that there is a time that every decision needs to be made, and as there will always be plenty to do, also a time to go home at the end of the day. Like many judges, she finds the most challenging part of her role as a federal trial judge to be criminal sentencing, particularly supervised release violations, noting the tension between the deterrent effect of a criminal sentence, the damage done to victims, and the damage to an individual and their family when removed from their home.

In January 2023, Judge Lipman assumed the duties of chief judge, followed shortly thereafter by the appointment of a new clerk of court, Wendy Oliver, following the retirement of long-time Clerk of Court Tom Gould. Although a dual transition may be seen as a challenge to most, Judge Lipman sees it as an opportunity to streamline procedure and improve the court through new viewpoints. She serves the public not only as chief judge but also on the Judiciary’s Financial Disclosures Committee, including on an ad hoc committee that has developed a standardized process for ensuring circuits coordinate on the conflict screening process.

These roles are well-suited for Judge Lipman’s temperament and preference for clear-

ly established procedures that ensure access to, and the experience in, the court are the same for all who enter.

Chief Judge Lipman passes on the same wisdom and perspective to her current law clerks once bestowed upon her by Judge Gibbons, with a view that her service as a federal judge includes training young practitioners who serve as law clerks and externs in her chambers. Her sincere intellect and thoughtful perspective on the law and legal writing benefit each lawyer who passes through her chambers. As former law clerk Emily Linehan reflects, Judge Lipman is well known for her devotion to justice, mentorship, and dogs (although not necessarily in that order). Her law clerks value her steadfast advice, her practical perspective on the legal practice, her openness to canine companions in chambers, and even her oft-used red pen. Among the many lessons, a former law clerk, Sam Cortina, shares a common refrain learned from Judge Lipman: “I’ll never be late to court. I’ll also never be on time to court. I will always, instead, be early.” Judge Lipman’s emphasis on timeliness is emblematic of her approach to the bench and her leadership. There is not anything that she asks of either litigants who appear before her or those who work in her chambers that she does not demonstrate daily—a strong work ethic, an open mind, and a commitment to fairness.

Memphis drew Judge Lipman back after her early career and is now the beneficiary of her wisdom and commitment to the judiciary. She looks forward to sharing the city with members of the federal bar at this year’s annual FBA convention. 

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to social@fedbar.org.

Summer 2023 • THE FEDERAL LAWYER • 19

S G N I REET

G

B

FROM

ack in 1987, two key events took place: John Hiatt released the song “Memphis in the Meantime” and the Federal Bar Association held its 67th Annual Convention in Memphis. The fact that John Hiatt wrote about his longing to visit Memphis is not unusual. Hundreds of songs feature our city in their lyrics. But the FBA’s presence in Memphis was unique—it was the first time the FBA held its annual convention in the Bluff City, or the Blues City, or the City of Good Abode, or Grind City, whichever nickname you prefer. Memphis does not do uptight—we’re just glad you came. And we are elated that the FBA convention is coming back to Memphis this September. Like John Hiatt casually invites in his ode to the ease that is Memphis, “Let’s go to Memphis in the meantime, baby.”

On behalf of the Memphis-Mid-South Chapter, we welcome you for the FBA’s annual meeting and convention September 21–23 at The Peabody Memphis, the “South’s Grand Hotel.” The Peabody, famous for its iconic elegance and gracious hospitality, is also home to five resident Mallard ducks. Thursday evening’s welcome reception on the Peabody’s mezzanine will include a special FBA Duckmaster leading the daily Duck March.

As always, the convention will feature a full schedule of CLE presentations, keynote speakers, business meetings, and celebrations to keep you busy. But don’t miss the opportunity to connect with colleagues in the Peabody’s Grand Lobby, where it has been said that the “Mississippi Delta begins.”

Friday night’s reception will be held at the Rock ‘N’ Soul Museum, steps away from the FedEx Forum. Traveling to the reception will be an event in and of itself as attendees will join the “Party in the Street Second Line” as they walk from the Peabody to the Rock ‘N’ Soul Museum with the Mighty Souls Brass Band leading the way.

Reception guests can tour the museum’s exhibition about the birth of rock and soul music while enjoying music from the Delta Cats and an Elvis tribute artist. Also on the agenda for Friday night is a “Harmonica Challenge,” where each guest will learn to play the blues on their own keepsake harmonica.

A trip to Memphis would not be complete without savoring Memphis style barbecue. Barbecue restaurants abound in this city— 20 • THE FEDERAL LAWYER • Summer 2023

The Rendezvous, Central Barbecue, and The Cozy Corner are just a few of the numerous places to try. But if smoke is not your scene, Memphis’s downtown restaurants offer a variety of options. Peruse the recommendations in the next few pages and review the ILoveMemphisBlog.com for the latest information on restaurants, bars, events, and more.

During your visit, explore the music that put Memphis on the map with a visit to Sun Studio—known worldwide as “The Birthplace of Rock‘n’roll,” where music legends Jerry Lee Lewis, Elvis Presley, B.B. King, and Johnny Cash recorded, or the Stax Museum of American Soul Music, which is celebrating 20 years of telling the story of soul. Make a pilgrimage to Graceland and experience the life of the King of Rock ‘n’ Roll.

Memphis’s rich history continues to shape the world we know today. Nowhere is that more evident than at the National Civil Rights Museum, which offers artifacts, films, oral histories, and interactive media to guide visitors through five centuries of history. Visit and immerse yourself in the events that inspired a worldwide movement for equality.

A news reporter once asked Elvis Presley what he missed about Memphis while he was away serving in the Army. He answered, “Everything.” This September, we hope you’ll come to Memphis and enjoy the music, the food, the history of Memphis—the soul of our city—“everything” Memphis has to offer.  Mary C. Hamm Laura S. Martin Shea B. Oliver Ben J. Scott Colleen Hitch Wilson

Annual Meeting & Convention SEPTEMBER 21–23, 2023 • MEMPHIS, TN fedbar.org/event/fbacon23

SCHEDULE PREVIEW

All events take place at the Francis Marion Hotel unless otherwise noted. Sessions are posted in Eastern Time and are subject to change.

THURSDAY, SEPTEMBER 21 8:00 am – 9:00 am

Registration + Breakfast

9:00 am – 4:00 pm

Board of Directors Meeting

9:00 am – 12:30 pm

Educational Programming

12:30 pm – 2:00 pm

Public Service Luncheon

2:00 pm – 4:15 pm

Educational Programming

4:15 pm – 6:00 pm

Peabody Ducks Reception on the Mezzanine

FRIDAY, SEPTEMBER 22 8:00 am – 9:00 am

Registration + Breakfast

9:00 am – 11:00 am

FBBC Board Meeting

9:00 am – 12:30 pm

Educational Programming

11:30 am – 12:30 pm

Government Relations Committee Meeting

12:30 am – 2:00 pm

Awards Luncheon

2:00 pm – 5:00 pm

Foundation Board Meeting

2:00 pm – 4:15 pm

Educational Programming

2:00 pm – 3:00 pm

Affinity Bar Leader Roundtable

3:15 pm – 4:15 pm

Circuit Vice Presidents Meeting

6:00 pm – 9:00 pm

Convention Reception at the Rock N Soul Museum

SATURDAY, SEPTEMBER 23 10:00 am – 12:30 pm

National Council Meeting (Hybrid)

12:30 pm – 2:00 pm

Presidential Installation Luncheon

2:00 pm – 3:30 pm

Chapter Leaders Breakout

2:00 pm – 3:30 pm

Section & Division Leaders Breakout

5:00 pm – 6:00 pm

Fellows Toast

6:00 pm – 9:00 pm

Closing Reception on the Skyway Rooftop

Summer 2023 • THE FEDERAL LAWYER • 21

Educational Programming COMMUNITY ENGAGEMENT EFFORTS TO DIVERSIFY THE LEGAL COMMUNITY

MEASURING THE IMPACT OF MODERN SUPREME COURT TRANSITIONS (1953–PRESENT)

Using key examples from Utah’s legal community, experts will give practical advice on how to create pipeline program efforts, how to effectively collaborate with business and legislative leaders, and how to increase buy-in for inclusion efforts amongst the legal community.

The replacement of a Supreme Court justice focuses national attention on the Court and have significant effects on the development of law. Yet not all judicial transitions have comparable impact. This presentation will provide a variety of criteria on which we might calculate the impact of Supreme Court transitions and utilize those criteria to evaluate which transitions between 1953 and the present have been the most influential.

FEDERAL COURT LITIGATION BEFORE U.S. MAGISTRATE JUDGES: CONSENT JURISDICTION U.S. Magistrate Judges serve a vital role in our federal judiciary, but their role is not always well understood as each district utilizes magistrate judges differently to their independent needs. Consent to a magistrate judge generally allows for more flexibility to the case schedule and attorneys schedules, more opportunities for oral argument and hearings, and permits the lawyers to have more input into trial length based on the needs of the case.

IT'S ABOUT TIME: OPENING UP OPTIONS FOR USING NEUTRALS IN BANKRUPTCY PROCEEDINGS Bankruptcy Rule 9031 may be amended to permit courts responsible for cases under the Bankruptcy Code to have the same ability to use court-appointed neutrals (masters) in the same way as do federal courts responsible for other cases. Panelists will discuss the history and effort to amend the Bankruptcy Rule, the broader effort, and what the use of neutrals in Bankruptcy proceedings would mean for courts and litigants.

JURY TAKES CENTER STAGE: A HISTORIC COURTROOM DESIGN FOR MODERN JURY TRIALS The federal court in Charlotte, NC recently built a courtroom inspired by the 18th century Commonwealth of Virginia county courtroom design that features a center-positioned jury box underneath the judge looking out to a witness box. Panelists will assess the value of this historic model and its recent revival as it impacts conducting jury trials in modern day courtrooms.

SUPREME COURT DECIDES TWO SIGNIFICANT FALSE CLAIMS ACT CASES: A REVIEW OF POLANSKY AND SUPERVALU It is rare for the Supreme Court to take up one False Claims Act case, but this year it considered two, both of which have been fully briefed and argued, and decisions are anticipated by the end of June. This panel will discuss the results of these two important cases - Polansky v. Executive Health Resources, Inc. and Schutte v. SuperValu Inc.

TRAUMA-INFORMED LAWYERING Attendees will learn about the special considerations and ethics for conducting litigation involving allegations of abuse and sexual assault. Panelists demonstrate deep experience representing plaintiffs in such cases, including an attorney who was also a plaintiff as a survivor of sexual assault in a headline case involving USA Gymnastics, and an expert in forensic psychology.

WAY TOO SMART? ETHICAL QUANDARIES AND THE USE OF AI This panel will cast a critical eye on the known and unknown regarding the ethical uses of artificial intelligence in the practice of law. Panelists will explore the automation of client contacts, content creation, storage of client information, and the potential for false communications or rogue attorney “bots”.

…AND MORE!

REGISTRATION PACKAGES AND INFORMATION AVAILABLE ONLINE! www.fedbar.org/event/fbacon23 22 • THE FEDERAL LAWYER • Summer 2023

Thank You to Our Sponsors

Annual Meeting & Convention

SEPTEMBER 21–23, 2023 • MEMPHIS, TN

ANNUAL ANNUAL MEETING MEETING & CONVENTION & CONVENTION

SEPTEMBER SEPTEMBER 21-23, 21-23, 2023 2023 ANNUAL MEETING CONVENTION TheThe Peabody Peabody Memphis Memphis | Memphis, |& Memphis, TN TN PREMIER PARTNERS

SEPTEMBER 21-23, 2023

The Peabody Memphis | Memphis, TN

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Booking: Guests can book online using dedicated reservation site (posted on event webpage) or call 1-800-PEABODY and reference “Federal Bar Association Annual Conference” group to book discounted reservation. All reservations must be guaranteed and accompanied by a first night room deposit or guaranteed with a major credit card.

BREAKFAST/BREAK BREAKFAST/BREAK SPONSORS SPONSORS WI-FI SPONSOR

Bartol Bartol LawLaw Firm, Firm, P.C.P.C. | Consilio | Consilio | | WI-FI Martin, Martin, Tate, Tate, Morrow Morrow & Marston, & Marston, SPONSOR P.C.P.C. | Veritext | Veritext Legal Legal Solutions Solutions

PROGRAM PROGRAM PATRONS PATRONS BREAKFAST/BREAK CIALABAMEDIA SPONSOR SESSION SPONSORS -ABA South - South TexasTexas Pro Bono Pro Bono Asylum Asylum Representation Representation Project Project (ProBar) (ProBar) | Baker, | Baker, Donelson, Donelson, Bearman, Bearman, Caldwell Caldwell & Berkowitz, & Berkowitz, PC | BakerHostetler PC | BakerHostetler | Chisholm | Chisholm Chisholm Chisholm & & SPONSORS Kilpatrick Kilpatrick LTD | Constangy, LTD | Constangy, Brooks, Brooks, SmithSmith & Prophete & Prophete LLP | LawPay LLP | LawPay & MyCase & MyCase | Littler | Littler Mendelson Mendelson P.C. | Miller P.C. | Miller Canfield Canfield | New| Mexico New Mexico OfficeOffice of theofAttorney the Attorney General General

Memphis Tourism

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Burch, Porter & Johnson PLLC WestBridge

SOCIAL MEDIA SPONSOR Memphis Tourism

Bartol Law Firm, P.C. | Consilio | Martin, BREAKFAST/Tate, Morrow & Marston, P.C. | Veritext Legal Solutions BREAK SPONSORS

Group Rate: $235/night (plus applicable state and local taxes) 9/8/23 2:57 PM 9/8/23 2:57 PM

Bartol Law Firm, P.C. | Consilio | Martin, Tate, PROGRAM PATRONS SOCIAL MEDIA SPONSORS & Martson, P.C.| Chisholm | uth Texas Pro Bono Asylum Representation Project (ProBar) | Baker, Donelson, Bearman,Morrow Caldwell & Berkowitz, PC | BakerHostetler Chisholm & ck LTD | Constangy, Burch, Brooks, SmithPorter & Prophete LLP LawPay & MyCase | Littler Mendelson Veritex P.C. | Miller Canfield | NewSolutions Mexico Office of the Attorney General Legal & |Johnson PLCC WestBridge 9/8/23 2:57 PM

PROGRAM PATRON Baker, Donelson, Bearman, Caldwell & Berkowitz, PC BakerHostetler Chisholm Chisholm & Kilpatrick LTD Constangy, Brooks, Smith & Prophete LLP

LawPay & MyCase Littler Mendelson P.C. Miller Canfield New Mexico Office of the Attorney General South Texas Pro Bono Asylum Representation Project (ProBAR)

Cut-off Date: Reservations must be made no later than 5:00 p.m. ET on Monday, August 21. Any reservations received after the cut-off date or until the block is full, whichever is sooner, will be accepted directly by the hotel based on a room-type and rate-available basis.

Reimbursement: FBA National and Chapter Leaders can reference Policy No. 2-3 for travel reimbursement guidelines; FBA Section and Division Leaders can reference Policy 9-5.

Summer 2023 • THE FEDERAL LAWYER • 23

Craig Thompson

Justin Fox Burks Allen Gillespie

Jarrod Connolly

Logan Young

24 • THE FEDERAL LAWYER • Summer 2023

Iconic attractions. Authentic experiences. Moving history. Food that will feed your soul. And music — from the homes and studios of recording legends to live music venues where you can hear who’s making music in the city today. Welcome to Memphis, home of the Blues, Soul and Rock ‘n’ Roll — and one of Conde Nast Traveler’s 23 Best Places to Go in 2023.

Marissa Strang

Craig Thompson

Justin Fox Burks

Craig Thompson

Bishop

Yes, Memphis has 100-plus barbecue joints. But we have just as many restaurants dedicated to wings and soul food, not to mention contemporary twists on all our delicious culinary traditions. While we’ve focused these recommendations on Downtown Memphis, find all your delicious options here: memphistravel.com/eat

FINE DINING Flights of wine and dessert complement small plates and entrees at Flight. For French flavors interpreted by James Beard Award-nominated chefs Andrew Ticer and Michael Hudman, opt for Bishop. Go classic with a visit to Chez Philippe at The Peabody Memphis.

Discover all of Memphis' flavors

CRAVING ’CUE?

PATIO HANGS

In Downtown Memphis, taste the dryrubbed, char-grilled ribs that made Charlie Vergos’ Rendezvous famous, savor barbecue nachos or a pulled pork sandwich at Central BBQ or follow the aroma of hickory-smoked ’cue to The Pig on Beale.

For riverfront vibes, opt for Fancy’s Fish House (featuring catch-of-the-day specials) or The Lookout at the Pyramid, serving drinks and eats atop the world’s 10th largest pyramid. Hang at Loflin Yard for lawn games, occasional live music, craft cocktails and an artisan food menu.

WITH THE FAMILY Visit memphistravel. com/city-pass to learn more about our citywide Barbecue Trail and Passport. Check in at participating local restaurants to win prizes.

GRAB DRINKS

FEED YOUR SOUL

Planning a Downtown Memphis happy hour?

Sample family-recipe spirits in historic surrounds at Old Dominick Distillery, experience awardwinning craft brews (and wood-fired pizza) at Wiseacre Brewing Co.’s tap room or hit Earnestine & Hazel’s for sips and soul burgers.

At the newly renovated Alcenia’s, Chef B.J. Chester-Tamayo is known for serving up hugs and homestyle dishes. For spicy, golden-fried chicken, don’t miss Gus’s. And for elevated soul standards (think: crawfish eggrolls; smoked grits with gouda) Sage is the place.

Traveling with the family? Gather ’round mouthwatering burgers at local-favorite Huey’s, Kooky Canuck or Wahlburgers Wild inside Bass Pro Shops at the Pyramid.

Alex Shansky

Summer 2023 • THE FEDERAL LAWYER • 25

With more than 60 unique attractions across the city, you’ll find plenty to do in Memphis, whether you’re looking for relaxation, excitement or classic memory-making.

Justin Fox Burks

Marissa Strang

Discover all of Memphis' attractions

Traveling Child

MUSICAL MUSTS

BEALE STREET

CIVIL RIGHTS

Downtown, don’t miss the Memphis Rock ‘n’ Soul Museum, Memphis Music Hall of Fame, The Blues Foundation’s Blues Hall of Fame and legendary Sun Studio. A short drive away, tour Stax Museum of American Soul Music and Elvis Presley’s Graceland.

Listen up for live music streaming out of the dozens of neon-lit clubs of America’s most iconic street, Beale. Inside tip: Tours guided by local musicians, including Backbeat Tours and Meteor Tours, jump off from the street as well.

Downtown, visit the National Civil Rights Museum at the Lorraine Motel and I Am A Man Plaza; then view the Withers Collection Museum & Gallery on Beale Street. Nearby at Slave Haven, learn the story of Memphis’ Underground Railroad.

MUSEUMS & ARTS

TOURS

SHOPPING

Downtown, observe Asian and Judaic art at the Belz Museum and working artists at the Metal Museum. In Midtown, see artifacts, paintings and sculpture at Memphis Brooks Museum of Art and rotating exhibits by local artists at Crosstown Arts.

Discover Black history and culture with Heritage Tours and A Tour of Possibilities.

Hop on and off the Memphis Hop Bus at top spots. Join Historical Haunts to hear local ghost stories — or the Memphis Brew Bus to sample the city’s craft brew scene.

Shop local makers in districts like South Main, Cooper-Young, Broad Avenue and Overton Square. But don’t miss Bass Pro Shops at the Pyramid: This eye-popping retail experience features an indoor swamp, live alligators and more.

26 • THE FEDERAL LAWYER • Summer 2023

You know the sounds of our legends by heart. Now listen up for the artists making music in Memphis today — from local favorites to touring headliners — at these hot spots, a mix of hidden gems and state-of-the-art venues.

Craig Thompson

Discover events happening in Memphis

DOWNTOWN On Beale, superstars from J.T. to Lizzo play FedExForum. But you can also dance the night away at Paula & Raiford’s Disco and catch Broadway shows at the Orpheum, intimate concerts at the Halloran Centre and symphonies at The Cannon Center.

MIDTOWN From free concerts at Overton Park Shell to shows at Lafayette’s Music Room, Railgarten, Bar DKDC and more, Midtown is a live music hub. Bonus: The Overton Square Performing Arts District is home to four theatres and Ballet Memphis.

EAST MEMPHIS Hang with the University of Memphis crowd at The Bluff. Head to In Love Memphis for an upscale nightclub experience. Hear local to global artists at Germantown Performing Arts Center (GPAC) and its outdoor venue, The Grove.

CROSSTOWN Witness intimate performances by local musicians at Crosstown Concourse’s Green Room and Crosstown Theater. Catch local and traveling acts at The Hi-Tone; blues and soul at Wild Bill’s.

ELVIS PRESLEY BLVD. Take in national acts at Graceland’s Soundstage. Down the street, bring your dancing shoes to enjoy live music at Hernando’s Hide-A-Way.

Summer 2023 • THE FEDERAL LAWYER • 27

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28 • THE FEDERAL LAWYER • Summer 2023

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Summer Issue 2024 • THE FEDERAL LAWYER • 29

30 • THE FEDERAL LAWYER • Summer 2023

Court Time Isn’t Wasted on the Young:

Federal Judges Encourage Meaningful Participation From Younger Attorneys PETER M. MANSFIELD

I

t’s become increasingly difficult to find meaningful on-your-feet experience in federal courts. Civil trials have been declining for years,1 and many courts are deciding pre-trial motions exclusively on the written submissions.2 The relative scarcity of live courtroom action means that younger lawyers receive few opportunities to stand and address the court, even when they’ve significantly contributed to the matter under consideration.3 But lawyers are problem-solvers, and many federal judges have adopted creative policies and standing orders to increase younger attorneys’4 substantive courtroom involvement.5 In fact, one such standing order from U.S. Magistrate Judge Janis van Meerveld, Eastern District of Louisiana,6 became the impetus for a new American Bar Association (ABA) resolution urging all courts to adopt a similar policy supporting oral arguments by junior attorneys.7 Judge van Meerveld and fellow resolution sponsors see an all-around win: younger lawyers receive valuable professional development in live courtroom proceedings; the court hears from a junior attorney who is oftentimes the most familiar with the matter under submission;8 and clients can realize a cost savings by entrusting greater responsibility to a younger lawyer with an attractive billable rate.9

ABA Resolution 515 The lack of meaningful courtroom opportunities for junior lawyers isn’t a novel issue.10 In fact, the expectation that only senior lawyers would enjoy stand-up roles in court, especially federal court, had arguably become an established and expected norm for clients, law firms, and judges.11 “This is so not only because it is what regularly happens, but also because it is what people believe ought to happen,” one federal judge observed.12 “It is expected that the gray-haired lawyer addresses the judge and argues the case.”13 Indeed, newer lawyers seeking court time “have long faced a Catch-22”: clients want experienced lawyers presenting their arguments, but younger lawyers can only get that experience if trusted to handle contested matters in court.14 In an effort to break that stalemate and loosen the senior-lawyer monopoly on court time, many federal judges have adopted a variety of policies and standing orders encouraging participation from younger lawyers.15 In a recent empirical study, U.S. Magistrate Judge Kimberly A. Jolson, Southern District of Ohio, reviewed a number of judicial orders on junior-lawyer participation to determine whether they were effective in “disrupt[ing] the norm” of only senior lawyers speaking in court.16 Her scholarship categorized four basic types of new-lawyer participation orders: • One that simply encourages participation from younger lawyers; • Another that indicates a willingness to set and hear arguments if a new lawyer is handling the matter; Summer 2023 • THE FEDERAL LAWYER • 31

• A third that notes the courts’ willingness to hear from more than one lawyer to incentivize new-lawyer participation; and • Finally, an ad hoc approach wherein a judge indicates an expectation that a junior lawyer will handle arguments on a particular case or matter before the court.17 Judge van Meerveld’s standing order on junior-attorney argument tracks option three.18 The order caught the attention of Louisiana attorneys Danielle Borel and Megan Peterson, officers with the Young Lawyers Divisions of the Louisiana State Bar Association and ABA. These two proponents shepherded a precursor resolution on younger-lawyer participation through the ABA Young Lawyers Division Assembly in 2022, where Judge van Meerveld spoke in support.19 The Young Lawyers Division of the Louisiana State Bar Association and its general House of Delegates followed suit with overwhelming support shortly thereafter.20 Unanimously adopted at the ABA’s recent midyear meeting held in New Orleans in February 2023, Resolution 515 states: RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal courts to adopt a policy supporting oral arguments made by junior attorneys, specifically those who drafted or significantly contributed to the item presented to the court for adjudication, by allowing two attorneys for a party to participate in oral argument, particularly where one of the lawyers is in their first ten years of practice.21 Though newly adopted, Resolution 515 wasn’t written on a blank slate. In addition to the ABA Young Lawyers Division resolution in 2022, the accompanying report noted a 2017 ABA resolution that urged courts to “implement plans that welcome opportunities for new lawyers to gain meaningful courtroom experience and urges law firms and clients to take advantage of those plans.”22 The ABA’s Young Lawyers Division had previously called on “all courts … to implement procedures to encourage younger lawyers to take on speaking roles in the court room,” with a particular focus on under-represented populations in the legal community.23 While these prior resolutions contained general aspirational goals, Resolution 515 breaks new ground with its specificity and adoption of the two-lawyer solution to address potential reticence from clients and supervisory partners.24 In her speech to the ABA House of Delegates convention urging adoption of Resolution 515, Judge van Meerveld cited several salutary effects she observed in the seven years since she first adopted her junior-attorney policy.25 First, it gave younger lawyers the invaluable courtroom experience necessary to build confidence, attract clients, and deliver a full range of services from motion practice through trials and appellate arguments. Second, because the pool of attorneys in the first decade of practice is more diverse than the older, partnership echelon, the junior attorneys benefiting from her policy increased diversity in federal courtroom advocacy. Finally, the court has direct access to the junior lawyers who are often the most familiar with the specific issue before the court.

Each reason is worth unpacking. First, many judges adopting junior-lawyer orders have noted their responsibility to the profession and the courts “to ensure that the younger generation of lawyers is ready to lead.”26 The late Senior District Judge Jack Weinstein, Eastern District of New York, remarked that: “It’s important for 32 • THE FEDERAL LAWYER • Summer 2023

everyone and for the litigation process, that the upcoming generation understands the fundamentals and just gets up on their feet.”27 Judge William Alsup, Northern District of California, similarly noted that his longstanding order on younger lawyers “is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice.”28 Other federal judges have made consistent observations in their standing orders on participation from younger lawyers.29 Next, the ABA’s report on Resolution 515 asserted that “judicial policies promoting new and young lawyer participation … promote diversity in the profession.”30 In particular, the “bottleneck” created by limited stand-up courtroom appearances for younger lawyers has been found to “affect young women litigators disproportionately.”31 This finding in a New York study was the impetus for the late Judge Weinstein’s adoption of his younger-lawyer order in 2017.32 Finally, judges and courts adopting junior-lawyer orders needn’t be motivated by pure altruism to the younger generations. In fact, whether an intended goal of a junior-lawyer order, or a pleasant by-product of it, judges have observed that the quality of the resulting arguments and advocacy hasn’t suffered, but can actually improve. Here’s how one article on oral argument explained the phenomenon: Perhaps the most frequent theme we’ve heard (especially from judges) is that a party is best served by having its most knowledgeable lawyer argue. An important, but overlooked corollary is that, if that person happens to be junior … or even an associate—that alone should not get in the way.33 Nor should it come as a huge shock that a junior lawyer may be the most knowledgeable lawyer to argue a matter. Partners must balance myriad case-related tasks with client development, billing, and firm management and administration.34 So junior lawyers are typically tasked with conducting the underlying legal research, combing through and compiling the factual record, drafting the legal memoranda, incorporating partner and client edits, and outlining the arguments in advance of a court hearing.35 “By completing this work, associates are often more familiar with the arguments that will be most successful in a matter and the particular facts associated with a case.”36 And judges can tell when “other members of the team probably just poured the argument in [a senior lawyer’s] ear the night before.”37 But what about clients that, nonetheless, insist on senior lawyers in stand-up courtroom roles? According to Judge Robert W. Gettlemen, Northern District of Illinois, that intransigence could backfire with the court. “People, sometimes clients, think that having a senior lawyer argue is going to influence us, even if they don’t know the material as well. In fact, it doesn’t. Nobody is fooling anybody when you do something like that.”38 Former Ninth Circuit Court of Appeals Judge Raymond Fisher also remarked in 2012 that he’d “seen as many partners screw up an argument because they don’t really know the case as any stumbling youngster blowing it due to inexperience, butterflies, or the like.”39 But senior counsel still have indispensable roles in advancing younger-lawyer participation. They can and should draw on their skills as advocates and counselors to persuade clients that a junior attorney should argue the case,40 then ensure that the younger attorney has had an opportunity to moot the argument with co-counsel in advance of the hearing.41 In Judge van Meerveld’s view, the two-attorney option embodied in her standing order and Resolution 515 neutralizes client fears that

sidelining a senior lawyer might prejudice the likelihood of a successful result on the issue before the court. Senior lawyers can “step in, if necessary, and correct, or supplement, or even take over.”42 This “rarely” happens, but “there is nothing” a junior lawyer might do or say “that can’t be undone” under the two-attorney option in her standing order.43 Further, judicial standing orders are an indispensable tool in securing client consent to junior-lawyer case handling, as they “provide cover to defect from the prevailing norm of sending senior lawyers to court.”44 The “escape valve from the norm” is, quite simply, “the judge[’s] … desire for junior lawyers to appear.”45 As one senior partner explained, utilizing the court’s junior-lawyer preferences “means clients are doing exactly what the judge wants.”46 And that’s axiomatically advisable in any context.

Law firms and their clients can realize some other ancillary benefits to younger-lawyer courtroom participation. Specifically, providing courtroom opportunities to newer attorneys enhances their job satisfaction which, in turn, can boost retention rates.47 Clients can also enjoy younger lawyers’ “outstanding level of preparation” at billing rates much lower than that of a senior lawyer.48

The Path Forward

Top: Gene Vance II, Chair of the ABA’s House of Delegates, listens to Judge van Meerveld’s remarks in favor of Resolution 515.

Bottom: Judge van Meerveld (center) with ABA Young Lawyers Division Secretary, Danielle Borel (left), and Louisiana YLD Delegate to the ABA House of Delegates, Megan Peterson (right), at the ABA Midyear Meeting in New Orleans.

The passage of Resolution 515 should create further momentum for the continued spread of younger-lawyer orders and policies nationwide.

Some districts have already distinguished themselves in their efforts to get younger lawyers on their feet in court. For instance, the judges of the Northern District of California have adopted a district-wide “Policy Encouraging Opportunities for Attorneys Who Are Less Experienced or From Under-Represented Groups.”49 According to that policy, “all Northern District judges will consider permitting multiple lawyers to argue a motion for one party if it would create an opportunity for less experienced attorneys to participate.”50 Judges in the District of Massachusetts were among the first to adopt younger-lawyer orders over 17 years ago.51 The trend gradually spread throughout that district; now more than half of the district judges there have similar orders.52 The next logical step in the evolution is the adoption of district-wide local rules of court53 tracking the two-attorney approach of Resolution 515.

Federal districts considering adoption of such a local rule should be further encouraged by a recent initiative in the U.S. Patent and Trademark Office. That component of the U.S. Department of Commerce adopted a detailed, formal program on younger-lawyer argument called the Legal Experience and Advancement Program (LEAP), which applies to proceedings before its Patent Trial and Appeal Board.54 The program is limited to attorneys with three or fewer oral arguments in federal courts. “A LEAP practitioner may conduct the entire oral argument or may share time with other counsel, provided that the LEAP practitioner is offered a meaningful and substantive opportunity to argue.”55 As with Resolution 515, the panel “will permit more experienced counsel to assist a LEAP practitioner, if necessary, during oral argument, and to clarify any statements on the record before the conclusion of the oral argument.”56 As an additional incentive, the board may also extend argument time.57

Conclusion Many judges want to see and hear from new lawyers on their feet in court. So if you’re at that experience level, research whether your local courts or judges have a policy encouraging younger-lawyer Summer 2023 • THE FEDERAL LAWYER • 33

participation. If you are a senior lawyer accustomed to handling all stand-up roles in court, consider giving the next opportunity to a younger lawyer. Finally, if you’re a judge considering your own younger-lawyer policy or standing order for your courtroom, the two-attorney option contained in Resolution 515 reflects a tried-andtrue consensus that advances the participation goal while placating client and senior-attorney concerns about turning over the reins to a less-experienced attorney.  Peter M. Mansfield is on the Editorial Board for The Federal Lawyer and the Board of Directors for the Federal Bar Association, New Orleans Chapter.

Endnotes See generally Shari Seidman Diamond & Jessica M. Salerno, Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges, 81 La. L. Rev. 119 (2020); Graham K. Bryant & Kristopher R. McClellan, The Disappearing Civil Trial: Implications for the Future of Law Practice, 30 Regent U. L. Rev. 287 (2018).

2 See Jay Tidmarsh, The Future of Oral Argument, 48 Loy. U. Chi. L.J. 475, 479 & n.18 (2016) (addressing decline of oral argument in trial courts); David R. Cleveland & Steven Wisotsky, The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119, 120 (2012) (referring to a “drastic reduction in the frequency of oral argument” in the federal courts of appeals).

3 Am. Bar Ass’n, Resolution 515 Report, 1–2 (Feb. 6, 2023), https://www.americanbar.org/content/dam/aba/directories/ policy/midyear-2023/515-midyear-2023.pdf.

4 The defined experience level of a “younger,” “junior,” “less experienced,” “newer,” or “next generation” attorney (used interchangeably throughout this article) varies throughout the judicial policies and standing orders, see note 5 infra, though ten years of practice appears to be the maximum duration.

5 Kimberly A. Jolson, The Power of Suggestion: Can a Judicial Standing Order Disrupt a Norm?, 89 U. Cin. L. Rev. 455, 475 n.81 (collecting standing orders on junior-lawyer participation); ChiP Next Gen, Judicial Orders Providing/Encouraging Opportunities for Junior Lawyers (Feb. 10, 2017), https://nextgenlawyers.com/judicialorders-promoting-next-gen/ (same).

6 Peter M. Mansfield, Judicial Profile: Hon. Janis van Meerveld, Fed. Law., Sept./Oct. 2021, at 42 n.10 (quoting standing order).

7 Resolution 515, supra note 3.

8 Hon. Janis van Meerveld, U.S. Magistrate Judge, Eastern District of Louisiana, Remarks in Favor of Resolution 515 to the American Bar Association House of Delegates (Feb. 6, 2023).

9 Resolution 515 Report, supra note 3, at 4.

10 Jolson, supra note 5, at 463–64 & 468 (tracing one of the first juniorlawyer standing orders to 2005).

11 Id. at 457–58.

12 Id. at 458.

13 Id. 14 Jenna Greene, Partners step aside: It’s time to let associates shine in 1

34 • THE FEDERAL LAWYER • Summer 2023

court, Reuters, Aug. 3, 2021.

15 See Jolson & ChiP Next Gen, supra note 5.

16 Jolson, supra note 5, at 455.

17 Id. at 456–57.

18 See Mansfield, supra note 6.

19 Am. Bar Ass’n, Young Lawyers Div., Resolution 22-4YL (Feb. 2022), https://www.americanbar.org/content/dam/aba/ administrative/young_lawyers/policy/2022/midyear/22-4yl.pdf.

20 La. State Bar Ass’n, House of Delegates, Resolution (Dec. 14, 2022), https://www.lsba.org/documents/HOD/23res1.pdf.

21 Resolution 515, supra note 3.

22 Resolution 515 Report, supra note 3, at 1 (quoting ABA report 17A116).

23 Id. (quoting ABA report 21-5YL).

24 Karen Sloan, ABA to judges: Give junior lawyers their day in court, Reuters, Feb. 6, 2023 (noting that the two-lawyer recommendation “is the ABA’s most concrete step yet” to advance younger-lawyer participation in court).

25 See van Meerveld, supra note 8.

26 Jolson, supra note 5, at 456.

27 Alan Feuer, A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule., N.Y. Times, Aug. 23, 2017.

28 Robert A. Mittelstaedt & Brian J. Murray, Who Should Do the Oral Argument?, Litig., Summer/Fall 2012, at 53 (quoting Judge Alsup).

29 See, e.g., Chief U.S. District Judge Kimberly J. Mueller, Civil Standing Orders, E. Dist. of Calif., https://www.caed.uscourts. gov/caednew/index.cfm/judges/all-judges/5020/standing-orders/ (last visited Apr. 5, 2023) (“The court values the importance of training young attorneys.”); U.S. Magistrate Judge Christopher J. Burke, Standing Order Regarding Courtroom Opportunities for Newer Attorneys, Dist. of Del. ( Jan. 23, 2017), https://www.ded.uscourts. gov/sites/ded/files/StandingOrder2017.pdf (noting “the importance of the development of future generations of practitioners through courtroom opportunities”).

30 Resolution 515 Report, supra note 3, at 5.

31 Paula M. Bagger, How the Judiciary is Helping Younger Lawyers Close the Experience Gap, Am. Bar Ass’n Practice Points, Feb. 27, 2018.

32 See Feuer, supra note 27.

33 Mittelsteadt, supra note 28, at 52 (citations omitted).

34 Jordan Rothman, Younger Lawyers Should Argue More Appeals and Motions, Above the Law (Nov. 4, 2020), https://abovethelaw. com/2020/11/younger-lawyers-should-argue-more-appeals-andmotions/#:~:text=Younger%20lawyers%20should%20also%20 argue,the%20appellate%20or%20motion%20process.

35 Id.; Mittelsteadt, supra note 28, at 52–54; Resolution 515 Report, supra note 3, at 4.

36 Id. 37 Mittelsteadt, supra note 28, at 53.

38 Id. at 53.

39 Id. at 53 (quoting Judge Fisher).

40 Id. at 53–54; Resolution 515 Report, supra note 3, at 2 (“[I]t is the senior counsel’s job to point out the benefits of other approaches to the client’s case. That’s an important part of the role as counselor.”) (internal citation omitted).

41 Mittelsteadt, supra note 28, at 54.

42 See van Meerveld, supra note 8.

43 Id.

Jolson, supra note 5, at 480.

Id. 46 Greene, supra note 14.

47 Id. 48 Resolution 515 Report, supra note 3, at 4 (quoting Judge Janet L. Sanders).

49 U.S. District Court, N. Dist. of Calif., Policy Encouraging Opportunities For Attorneys Who Are Less Experienced Or From Under-Represented Groups, https://www.cand.uscourts.gov/ attorneys/policy-encouraging-opportunities-for-attorneys-who-areless-experienced-or-from-under-represented-groups/ (last visited Apr. 5, 2023).

50 Id. 51 Jolson, supra note 5, at 468.

52 Id. at 468–69 & n.77.

44 45

District courts possess authority under Fed. R. Civ. P. 83(a)(1) and 28 U.S.C. § 2071(a) to adopt local rules of court. While there are certain substantive constraints on courts’ and judges’ adoption of local rules and standing orders, see Jolson, supra note 5, at 460–461, typical younger-lawyer orders are “a permissible exercise of a court’s inherent authority over the management of its docket and courtroom.” Id. at 461.

54 U.S. Patent and Trademark Office, Legal Experience and Advancement Program (LEAP), https://www.uspto.gov/ patents/ptab/leap Top of Form Bottom of Form(last visited Apr. 5, 2023).

55 Id. 56 Id. 57 Id. 53

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36 • THE FEDERAL LAWYER • Summer 2023

A District Court Dilemma:

Solving the Self-Representation Problem for Single-Member LLCs in Federal Court BENJAMIN R. SYROKA

P

icture this: It’s 3:30 PM on a Friday, and you’re a newly sworn law clerk for a district judge. The clerk’s office calls—you’ve been assigned a case with a pending motion for a temporary restraining order and preliminary injunction. You’ve been trained for times like these— no sweat!

You contact the parties to set a phone call with the judge. But there’s one problem: Defendant, a single-member LLC that runs a small storage yard in rural Ohio, does not have counsel. Defendant has never used an attorney, isn’t sure where to find one, and doesn’t have the cash flow to pay one until the end of the month. Plaintiff ’s counsel is unmoved; if his client isn’t allowed to retrieve his trailers from the storage yard today, there will be significant money damages (allegedly). Plaintiff ’s counsel also rightfully points out that the owner of Defendant LLC, who is not an attorney, cannot appear or make arguments on behalf of the company; if the company doesn’t respond to the request for injunctive relief, he says his client wins automatically.

Your boss turns to you, “Is he correct?” “Well, yeah…” you respond. What now?

Background In 1824, the Supreme Court held that “[a] corporation, it is true, can appear only by attorney, while a natural person may appear for himself.”1 Two hundred years later, it’s time for some slight revision.

Throughout the nation’s history, corporate entities could not be represented by non-lawyers in court proceedings.2 This ancient rule3 has now run into a modern phenomenon—the limited liability company (LLC). Federal courts treat LLCs the same as traditional corporate entities, meaning LLCs cannot represent themselves in federal court because they are legal entities distinct from their owners.4 Why does this matter? The pro se prohibition creates a significant challenge for small, single-member LLCs unable to afford legal representation.5 Large corporations can exploit this vulnerability, using threats of litigation to pressure smaller contractors or competitors.

This article outlines the basic justification behind the self-representation prohibition in federal court, the problems faced by small LLCs, and the solutions adopted by some state courts. It then proposes a solution that will enable single-member LLCs with limited capital to represent themselves in federal court, provided they demonstrate their financial constraints. Finally, it explains why affording district judges the flexibility to allow self-representation of single-member LLCs in appropriate cases will promote the “just, speedy, and inexpensive resolution” of cases under Federal Civil Rule 1.6

LLCs: The New Kid on The Block LLCs were created to provide a flexible and efficient business structure for entrepreneurs and small business owners, combining the limited liability benefits of a corporation with the tax flexibility and simplicity of a partnership.7 The structure was first introduced in the United States by the state of Wyoming in 1977.8 The LLC provides owners, or “members,” with limited liability protection, similar to Summer 2023 • THE FEDERAL LAWYER • 37

that of a corporation.9 This means members’ personal assets are generally protected from the debts and liabilities of the company, reducing the financial risk associated with running a business.10 This protection is the primary reason entrepreneurs and small business owners choose the LLC structure over a traditional sole proprietorship or partnership.

Several states adopted the LLC structure to encourage entrepreneurship, reduce barriers to entry, and provide a more accessible legal structure for businesses. Usage has spread like wildfire—over the past three decades, LLC filings have exploded. In 2023, “more than two-thirds of all new companies formed in Delaware, often called the Home of the Corporation, will be [LLCs].”11 While LLCs share some similarities with corporations, such as liability protection, there are several key differences. Unlike corporations, which are managed by a board of directors and have shareholders, LLCs can be managed by their members or by appointed managers.12 This simplifies day-to-day business operations. More importantly, “corporations [generally] have a more standardized and rigid operating structure and more reporting and recordkeeping requirements than LLCs,” which gives LLC owners “greater flexibility in how they run their business.”13 Less-stringent regulatory requirements and the lack of corporate formalities also result in lower administrative costs and greater operational efficiency.14 Another significant difference between the way we treat LLCs and corporations is taxation.15 Corporations are “double taxed”—the company’s profits are taxed at the corporate level and then again when distributed to shareholders as dividends.16 In contrast, LLCs with multiple owners may elect to be treated as pass-through tax entities, meaning that their income, deductions, and credits flow through to the members, who report this information on their individual tax returns.17 A single-member LLC “is treated as an entity disregarded as separate from its owner,” meaning it is automatically taxed as an individual.18 However, LLCs have the option to elect corporate taxation if more advantageous for their specific situation.19 Overall, LLCs have less formalities and more management flexibility—allowing owners to adapt more easily to their specific needs and business circumstances.

The Problem: The Prohibition of Self-Representation for LLCs in Federal Court As outlined above, outside of federal court, we treat LLCs and traditional corporations differently in many ways: management structure, regulatory compliance, and taxation. But when LLCs are pulled into court, most distinctions are left at the courthouse steps.

By statute, “in all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”20 “Corporations and partnerships, by their very nature, are unable to represent themselves and the consistent interpretation of § 1654 is that the only proper representative of a corporation or partnership is a licensed attorney, not an unlicensed layman, regardless of how close his association with the partnership or corporation.”21 This principle is based on the entity’s legal existence, which is separate from their individual members or owners, requiring a qualified advocate in court proceedings.22 Put more simply, as distinct entities, LLCs cannot represent themselves in federal court—they must be represented by a licensed attorney.23 Federal courts have chosen to disregard the unique, flexible 38 • THE FEDERAL LAWYER • Summer 2023

nature of the LLC, opting instead to throw it into the same bucket as traditional legal entities. In Lattanzio v. COMTA, the Second Circuit provided a simple rationale: “Because both a partnership and a corporation must appear through licensed counsel, and because [an LLC] is a hybrid of the partnership and corporate forms, [an LLC] also may appear in federal court only through a licensed attorney.”24 Some courts have given more nuanced explanations, such as the complexity of federal litigation and the necessity of professional legal representation to ensure effective use of court resources.25 Others have justified the self-representation prohibition as a cost of doing business: There are many small corporations and corporation substitutes such as limited liability companies. But the right to conduct business in a form that confers privileges, such as the limited personal liability of the owners for tort or contract claims against the business, carries with it obligations one of which is to hire a lawyer if you want to sue or defend on behalf of the entity. Pro se litigation is a burden on the judiciary, and the burden is not to be borne when the litigant has chosen to do business in entity form. He must take the burdens with the benefits.26 Why is this a problem? Legal representation costs can be overwhelming for small businesses with limited capital.27 Consequently, these entities may be unable to defend themselves against claims by larger companies, who can exploit the threat of litigation to force unfavorable settlements or drive smaller competitors out of the market.28 This undermines the purpose of the LLC structure, which aims to provide small businesses with a flexible, cost-effective means of limiting personal liability.29 For instance, think of a contract dispute between a large corporation and one of its contractors over a breach of a Master Services Agreement. The corporation files for injunctive relief in federal court; the contractor, who is a small-business owner, must respond.

What if the contractor can’t immediately afford representation? The contractor has no opportunity to present a case, and the court is left with half of the story. Or imagine a multinational brand sending a cease-and-desist letter to a recently opened local diner for alleged trademark infringement. The owner of the diner knows they will be unable to afford counsel to appear on the business’s behalf. Regardless of the merits of the suit, the small business owner may be forced to opt for a name change, rather than face an undefendable federal lawsuit.

Recognizing the difficulties faced by small businesses, some non-federal jurisdictions have modified their rules in an attempt to balance the interests of these entities with the need to maintain the integrity of the legal system. For example, the Ohio Supreme Court has held that “in small claims cases, where no special legal skill is needed, and where proceedings are factual, non-adversarial, and expected to move quickly, attorneys are not necessary.”30 Therefore, business entities need not hire attorneys—an exception to the state’s general rule.31 That is because “by design, proceedings in small claims courts are informal and geared to allowing individuals to resolve uncomplicated disputes quickly and inexpensively. Pro se activity is assumed and encouraged.”32 While federal court is admittedly different, why treat single-member LLCs differently simply because they are a legal “enti-

ty”? Indeed,“an artificial entity, like any other litigant, can lack the wherewithal to pay costs.”33 Moreover, while an entity may not be a “person,” § 1654 states that all “parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”34 For all intents and purposes, the owner of a single-member LLC is a “party” in the same way as an individual sole proprietor, whom courts allow to appear pro se.35 Federal courts already recognize this reality when it comes to analyzing jurisdiction: “It has been clear for more than four years that the place of organization and principal place of business of [an LLC] are irrelevant, for the relevant citizenship as to [an LLC] is essentially equivalent to the relevant citizenship where a partnership or other unincorporated association is a litigant.”36 Is the profession too provincial to acknowledge the same reality under § 1654?

The Solution: Self-Representation for LLCs with Limited Capital and Demonstrated Financial Need This article proposes a simple yet flexible solution: grant district judges the discretion to allow single-member LLCs with limited capital to represent themselves in federal court, provided the LLC submits an affidavit and supporting documentation (e.g., account statements) demonstrating sufficient financial constraints.

This proposed solution aligns with Federal Civil Rule 1—the timely and efficient resolution of proceedings.37 By allowing self-representation for small LLCs that meet the financial criteria, we can foster a more effective and efficient legal system for small businesses.

To implement this proposal, federal courts could establish a threshold for capital funding, below which single-member LLCs would be eligible for self-representation. This threshold should be set at a level that reflects the financial constraints faced by truly small businesses in that district while ensuring that larger, more sophisticated entities continue to be represented by counsel.38 But there’s a better way: allow district judges to address the funding issue on a case-by-case basis. Or, as I like to call it: “IFP for the LLC.” Form AO 239, promulgated by the federal judiciary, is used by indigent parties requesting to avoid paying filing fees at the outset of a case.39 Parties must sign the form’s supporting affidavit, which reads: I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested. I declare under penalty of perjury that the information below is true and understand that a false statement may result in a dismissal of my claims.

The form then lists spaces for all streams of income: For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise.

With a few minor tweaks, this form could function in the same way for single-member LLCs. They would simply submit the affidavit, account statements, and a list of all business assets.40 The district

judge would then review the filings to determine if the LLC demonstrates an inability to afford legal counsel.

The proposed solution could significantly improve access to justice for single-member LLCs facing federal litigation. By enabling these financially constrained entities to actively defend themselves in court, the legal system can help prevent large corporations from using the threat of litigation to bully smaller competitors into unfavorable settlements or drive them out of the market.

Potential Challenges: The Cost of Doing Business?

Despite obvious benefits, the proposed solution is not without objections. “Two grounds for the rule [against pro se corporate appearances] can be identified: first, that nonlawyers burden the system with poorly conducted proceedings; and second, that the interests of an association of individuals cannot be represented by any single member.”41 Ground two is irrelevant in this context, as an LLC would need to be owned by a single member to qualify. With respect to ground one, courts have discussed at length the principle against laypersons acting as lawyers: [T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney’s ethical responsibilities[.]42 Do pro se filers sometimes make the litigation process more tedious for district courts? Yes. But an equally arduous burden for the court is trying to come to an efficient and fair resolution where only one side is represented by counsel.43 This is particularly true with respect to motions for injunctive relief. District judges are also hesitant to issue default judgments.44 Allowing district judges to approve pro se representation for single-member LLCs, on a case-by-case basis, would alleviate these constraints.

Practically, there may be a concern for the quality of representation that single-member LLC owners can provide for themselves in complex cases given their lack of formal legal training. This could lead to difficulty for district judges, as inexperienced litigants may struggle to navigate the complex procedural rules and substantive legal issues that arise in federal court cases.45 On the other hand, the proposed solution could afford judges flexibility to resolve simple cases in an efficient manner—without needing to waffle over motions for default.

Either way, the advantages of allowing LLCs to be formally heard, especially in injunctive-relief proceedings, outweigh the concerns.46 Bottom line: What’s better in a simple contract-dispute case, self-representation or no representation at all?

Conclusion The use of LLCs has exploded nationwide, allowing for new avenues of small-business ownership and entrepreneurship. Federal courts have failed to keep up.

Courts need not introduce a one-size-fits-all approach, but rather, give district judges the opportunity to allow self-represenSummer 2023 • THE FEDERAL LAWYER • 39

tation where appropriate. The proposed solution seeks to strike a balance between the need to maintain the integrity of the legal system and the desire to provide small business with equal footing in federal litigation. Allowing single-member LLCs with limited capital to represent themselves in federal court, provided they submit an affidavit and supporting documentation to demonstrate their financial constraints, has the potential to significantly improve access to justice for small businesses facing potential lawsuits. The benefits to small businesses are significant—they no longer have to choose between limiting personal liability and retaining the ability to defend themselves from lawsuits.

By giving district judges the flexibility to efficiently resolve disputes, we can better serve the needs of small businesses, promote the goals of Federal Civil Rule 1, and level the playing field for small businesses facing litigation in federal court.  Benjamin R. Syroka is a Career Law Clerk to the Honorable Jack Zouhary. The author also serves on the FBA’s Northern District of Ohio Advisory Board and Editorial Board of The Federal Lawyer. In his spare time, he teaches Effective Motion Practice at the University of Toledo College of Law, serves as volunteer counsel for the Reentry Realities program, and referees NCAA Men’s College Basketball. He thanks Isabel Remer for her insightful collaboration on this article.

Endnotes Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 830 (1824).

2 See Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (“Since, of necessity, a natural person must represent the corporation in court, we have insisted that that person be an attorney licensed to practice law before our courts.”) (citing Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam)); Bennie v. Triangle Ranch Co., 216 P. 718, 719 (Colo. 1923) (“It is elementary that a corporation can only appear by attorney. A corporation is incapable of personal appearance, and the complaint must purport to be by attorney, whose authority to appear is presumed.”).

3 See Osborn, 22 U.S. (9 Wheat.) at 830 (noting the necessity for a distinction between the agent and the entity, the Court offered little reasoning other than it being a doctrine that “has existed from the first establishment of our Courts”).

4 See United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir. 2008).

5 The Hartford, Is Your Small Business Prepared for a Lawsuit?, Score ( Jan. 26, 2023), https://www.score.org/resource/blog-post/yoursmall-business-prepared-lawsuit (noting that “the cost of litigation for small firms can range anywhere from $3,000 to $150,000” and that “a poll found 43 percent of small-business owners reported having been threatened with or involved in a civil lawsuit”).

6 Fed. R. Civ. P. 1.

7 See generally Robert R. Keatinge et al., The Emergence of the Limited Liability Company: A Study of the Emerging Entity, 47 Bus. Law. 375 (1992).

8 Id. at 379.

9 History of the Limited Liability Company (LLC), https://www. delawareinc.com/llc/history-of-delaware-llc/ (last visited April 14, 2023).

1

40 • THE FEDERAL LAWYER • Summer 2023

Id. Id. 12 Rob Watts & Jane Haskins, LLC vs. Corporation, Forbes (Aug. 1, 2022, 4:09 PM), https://www.forbes.com/advisor/business/llcversus-corporation/.

13 Id. 14 Id. 15 Carter G. Bishop & Daniel S. Kleinberger, An SMLLC Conundrum: Disregarded For Federal Tax Purposes But Not In Federal Court, Bus. Entities, Jan./Feb. 2010, at 6–7.

16 Elke Asen, Double Taxation of Corporate Income in the United States and OECD, Tax Found. ( Jan 13, 2021), https://taxfoundation.org/ double-taxation-of-corporate-income/.

17 Bishop & Kleinberger, supra note 15.

18 Single Member Limited Liability Companies, IRS, https://www.irs. gov/businesses/small-businesses-self-employed/single-memberlimited-liability-companies (last visited April 17, 2023).

19 Id. 20 28 U.S.C. § 1654.

21 Turner v. Am. Bar Ass’n, 407 F. Supp. 451, 476 (N.D. Tex. 1975).

22 Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201–03 (1993).

23 Turner, 407 F. Supp. at 476b.

24 481 F.3d 137, 140 (2d Cir. 2007) (citation omitted).

25 See Jones, 722 F.2d at 22–23.

26 United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir. 2008) (citations omitted).

27 C. Daniel Baker, Many Small Businesses Don’t Seek Legal Help Despite Risks, Black Enter. (Oct. 25, 2013), https://www. blackenterprise.com/small-businesses-need-legal-help/.

28 See, e.g., Tri-State Hosp. Supply Corp. v. Medi-Pac, LLC, 2007 WL 3146553, at *1 (S.D. Ohio Oct. 25, 2007) (in which the plaintiff filed for default judgment while, “the parties are ‘involved in negotiations for settlement’ and [defendant] [did] not have the funds available to hire counsel”).

29 Watts & Haskins, supra note 12.

30 Clev. Bar Ass’n v. Pearlman, 832 N.E.2d 1193, 1198 (Ohio 2005).

31 Id. 32 Id. at 1196.

33 Rowland, 506 U.S. at 215 (Thomas, J., dissenting).

34 28 U.S.C. § 1654 (emphasis added).

35 Lattanzio, 481 F.3d at 140 (citing Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista Distrib. Co., 748 F.2d 602, 610 (11th Cir. 1984)).

36 Trowbridge v. Dimitri’s 50’s Diner LLC, 208 F. Supp. 2d 908, 910 (N.D. Ill. 2002).

37 Fed. R. Civ. P. 1.

38 A. Victor & Co. v. Sleininger, 9 N.Y.S.2d 323, 326 (App. Div. 1939) (“The dangers [of allowing corporate representation] are more theoretical than substantial. Few corporations will do without the services of licensed attorneys in their litigations [if they can afford them].”).

39 Application to Proceed in District Court Without Prepaying Fees or Costs, Form AO 239 (Rev. 01/15).

40 It is important to note that the business owner would be signing the affidavit in their individual capacity. See Rowland, 506 U.S. at 204 (“Because artificial entities cannot take oaths, they cannot make affidavits.”).

41 Fraass Survival Sys., Inc. v. Absentee Shawnee Econ. Dev. Auth., 817 continued on page 50 10 11

1st Circuit This index contains profiles as they were published in The Federal Lawyer magazine. The index is organized by circuit and district, which can be accessed via the tabs at right.

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42 • THE FEDERAL LAWYER • Summer 2023

The Enforcement of Foreign Country Money Judgments: An Overview DAVID WEMHOFF

W

hen it comes to international business transactions, one of the most important considerations that firms must undertake is to determine how and where any possible disputes are to be resolved.

While the hope is that the parties to a private venture can work harmoniously for the life of their plans, there should be an understanding, and agreement, as to how disputes or disagreements may be considered and resolved, or how best to allow for the parting of ways. This understanding or agreement is an important consideration in any relationship and it should then be memorialized as part of the contract between private firms.

There are three different ways to resolve disputes between private firms involved in international transactions, and parties should be made aware of the advantages and disadvantages of each of the major techniques: mediation, in which the parties submit to an informal process involving “an objective but knowledgeable person to review the dispute”1 and to offer a solution which the parties may either accept or reject; arbitration, in which the parties agree on a “private-sector system of binding dispute resolution”2 consisting of an arbitral panel of knowledgeable and impartial persons to review

the issues and announce a result of the dispute, using agreed upon rules and procedures3; and, litigation, in which the parties submit their disputes to the resolution of a court. In international cases, submitting disputes for litigation involves deciding which court is appropriate to hear the case. Parties should examine the location of their businesses, the location of the manufacture of the goods or the provisioning of services, the location of any assets of the other party for the purpose of enforcing or satisfying a court judgment, the substantive rules of law of forum states, the procedural rules of law of forum states, and the existence of any applicable treaties or statutes that assist with the recognition and enforcement of any judgments. 4 This article concerns the recognition and enforcement of court judgments resulting from litigation. This is an area of international law known as private international law. We shall examine the existence of international conventions or agreements which may facilitate enforcement of judgments, the common law and statutes that permit recognition and enforcement of foreign judgments in the United States, and principles concerning the recognition and enforcement of judgments in countries other than the United States.

International Conventions or Treaties As an initial matter, the various treaties and international conventions that pertain to the recognition and enforcement of foreign country money judgments have many similarities. One is a description of the applicability of the convention or treaty to money judgments obtained in a court of one country, often referred to as the country of origin, which are then sought to be enforced in Summer 2023 • THE FEDERAL LAWYER • 43

another country, often referred to as the forum country or addressed country. The court’s subject matter jurisdiction is limited to money judgments usually rendered as a result of a contractual dispute or contractual claim, however, there are exceptions to this general rule. A second commonality is a list of exceptions or prohibitions to which the treaty does not apply, or in other words, restrictions on subject matter jurisdiction. In this category there are often prohibitions against cases that are criminal, concern family law matters, involve bankruptcy issues, and are about taxes, fines or penalties.

Third, for there to be personal jurisdiction in the court of origin over a judgment debtor or defendant, oftentimes the conventions require the defendant be a resident who voluntarily appeared in the action that lead to the judgment, expressly agreed to the jurisdiction of the court, and maintained a business or office in the country of the court of origin. Some treaties require that the transaction sued upon as having occurred in the country of the court of origin or involve the provisioning of goods or services that originated in such jurisdiction.

Fourth, the procedures and requirements for gaining recognition and enforcement in the addressed court are often set out in standard terms, and some treaties hold recognition and enforcement actions in abeyance until an appeal in the country of origin is ended or the time period for filing such has expired. Fifth, there are frequently grounds for refusing to recognize and enforce foreign country money judgments. While these treaties or conventions have similarities, there are peculiarities with which the practitioner should be familiar.

There exist a number of regional conventions that provide means by which to recognize and enforce foreign country money judgments among member states. One is the Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments. It was adopted May 8, 1979 by the Organization of American States and has been ratified by Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela.

The Convention gives “extraterritorial validity” to foreign judgments concerning money judgments and “rights relating to tangible movable property” provided certain conditions are met relating to the location of the parties or transactions involved.5 The Convention is inapplicable to cases or matters that involve the personal status and capacity of natural persons; divorce, annulment and marital property; child support and alimony; decedents’ estates; bankruptcy or creditor proceedings; business liquidation; labor matters; social security; arbitration; torts; or maritime and aviation matters. 6 The European Union’s7 Regulation 1215/2012 pertains to foreign country money judgments and is aptly entitled “Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (also referred to as the “Brussels I BIS Regulation”).

Article 36(1) holds that “A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required.”8 Grounds for refusal of recognition are contained in Article 45 and include situations in which the judgment “is manifestly contrary to public policy” of the Member State addressed;9 default judgments obtained without adequately serving the requisite papers on the defendant; judgments “irreconcilable” with a judgment given between the same parties in the Member State addressed;10 judgments incompatible with or irreconcilable with an earlier judgment between the same parties involving the same cause of action regardless of where given;11 and cases in which the defendant is an insured, policyholder, beneficiary of a contract of insurance, an injured party, a consumer, or an employee.12 Detailed 44 • THE FEDERAL LAWYER • Summer 2023

procedures for seeking and obtaining recognition and enforcement of the judgment and for contesting the same are contained in Articles 37 through 51 of the Regulation.13 In Africa, we should start with consulting the African Union.

Comprised of 55 member states,14 the African Union has a number of agreements or conventions. However, at this time, there does not appear to be a pan-African regime for the recognition and enforcement of foreign country money judgments.15 Nonetheless, there are laws on the books of many African countries recognizing and allowing the enforcement of money judgments from other countries. Uganda has the Judgments Extension Act which gives effect to certain judgments from Kenya, Malawi and Tanzania.16 Additionally, the Reciprocal Enforcement of Judgments Act17 allows for judgments entered in the United Kingdom, 56 Commonwealth Countries18, and the Republic of Ireland to be recognized and enforced in Uganda provided jurisdiction was proper in the originating state, the suit papers were properly served on the defendant, and an attempt is made to domesticate the judgment in Uganda within 12 months of its entry.19 Under Kenyan law, there is something called the Foreign Judgments (Reciprocal Enforcement) Act20 which designates certain countries as having preferential treatment in domesticating their judgments in Kenya. These countries are Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, and Rwanda. Foreign money judgments from non-designated countries must comply with Kenya’s strict common law practices for recognition and enforcement. And, finally, Tanzania has a Reciprocal Enforcement of Judgments Act which recognizes and enforces judgments from Botswana, Lesotho, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Swaziland, Sri Lanka and the United Kingdom.21 There are ongoing discussions concerning the establishment of an Asian convention that would utilize the Singapore International Commercial Court (SICC)22 for the enforcement of money judgments. The principles for such a convention find their support, if not also genesis, in the agreements produced by The Hague, and referenced below, and also in the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments.23 The latter was devised by the law departments of the members of the Commonwealth and serves as a model for implementation by any of the Commonwealth countries.24 The proposal for Asia is still in the conceptual phase, but is a worthy matter for further study or consideration by a practitioner.25 The principles and procedures in The Hague Conventions and the Commonwealth Model Law have similarities. The international community working through The Hague Conference on Private International Law (also known as HCCH) made a number of attempts at systematizing the procedures and requirements for the recognition and enforcement of foreign country money judgments.

The first attempt was in February 1971 and is known as The Hague Convention on the Recognition and Enforcement of Foreign Judgment in Civil and Commercial Matters (HCCH 1971) which came into force on August 20, 1979.26 The second came more than thirty years later in 2005, is known as the Hague Convention on Choice of Court Agreements (COCA), at last count has been ratified by thirty-one (31) countries, and entered into force October 1, 2015.27 The latest attempt was in 2019, and is entitled the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HCCH 2019). Modeled in many important ways on the 1958 New York Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, HCCH 2019 has never been ratified nor is it in effect.28 Nonetheless, important principles concerning the recognition and enforcement of foreign country money judgments are set forth in these conventions and can be of use to the skilled practitioner.

These three conventions are alike in that they have similar purposes, similar exclusions and grounds for non-recognition, and similar procedures.29 HCCH 1971 recognizes decisions “rendered in civil or commercial matters by the courts of Contracting states.”30 The requirements for jurisdiction are found in Articles 9 through 12, inclusive. COCA is slightly different. Its preamble dedicates the convention to the promotion of “international trade and investment through enhanced judicial co-operation” but it applies only “in international cases to exclusive choice of court agreements concluded in civil or commercial matters” and also judicial settlements.31 COCA states that a “judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognized and enforced in other Contracting States.”32 It defines the requirements for an “exclusive choice of court agreement” to be considered valid, and it allows designated courts to have jurisdiction unless “the agreement is null and void under the law of that State.”33 HCCH 2019 seeks to facilitate recognition and enforcement of judgments in civil or commercial matters and also seeks to facilitate recognition and enforcement of judicial settlements.34 HCCH 1971 lists the following exceptions to the general rule of recognition and enforcement: decisions by administrative tribunals, decisions that are provisional or protective, decisions that determine the “status or capacity of persons or questions of family law” as well as maintenance obligations, the “existence or constitution of legal persons or the powers of their officers”, issues surrounding succession, issues surrounding bankruptcy or acts of a debtor, social security issues, and “damage or injury in nuclear matters”.35 COCA’s exclusions mirror those of HCCH 1971: agreements concerning someone acting for personal, family or household purposes; contracts of employment and collective agreements; status and legal capacity of natural persons; maintenance obligations; family law mattes; wills and succession; insolvency, composition and analogous matters; the carriage of passengers and goods; marine pollution and claims; anti-trust matters; liability for nuclear damage; claims for personal injury; torts not arising from a contractual relationship; rights in rem in immovable property; “the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs”; validity of intellectual property rights other than copyright and related rights; infringement of intellectual property rights other than copyright and related rights; and the validity of entries in public registers. 36 COCA sets out written requirements for an “exclusive choice of court agreement” in order for such agreement to be valid for purposes of recognition and enforcement. HCCH 2019 extends to thirteen different cases or matters as set forth in Article 5(1).37 HCCH 2019 presents an exhaustive list of matters to which it does not extend: “revenue, customs or administrative matters”; the status and legal capacity of natural persons; maintenance obligations of family members and family law matters in general; wills and succession; certain matters in bankruptcy; composition and “resolution of financial institutions”; the carriage of goods and passengers; marine pollution; nuclear damage; the “validity, nullity, or dissolution of legal persons or associations of natural or legal persons, and the validity of decisions of their organs”; the validity of entries in public

registers; defamation; privacy; intellectual property; activities of armed forces; activities of law enforcement; anti-trust matters; or sovereign debt restructuring.38 The following foreign judgments may be refused recognition and enforcement under HCCH 1971: any recognition or enforcement which is “manifestly incompatible with the public policy of the State addressed;”39 requires recognition of a decision that resulted from “proceedings incompatible with the requirements of due process of law;”40 involves a party with “no adequate opportunity fairly to present his case”41 or was the result of default in which the defaulted party received insufficient notice to be able to defend;42 requires recognition of a decision that is the result of procedural fraud;43 and would result in a decision on a claim that is either pending elsewhere between the same parties or has been decided and is entitled already to recognition in the State addressed.44 A central principle of COCA is that the “court addressed” is bound by the factual findings of the “court of origin” unless the judgment by the latter was through default.45 The judgment is recognizable and enforceable in the court addressed only if the judgment is recognizable and enforceable in the State of origin, and recognition and enforcement may be postponed or refused if the time for seeking “ordinary review” in the state of origin has not yet passed, or if the decision is undergoing review in the State of origin.46 COCA’s grounds to justify refusal of recognition or enforcement are similar to HCCH 1971: the agreement was null and void as considered by the “law of the State of the chosen court” unless that court determines the agreement is valid;47 a party lacked capacity to conclude the agreement;48 the defendant was not notified of the proceedings or was notified in a manner incompatible with fundamental principles of the requested State pertaining to the service of documents;49 the judgment was fraudulently obtained;50 recognition or enforcement is “manifestly incompatible” with the public policy of the “requested State;”51 the judgment is inconsistent with another valid judgment between the parties in the “requested State” or in another State.52 Other grounds for refusing enforcement include the State’s rejection of COCA or the determination that the matter arose out of an excluded area.53 HCCH 2019’s grounds for refusal of recognition and enforcement are similar to COCA’s and also HCCH 1971. These are fraud; improper notification of defendant of the claim to include the ground that notification was “incompatible with fundamental principles of the requested State concerning service of documents;”54 recognition is “manifestly incompatible with the public policy of the requested State;”55 the proceedings in the court of origin violated an agreement concerning the determination of the dispute;56 the judgment is inconsistent with another judgment given by a court of the requested States and involving the same parties; or the judgment is inconsistent with an earlier judgment issued by a court of another State between the same parties on the same subject.57 Procedures and documentary requirements are spelled out in the conventions. For HCCH 1971 these are located primarily in Articles 13 through 19. COCA’s are found in Articles 12 through 15. Those for HCCH 2019 are found at Articles 7(1) and 12 through 15.

Enforcing Foreign Country Money Judgments in the US A foreign country money judgment is recognized and given effect under the laws of each of the 50 states. Most of the states follow a statute that is largely uniform in its provisions. A minority of states Summer 2023 • THE FEDERAL LAWYER • 45

still apply the common law. There is a remarkable similarity between the United States’ laws on enforcing foreign country money judgments and the various international and regional treaties or conventions that we just surveyed.

As of April, 2023, 39 states had enacted some version of the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA).58 Originating in 1962 as the Uniform Foreign Money-Judgments Recognition Act, this act sets out the standards, jurisdiction, procedures and effect of giving domestic (state) effect to money judgments obtained in foreign countries, or those governmental entities other than other (U.S.) states, the United States and U.S. Territories. 59 Under the UFCMJRA, the judgment from a foreign country must be a judgment that “grants or denies recovery of a sum of money” and is “final, conclusive and enforceable” in accordance with “the law of the foreign country where rendered.”60 However, the UFCMJRA does not apply to a judgment that grants or denies a recovery of a sum of money if the judgment is for taxes, is a fine or other penalty, or is a judgment for divorce, support or maintenance or otherwise connected with domestic relations.61 The burden of proof for establishing the applicability of the UFCMJRA rests with the party seeking the recognition of the judgment.62 The general rule under the UFCMJRA is that state courts shall recognize foreign-country money judgments.63 The party that opposes the recognition of a foreign-country judgment has to establish the grounds for such refusal and in that regard there are two separate categories: “may not” and “need not.”64 The commentary considers the former grounds as being mandatory with the mandatory grounds also including such things as the foreign court having failed to possess personal or subject matter jurisdiction over the matter, or the decision was rendered in violation of the “requirements of due process of law.”65 In the “need not”, or discretionary, category are several justifications. These are the defendant did not receive notice of the foreign proceeding, the foreign judgment was obtained by fraud, the foreign money judgment is repugnant to the public policy of the United States, the judgment conflicts with another final and conclusive judgment, the foreign proceeding was in contravention to an agreement between the parties “under which the dispute in question was to be determined otherwise than by proceedings in that foreign court,” the foreign court was an inconvenient forum, the integrity of the court rendering the judgment is questionable given the circumstances under which the decision was rendered, and the specific proceedings leading to the judgment were in violation of the requirements of due process.66 Of note, if a party contests the foreign country judgment on the grounds of lack of personal jurisdiction, close attention should be paid to the provisions limiting this argument. A foreign country money judgment may not be refused recognition for lack of personal jurisdiction in the following circumstances: the defendant was personally served process in the foreign country or voluntarily appeared in the proceedings (other than to protect against the seizure of property), the party previously agreed to submit to the jurisdiction of the foreign court, the defendant was domiciled or has a business office in the foreign country and the proceeding arose from business done in that foreign country, or the defendant operated a motor vehicle or airplane that was involved in an incident in that foreign country.67 The procedure for recognizing foreign country money judgments commences either with the filing of an original action, or counterclaim, cross-claim, or affirmative defense. An appeal in the country 46 • THE FEDERAL LAWYER • Summer 2023

from which the judgment originated may be grounds for staying the recognition and enforcement of the judgment in a state. Once the foreign country judgment is recognized, then it is conclusive between the parties in the state and that judgment itself is then enforceable as though rendered in and by the state court. That also means it is entitled to full faith and credit as allowed under Article IV, § 1 of the United States Constitution.68 A proceeding to recognize a foreign country money judgment must be brought within the period of time in which it is valid in the foreign country, or within fifteen (15) years from the effective date of the foreign judgment in the foreign country. Appeals of a foreign country money judgment in the country where rendered may toll the statute, as well as stay, any state court proceedings as previously mentioned.69 In the absence of the UFCMJRA, then one must rely on the common law which is best found in court decisions and also in the Restatement (Third) of Foreign Relations Law (1987).70 The Supreme Court of the United States in Hilton v. Guyot 159 US 113 (1895) set forth the general principles for recognizing foreign country judgments. The principles discussed in this decision are often applied by foreign courts and widely recognized by the international community. Setting forth the general rule, Associate Justice Horace Gray wrote that, absent “constitutional and legislative provisions, judgments of a state of the Union, when sued upon in another state, would have no greater effect” than to serve as prima facie evidence of a claim.71 Likewise, a judgment from a foreign country “are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiffs’ claim…and not conclusive.”72 Without treaties or agreements between the United States and foreign countries, then the principle of comity determines whether these foreign judgments are given any recognition, even prima facie: “The principle on which foreign judgments receive any recognition from our courts is one of comity. It does not require, but rather forbids, it where such a recognition works a direct violation of the policy of our laws, and does violence to what we deem the rights of our citizens. … In a suit upon a foreign judgment, the whole merits of the case could not, as a matter of course, be re-examined anew, but that the defendant was at liberty to impeach the judgment, not only by showing that the court had no jurisdiction of the case or of the defendant, but also by showing that it was procured by fraud, or was founded on clear mistake or irregularity, or was bad by the law of the place where it was rendered….”73 Specifically, the Hilton court stated that a foreign judgment could be impeached if there was no opportunity for a “full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice.”74 Domestic courts will not enforce foreign judgments if these foreign judgments are on a contract made to evade foreign law, or made to evade domestic law, or if the foreign judgments violate international law principles, or domestic rules of comity.75 The principles set forth by the Supreme Court of the United States in Hilton found their way into the Restatement (Third) of Foreign Relations Law (1987). There, in a somewhat broader sweep than the UCMJRA, it is stated that “…a final judgment of a court of a foreign state granting or denying recovery

of a sum of money, establishing or confirming the status of a person, or determining interests in property, is conclusive between the parties, and is entitled to recognition in courts in the United States.”76 Additionally, an action may be brought by “any party or its successors or assigns against any other party, its successors or assigns.”77 The procedures for recognition and enforcement are those of the forum in which the foreign judgment is sought to be enforced.78 Mandatory and discretionary grounds for the recognition and enforcement of foreign country judgments correlate with the provisions of the UFCMJRA. However, the mandatory grounds are more restrictive. First, they are limited to judicial systems that do not “provide impartial tribunals or procedures compatible with due process of law.”79 Second, to refuse recognition and enforcement of a judgment based on lack of personal jurisdiction over the defendant in the foreign country must comply with not only the laws of that foreign country but also with the provisions of § 421 of the Restatement.80 The discretionary grounds for non-recognition are fewer under common law than under the UFCMJRA.81 Two grounds are omitted.

These are: that the “judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment,” and “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.”82

Enforcing United States Money Judgments Abroad The United States has not entered into any treaties concerning the recognition and enforcement of U.S. judgments in foreign countries.

The inquiry is therefore on a country-by-country basis. This means that the practitioner should be aware of the laws and procedures in the country where enforcement is sought and scrupulously follow the requirements to ensure recognition and enforcement of U.S. judgments. This may require retaining a local counsel in the foreign country who is familiar with the law and courts.

One could say that there is a range of difficulty by country. On one end of the spectrum is China which is perhaps the most difficult in which to obtain recognition and enforcement of a U.S. judgment. On the other end of the spectrum is Canada, one of the easiest countries in which to obtain recognition and enforcement of a U.S. judgment.83 Mexico, our southern neighbor, is somewhere in between.

Mexican courts recognize and enforce foreign judgments using a two-tiered system. The first tier consists of those countries that are signatories to two treaties or agreements which determine the procedures for the recognition and enforcement of judgments. These are the Montevideo Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards,84 and the La Paz Inter-American Convention on Jurisdiction in the International sphere for the Extraterritorial Validity of Foreign Judgments.85 The signatories to these two treaties are all Latin American countries and the practitioner should examine those treaties to ascertain the procedures and confirm the signatories.86 The second tier consists of the United States, Canada, and the rest of the countries of the world. The process of recognition and enforcement of a foreign judgment for these countries is a “rigorous” one. Called homologacion, strict compliance with Mexican statutes and procedures is required to gain the desired recognition and

enforcement. Governing this process is the Mexican Federal Code of Civil Procedure (FCCP)87 which applies to the Mexican federal courts, and which the various Mexican states may implement in varying degrees. Article 571 of the FCCP sets out the formalities required for the letter rogatory necessary to start the process.88 There are 12 requirements with one of them being the appointment of Mexican counsel during the course of the process. The actual court process is set forth in Article 574 of the FCCP.89 Substantively, the foreign judgment must be one that was properly within the jurisdiction of the foreign court. To arrive at the correct determination of this issue, one must undertake an analysis of the laws of the foreign country and also of Mexico. This inquiry includes the examination of the choice of forum rules and any agreements between the parties concerning choice of forum. The foreign judgment had to a) have been obtained after service of process was completed upon the defendant; b) be final and have the effect of res judicata; c) there cannot be pending a case in Mexican courts with the same defendant; d) the judgment must not be contrary to Mexican public policy (i.e., neither the cause brought, the relief sought and obtained, nor the judgment itself must be contrary to “public policy” principles under Mexican law); e) the proceeding in the foreign jurisdiction must comport with certain principles of due process of law under the Mexican constitution (i.e., proper service of process, opportunity to appear and defend in court by being able to present evidence in support of allegations); and f ) the judgment must be deemed authentic which involves a certification by court officials as a true and correct copy of the judgment and an apostille from the proper governmental authorities. 90 Foreign countries apply their own rules in determining whether a U.S. money judgment should be recognized and enforced. The practitioner will need to review the laws and practices of the country in which recognition and enforcement of the U.S. judgment is desired.

In Canada, for instance, there exist requirements that the courts rendering the foreign judgment have a real and substantial connection with the parites or action, that fraud did not lead to the judgment, or that the foreign proceedings and foreign judgment are not against the public policy of the country.91

Conclusion The practitioner must be aware of the jurisdictions in which his client is operating and the rules and procedures of those jurisdictions for the recognition and enforcement of judgments, and foreign country money judgments. This area of law is challenging, interesting, and ultimately very rewarding. It remains more relevant than ever especially considering what many call a multipolar world order.  David Wemhoff holds an AB in Government, a Juris Doctor (JD), and a Master of Laws (LLM) in International and Comparative Law. Mr. Wemhoff is the Treasurer of the International Law Section and is the Chair of the International Trade and Customs Law Committee. He is a frequent presenter of webinars on the topic of international trade.

Endnotes John Head, Global Business Law: Principles and Practice of International Commerce and Investment 572 (3d ed.

2012).

1

Summer 2023 • THE FEDERAL LAWYER • 47

Id., at 571.

A number of different arbitral conventions for conducting arbitrations are available to the parties for their adoption in the conduct of the arbitration, and the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards make arbitral decisions recognizable and enforceable in most countries of the world.

4 Supra note 1, at 566-575.

5 Inter-American Convention on Jurisdiction in the International Sphere For the Extraterritorial Validity of Foreign Judgments art.

1, https://www.oas.org/juridico/english/treaties/b-50.html (last visited Apr. 16, 2023).

6 Id., at art. 6.

7 The European Union consists of the following Member States: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

8 Commission Regulation 1215/2012 of Dec. 20, 2012, Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2012 O.J. (L 251) 36(1).

9 Id., at art. 45(1)(a).

10 Id., at art. 45(1)(c).

11 Id., at art. 45(1)(d).

12 Id., at art. 45(1)(e)(i).

13 Id., at art. 37 through 51.

14 Member States, AFRICAN UNION, https://au.int/en (last visited Apr. 16, 2023). The member states are: Burundi, Cameroon, Central African Republic, Chad, Congo Republic, Democratic Republic of Congo, Equatorial Guinea, Gabon, Sao Tome and Principe, Comoros, Djibouti, Eritrea, Ethiopia, Kenya, Madagascar, Mauritius, Rwanda, Seychelles, Somalia, South Sudan, Sudan, Tanzania, Uganda, Algeria, Egypt, Libya, Mauritania, Morocco, Sahrawi Republic, Tunisia, Angola, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, Zambia, Zimbabwe, Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

15 Treaties, African Union, https://au.int/en (last visited Apr. 16, 2023).

16 Judgments Extension Act, Dec. 31, 2000, https://ulii.org/akn/ug/ act/ord/1908/3/eng@2000-12-31 Chapter 12 (last visited July 23, 2023).

17 Reciprocal Enforcement of Judgments Act, Uganda-United Kingdom-Ireland, Mar. 22, 1922, https://old.ulii.org/ug/legislation/ consolidated-act/21 Chapter 21 (last visited July 23, 2023).

18 About Us, The Commonwealth, https://thecommonwealth.org/ about-us (last visited Apr. 15, 2023).

19 Supra note 16.

20 Foreign Judgments (Reciprocal Enforcement) Act, Aug. 31, 1984, http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ ForeignJudgmentsReciprocalEnforcement__Act__Cap43.pdf (last visited July 23, 2023).

21 Ninsiima Irene, Recognition and Enforcement of Foreign Judgments in East Africa, Angualia Busiki & Co. Advocates, https://www. lawyers-uganda.com/recognition-and-enforcement-of-foreignjudgements-in-east-africa/#_ftn1 (last visited Apr. 15, 2023).

2 3

48 • THE FEDERAL LAWYER • Summer 2023

About the SICC, Singapore International Commercial Court , https://www.sicc.gov.sg/ (last visited July 23, 2023).

23 Model Law on the Recognition and Enforcement of Foreign Judgments, https://thecommonwealth.org/commonwealthmodel-laws (chose “Access to Justice” then click “Model Law on the Recognition and Enforcement of Foreign Judgments”) (last visited Apr. 17, 2023).

24 Office of Civil and Criminal Justice Reform, The Commonwealth, https://thecommonwealth.org/our-work/office-civil-and-criminaljustice-reform (last visited July 23, 2023).

25 Chukwuma Samuel Adesina Okoli, The Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters in Asia, 18:3 Journal of Private International Law 522-541 ( Jan. 17, 2023), https://www.tandfonline.com/doi/full/10.1080/17441048.2022.21 15615 (last visited Apr. 15, 2023). The Asian countries contemplated by this are China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India.

26 Only four countries have ratified or otherwise acceded to HCCH 1971: Cyprus, Netherlands, Portugal, Kuwait. Status Table, Hague Conference on Private International Law, https://www. hcch.net/en/instruments/conventions/status-table/?cid=79 (last visited Apr. 12, 2023).

27 See id. The following countries were either signatories or ratified the same: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, European Union, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montenegro, Netherlands, Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Pending: China, Israel and the United States.

28 Frank Emmert, International Business Transactions: Text, Cases, and Materials 827-830 ( 2nd ed. 2020).

29 These conventions may be accessed this way: Convention of 1 Feb. 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/ conventions/full-text/?cid=78 (last visited Apr. 12, 2023); Convention of 30 June 2005 on Choice of Court Agreements, Hague Conference on Private International Law, https://www. hcch.net/en/instruments/conventions/full-text/?cid=98 (last visited Apr. 12, 2023); Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Hague Conference on Private International Law, https:// www.hcch.net/en/instruments/conventions/full-text/?cid=137 (last visited Apr. 12, 2023).

30 Convention of 1 Feb. 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, art. 1, Hague Conference on Private International Law, https://www. hcch.net/en/instruments/conventions/full-text/?cid=78 (last visited Apr. 12, 2023).

31 Convention of 30 June 2005 on Choice of Court Agreements, preamble, art. 1(1), Hague Conference on Private International Law, https://www.hcch.net/en/instruments/ conventions/full-text/?cid=98 (last visited Apr. 12, 2023).

32 Id., art. 8(1).

33 Id., art. 5.

22

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, art. 1, art. 11, Hague Conference on Private International Law, https:// www.hcch.net/en/instruments/conventions/full-text/?cid=137 (last visited Apr. 12, 2023).

35 Supra note 30, art. 1, 2.

36 Supra note 31, art. 2, 3, 12.

37 Id., art. 5(1).

38 Supra note 34, art. 2(1), 5(1).

39 Supra note 30, art. 5(1).

40 Id. 41 Id. 42 Id., art. 6.

43 Id., art. 5(2).

44 Id., art. 5(3).

45 Supra note 31, art. 8(2).

46 Id., art. 8(3), 8(4).

47 Id., art. 9.

48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id., art. 10.

54 Supra note 34, art. 7.

55 Id. 56 Id. 57 Id. 58 Uniform Foreign Country Money Judgment Recognition Act [UFCMJRA], Uniform Law Commission, https://www. uniformlaws.org/committees/community-home/librarydocuments ?communitykey=ae280c30-094a-4d8f-b722-8dcd614a8f3e&Library FolderKey=&DefaultView= (last visited Apr. 12, 2023). These states are, by my count: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia and Washington.

59 Uniform Foreign Country Money Judgment Recognition Act [UFCMJRA], Uniform Law Commission, https://www. uniformlaws.org/committees/community-home/librarydocuments? communitykey=ae280c30-094a-4d8f-b722-8dcd614a8f3e&LibraryFo lderKey=&DefaultView= (last visited Apr. 12, 2023).

60 Id., § 3(a).

61 Id., § 3(b).

62 Id., § 3(c).

63 Id., § 4(a).

64 Id., § 4(b).

65 Id., § 4(b).

66 Id., § 4(c).

67 Id., § 5.

68 Id., § 6, 7.

69 Id., § 8.

70 Rest. 3rd, Restatement of the Foreign Relations Law of the United States §§ 421, 481, 482.

71 Hilton v. Guyot, 159 U.S. 113, 182 (1895).

34

Id., at 227-228.

Id., at 193-194.

74 Id., at 202.

75 Id., at 205-206.

76 Rest. 3rd, Restatement of the Foreign Relations Law of the United States § 481(1).

77 Id., at § 481(2).

78 Id. 79 Id., at § 482(1).

80 Rest. 3rd, Restatement of the Foreign Relations Law of the United States § 482(1)(b) refers to § 421. Section 421(1) states the general rule of reasonableness in the exercise of jurisdiction over a person or thing. Section 421(2) sets forth factors to be considered in determining whether the state’s exercise of jurisdiction is reasonable: “In general, a state’s exercise of jurisdiction to adjudicate with respect to a person or thing is reasonable if, at the time jurisdiction is asserted: (a) the person or thing is present in the territory of the state, other than transitorily; (b) the person, if a natural person, is domiciled in the state; (c) the person, if a natural person, is resident in the state; (d) the person, if a natural person, is a national of the state; (e) the person, if a corporation or comparable juridical person, is organized pursuant to the law of the state; (f ) a ship, aircraft or other vehicle to which the adjudication relates is registered under the laws of the state; (g) the person, whether natural or juridical, has consented to the exercise of jurisdiction; (h) the person, whether natural or juridical, regularly carries on business in the state; (i) the person, whether natural or juridical, had carried on activity in the state, but only in respect of such activity; (j) the person, whether natural or juridical, had carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect of such activity; or (k) the thing that is the subject of adjudication is owned, possessed, or used in the state, but only in respect of a claim reasonably connected with that thing.”

81 Rest. 3rd, Restatement of the Foreign Relations Law of the United States § 482(2).

82 Supra note 58, § 4(c)(7), 4(c)(8).

83 Supra note 28, at 851-860.

84 The signatories are: Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela. See, Multilateral Treaties: Inter-American Convention on Extraterritorial Validity of Foreign Judgments And Arbitral Awards, Organization of American States, https://www.oas.org/juridico/english/ sigs/b-41.html (last visited Apr. 27, 2023).

85 Mexico and Uruguay seem to be the only signatories as of the time of the writing of this article. See, Multilateral Treaties: B-50: InterAmerican Convention on Jurisdiction On In the International Sphere For the Extraterritorial Validity of Foreign Judgments, Organization of American States, http://www.oas.org/juridico/english/ sigs/b-50.html (last visited Apr. 27, 2023).

86 Romelio Hernandez, Avoiding Pitfalls: Enforcement of U.S. Judgments in Mexico, HMH Legal, http://www.hmhlegal.com/ pdfs/enforcementof USJudgmentsinmexico.pdf (last visited Apr. 12, 2023).

87 Id. 88 Id. 89 Id. 90 Id. 91 Supra note 28, at 851-857.

72 73

Summer 2023 • THE FEDERAL LAWYER • 49

A District Court Dilemma: continued from page 40

F. Supp. 7, 10 (S.D.N.Y. 1993).

42 Jones, 722 F.2d at 22.

43 See, e.g., Polston v. Millennium Outdoors, LLC, 2017 WL 878230 (E.D. Ky. 2017). One of the defendants, a small business, was unable to acquire counsel. The business owner “consented” to removal, on behalf of the business. A string of motions over multiple months followed, leading to plaintiff filing a default judgment based on defendant’s failure to secure counsel. The court then realized the “larger issue.” “Because a corporate entity ‘cannot appear in federal court except through an attorney,’ [the owner’s] actions on [the business’s] behalf [were] ineffective.” Therefore, the consent to removal was invalid. Id. at *1–2.

44 See, e.g., First Franklin Fin. Corp. v. Rainbow Mortg. Corp., 2010 WL 4923326 (D.N.J. 2010) (finally entering default after waiting two

years for defendant to retain counsel).

Suzannah R. McCord, Comment, Corporate Self-Representation: Is It Truly the Unauthorized Practice of Law?, 67 Ark. L. Rev. 371, 386 (2014) (“The main goal of prohibiting the unauthorized practice of law is protecting the public from incompetent, unethical, or irresponsible representation.”).

46 Matthew Cormack, Note, The Cost of Representation: An Argument for Permitting Pro Se Representation of Small Corporations in Bankruptcy, 2011 Colum. Bus. L. Rev. 222, 256–57 (“[ J]udges may dismiss a pro se corporate case if the representative is truly incapable of representing the corporation. Thus, the risks of allowing pro se corporate representation are manageable and the benefits, in terms of assets saved from attorney’s fees, are concrete and large.”).

45

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Book Reviews

The Strange Case of Dr. Paul Schoeppe

By Mark W. Podvia Published November 2022; Talbot Publishing Paperback, 172 pages, $24.95

Reviewed by: Christopher Faille

In the early 1870s, Dr. Paul Schoeppe narrowly escaped execution for the murder of Maria Steinnecke.

Schoeppe was saved neither by a court of appeal nor by a governor’s pardon. The governor of Pennsylvania at the time, John W. Geary, believed that the execution should proceed.

Schoeppe was saved by an act of the legislature on a bill with enough support to override the veto of Governor Geary.

The legislature actually had to take two bites of this apple. It passed a law in February 1870, when narrow rules about the range of appellate scrutiny of a trial court’s proceedings seemed to be the obstacle that could cost Schoeppe his life. That bill was for “allowing writs of error in cases of murder and voluntary manslaughter.”

But the highest court in the state effectively ignored this, upholding the jury verdict in an opinion issued only days after the 52 • THE FEDERAL LAWYER • Summer 2023

override of Geary’s veto. The court wrote that “laws which are the offspring of feeling are seldom wisely framed” and suggested that it was impudent of the legislature to command an appellate court to review trial evidence.

Fortunately for Schoeppe, the machinery of execution was creaky, and he lived long enough to see the legislature pass another bill, one more specifically demanding a new trial in the matter of Steinnecke’s death. The new law, passed in March 1872, received Governor Geary’s signature. There was no need for a second override vote.

Why was there not a veto for the second bill? What happened between February 1870 and March 1872 that accounts for Geary’s different reaction? As the author of this fine book—a prolific author and graduate of the Dickinson School of law—tells us, public reaction to the case shows a growing sense of solidarity among Pennsylvanians of German extraction. Schoeppe was one of theirs, and they were not going to let him be hanged based on dubious scientific evidence.

Geary may simply have bowed before the voting potential of this bloc.

It is well to mention (though Podvia is not explicit about this) that the Schoeppe controversy played out while key moves toward a unification of Germany were underway in central Europe. On Jan. 18, 1871, at an elaborate ceremony with all but one of the German princes present, Chancellor Bismarck in a cuirassier uniform read out the proclamation of a new German Empire, which soon became known as the second Reich, and the Grand Duke of Bade cried, “Long live his majesty, Emperor Wilhelm!”

The two developments (in central Europe and in Pennsylvania) weren’t related merely as manifestations of the same zeitgeist; the Germans of this moment of unification became involved in the campaign to save Schoeppe’s life in that distant place.

Podvia recounts that a German official, Baron von Gerolt, met with Governor Geary and sat for an interview with the Philadelphia Inquirer. The paper reported that the baron said that the “States of Germany and the United States” had long lived in a condi-

tion of “amity and national good will,” and it would be a pity for a miscarriage of justice in the Schoppe matter to undermine this.

They had material to work with: There was reason to believe that Schoeppe’s conviction at his first trial, in June 1869, was wrong. To understand why, Podvia discussed a now-distant stage in the development of medical science and its forensic use.

The prosecution’s theory of the case was that Schoeppe had poisoned Steinnecke under the guise of treating her. Steinnecke, born in 1799, behaved much like many other wealthy people of the same age in the late 1860s: She kept a medical professional in attendance. In that capacity (said the state soon after her death in February 1869), the defendant had employed his position as that attendant to worm his way into her affections and into her will. Finally, he used his privileged position to poison her.

At the first trial, the jury convicted Schoeppe largely based on the testimony of Dr. William K. Aiken. Aiken, a professor of chemistry, swore to the presence of a small amount of prussic acid found in the decedent’s stomach in an autopsy done 10 days after her death. Prussic acid, more commonly known as hydrogen cyanide today, is a very dangerous compound, though it is and was one with legitimate medical uses. A defense expert had testified to the contrary that “the tests used by Professor Aiken for the discovery of Prussic acid in the stomach of Miss Steinnecke did not give a sufficiently satisfactory proof of its existence there.”

After the first trial, other experts came forward with another theory of Steinnecke’s demise. The symptoms she was said to have exhibited before her death suggested a disease of the kidneys. The autopsy had been slipshod in this: There had been no examination of the kidneys nor any testing of urine from the bladder. Under the circumstances, said many doctors, no firm conclusion is possible about the cause of death. This helped fuel the movement for a bill (in time, as we have seen, two bills) designed to save Schoeppe’s life.

Due to the diplomatic and legislative developments discussed above, Schoeppe

did get a second trial, in the late summer of 1872. The case for a not guilty verdict based on the uncertainty of the actual cause of death was made this time with great clarity and force by a parade of witnesses, as well as by the presiding judge himself. In his charge to the jury, Judge Benjamin F. Junkin said that Prussic acid as a cause of death was very improbable.

So informed, the jury returned a verdict of not guilty in 15 minutes.

Schoeppe was thereafter a free man. But he was not an heir. The will that purported to give him the Steinnecke fortune was contested and—in a plot twist worthy of Hollywood—would be rejected as a forgery.

Even after a century and a half, it is impossible for anyone to say with assurance whether Schoeppe was a murderer. He does seem to have been a petty conman and forger, and his medical credentials were fraudulent. But grifters need not be murderers, and the state of Pennsylvania plainly failed to make its case that Scheoppe had crossed that line.

Schoeppe could well have planned to live off Steinnecke for years to come, and her death, which may have been of natural causes, may also have been a matter of great frustration to him. In this (unproven but reasonable) scenario, the forged will may have been a back-up-plan, one that backfired and, by establishing a motive for a murder he had not committed, nearly killed him.

Whatever one’s conclusions on the underlying mystery, this book is a wonderful examination of a number of developments in the United States in the period soon after our civil war. Medicine and chemistry, criminal law and procedure and appellate practice, the rise of hyphenated American identities: These are all individually intriguing subjects, and each threads its way through this careful book’s fabric.

Christopher Faille is a reporter for a London-based financial news concern. He graduated from law school more than 40 years ago and has thought, written, and published on matters of law and public policy ever since.

The Trial of Lee Harvey Oswald

By William Alsup Published September 2022; NewSouth Books Hardcover, 320 pages, $27.95

Reviewed by: Randy Sue Pollock

Some of us remember where we were when we heard that President John F. Kennedy had been shot. We may also remember watching the killing of Lee Harvey Oswald

by Jack Ruby that was recorded on live television two days after the assassination.

Now, almost 60 years after those fateful days, there are still thousands of tourists to the Texas School Book Depository and Dealey Plaza—where the president was shot, and there are still many questions surrounding the killings: Was it a conspiracy? How many bullets were shot?

This novel, written by Senior U.S. District Judge William Alsup (Northern District of California), takes a different look at whether Oswald killed President Kennedy.

It is a story about what might have happened if Oswald had lived to stand trial for the murder. While this is an alternative historical tale, it is based on Judge Alsup’s meticulous research and examination of the 26 volumes of testimony and evidence that the Warren Commission gathered in 1964, with a sprinkling of fictional characters to drive the plot.

The reader is taken through 73 short chapters, where we are introduced to many memorable historical figures, such as Jack Ruby; Percy Foreman, Oswald’s attorney;

former Texas governor John Connelly; and detective Will Fritz from the Dallas Police Department, who interrogated both Oswald and Abraham Zapruder—whose infamous 26.5 second film captured the assassination.

The novel follows fictional protagonist Abe Sumner, a Department of Justice attorney from Washington, D.C., and Elaine Navarro, a federal prosecutor out of Dallas.

Both are brought in to assist real-life Dallas District Attorney Henry Wade (the “Wade” of Roe v. Wade), who faces off against Foreman, a famous criminal defense attorney whose client list included James Earl Ray. Chapter one starts on Nov. 23, 1963, after the assassination, with Attorney General Robert Kennedy in a meeting with the assistant attorney general for the Criminal Division and Abe Summer. Their discussion is about who could have been responsible for the assassination—Castro, the mafia, rightwing nuts? Was Oswald a lone wolf, as FBI Director J. Edgar Hoover said? All questions that remain today. This short meeting ends with Kennedy sending Summer to Texas to be involved in the state prosecution of Oswald.

Summer and Navarro become the key characters in this fictional tale of Oswald’s prosecution, as they work with the Texas prosecution team investigating leads, interviewing witnesses, and then as lead counsel in the trial.

The focus of the book is on the prosecution’s preparation of its case against Oswald and the trial itself. We read actual testimony from the witnesses to the assassination, who were watching the motorcade procession as it went by the Texas Book Repository. The memories witnesses had of the shooter go into the fascinating discussion of how many bullets were fired, the sequence of the bullets, and which bullets hit whom inside the limousine. Each chapter introduces different people involved in both the investigation and the trial. The testimony of the trial witnesses in the story is from their actual testimony during the Commissions hearings.

The highlight of the book, at least to this reviewer, was the trial testimony of Oswald.

His testimony is necessarily fictional, but as Alsup explains in his epilogue, “It illustrates how an accused can sometimes concede most of the prosecution’s evidence and repackage it as a story of innocence, by exploiting gaps and curiosities in the record.” continued on page 62 Summer 2023 • THE FEDERAL LAWYER • 53

Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School.

The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Amgen Inc. v. Sanofi (No. 21-757) Oral argument: March 27, 2023

Questions as Framed for the Court by the Parties Whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial “time and effort.”

Facts Heart disease and a type of cholesterol called elevated low-density lipoprotein (LDL) are correlated. When cholesterol is in the blood stream, the LDL receptors remove LDL cholesterol. And the degradation of LDL receptor is regulated by an enzyme named proprotein convertase subtilisin/kexin type 9 (PCSK9). When PCSK9 binds to LDL receptors, it decreases the number of LDL receptors on a cell’s surface. In other words, PCSK9 may hinder LDL cholesterol control.

Monoclonal antibodies bind to PCSK9’s “sweet spot” where PCSK9 bind LDL receptors. As a result, PCSK9 cannot bind to the LDL receptors and LDL receptors can regulate the LDL cholesterol in the blood stream.

Amgen owns the patents describing such antibodies. AmgenPatents relevant in this case are ’165 and ’741 patents. These two patents describe amino acid sequences for twenty-six antibodies. Amgen named one of the antibodies (21B12) Repatha®. These 54 • THE FEDERAL LAWYER • Summer 2023

patents claim antibodies that bind to one or more of fifteen amino acids of the PCSK9 protein and allow LDL receptors to regulate LDL cholesterol. The patents define the claimed antibodies based on their function: binding to combinations of amino acids of the PCSK9 and blocking the PCSK9 from interacting with LDLR. On October 17, 2014, Amgen Inc. filed suit against Sanofi, Aventisub LLC, Regeneron Pharmaceuticals Inc., and Sanofi-Aventis U.S. LLC (collectively, Sanofi) in the United States District Court for the District of Delaware. Amgen alleged that Sanofi infringed patents including the ’165 and ’741 patents by using a roadmap Amgen disclosed, and creating a new antibody that competes with Amgen’s antibodies. Amgen and Sanofi stipulated to infringement, but Sanofi claimed the patent claim is invalid. The district court granted Motion for Judgment as a Matter of Law ( JMOL) of non-obviousness and of no willful infringement. The jury determined that the patents are valid.

Sanofi filed an appeal to the United States Court of Appeals for the Federal Circuit. The Federal Circuit remanded for a new trial on issues including the district court’s evidentiary rulings and jury instructions regarding Sanofi’s defenses. The federal circuit also vacated the permanent injunction.

On remand, Amgen and Sanofi tried the issues of a written description of the patents and enablement before a jury. Sanofi failed to prove that the claimed patents were invalid. Sanofi then moved for JMOL, and alternatively, a new trial.

The Delaware district court granted the JMOL motion for lack of enablement but denied the motion for lack of written description. The court conditionally denied Sanofi’s

motion for a new trial. Amgen appealed to the Federal Circuit, and the Federal Circuit upheld the ruling.

On November 18, 2021, Amgen filed a petition for a writ of certiorari with two questions presented. Petition for a writ of certiorari. The United States Supreme Court granted certiorari on November 4, 2022, limited to Question 2 presented by the petition.

Legal Analysis WHETHER GENUS CLAIMS ARE SUBJECTED TO A HIGHER STANDARD Petitioner Amgen understands that the Federal Circuit provides a more onerous enablement standard for a genus patent claim, which covers a broad group of potential products derived from the central patented feature. Amgen explains that, while the Federal Circuit typically looks to whether a claim enables a person to make and use the invention without undue experimentation, the Federal Circuit has elevated this standard for genus claims by asking whether the claim enables a person to make the “full scope” of claimed embodiments. Amgen specifies that, in this case, the “full scope” standard means that Amgen’s disclosure should teach a person how to make every possible antibody, the embodiments, that could fit the description of Amgen’s claimed antibodies. Amgen argues that an elevated standard is unwarranted under 35 U.S.C. §112(a) (Section 112(a)). Amgen notes that Section 112(a) provides a single enablement standard and does not suggest the standard should change according to the type of invention or claim.

Amgen protests the Federal Circuit’s elevated standard because the standard is too burdensome upon patent applicants. Amgen interprets the Federal Circuit’s “full scope” elevated standard as a requirement for courts to consider the cumulative time and effort required to make nearly all potential embodiments. Amgen contends that the Federal Circuit’s “full scope” approach makes it near impossible to submit a valid genus claim because a patent claimant would be required to identify, test, and describe how to create and use every potential variation of a claimed central invention. Amgen claims that the law

has been clear that patent applicants are not burdened to describe all potential outcomes and that the Supreme Court in Mowry had suggested it would be extremely difficult to meet such a burden.

Respondent Sanofi refutes that the Federal Circuit has employed a different elevated standard for genus claims, disagreeing that Federal Circuit opinions support Amgen’s reading of an elevated standard for genus claims. Sanofi maintains that the Federal Court had applied the “undue experimentation” standard against Amgen’s claims as it does with all other patent claims.

Moreover, Sanofi argues that Amgen’s understanding of the Federal Circuit’s enablement standard is mistaken because the Federal Circuit has clearly rejected enablement standards that solely depend on the effort required to discover all possible embodiments and attempt to quantify and compare effort. Sanofi rebuts Amgen’s characterization of the Federal Circuit’s decision and expounds that the Federal Circuit evaluated the cumulative effort in this case only because Amgen did not provide a helpful enablement disclosure that efficiently taught how to recreate the claimed antibodies, not because the Federal Circuit was applying a different standard.

Sanofi submits that Amgen’s broad patent claim is why the “undue experimentation” standard seems to be a high standard in this case. Sanofi elaborates that Amgen had submitted a very broad claim by claiming all embodiments of antibodies with the function to bind to specific PSK9 residues and the function to block LDL receptors from connecting to PSK9. Sanofi contends that the Federal Court, in accordance with the longstanding principle that a patent claim must enable as much as it claims, justly scrutinized Amgen’s enablement disclosures and found that Amgen’s disclosures did not enable as much as Amgen claimed in its patent claim.

INTERPRETING SECTION 112(A) Petitioner Amgen posits that Section 112(a) clearly states that an enablement disclosure is meant to guide a skilled person to successfully make and use the invention. Amgen emphasizes that Section 112(a) and this Court’s precedent in Nautilus, Inc. has clarified that an enablement disclosure is sufficient if it guides a skilled person with reasonable certainty.

Amgen highlights that the trial court proceedings show that Amgen’s instructions provided

in the enablement disclosures will not only produce the 26 example antibodies described

by Amgen but also always produce an antibody capable of binding to PCSK9 proteins and blocking binding with LDL receptors ­– Amgen’s claimed antibodies. Amgen provides that the full range of claimed antibodies can be produced according to Amgen’s instructions too.

Amgen recognizes that an accurate enablement disclosure can still be invalidated if it requires a skilled person to undergo undue experimentation. Amgen asserts that Amgen’s instructions do not require elaborate experimentation because the two shared techniques – (1) testing antibodies on mice and identifying successful antibodies and (2) substituting chosen amino acids with alternative amino acids with similar properties ­– are common, simple, and cheap. Amgen notes that the Federal Circuit in Wands has already acknowledged antibody testing on mice was not burdensome in other patent claims.

Respondent Sanofi posits that Section 112(a) and Supreme Court precedents, like O’Reilly v. Morse, Lamp, and Corona Cord Tire Co. which have interpreted Section 112(a), require enablement disclosures to describe how to make the invention, not a subset of the invention. Sanofi describes that such Supreme Court precedents have consistently required patent applicants to specify their inventions and have rejected broad patent claims that encompassed unspecified inventions. Sanofi argues that Section 112(a) provides no support to Amgen’s idea that enablement is sufficient if it teaches people to create and use the variation of the invention they need at the time.

Sanofi emphasizes that a legitimate enablement disclosure allows a skilled person to predictably produce the claimed invention. Sanofi criticizes Amgen for mischaracterizing Amgen’s enablement instructions as capable of producing predictable outcomes because, while it may predictably produce a functional antibody, Amgen’s instructions simply produce a random embodiment of the desired antibody. Sanofi contends that this random production equates to undue experimentation. Sanofi expands that, because Amgen’s techniques would provide a big pool of candidate antibodies, a scientist would have to test every candidate to see if it falls within Amgen’s claims, and that there are millions of potential antibodies that fall within Amgen’s claim even though Amgen has only specifically identified 26 antibodies.

Discussion IMPACT ON INNOVATION Intellectual Property Professors (Professors), in support of Amgen, argue that the heightened full scope enablement standard requires an inventor to conduct a limitless number of experiments until there are no untested species and thus frustrates patent protection in the chemical and life sciences industry. Especially in the pharmaceutical industry where large genus claims are common, this requirement is unreasonably demanding and discourages patent applications and innovation. Professors criticize that this standard potentially exposes a pharmaceutical company with innovative drugs to a risk of imitation. Further, the Alliance of U.S. Startups and Inventors for Jobs (USIJ) highlights that the heightened standard decreases patent enforceability and leads to an underinvestment in the biopharmaceutical industry which requires long-term investments.

Public Interest Patent Law Institute (PIPLI), in support of Sanofi, refutes that broad claim protection under the full scope enablement deters research and development of other types of antibodies. Intellectual Property Law Professors and Scholars (Scholars), in support of Sanofi, add that narrow antibody claims have facilitated innovation. Scholars claim that narrow antibody claims allow vigorous competition, encourage innovation, and thus increase the number of antibody patents and alternative therapies, and revenues.

UNDERSTANDING THE U.S. PATENT SYSTEM AND “INVENTION” National Association of Patent Practitioners (Practitioners), in support of Amgen, explains that the United States patent system has granted patent protection based on the language of a claim, not based on provided examples and the contribution to the art. Practitioners argue that this approach makes it easier for the patent to encompass advances that were unforeseeable. Practitioners claim that the full scope enablement standard will create a barrier to patent applications, thus discouraging public disclosure of inventions and technological advances. . Practitioners add that the standard will influence technology industries. Additionally, Professors argue that a patent claim need not provide a rapid way to embody every single solution. Rather, Professors argue that providing some working examples suffices as Summer 2023 • THE FEDERAL LAWYER • 55

guidance to solutions, and the patent should protect the invention.

Scholars suggest a fundamentally different view of what constitutes an invention, distinguishing narrow and broad inventions.

Scholars argue that broad invention is when an inventor claims a principle that essentially “animates” a variety of solutions. On the other hand, when a solution is found by “trial-and-error” without a general principle, the invention is a narrow one. Scholars argue that granting Amgen’s “roadmap” patent protection will lead to granting broad protection to a narrow invention. Additionally, Professor Robin Feldman (Feldman), in support of Sanofi, adds that a full scope enablement standard polices overbroad claims. Feldman highlights that the U.S. patent system considers a patent as a reward for sharing inventions, and Amgen’s first come first served basis patent system contradicts the basis of the U.S. patent system.

Written by Andrew Kim and Jade Lee. Edited

by Renee Olivett.

Full text available at https://www.law. cornell.edu/supct/cert/21-757. 

Samia v. United States (No. 22-196) Oral argument: March 29, 2023

Question as Framed for the Court by the Parties Whether admitting a co-defendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.

Facts Adam Samia traveled to the Phillipines to work for a company called Echelon Associates as a security guard, in 2011. Echelon was a front company for the operations of Paul LeRoux, a South African national who ran a global criminal enterprise. LeRoux had instructed one of his associates, Joseph Hunter, to assemble a “kill team” to commit murders in the Philippines. Hunter recruited Samia for this team, and he also recruited David Stillwell, a friend of Samia’s.

LeRoux, through Hunter, tasked Samia and Stillwell with murdering Catherine Lee, a local real-estate broker. On February 13, 2012, Lee was found dead. Three days later, Samia and Stillwell started transferring funds 56 • THE FEDERAL LAWYER • Summer 2023

to the U.S. in increments of less than $10,000, and Samia transferred a total of $32,000.

The Drug Enforcement Agency (DEA) arrested LeRoux in 2012, and he became a cooperating witness. In 2013, the DEA arrested Hunter; and, Stillwell and Samia were arrested in 2015. After his arrest, Stillwell confessed that he had been an accomplice to Samia in the murder of Catherine Lee. In 2017, a federal grand jury indicted Samia and Stillwell on several charges, including murder for hire. Subsequently, the United States tried Hunter, Stillwell, and Samia jointly in the United States District Court for the Southern District of New York.

Before the trial, the United States filed a motion in limine to address the admissibility of Stillwell’s confession regarding his role in Lee’s murder. Stillwell himself would not be testifying at trial; thus, the Government sought to introduce evidence of a modified version of the confession that would eliminate Samia’s name in order to avoid potential Sixth Amendment Confrontation Clause issues. Also before trial, Samia filed a motion to sever his trial or, alternatively, to exclude the confession, arguing that if Stillwell’s confession were introduced at trial, it would violate his right of confrontation. At a pre-trial hearing, the court granted the Government’s motion and allowed it to introduce Stillwell’s confession, so long as the written version of the confession eliminated any explicit references to Samia and grammatical errors resulting from the redaction were removed.

Accordingly, the Government made these alterations and introduced the confession at trial through the oral testimony of the DEA agent who heard the confession.

After the DEA agent’s testimony, the court instructed the jury that this confession was only admissible for purposes of the charges against Stillwell, and not for those against Samia. Additionally, Leroux testified at trial that Samia and Stillwell murdered Lee. Samia also testified and denied participating in any criminal activity with Echelon. At closing argument, the Government again raised Stillwell’s confession.

The jury convicted Stillwell, Hunter, and Samia on all counts. Samia was sentenced to life in prison plus ten years of imprisonment, to be followed by five years of supervised release.

On appeal, the United States Court of Appeals for the Second Circuit affirmed the decision of the district court in relevant part, finding no issue with the admission of

Stillwell’s confession in its redacted form.

Samia petitioned the Supreme Court for certiorari. The Supreme Court granted Samia’s petition on December 13, 2022.

Legal Analysis CONFRONTATION CLAUSE JURISPRUDENCE Samia argues that the Supreme Court developed a clear, bright-line rule in Bruton v. United States and that this rule requires a decision in his favor. In Bruton, the Court found that it was a violation of the Confrontation Clause of the Sixth Amendment for a prosecutor to use the confession of a non-testifying co-defendant as evidence of the defendant’s guilt. Samia asserts that the Court’s holding was based on its reasoning that the confession of the co-defendant transformed the co-defendant into a witness who did not have to testify at trial or undergo cross-examination. Samia differentiates Bruton from the later Richardson v. Marsh case, where a co-defendant’s confession was redacted and admitted into evidence once a limiting instruction was read to the jury. Samia argues that, in Richardson, the confession was only incriminating when it was combined with later trial evidence.

Samia additionally relies on Gray v. Maryland, which found a redacted statement of confession inadmissible at trial, because it was an “obvious indication of alteration” that would create the same kind of inference as the unedited statements in Bruton. Additionally, per Gray, Samia contends that the legal standard of whether a confession should be admissible is whether it directly incriminates the defendant, specifically asking the “kind of, not the simple fact of, inference.”

The United States counters that Samia’s reading of Bruton is impermissibly broad and that the proper, narrower reading of Bruton supports its position. The United States contends that Richardson clarified that the Bruton legal standard was an exception, because the confession involved in Bruton explicitly named the defendant as a co-conspirator; thus, it was simply too incriminating.

The United States maintains that any concern over violating the Confrontation Clause can be resolved by redacting a confession. The United States argues that Gray limited the scope of permissible redacted confessions to those that merely acknowledge others’ involvement without directly referring to the existence of a co-defendant but did not go as far as to hold that any obvious inference to the

co-defendant is prohibited. The United States also relies on United States v. Straker, where the redacted confession used gender-neutral pronouns, but was consistent with Bruton even though a jury could reasonably infer that the confession might identify the defendant.

The United States maintains that a confession is only inadmissible under Bruton and the Confrontation Clause if it is facially inculpatory to the co-defendant.

THE EFFECTIVENESS OF LIMITING INSTRUCTIONS Samia contends that the Bruton rule governs even if there is a limiting instruction requiring that the jury consider the confession as only applying to the confessor, and not the codefendant. Samia argues that the limiting instructions presented by judges to juries are often “intrinsically ineffective” and that inadmissible declarations cannot be erased from jurors’ minds. Samia additionally posits that limiting instructions give an unfair advantage to the prosecution because juries often cannot ignore such evidence once presented to them. Samia maintains that the limitations of the jury system must be acknowledged when dealing with evidence of confessions.

According to Samia, once confessions are allowed into evidence, the possibility of juries disregarding limiting instructions, and therefore relying on such confessions to prove guilt creates too high of a risk that the defendants’ rights under the Confrontation Clause will be violated.

The United States counters that jury instructions are effective, and that jurors adhere to such instructions. The United States cites United States v. Olano for the proposition that jurors are presumed to be conscientious in following trial courts instructions as closely as possible. The United States argues that any attempt to undermine this presumption would undermine the functioning of criminal law within trial settings. The United States supports this contention with a historical argument that the Confrontation Clause was written and developed within a legal context where jury instructions were seen as sufficient to remedy any potential prejudice to the defendant.

THE ADMISSIBILITY ANALYSIS Samia contends that when a judicial officer considers whether a confession is admissible under the Bruton standard, the judicial officer cannot simply rely only on a traditional “four-corners approach” that considers the

confession alone. Rather, Samia maintains, the judicial officer must also look at the surrounding context in which such a confession is made. Samia posits that by considering the surrounding context, a judicial officer can curtail any attempt by prosecutors to make prejudicial inference claims about the confession to the jury. Samia concedes that a court should limit the consideration of context to elements either “knowable in advance of trial or within the prosecution’s control.” Samia elaborates that a context analysis should include the number of defendants, the arguments of the prosecutor, the surrounding questioning, and the evidence against the defendant. Samia maintains that by engaging in such a contextual approach, the likelihood of a Confrontation Clause violation is significantly reduced.

The United States counters that a contextual analysis would expand the scope of the Bruton decision beyond what the Supreme Court actually held. The United States posits that, under Samia’s approach, a judicial officer would have to bar a confession whenever there is a likelihood of the jury inferring, due to the surrounding context, that the confession identifies the defendant. The United States argues that such an interpretation of Bruton is contrary to both the framers’ intent and the development of the Confrontation Clause. The United States also maintains that a contextual analysis is contrary to the Court’s decision in Richardson because this case limited the scope of the “practical effects” of Bruton. The United States posits that a contextual approach would force prosecutors to divulge much of their legal strategy at the beginning of trial in order to avoid a constitutional violation claim. The United States also argues that Samia’s position is undermined by the notion that a contextual approach can be limited to only consider “knowable” facts of the case, or facts within the “prosecutor’s control,” as that standard would nonetheless allow certain prejudicial confessions into evidence.

Discussion LIMITS OF PROSECUTORIAL POWER Samia argues that the Second Circuit’s narrow interpretation of the limitations for the use of a confession of a non-testifying co-defendant invites prosecutorial abuse.

According to Samia, this interpretation barely restrains prosecutors as they inevitably attempt to connect a defendant who did not confess to a confessing co-defendant’s

statements. If such statements were to be admissible, Samia suggests an expansion of a legal exception that would better account for the full context of a trial experience and the impact that this kind of evidence has on a jury. Without this, Samia contends that the prosecution obtains an unfair “windfall” at the expense of a defendant.

The National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU), in support of Samia, assert that accomplice confessions are notoriously unreliable and among the “lowest” type of evidence because criminals often want to pass the blame. On this point, the NACDL and ACLU explain that historically, under English common law, accomplice testimony was inadmissible because accomplices were “incompetent witnesses” given the high likelihood that they might lie to avoid punishment. Thus, the NACDL and ACLU argue that prosecutors should only be allowed to use such accomplice testimony to implicate co-defendants in limited circumstances, such as when the testimony does not directly incriminate the co-defendants.

The United States counters that courts have already sufficiently limited prosecutorial power to use the testimony of a non-testifying co-defendant because prosecutors must redact the confession. The United States further argues that prosecutors are forbidden from trying to minimize the effect of the redactions and limitations by, for instance, encouraging a jury to use a confession inappropriately. Thus, the United States contends that no additional, special exception or rule that would account for a broader trial context is necessary or appropriate.

Furthermore, Pennsylvania and 31 other states (Pennsylvania), in support of the United States, asserts that the use of a confession at trial is essential to the execution of justice because criminals typically do not clearly identify their accomplices to the police, either because they committed crimes with people they do not know or out of loyalty or fear of retaliation. Therefore, according to Pennsylvania, prosecutors must be able to use accomplice confessions at trial, within the appropriate limitations the Court has already established, in order to fulfill their duty to administer justice.

APPROPRIATE USE OF JOINT TRIALS Samia argues that the prosecution enjoys a disproportionate advantage at joint trials because they effectively get away with using Summer 2023 • THE FEDERAL LAWYER • 57

evidence that would otherwise be inadmissible in a severed trial. Similarly, the National Association of Federal Defenders (NAFD), in support of Samia, argues that prosecutors nearly always reap the benefits of a joint trial, so the trial court should constrain the prosecution in order to manage constitutionally intolerable risks to defendants. NAFD also recognizes, however, that joint trials present an opportunity for efficiently trying multiple parties involved in a given case at the same time, and suggests that in order to preserve this benefit, a trial court need not conduct a separate trial for every single defendant. Rather, NAFD argues against joint trials for the defendant(s) whose Sixth Amendment right of confrontation would be violated by the introduction of a co-defendant’s confession, such as in Samia’s case.

The United States counters that Samia’s argument against the power of prosecutors in joint trials “proves too much” because Samia would have the Court “over accommodate” for these concerns so as to grossly limit a prosecutor’s ability to use joint trials.

Moreover, the United States highlights the fact that federal trial judges already have the power to sever a joint trial if and when appropriate to further justice and counterbalance any prosecutorial advantage. Similarly, Pennsylvania, in support of the United States, argues that separately trying multiple participants involved in the same crime would result in inconsistent benefits to defendants. For instance, Pennsylvania explains that, without joint trials, defendants with earlier trial dates would be disadvantaged by not being able to access the transcripts from preceding cases that could provide some strategic guidance at trial, while on the other hand, defendants with later trial dates would benefit from seeing the strengths and weaknesses of the prosecution’s case against the early defendants.

Written by Zoe-Pascale de Saxe Roux and Daniel Woods. Edited by Kate Sullivan.

Full text available at https://www.law. cornell.edu/supct/cert/22-196. 

Dubin v. United States (No. 22-10)

Oral argument: February 27, 2023 Court below: United States Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether a criminal defendant who uses someone else’s name while committing 58 • THE FEDERAL LAWYER • Summer 2023

a criminal offense can also be charged with identity fraud. Petitioner David Dubin, an employee at a psychological evaluations services company, used the name of a patient on a form he filled out while committing healthcare fraud. Respondent, the United States, charged him with committing aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The circuits have split over how to interpret 18 U.S.C. § 1028A(a)(1), specifically when defendants should be charged with identity fraud while committing an underlying offense. This circuit split has created tension over how broadly or narrowly the statute should be read in light of its language, the surrounding context, and congressional intent. The decision could impact the level of discretion that prosecutors enjoy when prosecuting claims under § 1028 and the extent of due process rights for criminal defendants in such cases.

Full text available at https://www.law. cornell.edu/supct/cert/22-10. 

Biden v. Nebraska (No. 22-506)

Oral argument: February 28, 2023 Court below: United States Court of Appeals for the Eighth Circuit

This case asks the Supreme Court to consider the legality of the Biden administration’s student debt relief plan, which six states have challenged, claiming that the plan exceeds the Secretary of Education’s authority.

The Biden administration argues that the six states do not have standing to bring the lawsuit because they do not suffer injuries caused by the student debt relief plan.

Further, the Biden administration contends that even if the six states do have standing, the student debt relief plan falls within the statutory power of the Secretary of Education. The six states counter that they can establish standing because the student debt relief plan could cause financial loss to their state-authorized loan entity or reduce state tax revenue. The six states further contend that the student debt relief plan exceeds the statutory authority of the Secretary of Education because the plan is neither necessary nor proportionate to ameliorate the conditions caused by the COVID-19 pandemic.

The outcome of this case will have far-reaching implications for student loan borrowers, state budgets, and the overall economy.

Full text available at https://www.law. cornell.edu/supct/cert/22-506. 

Department of Education v.

Brown (No. 22-535) Oral argument: February 28, 2023 Court below: United States District Court for the Northern District of Texas

This case asks the Supreme Court to clarify whether two student-loan borrowers have Article III standing to challenge the Department of Education’s Student Loan Debt Relief Plan (“Plan”), and whether the Department of Education acted consistent with its statutory authority and applicable procedural requirements in adopting the Plan. The Department of Education argues that Brown lacks Article III standing to challenge the Plan, that the Plan is statutorily authorized under the HEROES Act, and that the Secretary of Education has the authority to waive or modify the relevant procedural requirements. On behalf of herself and a similarly situated individual, Myra Brown counters that she has Article III standing to challenge the Plan, the Department of Education lacks the statutory authority to adopt the Plan, and the Plan is procedurally defective. This case has significant implications for the viability of the Student Loan Debt Relief Plan and the scope of executive power.

Full text available at https://www.law. cornell.edu/supct/cert/22-535. 

Arizona, et al. v. Navajo Nation, et al. (No. 21-1484) Oral argument: March 20, 2023 Court below: United States Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to consider whether there is a trust relationship between the Navajo Nation (“the Nation) and the U.S. government regarding the Nation’s water rights. Arizona contends that the Nation’s claim infringes upon the Supreme Court’s retained and exclusive jurisdiction over the allocation of water from the Colorado River mainstream in Arizona v.

California. Furthermore, Arizona argues that the Nation has failed to state a cognizable breach-of-trust claim because the Nation did not specify a source of law establishing the government’s fiduciary duty. The Nation counters that the claim does not fall under the Supreme Court’s reserved jurisdiction because the Nation did not seek a quantification of its rights to the Colorado River mainstream. The Nation further contends that it has identified provisions in treaties, statutes, and the Winters doctrine to establish the

trust duty on the federal government to ensure an adequate water supply for the Navajo Reservation. The outcome of this case will have far-reaching implications for the Navajo Nation’s water resources, the stability of water rights, and the water allocation system.

Full text available at https://www.law. cornell.edu/supct/cert/21-1484. 

proceedings until the appeal is resolved. This case touches on important questions regarding judicial economy, economic efficiency, and the treatment of arbitration agreements in relation to other contracts.

Full text available at https://www.law. cornell.edu/supct/cert/22-105. 

Jack Daniel’s Properties, Abitron Austria GmbH v.

Inc. v. Vip Products LLC Hetronic International, Inc. (No. 22-148) Oral argument: March 22, 2023 (No. 21-1043) Court below: U.S. Court of Appeals for the Ninth Circuit Oral argument: March 21, 2023 Court below: United States Court of Appeals for the Tenth Circuit

This case asks the Supreme Court to determine whether the Lanham Act (“the Act”), a federal trademark law, applies extraterritorially to trademark infringement outside the United States by a foreign entity. Abitron argues that the Act does not apply to foreign sales, because such an extensive reading of the Act’s scope is not supported by statutory interpretation or case law. Hetronic counters that both the Act’s language and the Court’s precedent about Congress and the Act’s expansive power leaves no doubt about its extraterritorial reach. The outcome of this case has heavy implications for the territoriality principle in international law and the rights and remedies of U.S. trademark owners.

Full text available at https://www.law. cornell.edu/supct/cert/21-1043. 

Coinbase, Inc. v. Bielski (No. 22-105)

Oral argument: March 21, 2023 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to consider whether an appeal of an order denying a motion to compel arbitration automatically strips the district court of its jurisdiction to continue the litigation on the merits of the case pending the results of the appeal. The Third, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have all held that district courts are deprived of jurisdiction in this situation, while the Second, Fifth, and Ninth Circuits have held the opposite. Coinbase, Inc. argues that the “Divestiture Rule” applies here—the district court is divested of jurisdiction pending an appeal of a motion to compel arbitration. Abraham Bielski counters that the traditional discretionary test applies, which grants the district court the discretion to grant or deny a stay of the

Jack Daniel’s Properties, Inc. demanded that VIP Products stop selling a dog toy called “Bad Spaniels,” a toy in the shape of a Jack Daniel’s whiskey bottle but with dog-related alterations to the name and label. The issue is whether the “Bad Spaniels” toy should receive heightened First Amendment protection as a form of expressive conduct or whether courts should analyze such satirical products under the traditional trademark infringement test of the Lanham Act. Additionally, the Supreme Court must consider whether humorous use of another’s trademark should be considered a “noncommercial” use and therefore be immune from a dilution by tarnishment claim. Jack Daniel’s contends that the Ninth Circuit’s endorsement of the Second Circuit’s likelihood-of-confusion test undermines the purpose of the Lanham Act and that “Bad Spaniels” violates the Lanham Act’s anti-dilution provision. VIP Products counters that the Second’s Circuit’s test fills in gaps in the Lanham Act and is widely accepted by lower federal courts; and, it further contends that the Lanham Act’s anti-dilution provision amounts to unconstitutional viewpoint discrimination. The decision in this case will affect the rights of trademark holders, as well as the protections of those whose political, social, and artistic work utilizes the trademarks of others.

Full text available at https://www.law. cornell.edu/supct/cert/22-148. 

Amgen Inc. v. Sanofi (No. 21-757)

Oral argument: March 27, 2023 Court below: United States Court of Appeals for the Federal Circuit

This case asks the Supreme Court to clarify whether Amgen’s disclosure of common techniques – a trial-and-error procedure and amino acid substitution technique

– is sufficient to satisfy the enablement requirement for Amgen’s patent claim over all antibodies that bind to PSK9 protein and block PSK9 protein’s ability to bind to LDL receptors. Amgen argues that the focus of the enablement standard should be on whether the disclosure leads people to “make and use” the claimed invention and that common techniques do not amount to undue experimentation. Sanofi counters that the disclosures should be specific for broad patent claims and that Amgen’s trial-and-error techniques amount to undue experimentation. This case has significant implications on future innovation in the pharmaceutical industry and the patent law system.

Full text available at https://www.law. cornell.edu/supct/cert/21-757. 

United States v. Hansen (No. 22-179)

Oral argument: March 27, 2023 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Court to analyze 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), to determine whether statutes criminalizing “encouragement or inducement” of immigration violations violate the First Amendment. The United States argues that subsection (A)(iv) is constitutional because solicitation and facilitation of illegal actions is not protected under the First Amendment. The United States further states that subsection (A)(iv) primarily punishes conduct rather than speech, and that subsection (A)(iv) cannot be challenged by an individual who was prosecuted under § 1324(a)(1)(B)(i). Hansen counters that subsection (A)(iv) unconstitutionally prohibits abstract advocacy of illegal action. Hansen also argues that subsection (A)(iv) punishes large amounts of protected speech in addition to conduct, and that Hansen was convicted under both subsection (A)(iv) and subsection (B)(i). This case touches on important questions regarding free speech, immigration advocacy, and state criminal statutes.

Full text available at https://www.law. cornell.edu/supct/cert/22-179. 

Smith v. United States (No. 21-1576)

Oral argument: March 28, 2023 Court below: U.S. Court of Appeals for the Eleventh Circuit

This case asks the Supreme Court to decide the appropriate remedy for prosecuting a Summer 2023 • THE FEDERAL LAWYER • 59

criminal defendant in an improper venue— specifically, whether the defendant must be acquitted. Smith argues that a determination of improper venue must be treated as an acquittal that bars the re-prosecution of the same defendant for the same offense. The United States responds that venue determinations are not questions of factual innocence or guilt and are therefore properly remedied by retrial. This case has significant implications for upholding the constitutional right of criminal defendants to be tried in a proper venue and preventing prosecutorial misconduct.

Full text available at https://www.law. cornell.edu/supct/cert/21-1576. 

Lora v. United States (No. 22-49)

Oral argument: March 28, 2023 Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to consider whether 18 U.S.C. § 924(j) is subject to 18 U.S.C. § 924(c)’s prohibition on concurrent sentences. 18 U.S.C. § 924(c) criminalizes using or possessing a firearm to commit a crime of violence or drug trafficking crime.

To violate 18 U.S.C. § 924(j), an individual must, in the course of violating 18 U.S.C. § 924(c), use a firearm to cause the death of another person. Petitioner Efrain Lora argues that 18 U.S.C. § 924(c)(1)(d)(ii), which bars courts from sentencing defendants to concurrent terms of imprisonment, applies only to convictions under § 924(c) and not to convictions under § 924(j). Respondent the United States argues that, because § 924(j) can only be violated by also violating § 924(c), a sentence under Section 924(j) qualifies as a conviction under § 924(c) and must therefore also be subject to its sentencing requirements. This case has significant implications for federal sentencing law, including judicial discretion in sentencing.

Full text available at https://www.law. cornell.edu/supct/cert/22-49. 

Polselli v. Internal Revenue Service (No. 21-1599) Oral argument: March 29, 2023 Court below: United States Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to determine whether the notice requirements of I.R.C. § 7609(c)(2)(D)(i) apply only when a 60 • THE FEDERAL LAWYER • Summer 2023

delinquent taxpayer has a legal interest in the summonsed records, or if they apply broadly to summons issued for anyone’s records whenever they could be helpful in collecting a delinquent taxpayer’s liability. Hanna Karcho Polselli argues that the textual interpretation of the provision supports a legal interest requirement because such a reading gives meaning to other provisions in the statute. The Internal Revenue Service (“IRS”) counters that such a requirement is contrary to both the text of the statute and Congressional intentions when enacting the statute.

The outcome of this case will determine the extent to which the privacy of the general public is protected from the government’s ability to summons information in its investigation and collection of tax liability.

Full text available at https://www.law. cornell.edu/supct/cert/21-1599. 

Samia v. United States (No. 22-196)

Oral argument: March 29, 2023 Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to determine whether admitting a co-defendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context results in a Confrontation Clause violation. Adam Samia was convicted of murder and other criminal charges at a joint trial after the United States introduced as evidence the redacted confession of Samia’s co-defendant that mentioned and described an accomplice. Samia argues that admitting his co-defendant’s confession violated his Sixth Amendment Confrontation Clause right because the jury likely inferred that he was the unidentified accomplice in his co-defendant’s confession. Samia asserts that under the Supreme Court’s decision in Bruton v. United States, his co-defendant’s confession should have been excluded. The United States counters that no Sixth Amendment violation occurred, and the co-defendant’s confession was properly admitted because, consistent with Bruton, all references to Samia were redacted and a limiting instruction was given. This case has significant implications for the role of trial judges as gatekeepers, prosecutorial discretion and power, and the scope of protection the Sixth Amendment provides.

Full text available at https://www.law. cornell.edu/supct/cert/22-196. 

Slack Technologies v. Pirani (No. 22-200) Oral argument: April 17, 2023 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether a plaintiff suing under Sections 11 and 12(a)(2) of the Securities Act of 1933 must plead and prove that they bought shares registered under the allegedly misleading registration statement. Slack Technologies argues that the text of the statute reflects congressional intent to limit liability to only those who bought shares registered under the relevant registration statement.

Slack additionally argues that past judicial and regulatory precedent supports this theory. Fiyyaz Pirani counters that the text of the statute reflects congressional intent to create broad liability by including a range of securities so as to protect investors. Pirani contends that this particular issue is novel and was undecided prior to the district court decision below. The outcome of this case will determine the extent to which investors are protected by the Securities Act of 1933 and the availability of remedial measures to investors under the Act. Full text available at https://www.law. cornell.edu/supct/cert/22-200. 

Pugin v. Garland (No. 22-23)

Oral argument: April 17, 2023 Court below: U.S. Court of Appeals for the Fourth Circuit

This case asks the Supreme Court to clarify whether nexus to a pending or ongoing investigation or legal proceeding is necessary for an offense to be considered as “an offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S). Pugin argues that the phrase has historical meaning and that interpretation in favor of the noncitizen and the rule of lenity should apply. Attorney General Merrick Garland counters that the phrase has an ordinary meaning, and the Court should defer to the Board Immigration Appeals’s (“BIA”) interpretation following Chevron deference. This case has implications on how the BIA should apply the rule of lenity and how much deference the BIA should receive.

Full text available at https://www.law. cornell.edu/supct/cert/22-23. 

U.S. ex rel. Schutte v.

SuperValu Inc. (No. 21-1326)

Oral argument: April 18, 2023 Court below: U.S. Court of Appeals for the Seventh Circuit

This case asks the Court to determine whether the False Claims Act (FCA), 31 U.S.C. § 3729, which punishes individuals who “knowingly present[], or cause[] to be presented, a false or fraudulent claim for payment or approval,” applies if, regardless of their subjective belief about the lawfulness of their conduct, defendants’ conduct is consistent with an objectively reasonable reading of an ambiguous statute. The United States argues that, under common law and the FCA’s text, when individuals make arguments that they believe are false, they can be liable even if they did not definitively know they were lying. The United States further argues that individuals receiving government funds have a duty to ask for clarification and determine the proper law, and thus are liable for advancing false claims against the government. In opposition, SuperValu argues that an individual’s subjective belief is irrelevant under the FCA because interpretations of ambiguous statutes cannot be objectively verified; thus, an individual is not liable if the statute is ambiguous, and the individual’s interpretation is objectively reasonable. SuperValu also states that, because the FCA is a punitive statute, the burden is on the government to clarify the statute and give individuals notice. This case touches on issues of efficient government fraud prosecution, separation of powers, and Medicare and Medicaid reimbursement.

Full text available at https://www.law. cornell.edu/supct/cert/21-1326. 

minimis test was incorrect and should be overruled and that the plain language of Title VII requires employers to prove that their businesses directly suffered undue hardship.

DeJoy argues that the Hardison de minimis test should be reaffirmed but clarified and that burdens on coworkers can support a finding of undue hardship. The outcome of this case has significant implications for the protection of religious practice and belief in the workplace.

Full text available at https://www.law. cornell.edu/supct/cert/22-174. 

Counterman v. Colorado (No. 22-138)

Oral argument: April 19, 2023 Court below: Colorado Court of Appeals, Division II

This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.

Full text available at https://www.law. cornell.edu/supct/cert/22-138. 

Dupree v. Younger Groff v. DeJoy (No. 22-174) (No. 22-210) Oral argument: April 18, 2023 Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to reconsider the appropriate standard of undue hardship that an employer must demonstrate before it may be excused from its duty to reasonably accommodate an employee’s religious belief or practice under Title VII of the Civil Rights Act of 1964. This case also asks the Supreme Court whether Title VII permits employers to demonstrate undue hardship solely by showing that any accommodation would burden other employees.

Gerald Groff contends that the Hardison de

Oral argument: April 24, 2023 Court below: U.S. Court of Appeals for the Fourth Circuit

This case asks the Supreme Court to decide whether litigants can preserve purely legal issues for appellate review without having to raise such issues in a Rule 50 motion for judgment as a matter of law. This case also asks whether a trial court’s rejection of a litigant’s motion for summary judgment as a matter of law constitutes a final judgment subject to appellate review. Petitioner Neil Dupree argues that the Court should allow the preservation for appeal of purely legal

issues rejected by the trial court in summary judgment without raising them again in a Rule 50 motion, according to the principles of the final judgment rule and interpretation of the Federal Rules of Civil Procedure. Respondent Kevin Younger counters that the Court must require litigants to file a Rule 50 motion to preserve legal issues for appellate review because a rejection of a motion for summary judgment does not constitute an appealable final judgment. This case also has implications for judicial efficiency and economy.

Full text available at https://www.law. cornell.edu/supct/cert/22-210. 

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (No. 22-227)

Oral argument: April 24, 2023 Court below: U.S. Court of Appeals for the First Circuit

This case asks the Supreme Court to decide whether the Bankruptcy Code unequivocally expresses congressional intent to abrogate the sovereign immunity of Indigenous tribes. The Lac du Flambeau Band of Lake Superior Chippewa Indians argues that the Bankruptcy Code’s language is unclear, ambiguous, and subject to reasonable alternative interpretations, which fails to meet the high bar of an unequivocal expression of Congress’s intent. Brian W. Coughlin counters that there is no requirement for an explicit reference to Indigenous tribes, and that the ordinary meaning of the word “governmental unit” clearly shows Congress’s intent to abrogate the sovereign immunity of Indigenous tribes. This case touches on essential questions regarding tribal self-governance and abuse of the system of sovereign immunity.

Full text available at https://www.law. cornell.edu/supct/cert/22-227. 

Yegiazaryan v. Smagin (No. 22-381)

Oral argument: April 25, 2023 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether a foreign party can file a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) when they suffer injury to their intangible property. Respondent Vitaly Smagin alleges Summer 2023 • THE FEDERAL LAWYER • 61

that Petitioner Ashot Yegiazaryan violated RICO by injuring his intangible property: a judgment Smagin previously secured against Yegiazaryan in the United States. Yegiazaryan argues that plaintiffs can only bring a RICO claim if the injury underlying such a claim has a domestic, and not foreign, locus.

Accordingly, Yegiazaryan contends that the alleged injury to the judgment occurred outside of the United States and therefore is not cognizable under RICO. In contrast, Smagin argues that the injury occurred in the United States and consequently falls under RICO. The Court’s decision will impact the scope of RICO, as well as relations between the United States and other sovereigns.

Full text available at https://www.law. cornell.edu/supct/cert/22-381.

Tyler v. Hennepin County, Minnesota (No. 22-166)

Oral argument: April 26, 2023 Court below: U.S. Court of Appeals for the Eighth Circuit

This case asks the Supreme Court to determine whether the government violates the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment when the government forfeits a homeowner’s property due to a property tax delinquency and keeps the surplus proceeds of that property’s sale. Petitioner Geraldine Tyler argues that her equity interest in her condominium is private property protected by the Takings Clause, and that the government violated the Takings Clause by selling her home and retaining proceeds in excess of her debt to the government. She further

Book Reviews continued from page 53

The interesting aspect of Oswald’s testimony is that it is told based on the testimony of real prosecution witnesses that corroborated much of his defense.

In the “Summation” chapter, Foreman tells the jury that none of the doubts raised by the prosecution witnesses depend on Oswald’s testimony. As he argues, the different descriptions of the shooter and the discussion of the sequence of bullets fired were both established before Oswald took the stand. Foreman’s closing argument is based on historical fact—except for the skillful cross-examination of Oswald.

Alsup’s fascination with the assassination is consistent with persistent suspicions and discussions over the years about who killed Kennedy. This book addresses the numerous conspiratorial stories, focuses on the evidence that the Warren Commission gathered, and lays it out in a trial that the American people were unfortunately never able to witness.

Alsup does two things with this book: (1) He explains what good lawyers do, and (2) he lays out the true facts of President Kennedy’s assassination. In reading the Warren Commission reports, he saw a possible defense for Oswald and wanted to write something to help the reader feel like they had parachuted into 1963 and sat at the elbow of these investigators and lawyers.

This book offers the reader a unique, front-row seat to history documented by the Commission and an illustration of the skills 62 • THE FEDERAL LAWYER • Summer 2023

attorneys use to prepare and try cases. The reader learns how both the prosecution and the defense approach their respective presentations of evidence. Many of the chapters show how the prosecutors were stymied by some of the twists and turns in the evidence and the need to find a witness who could say categorically that Oswald was in the window, which they did not have. Likewise of interest is Foreman’s discussion with his young assistant about the ethical obligation that a lawyer has when a client testifies and there is a question as to the truthfulness of their testimony.

Alsup’s study of the Warren Commission’s report explores a historical gap that opens up a well-founded defense by Oswald.

The judge tells a relevant story that demonstrates and respects how excellent lawyers prepare and try cases through this work of historical fiction. It is an interesting and good read.  Randy Sue Pollock is a sole practitioner focusing on white collar federal practice in the NDCA and throughout the country. She is the president-elect of the NDCA chapter of the FBA and a member of the NDCA Criminal Justice Act panel. She has been recognized by the Recorder Law Journal as one of the best attorneys in 2011 and was a recipient of the Judge Learned Hand Award in 2021 from the American Jewish Committee.

contends that the forfeiture serves punitive rather than remedial purposes and thus is an excessive fine under the Excessive Fines Clause. Respondent Hennepin County asserts that the government has the sovereign power to foreclose on properties to hold tax delinquents accountable. Hennepin County also argues that tax forfeitures do not violate the Excessive Fines Clause because they are remedial and not punitive. This case’s holding will impact the constitutional limit on the government’s power over individual property rights and the government’s ability to promote Minnesota productive land use.

Full text available at https://www.law. cornell.edu/supct/cert/22-166. 

Member News 64 | Chapter Exchange 67 | Sections & Divisions 70 | Member Spotlight

Not a member? FBA members enjoy these great benefits: ADVOCACY • Regular Issues Updates for Federal Practitioners • “Washington Watch” Articles • Government Relations Efforts • Annual Capitol Hill Day NETWORKING AND LEADERSHIP • Legal Career Center • More Than 90 Chapters Across 12 Circuits • 23 Practice Area Sections • Six Career Divisions • Volunteer Leadership Opportunities

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Summer 2023 • THE FEDERAL LAWYER • 63

Chapter Exchange

Oklahoma Chapter HS Program: Public and homeschool participants in the Civil Discourse and Difficult Decisions program gather after the event.

NORTHERN/EASTERN OKLAHOMA CHAPTER On March 2, U.S. Magistrate Judge Jodi F. Jayne and the Northern/Eastern Oklahoma Chapter hosted the Civil Discourse and Difficult Decisions program, a national initiative of the United States Courts that brings high school students into federal courthouses for experience with civil discourse skills, complex decision making, and legal proceedings relating to situations in which law-abiding young people can find themselves. More than 40 students from Tulsa Public Schools and local homeschooling families participated as jurors and attorneys, with guidance from local public and private attorneys. The morning-long event concluded with lunch, where Judge Jayne and the attorney volunteers shared personal stories about joining the legal profession.

64 • THE FEDERAL LAWYER • Summer 2023

Northern/Eastern Oklahoma Chapter: Attendees of the Sidebar With Your Magistrate Judges event at McNellie’s pub.

On March 30, the Chapter hosted its biggest event in its history: Sidebar With Your Magistrate Judges, with over 100 lawyers and nine judges in attendance, and sponsorships from the two district courts we serve along with our sister chapter in Oklahoma City. The event offered civil practitioners unique insight into the process for appointment of magistrate judges, the backgrounds and experience of the magistrate judges in both the Northern and Eastern Districts, and first-hand experiences of practitioners on consenting to magistrate judge jurisdiction.

The forum was particularly timely given the appointment of several new judges over the past few years, the civil backlog caused

by McGirt v. Oklahoma, and the magistrate judges’ presence on the case assignment wheel in the Eastern District and likely soon the Northern District. The event was led

by T. Lane Wilson, former U.S. magistrate judge and current senior vice president and general counsel of the Williams Companies.

All four magistrate judges in the Northern District and all three magistrate judges in the Eastern District attended, along with both active district judges from the Northern District.

The forum outgrew its original location in the Side Bar of McNellie’s Irish Pub in downtown Tulsa and moved to a larger space upstairs at McNellie’s, where attendees were able to mingle with judges over food and drinks both before and after the presentation.

MISSISSIPPI CHAPTER The Mississippi Chapter hosted speaker Arthur Johnston, who serves as the Clerk of the District Court for the Southern District of Mississippi for a luncheon meeting at the Capital Club. Clerk Johnston spoke on a variety of issues including use of the docketing system, courthouse access, budget, post-COVID procedures, and caseloads. He fielded a series of practical questions and offered helpful practice tips.

Executive Director Dean Emeritus Jim Rosenblatt (Mississippi College School of Law), VicePresident Alison McMinn (Forman Watkins), President Blythe Lollar (Nelson Mullins), Clerk Arthur Johnston, Secretary Jennifer Case (U.S. Attorney’s office), Student Chapter President Cailin Sims (Mississippi College School of Law), Law Student Liaison McKenna Cloud (Fifth Circuit COA Clerk). Picture 2: Jim Rosenblatt, Cailin Sims, Alison McMinn, Judge Aycock, Treasurer Candace Gregory (Phelps Dunbar), President Blythe Lollar, and Jennifer Case.

Picture 3: Jim Rosenblatt, Cailin Sims, Judge Reeves, Student Chapter Program Chair Kevron McMillan (Mississippi College School of Law).

At a separate event, the chapter hosted U.S. District Court Judge Sharion Aycock from the Northern District of Mississippi, who spoke about Intervention Courts to an overflow crowd at a luncheon meeting at the Capital Club. Judge Aycock described the operations of these courts and the cost savings they generate and provided statistics.

She shared insights as to how these courts are viewed.

The Mississippi College School of Law Student Chapter of the Federal Bar Association and the college’s Black Law Student Association joined in inviting U.S. District Court Judge Carlton Reeves to speak to the law students at the school. Judge Reeves gave an inspiring talk, in which he described his upbringing and his path to becoming a federal judge. After his presentation, Judge Reeves answered student questions and spoke individually with a host of law students.

NORTHERN DISTRICT OF OHIO CHAPTER

On April 18, the Criminal Law Committee of the Northern District of Ohio Chapter and the Cleveland State University College

of Law’s FBA student chapter presented a panel discussion on “Pleas, Plea Bargaining, and Criminalization in the United States.”

The moderator of the panel was U.S. District Judge J. Philip Calabrese, of the U.S. District Court for the Northern District of Ohio.

The presenters were Clark Neily, senior vice president for legal studies at the Cato Institute; John McCaffrey, partner at Tucker Ellis LLP; Timothy Ivey, assistant federal public defender, Northern District of Ohio; and Michael Collyer, assistant U.S. attorney, Northern District of Ohio.

The event was attended by a wide range of legal practitioners, including law students, law professors, experienced private and public agency lawyers, and members of the U.S. District Court and Ohio Common Pleas Court.

The panel discussion covered a range of topics including current trial statistics in the Northern District of Ohio and the Dec. 16, 2022, Memorandum to Federal Prosecutors authored by U.S. Attorney General Merrick Garland concerning DOJ policies regarding charging, pleas, and sentencing. The panel also discussed the 2023 Plea Bargain Task Force Report prepared by the Criminal Justice Section of the American Bar Association.

Summer 2023 • THE FEDERAL LAWYER • 65

Northern District of Ohio Chapter: Far left: Judge Charles Esque Fleming, U.S. district judge for the Northern District of Ohio. Left: Attendees at the FBA Northern District of Ohio Chapter’s Brown Bag Luncheon With Judge Charles Esque Fleming, held in his courtroom on May 18, 2023.

Mr. Neily was one of 14 members comprising the Plea Bargain Task Force, so his shared insight and discussion on the work of the task force was particularly noteworthy. The panel discussion concluded with the identification of strategies toward improving actual and perceived inequities in current criminal charging and plea bargaining procedures in state and federal courts. The panel discussion was followed by a social event at Cleveland State University College of Law. On May 18, the Chapter continued its over-20-year tradition of hosting Brown Bag Luncheons with federal judicial officers and others involved in federal legal practice, most often held at the U.S. District Courthouse in Cleveland, Ohio. The events, presented three or four times a year since 2001, offer those attending an opportunity to meet judicial officers and others in an informal setting, with each luncheon starting off with

comments from the featured host, followed by a question-and-answer session.

The most recent Brown Bag Luncheon, with U.S. District Judge Charles Esque Fleming of the U.S. District Court for the Northern District of Ohio, offered an added treat for gathered attendees—Judge Fleming cooked BBQ for the event! Judge Fleming is an award-winning BBQ master chef, and he graciously (and enthusiastically) offered to provide his own home-cooked ribs and wings for the luncheon. It was a truly enjoyable experience for everyone who attended. 

SOUTH FLORIDA CHAPTER

Emerging from a pandemic pause with a bang, the South Florida Chapter hosted its annual judicial reception on February 2.

After many successful years at the Alfred I. duPont building in downtown Miami, the chapter decided to give the event a fresh look to welcome members of the bench and bar back to large-scale in-person events.

The Wharf Miami provided the ultimate Miami setting with the New River behind, the downtown cityscape above, and temperatures hovering around 75

degrees. Glowing high-top tables enlivened the expansive riverfront deck and allowed for optimal mingling. Catering provided by Lil Greenhouse Grill, situated in Historic Overtown and just a mile from the Wharf, included standout conch fritters, an innovative soulful tapas plate, and the best banana pudding you can find in Miami. For an indulgent treat, guests sampled fresh stone crab claws from Garcia’s Seafood Grill and Fish Market, another Miami institution just a half mile up the New River. Koffeeology served guests specialty coffee drinks and Azucar scooped its best flavors, including its famous Abuela Maria (a sinful mashup of vanilla ice cream, guava marmalade, cream cheese, and cookies).

Live entertainment was provided by Sons of Mystro, an acclaimed violin duo known for their memorable interpretations of pop songs. A DJ took over later in the evening, providing reason for members to linger until the venue opened to the public.

Over 420 people attended the reception, including 16 members of the judiciary, and the mayors of Miami-Dade County, City of Miami, and City of Miami Beach. Positive feedback was in abundance, and an immediate increase in new member enrollment followed. With the pristine weather, classic Miami setting, elevated soul food, and innovative entertainment, it was no wonder the event was a smashing success! 

South Florida Chapter: Top: The attendees of the South Florida Chapter’s judicial reception enjoy the lively atmosphere of the Miami Wharf. Above left: U.S. District Judge Federico A. Moreno, Detra Shaw-Wilder, Esq., and Tal J. Lifshitz, Esq. Above right: J. Courtney Cunningham, Esq., Miami-Dade County Mayor Daniella Levine Cava, U.S. Attorney for the Southern District of Florida Markenzy Lapointe, and U.S. District Judge Beth Bloom.

66 • THE FEDERAL LAWYER • Summer 2023

Sections & Divisions

Salt Lake City, Utah panel on in-house counsel careers (from left to right): Liz Cook, Jennifer Kimball, Rebecca Ryon, Aida Neimarlija, and Brian Watts.

STUDENT LAW SECTION The Law Student Division hosted a pilot program of panels in conjunction with the Law Student Chapters at Tulane and Loyola Schools of Law, and the University of Utah and Brigham Young Schools of Law. The February 9 panels in New Orleans addressed what law students need to know about judicial clerkships and in-house legal careers.

The March 1 panel in Salt Lake City, Utah also provided insight to area law students concerning in-house legal careers. The programs resulted in a Guide to Planning and Producing Panels on In-House Counsel Careers, developed by Kevin Maxim and Andy Clark, which is now available for use by all the FBA’s Law Student Chapters.

INTERNATIONAL LAW SECTION

The 67th annual Commission on the Status of Women (CSW), took place from March 6–17, with the theme: “Innovation and technological change, and education in the

Above: New Orleans panel on in-house counsel careers (left to right): Wendy Loup, Rebecca Dietz, Douglas Currault, Sharonda Williams, and Kelly Scalise. Left: New Orleans panel on judicial clerkships (left to right): Judge Barry Ashe, Jennifer Rogers, Judge Donna Currault, and Peter Mansfield.

Summer 2023 • THE FEDERAL LAWYER • 67

digital age for achieving gender equality and the empowerment of all women and girls.”

The CSW addressed civil society organizations regarding a gendered digital divide, as well as how the CSW should influence the global digital compact. More than 180 side events, organized by UN agencies, member states, and civil society organizations, were held on U.N. premises. In addition, more than 700 parallel events—both in-person and virtual—were run by the CSW. Over 8,000 individuals registered to attend the 67th CSW in person, representing no less than 1,000 organizations. On March 13, attendees were briefed by U.N. Secretary General Antonio Guterres, who set forth the aim of reducing harm and increasing accountability online while protecting freedom through a global free internet that contains guardrails to prevent the spread of hate speech and includes a need for literacy, as well as a need to address the needs of indigenous people. An outcome document was negotiated by member states during the CSW meetings.

The FBA was part of “civil society” at the CSW, as the association was given “consultative status” as a nongovernmental organization eligible to participate in policy dialogue with the U.N. Economic and Social Council, the only U.N. body that allows for civil-society participation. As a result, FBA members are allowed to apply for ground passes to attend special events of the General Assembly, including the CSW. In that capac-

ity, we attended the CSW with the following takeaways: The CSW recognized that the digital age is an opportunity that should be seized in order to ameliorate the lives of women and girls around the globe. This opportunity is especially significant for those women living in countries or belonging to groups which have historically been marginalized. Secretary General Guterres discussed the fact that many countries lack resources. Gender parity has improved in many countries at the level of political representation, with many countries having achieved equal representation at high levels of government, sometimes through the use of gender quotas in the country’s legislature. Representation for women has also increased in the workplace, but disparities remain, and women in power—as well as women journalists—are often targets of violence.

While access to technology is an opportune chance to achieve gender equality, it also poses a threat to the safety and well-being of those same women it aims to empower as a result of the newly risen threats to their security. Online violence has become a part of the larger backlash against women’s rights, offering perpetrators new avenues to perpetuate the long-existing culture of silencing and disempowering women. Women are more likely to be targets of online harassment and cyberstalking, including threats of violence, sexual harassment, and revenge porn. Women and girls

are especially vulnerable to online grooming and exploitation by sexual predators who use social media to target their victims, and are subject to sexist, misogynistic, and demeaning comments used as a way to intimidate women into silence.

While these risks are not exclusive to women, the prevalence and severity of these risks are often amplified for women, particularly women from marginalized communities. The CSW also addressed the issue of discrimination against women in the technology sector, where they remain significantly underrepresented, particularly in leadership positions and technical roles.

This discrimination, apart from constituting a step back in achieving gender equality, also leads to a lack of diversity from which the failure to address the needs of a diverse population derives. The lack of diversity in tech can also lead to bias in algorithms and AI systems, which can perpetuate gender-based discrimination and inequalities.

Addressing discrimination against women in the technology sector is crucial for creating a more diverse, inclusive, and innovative industry. This requires a range of actions, including creating more equitable hiring and promotion practices, providing training and mentorship programs for women, promoting a more inclusive workplace culture, and holding companies accountable for gender-based discrimination and harassment.

Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org.

68 • THE FEDERAL LAWYER • Summer 2023

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Member Spotlight *Denotes Sustaining Member Richard Alan II* Amitai Barth Nicolas Burnosky Katie Carmona* Katherine Carroll Sam Cowin Aro Ebenhahn Joe Esq. Ebenezer Gyasi SangYeob Kim* Peter Kraus Ya Li Nancy Maldonado Katherine Miller Melissa Obodzinski Shawn O’Neil* Mariceli Perez-Gonzalez Adam Polk* John Schultz Holly Snow Scott Stitt Ravi Subramanian Jonathan Thatcher James Tyrone Douglas Wentzel*

FIRST CIRCUIT

Hon. Raymond L. Acosta Puerto Rico

Carmen Alfonso-Rodriguez Frances Brunet Reinaldo Calderon Ivan Fernandez* Alfredo Frontera Kevin Lerman Daniel Limes Alberto Lopez Merlan Mariana López-Rosado Melanie Pérez-Rivera Arthur Petrie II Jose Ramirez-Coll Jose Sanchez-Castro* Roberto Santana-Aparicio* Javier Vega Villalba Francisco VizcarrondoTorres

Massachusetts

Ryan Avery Adam Cook Kyle Cunningham Katherine Dirks Sanjeev Doss Fernando Figueroa Howard Friedman Kathleen Gregor Alison Holdway Mariem Marquetti Nathanial McPherson* Kel Ndu Jameson Pasek Eve Piemonte Tatum Pritchard Eugenie Reich Brendan Slean Patrick Tracey Dean Whalen

SECOND CIRCUIT

2nd Circuit At Large Scott Lenz

District of Connecticut Meghann LaFountain

Eastern District of New York Miriam Devia Noah Hagey Stephen Latuso Nicole Miller

Southern District of New York Matthew Diller Jeffrey Grant John Hendershott Lindsay Holcomb Lisa Korologos Michelle Sloss Stacy Yeung

THIRD CIRCUIT Delaware

Emily DiBenedetto Cortlan Hitch Hilary Miller Zachary Stirparo Benjamin Wallace

Eastern District of Pennsylvania John Goldsborough Sharon Gurak Brian Nichilo*

Middle District of Pennsylvania Paul Bulzacchelli Harlan Glasser

New Jersey Jessica Ecker

Western District of Pennsylvania Rachel Fleming Bonnie L. Kift

FOURTH CIRCUIT Eastern District of North Carolina

Carrick Brooke-Davidson Lucy Brown Laura Carroll Candice Diah* John H. Lawrence* Kenzie Rakes

Hampton Roads William Palmer

Maryland

Ella Aiken Jennifer Alexander Elizabeth Caldera Eva Cockerham Renita Collins Jared Dvornicky Sydney Fortmann Peter Holland Jordan Howlette Scott Marder

70 • THE FEDERAL LAWYER • Summer 2023

Tianna Mays Samantha Miller Matthew Oakey Michael O’Day Adam Sampson Alicia Shelton Sarah Simmons James Ulwick Lauren Upton Margaret Ward Rose Woolson

Middle District of North Carolina Aaron Horner

Northern Virginia

Dorothea Allocca Kekoa Andrade Olivia Bushman Jeffrey Goldberg Lana Manitta* Pia Miller Amie Murphy Benjamin Reed Syed Reza* Jessica Sartorius Daniel Schaefer Mona Tehrani Matthew Troy Steven Webster Sika Yeboah-Sampong

Richmond

Elizabeth Butler Aaron Carroll Carson Cox Meredith Doswell Rowland Hill IV Jonathan Lucier Paul Nyffeler Matthew Rosendahl William Smith III Sean Tenaglia

South Carolina Tina Cundari Bess DuRant William Grove Tre Holloway

Western District of North Carolina David Allen Benjamin Chesson Candice Diah Virginia Flynn Robert Fuller III James Grimes Anna Majestro Mark Pincus David Wright

Western District of Virginia Charlene Day Nathan Schnetzler Jared Tuck

FIFTH CIRCUIT Austin

Stephen Barron Stephanie Cagniart Veronica Chidester David Goode Jeffrey Han Tyler Hickle Blair Leake Todd Nickle Andrew Pate Jessica Underwood

Baton Rouge Karlie Sanders

Dallas

Lindsey Beran Jason Bloom Morgan Buller Zachary Faircloth Adrienne Frazior Kate Freeman Vincent Hess Christina Jump Ashley Koos Phillip Linder Robert Loughran Taryn McDonald Catherine Meili Russell Roden Mackenzie Salenger Jonathan Scott Joshua Smeltzer Ross Stoddard III Ben Thomas Bruce Thomas Brandon Zuniga

El Paso

Valerie Auger

Fort Worth Blakely Mohr

Mississippi

James Graves Jr Audrey Hurt LaKeysha Isaac Stephen J Kristi Johnson Arthur Johnston III Sidney Lampton Selene Maddox Taylor McNeel Robert Rich Elizabeth Roper* Katharine Samson Grant Tarleton Kenneth Walker Krystal Walker Noble Cory Wilson Jamie Wilson

New Orleans

Viviana Aldous Amber Barlow Garcia Kennedy Beal Troy Bell Nico Caluda Natalie Earles

Conor Gaffney Oliver Hadley Christopher Handy Margaret Manning Hannah Marler Annika Mengisen Lauren Perry William Pratt Sr Karina Shareen Joseph Tran

North Louisiana Jerry Edwards Ryan Saunders

San Antonio

Danya Blair Paul Burgess James Deegear III Susan Kilgore Jefferson Moore Ondrejia Scott Margaret White

Southern District of Texas Kristin Adler Rachel Braver Colette Burns John Ganz Emily Hoy Richard Kuniansky Sylvia Mayer John Murphy* Mark Sutton Alex Wolf

SIXTH CIRCUIT

Cincinnati-Northern Kentucky, John W. Peck Kevin Cox W Stuart Dornette Darren Ford Cristina Frankian Mollie Miller Julie Valdes

Columbus

Heidy Carr Richard Coglianese Jacob Mikalov Lauren Sabo Matthew Sturtz Elena Tuhy-Walters

Dayton

Amber Alegria Sergio Fernandez Summer Hawks David Morrison Griffin Reyelts Jennifer Rulon

Eastern District of Michigan Benjamin Shipper* Adam Wolak

Kentucky

Jennifer Barbour

Northern District of Ohio Ashley Bailes Brian Bardwell Kwasi Bediako Martin DiMichele* Chad Eggspuehler Alyson Houk Zachery Hunter Susan Jacobsen James Jones Erik Jones* Akshita Patel Andrew Rumschlag Sheryl Shaw Emily Towers Marc Williams-Young

Western District of Michigan Robert Alvarez Daniel Brookins Chloe Cunningham Daniel O’Connell Melissa Pope

SEVENTH CIRCUIT Central District of Illinois Michael Fredendall

Chicago

Carmen-Marie Carballo Evangeline Dhawan* Keala Ede Kate Fogarty Grace Jacobson Jason Johnson Ryan Lins Samuel Louwagie Bojan Manojlovic Gabrielle Metzger Annika Misurya Zulaihat Nauzo Katherine Raymond Mahesha Subbaraman Andrew Tweeten Matthew Veenstra Mitchell Williams

North Dakota Daniel Lewerenz

St. Louis

James Crowe III William Curtis Stephen Davis Abbey Fritz Evan Greenberg Mark Lenihan Zachary McMichael Jake Thessen

NINTH CIRCUIT

Northern District of California

Galia Amram Jevechius Bernardoni Asim Bhansali* Matthew Borden Claire Cochran Ronald Fisher Melinda Haag Lauren Harding Robert Illman David Kwasniewski Eunnie Lee Michael Levin-Gesundheit Candis Mitchell Scott Mossman Ryan Rezaei Jeff Schenk Jeffrey Theodore Kenneth Wine Ben Wolinsky Tracy Zinsou

Orange County Daniel Ahn Stephen Baker* Tracy Hughes* Michael Malakouti Ashley McLachlan Nancy Olson Susie Park David Stein Jon Ustundag

Washington State Tyler Bourke Stuart Cassel Frederick Corbit Katerina Ehrlich David Estudillo Meredith Harris Noah Rich

Broward County

Colorado

Natacha Gutierrez Terry Seiple Brett Tobin

Kansas and Western District of Missouri Sara Skelton Paige Wymore-Wynn

New Mexico David Harrison Gary Lasky April Wilkinson

Northern/Eastern Oklahoma

Matthew Belz Ian McGlone Cynthia Rice Michael Robinson Juliana Vallier

Northern District of Indiana

Idaho

San Diego

Oklahoma City

P. Michael Mahoney (Rockford, Illinois)

Los Angeles

Lafayette/Acadiana Jean Billeaud Gordon Schoeffler

Madison Pangburn Paul Singleton

Alaska

Charisse Arce Thomas Bradley Chloe Cotton Maria Teresa Davenport John Fonstad Erik Fossum Jahna Lindemuth Lauren Sherman Connor Smith Karen Vandergaw Anna Weidner-Tafs Matthew Widmer Steven Wilfong Christopher Johnson Simon Klevansky Lindsay McAneeley Patrick McTernan Sydney Spector Matthew Christensen Syrena Hargrove Sonyalee Nutsch

Theresa Montag

Sean Anderson Andre Birotte Jr Lisa Foutch Kyle Grossman Michael Wilner

EIGHTH CIRCUIT

Nevada

Joel Mathur

Wisconsin

Minnesota

Erik Allerson Kathryn Averwater James Becker Cole Birkeland Gregory Bromen Frederic Bruno

Franklin Austin Christopher Humes William Nobriga Cristina Silva Kimberly Sokolich Robert Stewart

Oregon

Sean Dunning Chris Fowler Jared Hager Jon Weiner Jessie Young

Phoenix

James Bigbee Nicole Brindejonc Judith Leonard April Olson Martyna Sawicka Molly Weinstein Lauren Whittaker

Jessica Agatstein Frances Megan Arnold Kimberly Gosling Nicholas Hodges John Kyle* Jason Kandah Jessica Oliva Joseph Orabona Veronica Portillo-Heap Erwin Shustak Rupa Singh

Atlanta

TENTH CIRCUIT

David Osterfeld

Sacramento

Lillian Frank Craig Williams

Andrea Garcia

Thomas Burch

William D. Browning Tucson

Hawaii

Indianapolis

9th Circuit At Large

11th Circuit At Large Rachel Gage Evan Gibbs Iriel Jones Lana Joseph Richard Robbins Brett Switzer

Elliot Anderson Rachel Blue Courtney Bru Mary Cooper* Katie Crane Jake Crawford Jessica Dickerson Emalie Foster Shannon Henson Susan Huntsman Gerald Jackson Harrison Kosmider Terry Mason Moore Christopher Nassar Kathy Neal Julia Palmer Micah Petersen Dru Prosser Deborah Reed Hugh Robert* McKenzie Ryan Tim Spencer Mark Steele Kirk Turner Ronald Walker

Valerie Belmont Allie Burnet Jessica Dagley Vadim Glozman Maximilian Jelen Gregory Lacey* Mikaela Masoudpour Chelsey Metcalf Courtney Moran Kristi Nelson Chaka Patterson James Schiff Vincent Schmeltz Adam Smith Victoria Vanderschaaf Atticus Yondorf

ELEVENTH CIRCUIT

Mary Boren* Dixie Coffey JP Hill* Alex Pearl Amy Pierce Rabindranath Ramana* C. Russell Woody Robert (Bob) Wyatt IV

Utah

Todd Bouton Melinda Bowen Joshua Sohn

Wyoming

William Elliott II Hallie Guidry

Zac Davis Silvia Duarte Robin Frank Heath Hopper Brian Koch* Charlotte Krovoza Natalia Morales Caran Rothchild Casey Wiener

Inland Empire Veronica Garcia Dustin Nirschl

Jacksonville Erika Alba Paige Cham Margaret Miller

North Alabama Matthew Moore

Orlando

Alexander Adeseye John Benford

Palm Beach

Lainey Francisco Osvaldo Rodriguez

South Florida

Ephraim Abreu Manuel Antommattei Antonio Arzola Jodi Avila Ashi Colina Tania Cruz-Gimenez* Joanne Diez Joseph Donato Dominique Douglas Jose Espinosa Manuel Ferro Laura Figueroa Robert Gallinar Michael Habib Pierre Hachar Jr Anika Hardmon Samuel Hess Christina Himmel Daniel Humphrey J. Robert Kirk Andrea Montes Raynette Nicoleau David Petrantoni Silvia Pinera-Vazquez Matthew Richard Jorge Schmidt Jean Phillip Shami Neal Sonnett Brian Trujillo Ryan Ulloa Juan Valiente Austin Vining James Weick

Summer 2023 • THE FEDERAL LAWYER • 71

Southern District of Georgia Catherine Bowman

Tallahassee

Cassandra Buer

Tampa Bay

Kevin Ashley Landis Atkinson Edward Carbone Amy Currotto Sean Estes David Hines* Jordan Howard Allen Huang Nicole Rankin Arthur Weaver

D.C. CIRCUIT Capitol Hill

Epin Christensen Melissa Mueller*

Alexandra Monroy Christopher Neill Jonathan Olin Jason West*

District of Columbia

Nabil Ansari Michael Blayney Scott Farbish Alec Farr Laura Jacobson Christine Johnson Panagiotis Kalellis Tulip Karki Maris Liss Jasmine Louis Vinay Malik*

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72 • THE FEDERAL LAWYER • Summer 2023

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