The Federal Lawyer: July/August 2021

Volume 68, Issue 4

Florida’s Early Federal Legal History (1824–1940) page 40

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Volume 68, Issue 4

EDITORIAL BOARD

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

July/August 2021: Convention

Book Review Editors Heaven C. Chee Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Susan Yorke Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Kristine Adams-Urbanati Ellen Denum Sara Gold Niles Illich Jeffrie Boysen Lewis Jon Jay Lieberman Glenda McGraw Regnart Amanda Thom Jeremy Stone Weber The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org.

Subscription Rates: $14 of each member’s dues is applied toward a subscription.

Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA… and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” ©Copyright 2021 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author.

The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/tflwritersguidelines for writers guidelines.

40 Florida’s Early Federal Legal History (1824-1940)

By Ira Cohen

50 Spotlight on Ariana

Fajardo Orshan, First Woman U.S. Attorney for the Southern District of Florida

By Yisel Valdes and Ana Maria Martinez

54 Rule 4(d) and Self-

Initiated Extensions to Answer

By William M. Janssen

60 On Bitcoin and Ponzi

Schemes

By Tal J. Lifshitz

Also in This Issue

33 Welcome to Miami 34 2021 FBA Annual

Meeting & Convention Preview

37 Uniquely Miami

July/August 2021 • THE FEDERAL LAWYER • 1

COLUMNS 3 President’s Message

The Constitution Liberates Us: The Rule of Law and How It Enables Equal Protection, Justice, and an Enduring Freedom for All

By W. West Allen

6 Washington Watch An Honorable Journey Bruce Moyer

7 At Sidebar

Nor is Condemnation a Trivial Affair

By Soledad Valenciano

10 In-House Insight

Beware of Securities Law Disclosure Regulations During the Pandemic

By Ariadna Caulfield

13 Diversity & Inclusion

A 35-Year Blueprint for Diversity, Equity, and Inclusion

By Meaghan Goldstein

15 IP Insight

Why Trademarks Matter

By Mary Boney Denison

17 IP Insight

Lanham Act 75th Anniversary: The Life and Legacy of Fritz Lanham

By Craig Stone

19 In the Legal Community

The Civil Discourse and Difficult Decisions Program: Bench and Bar Collaborating to Raise Awareness of Civility and Criminal Justice Among Young People

PROFILES 27 Hon. Anuraag “Raag” Singhal U.S. District Judge, Southern District of Florida

By Scott Strauss

30 Hon. Kenneth A. Marra

Senior U.S. District Judge, Southern District of Florida

By Andrew Kwan

DEPARTMENTS 66 Supreme Court Previews

BOOK REVIEWS

78 The President Who Would Not Be King: Executive Power under the Constitution Reviewed by Louis Fisher

80 Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law Reviewed by Jeremy Weber

FBA MEMBER NEWS

84 Chapter Exchange 88 Sections and Divisions 93 Member Spotlight 97 Calendar of Events

By Margot Moss, Aron Raskas, and Erica Zaron

21 Commentary

The Doctrine of Derivative Jurisdiction Doesn’t Bar Exercise of Personal Jurisdiction in Removed Action

By Paul A. Avron

23 Commentary

Built for the Road Ahead: The Supreme Court Recalibrates Personal-Jurisdiction Doctrine in Ford Motor Co. v. Montana Eighth Judicial District Court

By Jeremy L. Kahn

2 • THE FEDERAL LAWYER • July/August 2021

Federal Bar Association 1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • W. West Allen wwa@h2law.com President-Elect • Anh Le Kremer anh.kremer@cdirad.com Treasurer • Matthew C. Moschella mcmoschella@sherin.com Ernest T. Bartol etbartol@bartollaw.com Jeanette M. Bazis jbazis@greeneespel.com Joey Bowers jbowersfba@gmail.com Kevin A. Maxim kmaxim@maximlawfirm.com Glen R. McMurry glen.mcmurry@dinsmore.com Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov Adine S. Momoh adine.momoh@stinson.com John R. Thomas jt@fed-lit.com Jessica R. Toplin jtoplinfba@gmail.com Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members Christian K. Adams cadams@adamskrekllp.com Hon. Barry W. Ashe barry_ashe@laed.uscourts.gov Laura A. Conover laura@conoverlawpllc.com Anna W. Howard anna.howard@uga.edu Nathan A. Olin nate@oliplaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@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 Jennifer Olivares social@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Program Coordinator Ariel White awhite@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Oreste R. Ramos Second Circuit Olivera Medenica Dina T. Miller Third Circuit Christian T. Haugsby Frank J. McGovern Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe

Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Daniel J. Donnellon Donna J. Mikel Seventh Circuit Kevin G. Desharnais Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Hon. Suzanne Mitchell Eleventh Circuit Lauren L. Millcarek Oliver Alan Ruiz D.C. Circuit Patricia D. Ryan Jessica R. Toplin SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Eric S. Daniel Alternative Dispute Resolution Bryan J. Branon Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law Michael Mancusi Bankruptcy Law Christopher Sullivan Civil Rights Law Robin B. Wagner Corporate and Association Counsel David Greene Criminal Law E.J. Rymsza Environment, Energy & Natural Resources Vacant Federal Career Service Adam Hill Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Mark Shmueli Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Beth Persky Judiciary Hon. Michael J. Newman Labor and Employment Law TJ McGrath Law Student Glen R. McMurry LGBT Law Brandon King Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Steve Miller Social Security Law Jerrold A. Sulcove State and Local Government Relations Andrew S. Ballentine Taxation Robert Russell Transportation and Transportation Security Law Steve Osit Veterans and Military Law Maura Clancy Younger Lawyers Anna W. Howard

President’s Message

The Constitution Liberates Us: The Rule of Law and How It Enables Equal Protection, Justice, and an Enduring Freedom for All

By W. West Allen

[I]n America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.1

W. West Allen is an intellectual property litigator and counselor in Las Vegas who represents a wide variety of international clients in federal courts. He served as chair of the FBA’s Government Relations Committee for seven years and has served as a member of the FBA’s board of directors for many years. In 2016, Allen received the FBA’s President’s Award for longstanding service to the FBA and as chair of its Government Relations Committee.

Laws are the necessary relations arising from the nature of all things and subsisting between all intelligent beings.2 We the people are governed by law, not individuals. And individuals are made free, as John Locke taught, when governed by just law; for “where law ends, tyranny begins.”3 These precepts are significant because (1) by our nature all people are sovereign, and (2) we choose to gather and organize together in social constructs—such as families, communities, and countries—to sustain and strengthen our sovereignty and the pursuit of happiness.

We therefore seek to form more perfect unions by establishing agreed principles that govern human relations in our elusive endeavor to secure an orderly, peaceful, and just society. The establishment and administration of just laws enable us to live together in harmony and achieve the greatest level of individual and collective happiness. This is why people charter government. Law empowers citizens and nations to provide equal protection, establish justice, and enable greater freedom for all.

Of all the fundamental principles of the U.S. Constitution, one is necessary for the viability of all the others. It is the culminating keystone in the arch that upholds the superstructure of freedom for all people. It ensures that the other component principles necessary for constitutional freedom are secure in their proper place and functioning according to their proper purpose. Without this principle, all other fundamental constitutional principles begin to fracture, and the political superstructure of freedom falls.

The fifth constitutional principle in our review of the U.S. Constitution is the Rule of Law.4 At its most fundamental level, the Rule of Law is generally understood to be that all citizens of a nation

are governed by and held accountable to written constitutional laws that are just, publicly promulgated, equally enforced, and independently adjudicated.

It means the law governs everyone equally. Neither government officials nor common citizens are allowed to break the law. Everyone is treated equally before the law and afforded due process and fairness under the law. Sovereign citizens advance the cause of freedom and this principle when they choose to obey, honor, and sustain the law that is justly enacted within a society, conducting themselves uprightly in conformity with that law and all other fundamental constitutional principles.

The principle of the Rule of Law may be the most difficult of all constitutional principles to truly understand, in both its nature and application, which is why for thousands of years the wisest among us have consistently tried to do so.5 Understanding basic principles of law generally and their proper application in a society are helpful in increasing one’s knowledge concerning the Rule of Law. These fundamental principles provide clearer insight into the paramount constitutional principle that is the Rule of Law. I will highlight seven of these general principles of law.

Seven General Principles of Law and the Application of Law First, it is only the law that governs within a just and free society, as opposed to individuals. This makes each citizen equal to any other under the law and leads to every citizen, regardless of position or stature within a society, being treated equally before the law. No one, not even the most elevated and honored official, is above the law.

The proper application of the law checks power and slows its abuse by those entrusted with authority. This both enables and sustains greater freedom.

Second, law that is vague, incoherent, arbitrary, or unwritten is no law at all.6 Any law that is not clear, July/August 2021 • THE FEDERAL LAWYER • 3

plain, and precise is deficient. An equivocal mandate from the state is always unjust because it strikes without warning and, thus, abridges both personal sovereignty and collective liberty. The best and truest laws are just, precise, easy to execute, and appropriate to the people who receive them.7 Third, laws alone do not establish justice. It is the proper application of just laws by wise rules and choices based on true constitutional principles that guide, like a compass, the way to justice and happiness within a free society. This process requires diligence and strict observation of law among both citizens and those entrusted by the people to enforce the law. It further requires government to equally guarantee to all individuals the Rule of Law and security of liberty under the law.

Fourth, those entrusted to enforce laws within a society must defend assiduously the people’s liberty and the equal application of the people’s law.8 Men and women entrusted with the power to execute, legislate, and adjudicate laws (i.e., those empowered by the people to govern) serve by proxy on behalf of every citizen; they are servants of both the law and the people. Likewise, those trained in the law within a society have a heightened duty and obligation to teach the law, and to defend and honor it. This helps ensure collective freedom under law within a society in perpetuity.

Fifth, allowing just laws of a society to not be observed is worse than having no law at all. Ignoring just laws is the antithesis to the Rule of Law. It is to abase law and promote injustice without remedying the problem for which the law is intended. When citizens obey, honor, and sustain just laws established through government of the people, liberty is strengthened and magnified.

Sixth, laws that cause what is indifferent to be regarded as necessary are not sensible. Even worse, such laws may cause what is necessary to be considered indifferent. Laws should therefore only pronounce on essential things. Superior laws safeguard, protect, and guarantee the most essential things. Government should avoid legislating the inconsequential or other matters properly left to individuals, local communities, and societal mores.

Seventh, there are various sorts of law and thus different orders to laws.9 The binding force of an inferior law always flows from that of a superior one. The laws of nations, for example, flow from natural law; the laws of a community flow from national law, and so forth. Inferior laws should never contravene superior laws unless the superior law itself violates a higher law. To do so would render the inferior law unjust and no longer a true law at all. The best, highest, and truest laws concern the most essential things. People within a society should choose through their legislative power the highest laws they can bear in their particular situation in order to achieve greater collective peace, liberty, and happiness.

The Rule of Law in America Against this backdrop of general principles regarding the application of law, we can better understand and implement our written law.

We begin to see why the Founders believed that no liberty was more central than the people’s liberty to govern themselves under rules of their own choice. They gave the last full measure of their devotion to establish the law that would secure the blessings of liberty to themselves and their posterity for all future generations.

They were successful. As a result, in America, We the People ordained and established the highest law by which all are to be governed within our nation. It is the standard raised to all the world in its 4 • THE FEDERAL LAWYER • July/August 2021

capacity to advance the cause of freedom, secure greater happiness, and protect the rights and life of all people. Our law is the U.S. Constitution. All conduct of both government and citizens, including all inferior laws they may implement, must conform to the superior and highest law of the land enacted by the people, which is the Constitution. Ultimately, this is the Rule of Law. The loyalty of American citizens is, therefore, not to any individual, magistrate, or king; it is to the written Constitution and its principles and processes. As we understand and adhere to the true principles of higher law and its equal application, we discover that law has the power to liberate and ennoble. By the Rule of Law, we draw nearer to justice and engender greater freedom. We begin to fulfill the promissory note of freedom written by America’s Founders to which we all are the beneficiary and fall heir.

The Rule of Law is the sine qua non for liberty. Yet, too often this constitutional principle remains elusive and paradoxical to most. It is only by and through the constraints of the Rule of Law that the collective freedom of any people within a nation is truly possible.

Diligent adherence by citizens to the highest laws enables the greatest level of freedom for all. Quite simply, without the protection of law, there can be no liberty; for every citizen’s right to enjoy life and property would be subject to the capricious and uncertain acts and will of others. As Montesquieu revealed, “Liberty is a right of doing whatever laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.” 10 This is true. If there is no law, there can be no punishment; and if there is no punishment, there is neither security nor peace while people are free. And without security and peace, ultimately, there is no liberty. The Rule of Law, therefore, is the very means by which freedom, prosperity, and happiness are possible.

Five True Principles Regarding the Rule of Law The thoughtful consideration of the true nature of law and its proper application within a just society reveals many higher and important truths regarding the Rule of Law. I will close by mentioning just five.

Laws are to make people free.11 Laws enable greater good, wisdom, and happiness. They are a rampart against despotism and a safeguard of a just liberty. The truest laws are immutable and everlasting.

Abiding by these laws endows one with knowledge of the universal consequences of law, and this knowledge may be used for the greater good and ennoblement of all things, including nations, societies, and people. Disregarding true laws, however, is perilous and leads to the degradation and ultimate demise of that which is just and good— whether within a nation, a society, or a people. Societies that fail to uphold just laws will have citizens who no longer possess liberty.

The more diligence given to the truest of laws, the greater the freedom. True and just laws engender liberty and, if strictly followed, greater prosperity to nations and their citizens. Such laws do not come from the whims of kings and tyrants, nor from the decrees of potentates or political parties. They are understood and proscribed by the enlightened minds of the people. These may be attained in time by trial and error or wisdom, and through perfected reason.

Within just governments, true laws are ordained and established by the people or their elected representatives to whom they have entrusted their legislative authority.

The nature and reward of laws by their observance irrevocably applies to all. The consequences of law cannot be evaded. True laws,

just like motion, gravity, and light, are universal, and their effect is sure, whether upon individuals, communities, or nations. A people’s understanding of and conformity to the highest laws makes them free. This leads to greater justice and, ultimately, to greater safety and happiness. This is the way to form a more perfect union and to secure the blessing of liberty for a nation, its people, and their posterity.

True laws implemented and observed diligently by societies always lead to greater security, peace, and happiness within that society.

The Rule of Law is endangered by fear. Unfortunately, a nation’s laws and the Rule of Law are often forgotten and even abandoned when they are needed most—when fear, strife, or a national crisis are present. These lead to anger and the danger that the Rule of Law will be set aside, disregarded, or even lost entirely. When this happens, alas, so goes freedom. Consequently, nations and their citizens must be vigilant to preserve the Rule of Law and abate fear when national crises arise.

Loyalty to law instituted under principles of popular sovereignty creates unity. Large republics and nations by their nature comprise vast and diverse people and cultures. Law engenders unity and advances the greatest good in diversity. By and through the people’s written constitution, they, as sovereign citizens, become linked together for a greater good. They form a more perfect union and advance liberty.

Out of many, they become one.

Conclusion The great truths and principles associated with the Rule of Law should be carefully considered and studied often. Law enables freedom. Honoring true laws magnifies liberty. The Rule of Law, if maintained, ennobles a nation and its people. Indeed, the Rule of Law is the mother of Liberty herself. With these truths well understood, all other fundamental principles of the Constitution come into clearer focus. Together, the fundamental principles of the Constitution protect the rights, privileges, and life of all. They sustain and engender a freedom among nations that may endure forever.

incalculable opinions and rule by “extemporary Arbitrary Decrees.”

(See generally, Locke, supra note 3, at ch.10, §§ 135-7.)

7 The Federalist No. 62 ( James Madison) (“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; ... Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?”).

8 This principle regarding justice established through law and by the equal application of law is quite different than using government to enforce equity or uniformity in outcome. Law and government must not be used to preclude diversity and freedom in the way people think, act, or live.

9 Montesquieu taught that among these are natural law, divine law, ecclesiastical law, law of nations (i.e., political and civil law), law of conquest, and domestic law; and consequently, there are different orders of laws. See generally, Montesquieu, supra note 2. The height of human reason consists in knowing which of these orders is most suitable to a people and the things they need to be decreed. Law should be simple and grave. Id. at Books XXVI and XXIX. 10 Montesquieu, The Spirit of Laws, Book XI, Ch. 4.

11 Locke, supra note 3, at ch. 6, § 57 (“[T]he end of Law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law.”)

Endnotes Thomas Paine, Common Sense (1776).

See Montesquieu, The Spirit of Laws, Book I, Ch. 1. (1748).

3 See John Locke, Two Treatises of Government, Book II, ch. 6, § 57 and ch. 18, § 202 (1690).

4 The 2020-2021 FBA presidential messages focus on five foundational principles of the U.S. Constitution: Popular Sovereignty, Federalism, Separation of Powers, the Bill of Rights, and the Rule of Law. 5 See the collective works and reflections on law by Socrates, Plato, Aristotle, Cicero, St. Augustine, Aquinas, Locke, Montesquieu, Blackstone, and others. These philosophers viewed law as “eternal divine wisdom” and a means to rightly constrain the exercise of political power, particularly by tyrants, whose failure to subordinate self-interests impairs the good and happiness of a society and its people. As Aristotle taught, “He who asks law to rule is asking God and intelligence and no others to rule, while he who asks for the rule of a human being is importing a wild beast…[for] Law is intelligence without appetite.”

6 To be just within a society, laws must be fixed, unambiguous, and readily understood by the people. In the second of his Two Treatises of Government, John Locke expounded on the importance of governance through “established standing Laws, promulgated and known to the People” in order to not be subject to others’ 1 2

Editorial Policy The Federal Lawyer is the magazine of the Federal Bar Association.

It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public.

The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment.

The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.

July/August 2021 • THE FEDERAL LAWYER • 5

Washington Watch

An Honorable Journey

By Bruce Moyer

Bruce Moyer is government relations counsel for the FBA. ©2021 Bruce Moyer. All rights reserved.

My service to the FBA as its government relations counsel ends on Sept. 30, 2021, bringing to conclusion an honorable 25-year journey. I feel very blessed to have enjoyed the FBA’s unqualified confidence and support. During my tenure, respect in Washington grew for the FBA as an informed, nonpartisan organization dedicated to bettering the federal courts and federal law. I am proud of the role we together played in achieving that result. As I look back on my years with the FBA, several highlights come to mind.

practice. These meetings have become a real hit over the past two decades. Members of Congress have appreciated the perspective of federal practitioners about the federal courts and their operation. Similarly, FBA members have enjoyed the chance to meet their representatives and senators and get an insider’s view of Congress. Participation in Capitol Hill Day also has continually grown, from seven registrants in 2003 to over 170 this past spring, when Capitol Hill Day became entirely virtual for the first time.

Pay for Judges

In Appreciation

First, I feel privileged to have assisted FBA in helping to secure a landmark pay raise for federal judges in 2013, along with annual adjustments since then, which was the result of an arduous campaign that lasted more than a decade. The effort began in 2001, when the FBA, along with the American Bar Association (ABA), co-published a white paper on the continued erosion in judges’ pay caused by inflation and congressional denial of cost-of-living adjustments. I helped to develop that white paper and an updated version in 2003 that anchored the campaign. Both white papers received national attention when the FBA and ABA national presidents appeared at press conferences at the Supreme Court, convened by Chief Justice William Rehnquist and the associate justices, to underscore the judicial pay crisis. We were grateful that the justices embraced our work, given the rarity of press conferences at the Supreme Court.

Ultimately, relief arrived in 2013, when the Supreme Court itself let stand the Federal Circuit Court of Appeals decision in Beer v. United States, which held that Congress violated the Compensation Clause of the Constitution by its denial of cost-of-living adjustments to judges. The denial of these adjustments and their constitutional shortcomings had been a core tenet of our FBA-ABA white papers.

My third highlight is a kaleidoscope of the many faces of the FBA leaders with whom I’ve had the opportunity to serve over the course of my honorable journey.

Their presence evokes my deepest admiration. I want to thank all the national presidents, chairs and members of the Government Relations Committee, and chapter and section leaders who have tirelessly served the FBA. Their zest and intellect have inspired and energized me along the way. And a heartfelt tip of the hat to the three executive directors during my time— Jack Lockridge, Karen Silberman, and Stacy King—for their endless support. And most of all, thanks to my wife, JoAnn, for her enduring love and patience and to my parents, Lin and Vi, for their modeling of courtesy, dignity, and respect.

Lastly, I wish all the best to Arent Fox and its government relations team in their future representation of the FBA and its interests. There always will remain an important role for the FBA to play as a neutral broker in Washington that is dedicated to the Constitution, the Rule of Law, and the independence of the judiciary.

And on a final personal note, a response to the frequent question, "What will you be doing in the days ahead?" As I continue to wind down my practice, I’m looking forward to spending more time with my family and three grandchildren, learning how to hit a two-handed tennis backhand, and flying my drone in the sky without crashing it. 

Capitol Hill Day A second highlight has involved Capitol Hill Day and its transformation as an annual FBA fixture. In 2003, the FBA began the practice in the spring of bringing to Washington its national and chapter leaders to meet with House and Senate lawmakers and staff on issues involving the federal courts and federal legal 6 • THE FEDERAL LAWYER • July/August 2021

At Sidebar

Nor Is Condemnation a Trivial Affair

By Soledad M. Valenciano

Soledad Valenciano is an attorney in San Antonio, where she practices eminent domain litigation. Her firm exclusively represents property owners. Valenciano is the president of the San Antonio Chapter of the FBA and is a frequent speaker on eminent domain issues.

She co-authors the “Federal Court Update” published in the San Antonio Lawyer Magazine. ©2021 Soledad M. Valenciano. All rights reserved.

The hacking of Colonial Pipeline and the resulting images of gasoline hoarding, long lines at the gas pumps, and yellow flags symbolizing “No Gas” proved to be a stark reminder that, regardless of any push for a greener planet, Americans rely heavily on natural gas and petroleum products.

According to the New York Times, Colonial Pipeline is one of the largest interstate pipelines in the United States, connecting Texas to New Jersey, traversing some 5,500 miles and carrying 3 million barrels of fuel per day.1 (See Figure 1.) It is an older pipeline, built in 1961 by several pipeline companies that joined together to meet the rapid growth in highway driving and long-distance air travel.

According to the National Council of State Legislatures,3 as of 2009, two-thirds of the lower 48 states depended almost entirely on interstate pipeline systems for natural gas supplies. Figure 2 illustrates this “intricate network.”4 According to the U.S. Department of Transportation’s (USDOT’s) Bureau of Transportation Statistics, the United States maintains a staggering 2 million miles of pipelines transporting natural gas or crude oil.5 Seen by some as a safer alternative to physically transporting natural gas by truck or rail, and considered a step in the right direction in terms of decreasing U.S. dependency on foreign oil, interstate pipelines transporting natural gas or crude oil still prove to be persona non grata.

Protests have successfully derailed some development of interstate pipelines in recent years.6 The Constitution Natural Gas Pipeline was rejected by the state of New York, Northeast Supply Enhancement Natural Gas was “buried in red tape,” and the Atlantic Coast Natural Gas Pipeline was canceled after several years of litigation.7 Some protests are due to fear of leaks. According to the Hill Country News, natural gas pipeline leaks involve volatile fuel, made up mostly of methane, and between January 2010 and November 2017, the nation’s natural gas transportation network leaked a total of 17.55 billion cubic feet of mostly methane gas.8 Other protests include concerns about crossing sacred tribal lands and other natural and cultural features.9 Protests opposing the construction of natural gas pipelines often begin at the regulatory phase when the

public first learns of the proposed project. Interstate pipelines are managed by the Federal Energy Regulatory Commission (FERC) and USDOT. FERC regulates pipelines, storage, natural gas transportation in interstate commerce, and liquefied natural gas facility construction.10 The Natural Gas Act of 1938 (NGA) conferred the authority on FERC’s predecessor agency (the Federal Power Commission) to review and grant certificates for the construction and operation of interstate natural gas pipelines and facilities. Prior to receipt of a “certificate of public convenience and necessity” and pursuant to section 7 of the NGA, gas pipelines typically undergo an extensive pre-filing and filing process with FERC that includes the review and approval of the siting of new lines. This process includes, for example, preparing environmental assessments under the National Environmental Policy Act (NEPA), reviewing route alternatives, and coordinating with the various federal agencies from whom permits may be required related to wetlands and endangered species considerations.11 It follows that when the applicant for the certificate actually possesses the certificate and begins to exercise the power of eminent domain to acquire easements, private property owners are less than happy. As an eminent domain attorney representing property

Figure 1. Colonial Pipeline Map2

July/August 2021 • THE FEDERAL LAWYER • 7

Map of U.S. interstate and intrastate natural gas pipelines

Legend

Interstate pipelines

Instrastate pipelines Source: U.S. Energy Information Administration, About U.S. Natural Gas Pipelines

Figure 2. U.S. Interstate Pipeline System

owners in Texas, I am very familiar with property owners being more concerned about decreased property values; they worry about explosions, leaks, loss of privacy, construction problems, injury to livestock, erosion, subsidence, and other incidents. The private landowner facing eminent domain is at the mercy of an alleged public project and has little to no ability to stall that project, and even less leverage when hauled into federal court in the instance of interstate pipelines.12 Regardless of the judicial forum, the private landowner is repeatedly “reminded” of the constitutional right to receive just or adequate compensation, which can be of little solace when non-compensable damages are the real issue. After all, condemnation is not a trivial affair. It is far from it.

This constitutional protection of “just compensation” can be further soured when the private property owner becomes skeptical of the “public” nature of the project, such as when the condemnor is a private entity like “Exxon” or “Philips 66.” This sentiment is not uncommon in Texas, where eminent domain authority is conferred on private companies by statute.13 Examples of private entities authorized by law to condemn property include gas or electric corporations, groundwater conservation districts, and common carrier pipelines.

Given this experience, I found the dispute between PennEast Pipeline Company and the State of New Jersey, et al.,14 very compelling. This dispute, recently argued before the U.S. Supreme Court, questions the authority of private pipeline companies to condemn state-owned land. Honestly, I felt little sympathy for New Jersey when it cried foul when its property was condemned by PennEast, LLC, for a natural gas pipeline. After all, New Jersey includes public and private entities, as well as “New Jersey” itself, in its state statute’s definition of “condemnor.”15 How can New Jersey complain about losing property to eminent domain when New Jersey also condemns property for roads, bridges, power lines, and more? How can New Jersey credibly complain that it must contend with a unilateral process that takes land for which New Jersey had other plans? How can New Jersey complain that its investment-backed expectations have been upended? How can New Jersey complain that it has to spend its resources on experts and attorneys without the right to be reimbursed for those expenses? Indeed, New Jersey did not enjoy a taste of its own medicine.

Taking a step back, however, New Jersey’s protests stem from a place of reason and mirror the disappointment of the typical con8 • THE FEDERAL LAWYER • July/August 2021

demnee. Accepting the legal constraints of being a condemnee is difficult. In addition to experiencing the one-sided nature of the process and the reality of what damages are actually compensable, there is the pressure to accept an alleged public use, even when that public use feels tenuous. Enter PennEast, LLC, a private company that seeks to condemn land under a purported federal right of eminent domain (although the United States is not a party), is not directing the project, and is not acquiring title to any of the property to be condemned.

But, PennEast Pipeline Co., LLC v. New Jersey, et al never gets to the issue of the alleged public use. Rather, the legal issues focus on the parties themselves, each seemingly on the wrong side of the “v.”

Here, the condemnor is a private rather than governmental entity, while the condemnee is the state of New Jersey (and various arms of the state),16 not a private property owner. The specific issues before the U.S. Supreme Court are (1) whether the NGA delegates to FERC certificate-holders the authority to exercise the federal government’s eminent-domain power to condemn land in which a state claims an interest; and (2) whether the U.S. Court of Appeals for the Third Circuit properly exercised jurisdiction over this case.

The parties do not dispute that under the NGA, companies with the FERC certificate to build new interstate pipelines can use the power of eminent domain to seize property along the pipeline route.

At issue is whether a state can block the proposed condemnation of state-owned property by claiming sovereign immunity under the Eleventh Amendment.

Here, in 2016, PennEast submitted its application to FERC to construct and operate a 116-mile natural gas pipeline through Pennsylvania and New Jersey. In 2018, FERC issued a “certificate of public convenience and necessity” (certificate) which allowed the company to acquire rights of way for its pipeline. New Jersey opposed the pipeline at the FERC level and then before the U.S. Court of Appeals for the District of Columbia Circuit. Not waiting for the appeals, and during the time of several abeyances, PennEast began efforts to acquire pipeline easements. Some of those property interests belonged to New Jersey, and New Jersey did not agree (as it had in the past) to waive sovereign immunity. Therefore, PennEast filed several eminent domain actions in federal court against the New Jersey entities (collectively “New Jersey”), and New Jersey asserted sovereign immunity.

The district court disagreed with New Jersey, stating, “PennEast has been vested with the federal government’s eminent domain powers and stands in the shoes of the sovereign.” In other words, PennEast’s lawsuits were akin to a suit by the federal government.

New Jersey appealed and reasserted immunity under the Eleventh Amendment. PennEast responded that its power of eminent domain in this instance stemmed from the NGA. The U.S. Court of Appeals for the Third Circuit agreed with New Jersey and found that, while the NGA may have delegated the federal government’s power of eminent domain to private parties, the question of New Jersey’s sovereign immunity from suits in federal court was an entirely separate and distinct matter. In other words—a key issue is that the property owner at issue is a sovereign state.

New Jersey deftly responded to each of PennEast’s arguments. It explained that neither the Commerce Clause nor the Necessary and Proper Clause of the U.S. Constitution permitted Congress to subject the states to private suits to condemn their property. The NGA’s silence on the issue does not mean the states abrogated their sovereign immunity. Moreover, the lawsuits in question were not “commenced” or “prosecuted” by the United States. Rather, the United States “played

zero role” in the litigation says New Jersey. New Jersey responded to Commerce Clause references, reminding the court that, unlike a post office or a courthouse, the property condemned will not belong to the United States if condemned; it will belong to a private entity. New Jersey cited to Allen v. Cooper,17 a 2020 Supreme Court decision that held that Congress can subject an unconsenting state to suit only if two distinct conditions are satisfied: (1) “some constitutional provision must allow Congress to have … encroached on the States’ sovereignty,” and (2) “Congress must have enacted ‘unequivocal statutory language to overcome the States’ Eleventh Amendment Immunity.” New Jersey also pointed to consistent rulings in the Tenth Circuit.

In addition to the NGA’s silence, the Energy Policy Act of 2005, which amended the NGA, lends further support to the immunity bar. New Jersey also questioned any reason to rely on other statutes, like the Federal Power Act, that actually were amended to remove any ability to subject states to private suits. (This language that was removed from the Federal Power Act did not exist in the NGA.) New Jersey also questioned PennEast’s interpretation of the “Plan of Convention,” relying instead on Hans v. Louisiana, an 1890 Supreme Court decision that quoted Federalist No. 81, and emphasized that the states entered the Union with their sovereignty intact, that immunity from private suit was an indispensable aspect of that sovereignty, and that this immunity extends beyond what is explicit in the (amended) text.18 At the core of New Jersey’s argument is that consent by the states to be sued by the federal government simply does not extend to suits by the federal government’s private designee.

PennEast’s true argument seemingly is that if the Third Circuit’s decision stands, it will give states “a veto power over federally approved pipelines.” PennEast’s practical argument is that New Jersey’s position will result in “thousands of jobs lost, millions of foregone tax revenues, and tens of millions in increased consumer costs.”

In terms of the jurisdictional question, both PennEast and New Jersey contend that the Third Circuit properly exercised jurisdiction.

While New Jersey was strong on the immunity argument, its reliance on the procedural inconsistencies inherent in the FERC process may not win the day. According to New Jersey, Section 7 certificates “are not final enough for aggrieved parties to seek relief in court, but they are final enough for private pipeline companies to go to court and take property by eminent domain.”19 New Jersey stated, Congress cannot, and did not, force a state to participate in a second federal suit in order to vindicate its sovereign privilege not to be sued in the first suit, particularly when the second suit cannot even begin until the State has been ordered to surrender possession of its land. Nor, for that matter, can a State be coerced into participating in FERC’s certificate adjudication and its ensuing rehearing proceeding just to retain a complete Eleventh Amendment defense against private condemnation suits.20 The United States, which was asked to weigh in, disagreed, however. It argued that, under the NGA, any challenge to an authority granted in a pipeline certificate must be brought on “direct review” in the circuit court reviewing that certificate. Here, that court would have been the D.C. Circuit, not the Third Circuit. As a result, the federal government says, the Third Circuit (as well as the district court) lacked jurisdiction to review New Jersey’s challenges to the use of eminent domain because those challenges were separate collateral proceedings barred by the NGA.

If the United States solicitor general is correct, then the issue of immunity would not be heard. A punt like this may be exactly what the natural gas industry wants and needs. According to the amicus briefs, PennEast alone “would generate an estimated 12,000 jobs, $740 million in wages, and $900 million in energy savings.”21 Industry Amici, representing the American Petroleum Institute, the American Gas Association, and the Interstate Natural Gas Association of America, stated, “Industry Amici submit this brief because the decision below gravely threatens the continued development of federally approved interstate natural gas infrastructure as well as the ability of the natural gas industry to ensure reliable access to a supply of natural gas adequate to meet the nation’s energy requirements” and because interstate natural gas pipelines have become “[t]he arteries of the Nation’s energy infrastructure.”22 The Third Circuit understood PennEast’s “warn[ing] that [the Third Circuit’s] holding … will give States unconstrained veto power over interstate pipelines, causing the industry and interstate gas pipelines to grind to a halt—the precise outcome Congress sought to avoid in enacting the NGA.”23 Indeed, the Third Circuit stated that it was “not insensitive to those concerns and recognize[d] that [its] holding may disrupt how the natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for the past eighty years, operates.”24 Perhaps this is why the Third Circuit offered an end-run, suggesting that FERC condemn the properties and then transfer the properties to PennEast. FERC weighed in and conclusively stated it would not have the authority to condemn.25 As an attorney exclusively representing property owners in eminent domain proceedings, it is not lost on me that I was most moved by amici curiae comprising state and local governments.26 Voicing their support for New Jersey, the property owner stated, This Court will not, however, assume that a statute makes such a fundamental change unless the statutory language is unmistakably clear that Congress intended to do so. … The clear statement rule applies forcefully in the Eleventh Amendment context, but the court has made it clear that it is not limited to that context. Instead, it applies whenever “Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government.”27 After all, condemnations are “major intrusions.” They are not trivial affairs.28  Update: On June 30, 2021, in a 5-4 opinion by Chief Justice Roberts and supported by liberal and conservative justices, the U.S. Supreme Court held that when FERC issues a certificate of public convenience and necessity, federal law authorizes the certificate's holder “to condemn all necessary rights-of-way, whether owned by private parties or States … [and although] nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution.”

Endnotes How Colonial Pipeline Became a Vital Artery for Fuel, https://www. nytimes.com/2021/05/10/business/colonial-pipeline-ransomware. html (last visited May 14, 2021).

2 Id. continued on page 25 1

July/August 2021 • THE FEDERAL LAWYER • 9

In-House Insight

Beware of Securities Law Disclosure Regulations During the Pandemic

By Ariadna Caulfield

Ariadna Caulfield is an attorney at Cetrulo LLP. She focuses her practice on banking and financial law, as well as commercial real estate transactions, and complex civil and business matters. ©2021 Ariadna Caulfield. All rights reserved.

Back in the first quarter of 2020, the U.S. Securities and Exchange Commission (SEC) made its first pronouncements about pursuing enforcement actions for securities law violations arising out of the COVID-19 pandemic. Addressing the impact of the coronavirus in the securities market, SEC Chairman Jay Clayton instructed his staff to monitor disclosures related to the pandemic as early as Jan. 29, 2020.1 Clayton also reminded companies in early March 2020 that the way in which they plan for uncertainties and their responses to the pandemic “can be material to an investment decision.”2 Following the warnings made by the SEC in connection with the above-referenced pronouncements, a series of enforcement actions by the SEC ensued.

On April 28, 2020, the SEC announced charges against Praxsyn Corporation, a Florida-based company, and its CEO for allegedly issuing false and misleading press releases claiming the company was able to acquire and supply large quantities of N95 or similar masks to protect wearers from the COVID-19 virus. In reality, the SEC alleged, the company never had any masks in its possession, had received no mask orders, and did not have a single contract with any manufacturer or supplier to obtain masks. The SEC’s complaint, filed in U.S. District Court for the Southern District of Florida, charged Praxsyn and its CEO with violating the antifraud provisions of Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b5 thereunder, and sought permanent injunctive relief and civil penalties.3 On May 14, 2020, the SEC filed enforcement actions against two more companies for allegedly making fraudulent statements related to COVID-19. In the first action, the SEC charged Applied BioScience, a biotech company in the Southern District of New York, with fraud based on the company’s claims in a press release that it was offering and shipping products to combat the COVID-19 virus.4 According to the SEC’s complaint, the company issued a press release on March 31, 2020, stating that it had begun offering and shipping finger-prick COVID-19 tests to the general public that could be used for “Homes, Schools,

10 • THE FEDERAL LAWYER • July/August 2021

Hospitals, Law Enforcement, Military, Public Servants or anyone wanting immediate and private results.” The complaint alleged that, contrary to Applied BioScience’s claims, the tests were not intended for home use by the general public and could be administered only in consultation with a medical professional. The complaint further alleged that Applied BioSciences had not shipped any COVID-19 tests as of March 31, 2020, and its press release failed to disclose that the tests were not authorized by the U.S. Food and Drug Administration. On Dec. 4, 2020, the U.S. District Court for the Southern District of New York entered a final judgment against Applied BioSciences Corp.

Without admitting or denying the allegations in the complaint, Applied Biosciences consented to the entry of a final judgment enjoining it from future violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and ordering it to pay a $25,000 civil penalty.5 In the second May 14 enforcement action, the SEC filed a complaint in U.S. District Court for the Middle District of Florida against Turbo Global and its CEO, Robert W. Singerman, alleging that the company issued false and misleading press releases on March 30 and April 3, 2020, regarding a purported “multi-national public-private-partnership” to sell thermal scanning equipment to detect whether individuals had fevers. According to the complaint, the company claimed that this technology could be instrumental in “breaking the chain of virus transmission through early identification of elevated fever, one of the key early signs of COVID-19.” As alleged, the press releases also included statements—attributed to the CEO of Turbo Global’s supposed corporate partner in the partnership—that the technology “is 99.99% accurate” and was “designed to be deployed immediately in each State.” In fact, the complaint alleged, Turbo Global had no agreement to sell the product, there was no partnership involving any government entities, and the CEO of Turbo Global’s supposed corporate partner did not make or authorize the statements attributed to him. According to the complaint, Mr. Singerman drafted the releases, which he knew to be false.6

In addition to these actions, on Dec. 4, 2020, the SEC announced it had settled charges against The Cheesecake Factory Incorporated (“Cheesecake Factory”) for making misleading disclosures about the impact of COVID-19 on its business operations and financial condition. As set forth in the SEC’s order, in its SEC filings on March 23 and April 3, 2020, the Cheesecake Factory stated that its restaurants were “operating sustainably” during the pandemic. According to the order, the filings were materially false and misleading because the company’s internal documents at the time showed that the Cheesecake Factory was losing approximately $6 million in cash per week and that it projected that it had only 16 weeks of cash remaining. The order also stated that, although the March 23 filing described actions the company had undertaken to preserve financial flexibility during the pandemic, it failed to disclose that the Cheesecake Factory had already informed its landlords that it would not pay rent in April 2020 due to the damage that COVID-19 inflicted on its business. The Cheesecake Factory agreed to pay a $125,000 civil penalty to settle SEC allegations that the company’s Form 8-K contained material misstatements concerning COVID-19’s impact on its business.

These enforcement actions have highlighted the continuous efforts on the part of the SEC to prevent misleading disclosures. At the same time, they illustrate the pitfalls that companies and their principals should avoid when dealing with securities law disclosures. While the COVID-19 pandemic has highlighted post-disclosure ill-fated results, the reality is that disclosure is generally seen as desirable and beneficial to the public and highly incentivized by the SEC.

Main Objectives of Disclosure In the field of securities, disclosure is understood as the “release by companies of all information, positive or negative, that might bear on an investment decision, as required by the Securities and Exchange Commission and the stock exchanges.”7 Disclosure is considered to be the primary method used by regulators to provide the market with protections desired for investing in an informed manner.8 The system of rules governing disclosure in the securities market is said to be “integrated.”9 In 1982, the SEC created a unified approach to disclosure under the two main acts that regulate securities transactions, the Securities Act of 1933 (the 1933 Act) and the Securities Exchange Act of 1934 (the Exchange Act).10 The 1933 Act controls the registration of securities with the SEC and national stock markets, and the Exchange Act governs the trading of those securities. These laws require public companies and certain individuals to publicly disclose facts that would be material to an investor’s decision to buy or sell securities, and to impose civil and criminal liabilities on those who fail to comply or make false and misleading statements. 11 Further, they prohibit fraudulent and deceptive practices and untrue statements or omissions of material facts in connection with the purchase or sale of any security,12 and impose liability in the context of securities offerings, among other restrictions.

Disclosure regulations are triggered at the beginning of an intended IPO and continue to cover changes or decisions made by the company even after the securities are issued. The goal behind fostering and requiring disclosure is to provide an efficient public securities market.13 According to Professor Alan R. Palmiter, when people say that a public security market is efficient, they mean that “the markets are ‘informationally efficient’ and that prices at any time ‘fully reflect’ all information available to the public.”14 While the intrinsic importance of disclosure does not seem to be

in dispute, and the general consensus is that disclosure benefits the marketplace, what, when, how, and to whom information is disclosed still divides opinions among market participants.

Voluntary vs. Compulsory Disclosure Some experts believe that subjecting issuers to compulsory disclosure imposes a greater economic cost to the company, and they express concerns about the effectiveness of SEC disclosure enforcements in terms of their actual results15. Such observers postulate that the appeal of disclosure requirements is “illusory” and that the costs and benefits of imposing disclosure requirements are complex, highly dependent on the context in which they are imposed, and generally difficult to measure.16 In professor Michael D. Guttentag’s opinion, the ramifications of requiring disclosure usually range well beyond what is intended.17 Other commentators understand, instead, that without a coercive element, the information provided by public companies would be deficient.18 Securities lawyer Morton A. Pierce points out that “the disclosure philosophy was a direct result of abusive investment banking practices which had developed prior to 1933.”19 Pro-compulsory disclosure authors believe that there are many circumstances in which management and investors have different interests in disclosure20 and that without mandatory disclosure, companies will carefully select what to say and what to keep secret, regardless of whether the information is material or not for investors. 21

Reporting The “integrated” system not only requires disclosure but also regulates how to do it. In 1998, the SEC led the “Plain English” initiative, seeking to foster clarity of content in the offering of securities and when reporting information. The primary means of achieving this objective was to require clear explanations in prospectuses, proxy materials, and tender offer documents, including more white space, shorter sentences, more tables and charts, and less jargon.22 Further, the integrated system relies on a set of “forms” specially intended to cover certain items to be disclosed by the companies.23 These forms are “set out in Regulation S-K for nonfinancial disclosure and Regulation S-X for accounting information …”24 and examples include Forms 8-K, 10-Q, and 10-K. Issuers must use Form 8-K in connection with periodic reporting of “reportable events.” Reportable events include the acquisition/ disposition of significant assets; a change in auditors; any departure or resignation of directors or officers, material plans, or contracts with officers and directors; and many other events important to investors.25 Form 10-Q is used for quarterly reporting that includes condensed financial statements.26 Also, issuers must, within 90 days of the end of each fiscal year, file with the SEC annual reports using Form 10-K, which shall include audited financial statements, description of the company’s business, and market information, among other items. Furthermore, certain executive officers of the issuer must make certifications on each annual and quarterly report filed by the company.

Materiality The “materiality” standard for public companies is meant to elevate internal decision-making on public disclosures to a market-wide standard. Materiality is assessed by reference to the views of a hypothetical “reasonable investor,” A material fact is one that has a July/August 2021 • THE FEDERAL LAWYER • 11

substantial likelihood of assuming actual significance to a reasonable investor in reaching an investment decision.27 “For decades, the reasonable investor standard has been a flashpoint for debate—with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line alternatives.”28 In essence, the determination of whether a piece of information is material to an investment decision is not a clear-cut enterprise.

Conclusion Certainly, the scale of the COVID-19 pandemic has stressed the relevance of public companies’ disclosures. This crisis, like others in the past, has created an environment that incentivizes misleading statements to the investing public. The SEC has demonstrated, in its statements and enforcement actions since early 2020, that it will not allow companies to skirt their disclosure obligations during the pandemic. Public companies ought to be transparent and distill, to the best of their abilities, the information they release in order to comply with applicable disclosure regulations and avoid being the target of enforcement actions and charges for securities law violations.

Companies and their principals should consider such disclosures as another part of their pandemic routine, like wearing a mask and washing their hands.

Endnotes See U.S. Sec. & Exch. Comm’n, Proposed Amendments to Modernize and Enhance Financial Disclosures ( Jan. 30, 2020), (https://www.sec.gov/news/public-statement/claytonmda-2020-01-30).

2 Id. 3 See U.S. Sec. & Exch. Comm’n, SEC Charges Company and CEO for Covid-19 Scam (Apr. 28, 2020), (https://www.sec.gov/litigation/ litreleases/2020/lr24807.htm); see also Sec. & Exch. Comm’n v.

Praxsyn Corp. & Frank J. Brady, No. 20-cv-80706 (S.D. Fla. Apr. 28, 2020).

4 Complaint at 1-2, Sec. Exch. Comm’n v. Applied BioSciences Corp., No. 1:20-cv-03729 (S.D.N.Y. May 14, 2020).

5 See U.S. Sec. & Exch. Comm’n, SEC Obtains Final Judgment Against Company for Misleading Covid-19-Related Claims (May 14, 2020),(https://www.sec.gov/litigation/litreleases/2020/lr24977. htm).

6 See U.S. Sec. & Exch. Comm’n, SEC Charges Companies and CEO for Misleading COVID-19 Claims (May 14, 2020), (https://www.sec. gov/news/press-release/2020-111).

7 John Downes & Jordon Elliot Goodman, Dictionary of Fiance and Investment Terms 190 (Barron’s Educational Series, 8th ed. 2010).

8 See Michael D. Gettentag, An Argument for Imposing Disclosure Requirements on Public Companies, 32 Fla. St. U. L. Rev. 121, 124 (2004) (citing Basic Inc. v. Levinson, 485 U.S. 224, 230 (1988) (“This Court ‘repeatedly has described the ‘fundamental purpose’ of the [Exchange] Act [of 1934] as implementing a ‘philosophy of full disclosure.’” (quoting Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 477-78 (1977) (quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963)).

9 Alan R. Palmiter, Securities Regulation; Examples & Explanations 21 (Aspen Publishers, 5th ed. 2011).

10 15 U.S.C. § 77; 15 U.S.C. § 78.

11 Section 18 of the Exchange Act imposes liability for false and 1

12 • THE FEDERAL LAWYER • July/August 2021

misleading statements in documents filed with the SEC to any person who makes such false or misleading statements, subject to applicable defenses. 15 U.S.C. § 78r(a).

12 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5.

13 See Palmiter, supra note 9, at 13-14.

14 Id., at 15.

15 Guttentag, supra note 8, at 124.

16 Id. 17 Id. 18 See Stephen J. Choi & A.C. Pritchard, Securities Regulation: Cases and Analysis 24-25 (3d ed. 2012).

19 Morton A. Pierce, Current and Recurrent Securities Section 5 GunJumping Problems, 26 Case W. Res. L. Rev. 370, 378 (1976).

20 See Palmiter, supra note 9, at 30.

21 See Choi & Pritchard, supra note 18, at 22-26.

22 Palmiter, supra note 9, at 27.

23 Palmiter, Id., at 21.

24 Id. 25 U.S. Sec. & Exch. Comm’n, Existing Regulatory Protections Unchanged by Either H.R. 3606 or S. 1933 (Oct. 20, 2011), https:// www.sec.gov/info/smallbus/acsec/ongoinginvestorprotections.pdf.

26 Id. 27 See Basic Inc. v. Levinson, 485 U.S. 224, 229 (1988); TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

28 Amanda M. Rose, The 'Reasonable Investor' of Federal Securities Law: Insights from Tort Law's 'Reasonable Person' & Suggested Reforms, 43 J. Corp. L. 77, 77 (2016).

Diversity & Inclusion

A 35-Year Blueprint for Diversity, Equity, and Inclusion

By Meaghan Goldstein

Meaghan Goldstein is an associate at Kozyak Tropin & Throckmorton in Coral Gables, Fla. She focuses her practice on complex commercial and class action litigation and is an active member of the South Florida Chapter of the FBA. Goldstein will clerk for the U.S. District Court for the Southern District of Florida in 2022 and the Eleventh Circuit Court of Appeals in 2023.

The legal profession has reached a tipping point.

Decades of aspirational words from private law firms about diversity, equity, and inclusion are giving way to concrete action.

At Kozyak Tropin & Throckmorton (KTT), diversity has been a key to success from the beginning.

For nearly 40 years, KTT has prioritized attracting and retaining elite talent to foster a diverse and inclusive firm. Active inclusion is a perpetually evolving, forward-looking process. What was once innovative and brave now seems obvious, and that is a good thing—it is a sign of progress.

Every firm is the sum of its parts, and KTT’s lawyers are leaders in communities as broad and diverse as our own South Florida community. KTT is home to four former presidents of the Cuban American Bar Association, a former president of the Gwen S. Cherry Black Women Lawyers Association, a former president and a past director of local chapters of the Florida Association for Women Lawyers, a former president of the Asian Pacific American Bar Association of South Florida, three former presidents of the Bankruptcy Bar Association for the Southern District of Florida, and several directors and the co-founders of the Kozyak Minority Mentoring Foundation. KTT attorneys currently serve in leadership positions on the Florida Bar Board of Governors, the South Florida Chapter of the FBA, the Florida Board of Medicine, and the Florida Association of Managing Partners.

Diversity is an inherent part of our firm identity.

In the mid-2000s, KTT was recognized by the Florida Supreme Court as being one of the only firms in the state to have more women lawyers than men. Today, a third of the firm’s lawyers are women, and a third are racial minorities.

Several years ago, Cori Lopez-Castro and Detra Shaw-Wilder gave a presentation on diversity to the Florida Association of Managing Partners (of which Lopez-Castro is the current president). When asked about KTT’s consistent success in attracting and retaining minority lawyers, Lopez-Castro answered that it is simply part of the firm’s DNA. For founding members John Kozyak and Harley Tropin, this is quite

literally true, as each inherited his dedication to diversity and inclusion from his mother.

Kozyak grew up in a segregated St. Louis suburb where “colored only” signs were part of the landscape, and where racist sentiments persisted long after the signs were removed. There was not a single Black student in Kozyak’s high school class of nearly one thousand, and he did not meet his first Black peer until college. Kozyak’s mother, Marilynn, set an enduring example for her son by making a point of sitting on the “wrong side” of the lunch counter at Kresge’s drugstore in St. Louis.

Tropin’s mother, Ruth, was equally unafraid of standing up for the rights of the marginalized. A Jewish woman born in New Jersey, she traveled to Germany in 1938 to work for a program persuading other European nations to accept Holocaust refugees. After three years in Germany, she returned to the United States to continue the same efforts. For three decades, she worked to resettle war refugees, including Holocaust survivors, Cubans fleeing the Castro regime, and Ugandans escaping Idi Amin.

Kozyak and Tropin both encountered anti-Semitism in Miami’s legal community when they entered the job market after law school. At the same time, their wives and KTT co-founder Chuck Throckmorton’s wife, all of whom were also attorneys, were experiencing firsthand the sexism in legal hiring: women were presumed to be short-term candidates who would likely abandon legal practice for motherhood. That a woman could be both a lawyer and a mom—or that a man could choose to cut back on work for fatherhood—were new and disfavored concepts.

Kozyak, Tropin, and Throckmorton began working together at the Miami office of one of Florida’s largest statewide firms. At the urging of now-Senior U.S. District Court Judge Paul C. Huck (also a former KTT partner), that firm merged with a firm of Cuban lawyers led by the current mayor of Coral Gables, Raul Valdes-Fauli, providing them with new insights into the Cuban-American experience in Miami and the legal community. In 1982, Kozyak, Tropin, and Throckmorton formed KTT and moved into its first July/August 2021 • THE FEDERAL LAWYER • 13

office during the Overtown race riots. Kozyak and Tropin watched the fires burning to the west from the stairwell of their building.

Amid the brew of racial tensions, anti-immigrant sentiments, the anti-gay “Save the Children” campaign, and lingering anti-Semitism of the 1980s, they resolved to chart a different path for their new firm.

KTT’s perspective on hiring was strongly influenced by Kozyak’s early experiences in recruiting at top law schools in the East. Black attorneys were deemed employable if they were smart. If they were well-educated. If they were “clean,” “articulate,” and “not too pushy.”

Kozyak observed the consequences of such attitudes when one large firm’s offer of permanent employment to a summer law clerk, an impressive Black Harvard law student who spoke perfect Spanish, was declined because of the candidate’s concern about the conspicuous lack of support for Black people and Black attorneys in Miami at the time. With such memories fresh in their minds, Tropin and Kozyak led KTT’s creation of an annual scholarship for a Black student in the University of Miami Litigation Skills program as a small way to encourage talented Black students to stay in Miami.

Rather than just trying to avoid racist or sexist hiring practices, KTT has strived from the beginning to proactively combat inequities. Its first new employees were a Black woman and a gay man. Within a few years, Kozyak, Tropin, and Throckmorton had welcomed their first new partner, Janet Humphreys, who, along with Shaw-Wilder, KTT’s first Black female lawyer, would later obtain the largest jury verdict in KTT’s history.

Lopez-Castro became KTT’s first Cuban American female lawyer when she joined the firm after graduating from law school in 1990. The managing partners quickly realized that Lopez-Castro’s network of Miami lawyers and businesspeople rivaled their own, another reminder that diverse hiring is essential to success in a diverse community.

The firm was also fortunate enough to attract Laurel Isicoff, another woman who had risen through the ranks in Big Law but wanted a change. KTT offered Isicoff what she needed: challenging work, new energy, and the flexibility to grow in her career while raising her kids. The firm soon promoted her to partner while she was working part time.

Isicoff, a legal superstar who is now chief judge for the U.S. Bankruptcy Court in the Southern District of Florida, was also instrumental in introducing KTT to minority mentoring at the University of Miami (UM). In 1994, she helped connect the firm to Shaw-Wilder, who was a new UM law graduate. A powerhouse litigator and constant ethical beacon, Shaw-Wilder is an influential presence in Miami’s Black legal and business communities. Kozyak and Shaw-Wilder co-founded the Kozyak Minority Mentoring Foundation, through which countless minority law students and young lawyers have been paired with mentors in the community. While the original and pri-

mary focus of the foundation is mentorship for Black law students, it has also formed close relationships with the Cuban American Bar Association, the Florida Association for Women Lawyers, the Gay and Lesbian Lawyers Association, the Haitian Lawyers Association, the Florida Muslim Bar, and other voluntary bar associations.

Four women—Shaw-Wilder, Lopez-Castro, Judge Isicoff, and Gail McQuilkin—have served as managing partner of the firm, and each has left her unique stamp on the firm’s culture.

But diversity is not just about race and sex. Family dynamics, physical and mental health, faith, and myriad other facets of identity contribute to a law firm’s makeup. KTT’s current (and youngest) managing partner, Javier Lopez, has collaborated with his mentor, Tropin, to encourage open discussions about addiction, anxiety, and depression, all of which plague our profession. In an effort to reduce the stigma that so often prevents honest conversations about mental health, Lopez and Tropin have given talks at law schools, government agencies, and bar associations across the state. By modeling honesty and vulnerability, they have promoted the message that lawyers should feel no shame in acknowledging and seeking help with mental health issues.

Even before the COVID-19 pandemic made telecommuters of us all, KTT allowed its lawyers the flexibility of working part time and working from home or a satellite office. These accommodations to the varying demands on our schedules have paid off exponentially.

KTT has promoted partners who were working part time and while they were on maternity leave. This year, KTT had a partner taking key depositions in a federal case via Zoom while working from home with his newborn and his toddler: welcome to 2021! And when male attorneys take paternity leave or work part time while raising their children, they take pressure off women colleagues who may be apprehensive about making similar important decisions. Add to this a collaborative ethos where attorneys volunteer to provide backup for one another during religious holidays, vacations, or family crises, and the goal of a family-friendly workplace becomes a reality.

Achieving diversity and inclusion at a law firm is not a rote exercise of looking at a checklist and realizing “we need an Asian-American woman.” But it turns out that hiring brilliant candidates who bring different racial, cultural, religious, and gender perspectives is the best way to grow and succeed. When a firm’s lawyers look like its juries, its judges, its clients—its community—greater success will follow. Our different backgrounds translate into a wider variety of creative ideas and solutions that we can offer to our clients.

In a Miami Herald article nearly 20 years ago, Kozyak said, “If you’re not prejudiced or rigid, imagine the talent you can attract.”

The continuing successes of KTT’s diverse and effective team of lawyers prove the wisdom of these words. 

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 • July/August 2021

IP Insight

Why Trademarks Matter

By Mary Boney Denison

From the Foreword to Fritz Garland Lanham—Father of American Trademark Protection by Joe Cleveland

Mary Boney Denison served as the commissioner for trademarks for the U.S. Patent and Trademark Office (USPTO) from 2015-2019, where she oversaw policy, operations, and budget relating to trademark examination, registration, and maintenance. Prior to joining the USPTO in 2011, she practiced law in the area of trademark prosecution and litigation. A graduate of Duke University and the University of North Carolina School of Law, Denison retired from the USPTO in 2019 and pursues creative endeavors in North Carolina.

This year marks the 75th anniversary of the Lanham Trademark Act. During his decades of service in the U.S. Congress, Congressman Fritz G. Lanham worked tirelessly and spent enormous political capital championing a new trademark bill for the modern era. The Lanham Act—named in honor of its chief proponent—not only protects American consumers, but it also protects the goods and services produced

by America’s businesses. To appreciate Congressman Lanham’s extraordinary gift to our country, one must first understand the history of trademark protection and the significance of trademarks to all Americans and our national economy.

Today, it seems obvious that a business’s trademarks deserve protection under a nationwide trademark schema. But that has not always been the case. Before Congress enacted any federal trademark legislation, the right to adopt and use a symbol to distinguish a business’s goods and services was only recognized by American common law and by the statutes of some states. Indeed, the whole system of common-law trademarks and the civil and equitable remedies for their protection existed long before any federal trademark legislation enacted by Congress, and remains in full force today. This exclusive right to a trademark was not created by any act of Congress and does not depend on any federal legislation for its enforcement.

As the United States entered the industrial revolution at the turn of the century, Congress passed several federal trademark registration laws, but none was adequate to the task. In 1870 and again in 1905, Congress sought to enact uniform trademark laws, which provided for the registration of trademarks and remedies for their infringement. But these civil remedies proved insufficient for preventing pirating of a business’s trademarks. Additionally, while patents are specifically mentioned in the Constitution, trademarks are not.

After all, trademarks recognized by the common law were generally based on use rather than the notion of a new or novel invention. It was only after the U.S. Supreme Court held that Congress could enact trademark protection under the Commerce Clause that the path to nationwide trademark protection became clear.

Meanwhile, state legislatures began considering trademark bills, which featured costly compulsory registration and significant ramifications to trademark owners for failure to register their marks in each state.

With the prospect of various states enacting a patchwork of onerous state trademark laws, the American Bar Association (ABA) began to study a new nationwide law for trademark protection but was unable to obtain adequate legislative support.

In fall 1937, Edward S. Rogers, the dean of the trademark bar, and Congressman Lanham, chair of House Subcommittee on Trademarks, met in Washington, D.C., to discuss the problem. As they discussed a potential solution, Rogers presented Congressman Lanham his draft notes from ongoing ABA meetings to address the need for federal trademark legislation.

After their meeting, Congressman Lanham undertook the momentous effort to craft and enact nationwide trademark legislation.

Although interrupted by World War II and a variety of other challenges, Congressman Lanham persisted. On July 5, 1946, President Harry S. Truman signed the Lanham Trademark Act into law, almost nine years after Congressman Lanham took up his gavel to begin championing the legislation in Congress.

Over the past 75 years, the Lanham Act has stood the test of time. Since its enactment in 1946, it has been repeatedly challenged and reviewed by all levels of the federal judiciary, including the U.S. Supreme Court. It has been amended more than 20 times, and parts have been declared unconstitutional. Still, the Lanham Act remains the primary source of statutory protection for trademarks in this country.

From a practical standpoint, trademarks are critical to the day-to-day lives of each and every American.

Trademarks play a vital role in helping consumers differentiate goods and services in commerce in the United States and indeed the entire world. Studies show that children recognize brands incredibly early in their childhood development. From my own personal experience, I know that to be true. My daughter—when she was only two years old—pointed to a VISA® trademark and to my surprise uttered the word VISA. She could not read; she could not use a credit card, but she knew the VISA® trademark and recognized its source. From early childhood until our twilight years, brands serve July/August 2021 • THE FEDERAL LAWYER • 15

the essential role of helping us identify the source of goods and services. Trademarks permit us to distinguish quality and to understand what we are buying. And they protect us. They help us identify the goods and services we want, and they help us avoid fake or dangerous products or fraudulent services we don’t want.

Counterfeiting has become an enormous global problem and has a significant impact on the economy and the health and safety of all Americans. In addition, the sale of counterfeit products results in lost revenues to businesses and lost tax revenues to governments while generating enormous profits to traffickers who sell counterfeit goods.

Frequently, these traffickers are associated with organized crime and terrorist groups. Trademarks protect the health and safety of the American consumer by helping them identify counterfeit products such as fake medicines, faulty airbags, self-igniting lithium-ion batteries, adulterated cosmetics, and many other dangerous products introduced into this country’s stream of commerce.

Trademarks also have a significant economic impact. The U.S. Department of Commerce has studied the impact of intellectual property on U.S. jobs. The study found that in 2014, almost 24 million U.S. jobs were in trademark-intensive industries. Including supply-chain jobs, the number of jobs related to trademark-intensive industries surpassed 40 million. Further, according to the study, the average weekly wage premium of workers in trademark-intensive industries was close to 40 percent higher than those in non-intellectual property-intensive industries.

Trademarks matter. They provide clear guideposts to consumers. They protect consumers and American businesses. And they promote the national economy.

Every American owes an enormous debt of gratitude to Congressman Lanham. He used old-fashioned charm and persistence to usher into law a landmark bill we now know as the Lanham Act. Because of Congressman Lanham’s tenacity and perseverance, American consumers, American businesses, and American commerce have vital protections as we continue moving forward through the 21st century. 

Fritz Garland Lanham— Father of American Trademark Protection

By Joe Cleveland 88 pages • BookHouse Group, Inc. • $40.00 To buy the book, visit https://bookhouse.net/portfolio-posts/ fritz-garland-lanham-father-of-american-trademark/.

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16 • THE FEDERAL LAWYER • July/August 2021

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June 2-3, 2022 • JW Marriott – Washington, DC

IP Insight

Lanham Act 75th Anniversary: The Life and Legacy of Fritz Lanham Frederick “Fritz” G. Lanham (1880-1965) Texan, Author, Editor, Playwright, Lawyer, Congressman

By Craig Stone

Craig Stone is senior counsel, intellectual property, for Phillips 66 Company, where his practice focuses on all aspects of brand protection and other IP-related areas, including licensing, enforcement, social media, software development, data privacy, cybersecurity, and patent litigation. A graduate of the University of Texas at Austin and Baylor University School of Law, Stone is serving a three-year term on the State Bar of Texas Intellectual Property Section Council, following his role as chair of the Trademarks Committee. ©2021 Craig Stone. All rights reserved.

This is a portrait of Frederick “Fritz” Garland Lanham, one of the most notable U.S. congressmen and lawyers you have likely never come across, unless you are a practicing attorney in the field of trademark law. Even today, regular intellectual property (IP) practitioners are just now learning about the significant impact this individual had on the current federal trademark statute and primary vehicle brand owners continue to use today to secure protection and enforce their rights 75 years after the statute was enacted. Even if IP is not your primary practice area, as an in-house lawyer, you have undoubtedly handled or come across a trademark issue on behalf of your company. The importance of trademark protection for companies and brand owners cannot be understated. It provides the consuming public with confidence and assurance that the goods and services being sought are genuine, are of a high quality, and have emanated from the legitimate source identified by the trademark or service mark. Recent figures place the value of intangible assets and goodwill at an estimated 84 percent of the S&P 500’s total value, or more than $20 trillion. Trademarks are the chief representation and embodiment of a company’s reputation and serve to create a powerful emotional relationship between brand owners and consumers.

Quite literally, without trademarks and trademark protection, our economy and the ability to effectively and efficiently market and sell goods and services would not be possible.

Although a significant contributor across a wide scope of federal legislation and other notable projects, Lanham is most known for his influence in the field of U.S. federal trademark law, the primary statute of which bears his name, the Lanham Act, which he championed for 18 years as a U.S. congressman until its adoption in 1946. 2021 marks the 75th anniversary of this significant piece of legislation that governs the way in which trademarks and the legal rights of brand owners are uniformly protected in our country under

federal law. The Lanham Act governs federal trademark registration, trademark infringement, trademark dilution, and false advertising in the United States. This landmark piece of legislation enables consumers to confidently identify and differentiate between the hundreds of thousands of brands inundating the marketplace every day and to distinguish, with confidence, as to the nature and quality associated with the products and services we enjoy in our daily lives. The act was signed into law by President Harry Truman in 1946 and took effect on July 5, 1947. Today, the U.S. Trademark Office receives more than 500,000 applications annually and issues on average about 350,000 federal registrations each year. Since its enactment, the Lanham Act has been cited by the U.S. Supreme Court in 57 decisions and by federal and state courts across the country in over 34,000 decisions.

Before his illustrious career as a U.S. congressman, Lanham earned a B.A. from the University of Texas in 1900 and pursued graduate studies in law at the university until 1903. Although he never completed his law degree, Lanham was admitted to the Texas Bar in 1909, where he practiced in his hometown of Weatherford. While at Texas, Lanham was more than just a student; he became the first editor of The Texan, the school newspaper (now known as The Daily Texan), beginning in the fall of 1900, holding the job until early 1901. In his first editorial, Lanham said the paper’s goal should be, “ultimately to please the student body.”

While he acknowledged there were always two sides to every issue, he said The Texan should present only “the proper one.” Lanham wrote most frequently about the extracurricular topic that was most important to the University community—football. Lanham wore many hats throughout his successful life as a student and alumnus. He was an author, newspaper editor, playwright, and founder of The Alcalde, the alumni publication of the University of Texas, one of the most successful and widely circulated publications of its kind today.

July/August 2021 • THE FEDERAL LAWYER • 17

Lanham had deep ties to Texas history and politics. He was one of eight children of Samuel and Sara Lanham. His father served as the 22nd governor of the state of Texas and as a U.S. congressman from Texas. It was Lanham’s father, while serving as Texas governor, who convinced him to take a year off prior to attending law school and serve as the governor’s personal secretary. It was Lanham’s introduction into the world of politics.

In 1919, Lanham won a special election to Congress in Texas’s 12th congressional district (encompassing Fort Worth and Weatherford), succeeding fellow Democrat James Clifton Wilson, who resigned to accept a federal judgeship on the U.S. District Court for the Northern District of Texas. Lanham would go on to serve in Congress from 1919-1947. Congressman Lanham was a strong supporter of President Franklin D. Roosevelt and the New Deal. While in Congress, Lanham served on several committees, including the Committee on Patents.

By the time he retired, not only had Lanham left an indelible mark on American commerce, he simultaneously oversaw the construction of numerous federal buildings across the country, including participating on the planning committee for the design and construction of the U.S. Supreme Court Building.

Although Lanham never practiced trademark law, he became convinced during his time in Congress that the nation’s trademark laws needed to be modernized and expanded to provide stronger protection for brand owners. Congressman Lanham introduced HR 9041 in 1938, and, over the next eight years, he worked tirelessly to accomplish what was called the “Herculean task” of convincing Congress to broaden trademark protection through the passage of what we now call the Lanham Act—an effort that was strongly opposed by the Antitrust Division of the Department of Justice.

The Lanham Act resulted in the repealing of the previously enacted acts of 1881 (narrowly protecting federal trademark registrations of foreign nations and Indian tribes) and the acts of 1905 and 1920 (prohibiting willful or intentional misrepresentation of trademarks but often considered too restrictive to be useful). Passed on July 5, 1946, and effective one year later, this federal statute (now codified under Title 15 of the United States Code) has served as the primary vehicle by which brand owners have a federal right to more broadly and effectively protect their trademarks. The statute also sets out the actions and remedies available for registered and unregistered trademark infringement. In addition, this federal statute prohibits the importation of goods that infringe federally registered trademarks and the use of false designations of origin and trademark dilution (which protects brands with significant notoriety and fame). Most significantly, the Lanham Act allowed for additional causes of action for owners of unregistered marks.

In addition, the act eliminated the requirement of “willfulness” or “intent to deceive” as a necessary element to prevail in a trademark action under federal law.

Shortly after his seminal accomplishment, Lanham retired from Congress and returned to Texas to live out his life doing the things he loved to do—reading, writing poetry, preaching on Sundays as a lay minister in the Methodist Church, and entertaining children with magic tricks.

Congressman Lanham was reelected thirteen times and served with distinction until his retirement in 1946. His congressional papers are maintained at the Dolph Briscoe Center for American History at the University of Texas. After his retirement from Congress, Lanham remained in Washington to work as a lobbyist for the 18 • THE FEDERAL LAWYER • July/August 2021

National Patent Council. He died on July 31, 1965, at Seton Hospital in Austin, Texas. He is buried at City Greenwood Cemetery in Weatherford (due west of Fort Worth).

Lanham was truly loved by those who knew him—a consummate gentleman, a man of uncompromising standards and ethics, and a gifted politician. After Lanham’s death, the Fort Worth Star-Telegram, in a lead editorial titled “Lanham, Gentleman of the Golden Age,” wrote Classically educated, courtly, urbane and eloquent, Mr. Lanham was so much the gentleman that many thought this a handicap to his political career. It never appeared to be. He was a highly effective legislator and had a rare influence with his colleagues, who knew him to be unswervingly a man of his word.

Those who knew him are in complete agreement that Fritz Lanham was always a gentleman. The federal building in Fort Worth now bears his name to honor Congressman Lanham’s remarkable influence and legacy.

This year we take time to reflect and remember Lanham’s legacy and his great effort and support of this important milestone in trademark history and recognize the role and influence he had on directly shaping the federal trademark law that still serves us today. Although the landscape certainly has changed since the 1940s, and Lanham could never have imagined how the economy and commerce would be impacted by the internet and the tiny hand-held devices we carry with us throughout the day, it is a great testament to the elected officials who crafted a strong backbone of laws that still serve us well in our globally connected and digitally driven economic universe.

Inspired by the 75th Anniversary of the Lanham Act, and to help celebrate Lanham’s contributions and honor his legacy, a group of Texas lawyers recently founded a new nonprofit known as the Texas Intellectual Property Law Foundation. The aim of the foundation is to undertake initiatives and activities not permitted by the traditional section under the current rules and procedures of the Texas Bar (submitting amicus briefs, advocating for legislative changes, and awarding diversity scholarships).

The 75th Anniversary Celebration of the Lanham Act was celebrated at the State Bar of Texas Annual Meeting ( June 17-18, 2021) in Fort Worth. Please also visit the State Bar of Texas Intellectual Property Section’s website to catch up on all upcoming events occurring in 2021 to celebrate this milestone: https://texasbariplaw.org/ celebrating-the-75th-anniversary-of-the-lanham-act/.

To purchase a book on Fritz Lanham authored by Joe Cleveland, please visit the IP Section’s page: https://texasbariplaw.org/ announcements/fritz-garland-lanham-limited-edition-book/. All proceeds raised from the sale of the book will go toward funding diversity scholarships. 

Fritz Lanham, Texas Congressman (1919 -1947) This article was adapted from an article previously published in the International Trademark Association’s Bulletin in January 2021.

In the Legal Community

The Civil Discourse and Difficult Decisions Program: Bench and Bar Collaborating to Raise Awareness of Civility and Criminal Justice Among Young People

By Margot Moss, Aron Raskas, and Erica Zaron

Margot Moss practices as a partner at Markus/Moss in Miami. She concentrates her practice on white collar criminal defense in state and federal courts around the country. Aron Raskas is a shareholder in the Business Litigation Practice at Gunster in Miami. He focuses on business disputes and the defense of professional liability matters. Erica Zaron practices in the Federal Section of the Miami-Dade County Attorney’s Office. She primarily defends civil rights cases on behalf of the county and its law enforcement officers.

“Person by person, act by act,” U.S. District Judges Beth Bloom and Robin Rosenberg are using their platform to raise awareness of civility and criminal justice among young people in their South Florida community. Five years ago, the two developed Civil Discourse and Difficult Decisions (CD3), a three-hour program for high school and college students that is administered at a federal courthouse. The program begins with an interactive questionnaire about the potential criminal consequences of common teenage behavior, then moves on to a judge-led discussion on techniques for improving civility, and culminates in the students participating in an attorney-guided simulated hearing where the students put their civility skills to use. While it may sound like a lot, the program runs itself. As Judge Bloom likes to say, “take one part student and one part lawyer, add judge and stir.” CD3 is then ready to go! (See sidebar) The concept for CD3 was borne of phenomena that both judges had experienced in their professional and personal lives. Judge Rosenberg was struck by a familiar refrain she would hear from criminal defendants appearing in front of her for sentencing: “I just made one mistake. If I could go back in time and do it over, I wouldn’t make that same mistake.” At the same time, she and Judge Bloom were both raising teenage children and were all too familiar with the way that civil discourse was degrading through the use of vanishing posts, the overabundance of emojis, and limitations on the numbers of characters that teenagers use to express themselves. They saw these problems as interrelated and set out to do something about the situation.

Motivated by a dual desire to elevate the dialogue used by teens and to intercept young people before they make that “one mistake,” the judges put their heads together and developed CD3, an interactive program that any group of lawyers or bar organiza-

tion could easily implement with their local judiciary.

In three short hours, CD3 pushes participants to confront, analyze, and process issues that will be critical to their day-to-day interactions as teenagers and adults. As the program materials suggest, students leave with “sharpened tools for civil discourse and decision-making and a heightened awareness of situations they may not realize can end with an appearance in federal court.”

The program consists of several components.

It begins with a “Reality Check Quiz” that presents students with real-life situations that could place them in criminal jeopardy if they were to take the wrong course of action. Then, the crown jewel of the experience is the simulated hearing, during which the students take opposing sides on a real and relatable issue. In one of the simulations, inspired by the Supreme Court’s opinion in Elonis v. U.S., the students debate the criminal implications of a jealous boyfriend’s threatening song lyrics.1 The arguments center on whether the messages can be prosecuted or should be protected as free speech. Part of the discussion focuses on whether the defendant’s use of winky-face and skull emojis modifies the meaning of his words. Finally, at the end of the program, the presiding judge engages in a dialogue with the students that helps them understand how important the decision-making process is and the potential criminal consequences that could flow from making poor choices.

For the simulated hearing, the students are divided into three groups: one to represent the government, one to represent the defendant, and a third, larger group that serves as a jury. Two volunteer lawyers work with each attorney-group and use pre-written materials to help the students develop their arguments, with an emphasis on proper civil discussion techniques. The students representing the parties each receive a student-attorney folder comprising a scripted July/August 2021 • THE FEDERAL LAWYER • 19

opening protocol and talking points, as well as an unscripted closing argument worksheet. The written materials alleviate any preparation time for the volunteer attorneys and ensure that the presentations focus on the most important legal points. When the groups reconvene in the courtroom, the student-attorneys present the arguments to the judge and student-jury. After presenting the arguments, the students, counseled by the volunteer lawyers, answer probing questions from the presiding judge.

Meanwhile, the student jurors are divided into two groups and are provided argument worksheets. The jury then deliberates, and each student is given an opportunity to speak. In a particularly forceful demonstration of the powers of persuasion, the student jurors are asked to begin the jury deliberations by sitting in the gallery section of the courtroom behind the party whom they initially favor. As the deliberations progress, students are urged to move between the two sections as their opinions change in response to points made by fellow jurors. This exercise encourages the jurors to think carefully about the arguments they are hearing and provides visible reinforcement of the power of civil, persuasive discourse.

When the time for deliberations has expired, the judge asks for a show of hands to represent the verdict. The judge may then ask one student juror from each side to explain the rationale of the verdict.

Using their newly-developed civil discourse techniques, students attempt to convince one another of the subject’s guilt or innocence.

Crucial to the mission is that everyone involved has an opportunity to use his or her voice to challenge ideas in a respectful and thoughtful manner.

CD3 is best-suited to the courtroom setting, where the forum lends its own solemnity to the proceedings. But it is also an adaptable program that transitioned seamlessly to a Zoom platform when in-person events were canceled due to the pandemic. While the judges look forward to returning to the courthouse, they recognize the advantages of an online forum to scale the program and make it available to schools that might not have the budget or time to transport students to courthouses.

It is clear that the judges’ hopes to reach teenagers and shape the way they handle difficult conversations and decisions are being realized. Unquestionably, the program has had an impact on the students who have attended. Students interviewed from Santaluces Community High School in Lantana, Fla., who have taken the CD3 program recognize that our leaders today have arguments rather than discussions. They see the same lack of civility among their peers and family members, and most of all, on social media. Students appreciate that social media platforms easily serve individuals who want to voice their strongly held, often impulsively drawn opinions, but also recognize that those platforms generally do not promote real, intellectual discussion.

Participating in the program, however, helped students understand that these methods that lack civility and real discourse do not achieve anything and only create further division in an already greatly divided world. To learn or accomplish something, high school senior Mason Benitez appreciates that you have to be “more open to hearing the other side.” She believes that acquiring the skill to see and then analyze both sides of an issue is important to achieving change. Natasha Torres-Parra, who took the program last year, agreed that you “have to keep an open mind; there’s not just one side to a story.” She reminds herself that different people may have different perspectives on the same issue.

20 • THE FEDERAL LAWYER • July/August 2021

From having a discussion with a parent to debating hot topics with an opponent, these high school students each approach conversations differently now. They know that to deepen their understanding of complicated issues, they can’t shut out what another person has to say. Participating in the CD3 program helped them gain skills to communicate civilly, constructively, and with an ear more open to learning from the other person. One high school junior plans to write letters to members of Congress regarding weighty topics like environmental crises, the IMF’s impact on third-world countries, and the currently debated stimulus package to Americans, and has decided on a new strategy after going through the CD3 program. He learned that to be persuasive and engage the recipients of his letters, he has to understand the issues from both sides and utilize reasoning from differing points of view to build his argument.

As far as teachers’ perspectives, Christopher Winkles, a teacher at Santaluces, thinks the program is fantastic for students. He has seen students take what they learned and what they heard in the program and apply it. He points to Natasha, in particular, as someone in whom he saw a turnaround. After completing the CD3 program, he witnessed Natasha start thinking “if I do this, then this will happen, but if I do that, then something else might happen.” In other words, she started thinking about consequences. Winkles has seen Natasha and his other students learn strategies for communicating more effectively and making better decisions—the exact kind of breakthrough that the judges hoped for when they devised CD3.

In addition to learning from the program, students are also inspired by it. The program motivated one high school junior to want to study and then teach jurisprudence to students in a manner similar to the CD3 program, while senior Mason Benitez wants to study political science and economics. The program strengthened college student Torres-Parra’s desire to become a lawyer: she sees herself entering an imperfect system with hopes to make it better and to impact the world.

The students emerge from the experience with an appreciation for the criminal justice system, civil discourse, and oral advocacy, but they are not the only ones who leave feeling rewarded. Volunteer lawyer Courtney Cunningham, of J. Courtney Cunningham PLLC, had this to say after completing a CD3 program: “I benefited more from this experience than I put into it. The opportunity to work with kids who believe they can change the world through the courts was priceless.” Judge Rosenberg also observed that each program helps her learn more about the issues and the participants, but “also something about myself.”

An unexpected byproduct for lawyers who devote their time to the CD3 program is an opportunity to engage with judges as well as other lawyers, perhaps even adversaries, in a setting where the goal is singular: to foster civility and critical thinking in the students who have come to court that day. Professional networks expand and friendships develop naturally in this collaborative setting. It’s a feel-good learning experience for everyone, and, as a result, it is quite common for lawyers to volunteer for multiple CD3 programs throughout the year.

Clearly, Judge Bloom’s and Judge Rosenberg’s ideas, hard work, and blossoming program are making a favorable difference. Their goal—to expand the reach of the CD3 program to young people throughout the country—is already being realized. CD3 has been presented in nine districts and impacted the lives of over 1,700 stucontinued on page 25

Commentary

The Doctrine of Derivative Jurisdiction Doesn’t Bar Exercise of Personal Jurisdiction in Removed Action

By Paul A. Avron

Paul A. Avron is a partner with Berger Singerman LLP in Fort Lauderdale, Fla., and his practice includes corporate restructuring and appellate litigation in state and federal court.

In Reynolds v. Behrman Capital IV L.P., et al.,1 the Eleventh Circuit held that the doctrine of derivative jurisdiction did not apply to a removed cause of action with respect to the plaintiff bankruptcy trustee’s effort to cure a defect in personal jurisdiction in the state court action by using Bankruptcy Rule 7004(d), which provides for nationwide service of process, to establish personal jurisdiction.2 The specific issue before the court was whether the doctrine of derivative jurisdiction prevents the post-removal use of Bankruptcy Rule 7004(d) to establish personal jurisdiction over the defendants.

Atherotech Inc. was owned by Atherotech Holdings, which was owned by Behrman Capital IV LP, Behrman Brothers LLC, and MidCap Financial Investment, LP.3 While under investigation by the Department of Justice regarding Medicare reimbursements, Atherotech borrowed approximately $40 million and then executed a dividend recapitalization under which it made dividend payments to Atherotech Holdings’ shareholders.4 Behrman Capital distributed its portion of the dividend to its limited partners and its general partner, Behrman Brothers, which, in turn, distributed its share of the dividends to its members, along with the portion it received from Behrman Capital as its general partner.5 Subsequently, Atherotech and Atherotech Holdings filed bankruptcy, and Thomas Reynolds was appointed Chapter 7 trustee.6 Reynolds filed suit in Alabama state court against numerous defendants arising from the dividends issued

by Atherotech Holdings.7 The defendants removed the action to the district court, which concluded that removal was proper under 28 U.S.C. § 1452(a) because the claims asserted by Reynolds “arose under” the code or were matters “related to” the Artherotech bankruptcy proceedings.8 The defendants moved to dismiss for lack of personal jurisdiction, which the district court granted, having concluded that Bankruptcy Rule of Procedure 7004(d) did not apply because its jurisdiction was derivative of the state court and a lack of minimum

contacts precluded application of Alabama’s long-arm statute.9 The district court allowed Reynolds to file a motion seeking leave to file an amended complaint explaining why doing so would not be futile.10 In the amended complaint, Reynolds dismissed all defendants except for Behrman Capital and Behrman Brothers, which moved to dismiss for lack of personal jurisdiction.11 In response, Reynolds asserted Alabama’s long-arm statute or a transfer to the Southern District of New York.12 The district court granted the motion to dismiss, concluding that Alabama’s long-arm statute was unavailable, as was a transfer “because the derivative removal jurisdiction bars any federal court from acquiring personal jurisdiction over this suit after its removal from a state court that lacked such personal jurisdiction.”13 Reynolds appealed to the Eleventh Circuit from the dismissal of his initial and amended complaints, naming all the original defendants.14 The Eleventh Circuit first rejected the contention

by MidCap that Reynolds’ failure to include it in the amended complaint waived any argument that the district court erred by initially dismissing it for lack of personal jurisdiction.15 The Eleventh Circuit explained that it previously held that a plaintiff does not waive a right to appeal the dismissal of a claim by failing to include that claim in an amended complaint.16 Turning to the central issue on appeal, the court recounted Reynolds’ argument that the doctrine of derivative jurisdiction, articulated in Lambert Run Coal Co. v.

Baltimore & O.R. Co.,17 applied only to subject matter jurisdiction, while the Behrman entities argued that it applied to subject matter and personal jurisdiction.18 As explained by the Supreme Court, “[t]he jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.”19 The Eleventh Circuit noted that the doctrine had been applied over the years by the Supreme Court, July/August 2021 • THE FEDERAL LAWYER • 21

but it faced criticism, and it was “partially” abrogated by the addition of subsection (e) to 28 U.S.C. § 1441.20 The new subsection provided that the federal court on removal was “not precluded from hearing and determining any claim” simply “because the State court from which such civil action is removed did not have jurisdiction over that claim.”21 The court noted that it had stated that the amendment “abrogated the theory of derivative jurisdiction.”22 The court noted a further amendment in 2002, including redesignating subsection (e) to subsection (f ), which clarified that the doctrine did not apply to removals under Section 1441.23 Later in its opinion the court appeared to explain its statement that the amendment “partially” abrogated the doctrine by noting that, in dictum, the Supreme Court had referenced the doctrine applying to both subject-matter and personal jurisdiction.24 Notwithstanding dictum from the Supreme Court and several circuit decisions to the contrary, the Eleventh Circuit stated that it was “choos[ing] to go in a different direction,” and held that “the doctrine of derivative jurisdiction does not apply in cases where the state court lacks personal jurisdiction over the defendants.”25 Regarding the reasons justifying its holding, the court explained that: (i) The Supreme Court cases referencing that personal jurisdiction was within the scope of the doctrine of derivative jurisdiction “largely hinged on who the party was”;26 (ii) While Lambert Run Coal held that removal, in itself, did not cure the jurisdictional defect that existed in the state court, it did provide for the assertion of additional claims post-removal, meaning that the district court had the authority to establish personal jurisdiction, which would include applying Bankruptcy Rule of Procedure 7004(d);27 (iii) Federal common law holds that federal procedure governs cases post-removal which, again, would mean the availability of nationwide service of process under Bankruptcy Rule of Procedure 7004(d);28 (iv) It agreed with Third Circuit caselaw “reasoning that the doctrine of derivative jurisdiction requires dismissal only when the state court lacks subject-matter jurisdiction over the case, but holding that the plaintiff ’s failure to comply with the applicable state statute of limitations could not be cured or remedied in federal court after removal;”29 (v) L eading federal court treatises, while not dispositive, have persuasively stated that the doctrine only applied to subject matter defects;30 and (vi) Unlike subject matter jurisdiction, personal jurisdiction can be waived.31 Providing guidance to the district court on remand, the Eleventh Circuit stated that it would need to ensure that the exercise of personal jurisdiction over the remaining defendants was “not unconstitutionally burdensome” under the Fifth Amendment.32 The court further stated that, under its decision in Aguacate Consolidated Mines, the district court could consider Reynolds’ alternative request for a transfer to the Southern District of New York under 28 U.S.C. § 1406, even if the district court could not exercise personal jurisdiction over the defendants under Alabama’s long-arm statute.33 The Eleventh Circuit’s opinion clarifies and confirms that, despite lack of personal jurisdiction over a defendant in a state court action, upon removal to federal court, the doctrine of derivative jurisdiction 22 • THE FEDERAL LAWYER • July/August 2021

would not necessarily deprive a district court of exercising personal jurisdiction over the defendant if a procedural mechanism, applied consistent with the U.S. Constitution, allowed it to do so. 

Endnotes 988 F.3d 1314 (11th Cir. 2021).

“The summons and complaint and all other process except a subpoena may be served anywhere in the United States.” Fed. R. Bankr. P. 7004(d).

3 Reynolds, 988 F.3d at 3.

4 Id. at 1317.

5 Id. at 1317-18.

6 Id. at 1318.

7 Id. 8 Id. at 1318.

9 Id. at 1318.

10 Id. 11 Id. 12 Id. 13 Id.at 1318-19 14 Id. 15 Id. at 1319-20.

16 Id. at 1319. The court explained that ““[W]e do not require a party to replead a claim following a dismissal under Rule 12(b)(6) to preserve objections to the dismissal on appeal” where repleading “would have been futile and would have resulted in a second dismissal[.]”” Id. (quoting Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1191 n.5 (11th Cir. 1999)).

17 258 U.S. 377 (1922).

18 Id. at 1320.

19 Id. (citing Lambert Run Coal Co., 258 U.S. at 382). The Supreme Court held that, because the state court lacked subject matter jurisdiction over the action brought to challenge an order of the ICC given that federal courts had exclusive jurisdiction over such claims, the district court upon removal also subject matter lacked jurisdiction. Id. 20 Id.at 1320-21.

21 28 U.S.C. § 1441(e) (1986).

22 Reynolds, 988 F.3d at 1321 (citing Hollis v. Fla. State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001)).

23 Id. at 1321.

24 “These characterizations are dicta,” the court explained, “but Supreme Court dicta ‘is not something to be lightly cast aside.’”

Id. at 1322 (quoting F.E.B. Corp. v. United States, 818 F.3d 681, 690 n.10 (11th Cir. 2016) (noting that “there is dicta ... and then there is Supreme Court dicta”)).

25 Id. at 1322-23.

26 Id. at 1323.

27 Id. 28 Id. at 1323-24. In support, the court noted that it had previously suggested that the “doctrine of derivative jurisdiction does not apply to defects in personal jurisdiction[.]” Id. at 18 (citing Aguacate Consol. Mines, Inc., of Costa Rica v. Deeprock, Inc., 566 F.2d 523, 525 (5th Cir. 1978) (“Although the jurisdiction of a federal court after removal is, in a limited sense, derivative, removed actions become subject to federal rather than state rules of procedure.”)). Decisions handed down by the former Fifth Circuit prior to October 1, 1981, continued on page 25 1 2

Commentary

“Built for the Road Ahead”: The Supreme Court Recalibrates Personal-Jurisdiction Doctrine in Ford Motor Co. v. Montana Eighth Judicial District Court

By Jeremy L. Kahn

Jeremy L. Kahn is a partner at León Cosgrove and is focused on commercial litigation. ©2021 Jeremy L. Kahn. All rights reserved.

The Supreme Court recently decided Ford Motor Co. v. Montana Eighth Judicial District Court,1 which was the major personal jurisdiction decision on the Court’s docket this term. The decision upsets the prevailing case law in many circuits that an out-of-state defendant’s forum-state contacts can give rise to specific personal jurisdiction only if they have a causal connection with the plaintiff ’s claim. The Court held that, at least in some instances, a defendant’s contacts with a state can give rise to specific personal jurisdiction when they “relate to” a plaintiff ’s claims, even if a causal connection is lacking. As the Court’s personal-jurisdiction decisions over the past decade have trended toward restricting personal jurisdiction, the expansion of personal jurisdiction in Ford suggests a recalibration of personal-jurisdiction doctrine.

In Ford, the Court considered two cases—one originating in Montana state court and one originating in Minnesota state court—in which an allegedly defective Ford car injured a resident of the respective state in that state. However, the vehicles involved in the car accidents were originally sold in different states. And they also were neither designed nor manufactured in the states where the plaintiffs brought each action.

Ford argued that the states where each action was brought lacked personal jurisdiction because Ford did not engage in any conduct in those states that had a causal connection with the plaintiffs’ claims, such as designing, manufacturing, or selling the cars involved in the car accidents in those states.

The Court rejected Ford’s “causation-only” approach to minimum contacts. Rejecting the argument that “a strict causal relationship between the defendant’s in-state activity and the litigation” is necessary for specific personal jurisdiction, the Court noted that its precedents refer to the requirement as being that a plaintiff ’s claims “arise out of or relate to the defendant’s contacts with the forum.”2 Accord-

ing to the majority, the use of the disjunctive “or” in prior statements of the rule made it clear “that some relationships will support jurisdiction without a causal showing.”3 As applied to these specific cases, Ford was subject to specific personal jurisdiction even if its forum-state contacts lacked a causal relationship with the plaintiffs’ claims because those contacts were still “related” to the claims. The Court explained that Ford “serves a market” for its vehicles in Montana and Minnesota by marketing its vehicles (including the models at issue) in those states and making those vehicles available for sale at dozens of dealerships in those states. The Court also highlighted how Ford “works hard to foster ongoing connections to its cars’ owners” by distributing replacement parts to its own dealers and independent auto shops in the two states, “making it easier to own a Ford” and thus “encourag[ing] Montanans and Minnesotans to become lifelong Ford drivers.”4 The relationship between these activities and the specific lawsuits were “close enough” to satisfy the “relate to” prong of the rule, even absent a causal connection.5 Distilled, “serving the state markets[s]” by advertising, selling, and servicing the same car models involved in the accidents, which then malfunctioned and caused injuries in those states, sufficed to establish specific personal jurisdiction. This was so regardless of whether Ford advertised, sold, or serviced the specific vehicles at issue in the forum states and regardless of whether the injured drivers made their out-of-state purchases of the vehicles based on Ford’s forum-state advertising or other activities.

Ford has important implications. Most immediately, the Court’s rejection of the “causation-only” approach and recognition of a separate “relates to” path for demonstrating minimum contacts undermines the case law of several circuits. Many circuits previously held that the “arise out of or relate to” formulation July/August 2021 • THE FEDERAL LAWYER • 23

requires at least “but-for” causation, with some circuits requiring an even more substantial causal relationship, akin to proximate cause, for a contact with the forum state to be considered in the minimum-contacts analysis.6 To the extent these circuits’ decisions hold that a causal relationship—“but-for” or otherwise—is necessary, Ford appears to overrule them. In fact, in a decision issued the same day as Ford, Judge Donald W. Molloy of the District of Montana seemed to recognize that Ford overruled a Ninth Circuit precedent requiring “but-for” causation.7 As Judge Roy K. Altman of the Southern District of Florida wrote in another one of the first decisions to discuss the case, “Ford is significant because it clarified that a defendant’s in-state contacts needn’t cause the plaintiff ’s injury.”8 Going forward, large corporations can expect plaintiffs to rely on Ford to counter personal-jurisdiction defenses based on the Supreme Court’s 2014 decision in Daimler.9 The decision in Daimler essentially narrowed general personal jurisdiction to a corporation’s state of formation and principal place of business. Prior to Daimler, it was generally understood that a corporation was subject to general personal jurisdiction in any state where it engaged in “continuous and systematic” business activities. But in Daimler, the Supreme Court clarified that doing business in a state, even “continuous and systematic” business, is insufficient to subject a corporation to general personal jurisdiction.

Receding from decades of what was believed in the lower courts to be well-settled law on general personal jurisdiction, the Court held that the test is “not whether a foreign corporation’s in-forum contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that corporation’s affiliations with the State are so ‘continuous and systematic’ as to render it essentially at home in the forum State.”10 While not ruling out the possibility of “exceptional” cases, the Court explained that generally, the only two forums that could satisfy the “at home” test are a corporation’s state of formation and principal place of business.11 Armed with Daimler, large corporations have been able to successfully evade personal jurisdiction in states where they may have a strong presence and engage in continuous and systematic business activities because they engaged in no suit-related conduct that gave rise to the claim.

Ford shifts the pendulum the other way. While Daimler significantly narrowed general personal jurisdiction, Ford seems to broaden specific personal jurisdiction in a way that makes Daimler’s narrowing of general personal jurisdiction less significant in certain cases. Confronted with arguments that a defendant corporation merely doing a large amount of business in a state does not subject it to general personal jurisdiction, plaintiffs will now likely respond with “serving the market” arguments to show specific personal jurisdiction under Ford. “Serving the market” will become the new “continuous and systematic.”

Indeed, in Ford, the Supreme Court repeatedly used the pre-Daimler language of general personal jurisdiction when describing the type of business activities that now may give rise to specific personal jurisdiction without showing a causal connection.12 For example, the Court referred to how “Ford had systematically served a market in Montana and Minnesota” while in a footnote suggesting that a defendant serving a state market in an isolated transaction would be treated differently than a defendant that engaged in “continuous” transactions in a state.13 The “continuous and systematic” test for general personal jurisdiction that was retired in Daimler appears to now be reincar24 • THE FEDERAL LAWYER • July/August 2021

nated in the framework for specific personal jurisdiction. Given the context of Ford, it remains to be seen whether the “serving the market” basis for specific personal jurisdiction will apply outside the context of claims based on allegedly defective products sold in the forum market. Plaintiffs will likely attempt to apply the “serving the market” argument to other contexts while defendants will likely argue that the logic of the Court’s decision applies only in the context of defective products. In either case, as Justice Gorsuch observed in his concurrence critiquing the majority’s analysis, “some of the old guardrails” separating general and specific personal jurisdiction now “look a little battered.”14 

Endnotes Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021).

2 Id. at 1020-21.

3 Id. at 1026.

4 Id. at 1028.

5 Id. at 1032.

6 See, e.g., Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1222–24 (11th Cir. 2009); O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007); Harlow v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005); Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990), rev’d on other grounds, 499 U.S. 585 (1991).

7 James Lee Constr., Inc. v. Gov. Emps. Ins. Co., No. CV 20-68-M-DWM, 2021 WL 1139876, at *2 (D. Mont. Mar. 25, 2021).

8 Order, Carter v. Ford Motor Co., No. 19-cv-62646, slip op. at 22 n.18 (S.D. Fla. Mar. 26, 2021).

9 Daimler AG v. Bauman, 571 U.S. 117 (2014).

10 Id. at 139.

11 Id. at 138-39.

12 Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1028 & n.4 (2021).

13 Id. 14 Id. at 1034.

1

At Sidebar continued from page 9

Jacquelyn Pless, Natural Gas as an Expanding Industry, https:// www.ncsl.org/research/energy/state-gas-pipelines-natural-gas-asan-expanding.aspx (last visited May 10, 2021).

4 Id. 5 Bureau Of Transp. Stat., https://www.bts.gov/content/us-oiland-gas-pipeline-mileage (last visited May 1, 2021).

6 Mark Green, Infrastructure Crossroads: Energy Future Depends on Building Safe, Modern Pipelines ( July 14, 2020), https://www.api.org/ news-policy-and-issues/blog/2020/07/14/infrastructure-crossroadsenergy-future-depends-on-building-safe-modern-pipeline.

7 Id. 8 Jonathan Thompson, A Map of $1.1 Billion in Natural Gas Pipeline Leaks, Hill Country News (Nov. 2017), https://www. hcn.org/issues/49.22/infographic-a-map-of-leaking-natural-gaspipelines-across-the-nation.

9 See Native American Rights Fund, https://www.narf.org/ cases/keystone/ (last visited May 14, 2021).

10 Jacquelyn Pless, Making State Gas Pipelines Safe and Reliable: An Assessment of State Policy, https://www.ncsl.org/research/ energy/state-gas-pipelines-federal-and-state-responsibili.aspx (last visited [May 12, 2021]).

11 Catherine Little, Regulation of Oil and Natural Gas Pipelines: A Legal Primer for The Layman, Pipeline & Gas J. (Mar. 2008).

12 Federal courts employ what is commonly known as the “quicktake” procedure, whereby possession is granted upon deposit of the condemnor’s assessment of just compensation, with litigation following if such compensation is contested. In contrast, in Texas, a bona fide offer process, an administrative proceeding before special commissioners, and, then, the deposit of the commissioners’ stated award into the court’s registry precedes possession. Some interstate pipeline condemnation cases are filed in state courts.

13 See Tex. Nat. Res. Code § 111.019, which states (a) Common carriers have the right and power of eminent domain. (b) In the exercise of the (common carriers); see also Tex. Util. Code Ann. § 181.004 (gas or electric corporations); Tex. Water Code § 54, et seq. (municipal utility districts).

14 Respondents are the state of New Jersey, the New Jersey 3

Department of Environmental Protection, the New Jersey Agriculture Development Committee, the Delaware & Raritan Canal Commission, the New Jersey Water Supply Authority, the New Jersey Department of Transportation, the New Jersey Department of the Treasury, and the New Jersey Motor Vehicle Commission. See Penneast Pipeline Co. v. New Jersey et al., No. 19-1039 (U.S. Sup. Ct., 2020).

15 N.J. Rev. Stat. § 20:3-2(b) (1971).

16 See supra, note 19. In addition, the New Jersey Conservation Foundation holds a conservation, agricultural, and public right of way easement for the purpose of protecting, preserving, and retaining the property as conservation and agricultural lands and open space.

17 Allen v. Cooper, 140 S. Ct. 994, 1000-1001 (2020).

18 See Hans v. Louisiana, 134 U.S. 1, 12-13 (1890).

19 Brief for Respondent at 7, Penneast Pipeline Co. v. New Jersey et al.

20 Brief for Respondent at 17-18, Penneast Pipeline Co. v. New Jersey et al.

21 Amicus Brief by the Chamber of Commerce of the United States of America and the Pennsylvania Chamber of Business Industry as Amicus Curiae in Support of Petitioner, at 4-5, Penneast Pipeline Co. v. New Jersey et al. (No. 19-1039).

22 Amicus Brief by The Interstate Natural Gas Association of America, American Gas Association, and American Petroleum Institute as Amici Curiae in Support of Petitioner, at 1-3, Penneast Pipeline Co. v.

New Jersey et al. (No. 19-1039).

23 In re PennEast Pipeline Co., LLC, 938 F.3d 96, 113 (3d Cir. 2019).

24 Id. 25 Brief for Petitioner at 50, Penneast Pipeline Co. v. New Jersey et al.

(No. 19-1039).

26 See Brief of the Council of State Governments, the National League of Cities, the U.S. Conference of Mayors, the International City/ County Management Association, and the International Municipal Lawyers Association, as Amici Curiae in Support of Respondents, enneast Pipeline Co. v. New Jersey et al. (No. 19-1039).

27 Id. at 14-15.

28 Id. at 17.

In the Legal Community continued from page 20

dents as a direct function of the tremendous partnerships developed between the judiciary and local chapters of the FBA. Another notable example of its reach is an anticipated CD3 program to be presided over by Supreme Court Justice Breyer. The judges hope that CD3 will become a regular part of courthouse programming in districts nationwide. Materials for the CD3 program are available on the U.S. Courts website at: https://www.uscourts.gov/educational-resources/ educational-activities/civil-discourse-and-difficult-decisions. Should

you wish to initiate a program in your own district, you may contact Rebecca Fanning, the Federal Courts’ educational outreach manager, at rebecca_fanning@ao.uscourts.gov. Based on its past success, there is no doubt that more widespread implementation of CD3 will deliver hope to our future leaders and promise for a less divided nation. 

Endnotes 575 U.S. 723 (2015).

1

Commentary continued from page 22

like Aguacate Consolidated Mines, constitute binding Eleventh Circuit precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

29 Id.at 1324 (citing Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168-69 (3d Cir. 1976)).

Id. Id. 32 Id. at 1324-25 (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 947 (11th Cir. 1997)).

33 Id. at 1325.

30 31

July/August 2021 • THE FEDERAL LAWYER • 25

Judicial Profile

Hon. Anuraag “Raag” Singhal U.S. District Judge, Southern District of Florida

by Scott Strauss

F

Scott Strauss is a trial attorney in Fort Lauderdale, Fla., who focuses his practice in federal court in the areas of civil and criminal law. ©2021 Scott Strauss. All rights reserved.

or Raag Singhal, becoming a federal judge was never part of the plan. In fact, when he was a senior in high school, his government teacher told him he would never become a lawyer because he was too quiet. Couple that with the still prevalent expectation in the late 1970s and early 1980s that Asian-American kids were likely to go into science-oriented fields, and law didn’t seem to be on the radar.

Judge Singhal was born in Philadelphia in 1963, four years after his parents arrived in America from the small north Indian town of Aligarh. His parents were raised while India was under British rule, and, although they saw India win her freedom to some extent, they appreciated the opportunity and rule-oriented culture offered in the United States.

“My parents’ main tenets were deeply-rooted beliefs in God, family, education and hard work. Only once they were satisfied that boxes were checked in those core areas could I go and do things others were doing. It led to a somewhat quiet, isolated life but it was the best life for me,” Singhal recalls. He adds, I remember teaching myself how to play baseball by throwing against a pitchback and watching players like Hank Aaron, Pete Rose, and Tom Seaver. I taught myself how to play tennis by hitting balls off a cement wall and watching Vijay Amritraj, Bjorn Borg, and Jimmy Connors. But what I was really drawn to was long distance running. I think for me that was a way to stay healthy, gain peace of mind, think and plan and outrun everyone else. I wasn’t the fastest, but I could usually run the farthest.

Indeed, Judge Singhal has run in numerous ultramarathons and credits those races with solidifying his persistence.

Perhaps it is because of that upbringing that Judge Singhal’s well-known qualities in the legal community include persistence, attention to rules and preparation, a willingness to help, and compassion. Ultimately, his legal career took him through stints as a civil practitioner, prosecutor and eighteen-year criminal

26 • THE FEDERAL LAWYER • July/August 2021

defender. In each job, on every case, Judge Singhal’s goal was to stand in the shoes of his client, feel what they were feeling, and convey that to the other side, the judge or the jurors.

In 2019 and 2020, President Donald J. Trump nominated five federal judges to the U.S. District Court in the Southern District Florida—all subsequently confirmed by the U.S. Senate. Collectively, these outstanding jurists comprise nearly one-third of the active judges within the district. Each of them brings a unique and diverse background to the federal bench, but among them, Judge Singhal’s journey is extraordinary, underscoring the importance of perseverance, considering the adversity that he endured along the way.

Beginning in July 2005, Judge Singhal applied to serve as both county and circuit judge in the state of Florida. After successfully interviewing before the Judicial Nominating Commission ( JNC) in Broward County, his name was among six forwarded to Governor Jeb Bush for consideration. At the governor’s request, Judge Singhal traveled from Fort Lauderdale to Tallahassee for an in-person interview. While Judge Singhal was not nominated at that time, over the next six years, he applied for 16 different judicial vacancies—10 with Governor Charlie Crist—each

Top: Judge Singhal about to start a trail run in Estes Park, Colo., in 2008. Below: Judge Singhal as a baby in 1965.

time being nominated but not appointed. “It’s very true that we are judged in large part by how we handle disappointment and failure,” Judge Singhal said. “In the end, I was interviewed by so many lawyers from Judicial Nominating Commissions and from the Executive Office of the Governor, and maintained friendships with all of them that the sixteen failed applications all proved to be a benefit to me.”

In August 2011, after Judge Singhal completed his 17th application, Governor Rick Scott appointed him to the circuit bench—notably the first judicial vacancy in Broward County during Governor Scott’s tenure. When he received the call from Governor Scott, he assumed his friend Judge Jay Hurley was playing a trick on him. Judge Singhal noted that he will always be grateful to Governor Scott and his general counsel, Charlie Trippe, for their confidence in him. For most of us, the notion of applying and interviewing for the same job 17 times—in the face of constant rejection—seems unfathomable.

Certainly, after his appointment, one would reasonably conclude that Judge Singhal would happily finish his career on the state bench, but he had higher ambitions.

Beginning in August 2016, after earning the respect of litigants from varied fields and walks of life, he applied for a vacancy on Florida’s Fourth District Court of Appeal.

Just like in years past, the JNC nominated Judge Singhal along with five others to fill this seat. Again, Judge Singhal was named a finalist for the position, and this time, his friend Judge Jeff Kuntz was appointed. Judge Singhal says, “One of the best parts of the application and interview process has always been the great people I have met along the way. I am in touch with Judge Kuntz regularly and I am blessed that he has sent two of his former law clerks—Eric Yesner and Jennifer Helmy—on to clerk with me.”

A little over one year later, in October 2017, Judge Singhal applied to the federal JNC in Miami to fill one of five vacant federal seats in the Southern District of Florida. The federal JNC recommended Judge Singhal—and nine others—to fill the vacancies. In February 2018, after interviewing with Senator Marco Rubio and Senator Bill Nelson, Judge Singhal interviewed with the Office of White House Counsel. Following the interview, President Trump announced his intent to nominate three people, but Judge Singhal’s name was not included on the list.

In October 2018, when three seats became vacant on the Florida Supreme Court, Judge Singhal applied for one of the seats. Unsurprisingly, from a list of 59 applicants, the Florida Supreme Court JNC forwarded Judge Singhal’s name—along with 10 other candidates—to

Governor-elect Ron Desantis. Yet again, Judge Singhal traveled to interview with the governor, and, as in the past, other candidates were appointed.

In April 2019, Judge Singhal’s persistence paid off when he received an email requesting a teleconference with the general counsels to Senator Marco Rubio and Senator Rick Scott. Following his teleconference, he interviewed again with the Office of White House Counsel. On May 1, 2019, Judge Singhal learned that President Trump intended to nominate him to the federal bench. On December 20, 2019, at the age of 56, Judge Singhal became the first Asian-Pacific American Article III judge ever appointed to serve in the Southern District of Florida and within the jurisdiction of the Eleventh Circuit. The confirmation of Judge Singhal is testament to his attitude, hard work, and persistence, and his story serves us all well the next time we encounter any setback.

In addition to the core values Judge Singhal’s parents instilled in him, he was taught to always respect others, the importance of public service, and above all, the cost of freedom. To this point, during jury selection, Judge Singhal routinely shares a personal story of the time his mother received a summons for jury service while undergoing treatment for liver disease.

Judge Singhal admits that he tried to persuade her from serving on a jury simply by letting the court know she was receiving treatment. His mother—who is now deceased—rebuked her son, served on the jury for a three-week trial, and reminded him that jury service was the least she could do in exchange for everything that this country afforded to her and her family. Should July/August 2021 • THE FEDERAL LAWYER • 27

anyone be fortunate enough to try a case before Judge Singhal, you will almost certainly hear him speak to the venire about the cost of freedom. In exchange for living in the United States—the freest and greatest country on earth—every citizen, he says, My family has taught must do two things: (1) pay taxes if called upon, (2) serve on me many things and and, a jury. He notes that mandatory supported me through military service has not been numerous ups and required since 1973.

Judge Singhal earned his downs. My wife and kids undergraduate degree from Rice are superstars. I am University, where he began as also indebted to some a chemical engineering major outstanding role models but left with a degree in political science. Despite his love of that I met by chance. It’s sports, he acknowledges his wife remarkable to have moved is a far better athlete, having to Broward County more played point guard for the varsity basketball team. After graduating than thirty years ago and from Rice, Judge Singhal attended to see a hugely successful Wake Forest University School of person of my heritage that Law, where he excelled in moot was so well-respected court and won the Edwin M. Stanley and J. Braxton Craven here and nationally. (National Fourth Amendment) competitions.

After graduating from Wake Forest, Judge Singhal moved to South Florida and worked at Fleming, O’Bryan & Fleming. But shortly thereafter, his mother passed away, which led him to reassess his career path and shift his practice to criminal law, becoming a prosecutor for the Office of the State Attorney in Broward County.

After working for three years as a prosecutor, he started his own practice, where he dedicated the next 18 years as a criminal defense attorney. During this time, Judge Singhal tried 204 jury trials—including 33 first-degree murders—and approximately 150 non-jury trials.

Judge Singhal was an exceptionally effective trial lawyer. Among the many notable cases he tried is State of Florida v. Jeffrey Lee Weaver. The trial court appointed Judge Singhal two months before trial to represent Weaver in the penalty phase for killing a police officer.

One week before trial, the court discharged Weaver’s guilt-phase counsel, leaving him to represent himself. After the jury convicted Weaver, Judge Singhal presented mitigating evidence and convinced the jury to recommend a life sentence. At the time, it was the first-ever life sentence on a death penalty case tried by State Attorney Michael J. Satz. After the verdict, the court entered an override of the jury’s recommendation and sentenced Weaver to death. This was the last time a Florida trial judge ever entered an override of a jury’s life recommendation. The Florida Supreme Court unanimously reversed the trial court and imposed a life sentence.

Judge Singhal has received several awards throughout his career, including the Broward County Bar Association (BCBA) Friend of the Bar Award and the BCBA 28 • THE FEDERAL LAWYER • July/August 2021

Stephen R. Booher Award, which recognizes jurists who display humanity, integrity, and dedication to the Bench, Bar, and Community.

Judge Singhal’s commitment to community extends outside the courtroom. When he is not on the bench or in chambers, he is very active locally. He is an active member in the FBA, BCBA, St. Thomas More Society of South Florida, Association of Indians in America, National Asian Pacific American Bar Association, and Federalist Society. In addition, he has lectured or appeared on panel discussions in well over 100 educational programs for lawyers, judges, and students.

Judge Singhal is past-president of the Broward Association of Criminal Defense Lawyers and the Stephen R. Booher Chapter of the American Inns of Court. He is also a past member of the board of directors of the BCBA. One of his biggest joys has been his involvement in judicial teaching, at the Florida Judicial College and as Associate Dean of the Florida College of Advanced Judicial Studies. Judge Singhal shares the following: My family has taught me many things and supported me through numerous ups and downs. My wife and kids are superstars. I am also indebted to some outstanding role models that I met by chance. It’s remarkable to have moved to Broward County more than 30 years ago and to see a hugely successful person of my heritage that was so well-respected here and nationally. That person, Dr. Zachariah Zachariah always helped me to achieve my goals. And, of course, my other law clerks—career clerk Patricia Burton and long-term clerk Elaine Carbuccia—make my job much easier. My courtroom deputy clerk Valarie Thompkins makes sure I’m always well-prepared.

It’s truly the American Dream to be able to raise a family in America, especially seeing the abject poverty my parents left. And my in-laws escaped the tyranny of Communist China some 70 years ago. To be awarded the privilege of having such an incredible job on top of all of that is a blessing and a gift not to be wasted. 

Judicial Profile

Hon. Kenneth A. Marra

Senior U.S. District Judge, Southern District of Florida

by Andrew Kwan

F

Andrew Kwan is an attorney at Pankauski Hauser Lazarus PLLC, an estate and trust litigation firm in West Palm Beach, Fla. He previously served as a law clerk for U.S. Magistrate Judge Linnea R. Johnson.

orty years ago, in Judge Kenneth A. Marra’s first trial as a rookie lawyer, he found himself confronting a courtroom full of irate homeowners. His client, the Cayuga Indian Nation of New York, filed Notices of Pendency on thousands of properties in upstate New York, alleging that its original reservation lands had been wrongfully taken in 1795 and 1807. The defendants included the State of New York, Cayuga and Seneca counties, private businesses, and countless individual property owners.

“It was in federal court in Syracuse in front of Judge Neil McCurn. They would bus—bus—people to the courthouse. It was a packed courtroom with angry citizens—an intense experience,” Judge Marra recalls.

Despite the pressure, Judge Marra kept his cool and won the trial, though his client ultimately lost its case in the Second Circuit based on the doctrine of laches.1 It was “intense experiences” like this one that formed and annealed a young boy from Queens, N.Y., into the respectful, kind senior U.S. district judge that lawyers around South Florida know today.

Early Life Judge Marra spent most of his youth in Queens and then moved to Long Island for his high school years.

He credits city life for exposing him to other cultures at an early age. “It was very diverse,” Judge Marra recalls. “Looking back on my youth, I was very fortunate to live with and grow up with a wide variety of individuals in terms of their backgrounds and ethnicities.

We had Italians, Greeks, Irish, African Americans, Dominicans, Puerto Ricans—everyone had a different background, but we were all friends, we grew up together. I think that has served me well in terms of my ability to have respect for everyone.”

In his youth, Judge Marra was fascinated by courtroom dramas. He was a fan of The Defenders, a 1960s television series starring E.G. Marshall and Robert Reed as father-and-son criminal defense attorneys.

The show featured complex cases about the political and social issues of the day, like the Vietnam War and abortion, and often presented thorny ethical questions to its protagonists. “I thought that was a great show,” Judge Marra says. “They were representing defendants 30 • THE FEDERAL LAWYER • July/August 2021

all the time, like Perry Mason, but the difference was they didn’t always win. Perry Mason always won his cases, so The Defenders was more realistic.”

The biggest influence on Judge Marra as a child was his parents. He received the usual values from them, including “love for family, love for God, love for country, and love and respect for authority and the law,” but they also instilled in him a strong work ethic.

As a kid in Queens, Judge Marra took on all sorts of odd jobs for pocket change: shoveling snow for neighbors, rummaging for soda bottles to deposit, cleaning up the basement of the local grocery store, and trussing up Christmas trees during the holidays. Judge Marra’s main takeaway from his folks was, “Follow the rules and you’ll be okay,” a lesson he would heed for the rest of his life.

Education and Family Judge Marra excelled in high school athletics and enrolled in Stony Brook University in New York. He became the first in his family to graduate from college, but he didn’t go directly to law school. “I started out as a teacher,” he says. “That didn’t work out too well. I didn’t have a full-time teaching job. I was a substitute teacher in Nassau County for a year and a half, going to different schools that needed help. I didn’t enjoy

Hiking in Zion National Park, Utah.

professional and not working hard. But if it comes down to sacrificing family and children, or sacrificing your job, the family always comes first.”

Private Practice and State Court

it very much, and didn’t like having to deal with the disciplinary issues.”

After his stint as a teacher, Judge Marra went to Stetson University College of Law in Florida, graduating in 1977. During law school, he met and fell in love with his wife, Louise Reid. The two married the summer after he took the bar exam. “She graduated a year before me, and started out as the legal aid lawyer in Fort Myers, the sole lawyer running the office,” Judge Marra says. “I had the fortune of getting an Honor Graduate Program position with the Justice Department in Washington. We moved up there, which was very difficult for her.”

When Judge Marra’s career flourished in D.C., the couple decided to start a family, which now includes eight adult children and many grandchildren. In their over 40-year marriage, Louise has been a bedrock of support.

Judge Marra is quick to credit her for his success: “I owe a great debt to Louise. I know she envisioned something a little different with her life. She made a major sacrifice in giving up her legal career to be a mother, but she raised our children and was very devoted to their upbringing.”

How did Judge Marra balance work and family? “I tried to be involved and hands-on, and not an absentee father,” he says. In terms of advice for busy lawyers, Judge Marra is candid. “You can’t devote yourself totally to one, to the exclusion of the other. If you do have to make a choice, you have to put your family first.” In Judge Marra’s view, “that doesn’t mean not being a

Judge Marra says his most important mentor as a young lawyer was Arthur J. Gajarsa, an attorney who later became a judge on the U.S. Court of Appeals for the Federal Circuit. As Judge Marra remembers, “We worked together on a case when I was with the Department of Justice, and then Art offered me the opportunity to join him as an associate with his law firm, Wender, Murase & White. The firm was based in New York City, and we worked together in the Washington, D.C., office.”

Gajarsa was careful to give Judge Marra plenty of chances to gain courtroom experience, including in the high stakes Cayuga Indian Nation of New York case.

Judge Marra was litigating against two big-time Boston law firms, Goodwin Procter and Hale & Dorr, and facing off against the legendary James D. St. Clair (who represented President Nixon during Watergate) and managing partner William F. Lee. In spite of the legal firepower on the other side, Gajarsa let Judge Marra, only three years out of law school, take the reins. “I was the person making the arguments, writing the briefs—I was really the lead lawyer handling the minute-by-minute things going on in the case.” As Judge Marra fondly recalls, “Art was and is a great person, and taught me a great deal about how to litigate a complex case, how to be a great counselor to your clients, and also a great deal about corporate and securities law, because he also represented numerous corporate clients.”

When asked how his experience as a civil attorney helped him on the bench, Judge Marra says that the main things that carry over are “hard work, professionalism, the way you treat people.” After working in Washington for six years, Judge Marra moved back to Florida and spent another 12 years in private practice. His colleagues included senior partner Herbert Gildan of what was then Nason, Gildan, Yeager & Gerson, P.A., an established local law firm. Judge Marra looked up to Gildan for his “professionalism, intellectual curiosity, and zeal for representing clients.”

In 1996, Judge Marra was appointed as a circuit judge for the Fifteenth Judicial Circuit in and for Palm Beach County, Fla. He served for six years in the civil, family, and criminal divisions of the court. His experience there taught him the nuts and bolts of jurisprudence, giving him a leg up on colleagues who sat on the federal bench right after private practice. “There is a learning curve in terms of how to be a judge, how to decide cases, and I was definitely ahead of it when July/August 2021 • THE FEDERAL LAWYER • 31

Judicial Profile Writers Wanted

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 Lynne Agoston, managing editor, at social@fedbar.org.

I became a federal judge,” thanks to state court, Judge Marra says.

The Federal Bench President George W. Bush nominated Judge Marra as a federal judge in 2002, and in nearly two decades on the bench, Judge Marra has presided over many notable cases. He has had one case, Kaley v. United States,2 go all the way to the Supreme Court. Kaley dealt with whether criminal defendants were entitled at a pretrial asset freeze hearing to contest a grand jury’s prior determination of probable cause. Judge Marra held that they were not, and Justice Kagan, writing for a 6-3 majority that included Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito, affirmed.

Judge Marra’s most well-known case involved the victims of disgraced financier and convicted sex offender Jeffrey Epstein. In the discovery phase of the case, an issue arose as to whether Epstein’s plea negotiations with the government could be released. “I said they had to be released—that’s when basically all the dirt came out about what happened with this non-prosecution agreement,” Judge Marra recalls of the ruling. His decision was affirmed by the Eleventh Circuit.3 The revelations of what had occurred led to a national scandal and a deep examination of the criminal justice system. After Epstein died in prison in 2019, Judge Marra held that Epstein’s death precluded the court from throwing out the once-secret non-prosecution agreement. While the scope of Epstein’s non-prosecution agreement is still being litigated in other courts, Judge Marra’s role in uncovering Epstein’s sordid conduct appears to be over.

Life During COVID-19 Along with the rest of the Southern District of Florida, Judge Marra ceased conducting trials in early March 2020 but otherwise attended to the business of the court. “I think under the circumstances the entire judicial system has done an amazing job of keeping things moving,” Judge Marra says.

To unwind during the pandemic, Judge Marra played guitar, hung out with his wife and family, and kept up on his tennis and basketball skills when it was safe to do so.

He also caught up on shows like Homeland and the BBC series Line of Duty. Finally, the lockdown was an opportunity to read nonfiction, including Boone: A Biography,

by Robert Morgan, and Ayn Rand and the World She Made, by Anne C. Heller.

32 • THE FEDERAL LAWYER • July/August 2021

Professionalism and Advice Like many judges, Judge Marra is concerned about the erosion of professionalism in the practice of law. He recalls lawyering in Palm Beach County during the 1980s and 1990s as professional and collegial but has seen that courteousness wane over the decades.

“I liked dealing with other lawyers back then,” he says. “There was very little of the backbiting and nastiness that you see today—lawyers attacking each other, pointing fingers. It has been getting confrontational, which is unfortunate.” Judge Marra hails the emphasis of the FBA and other bar organizations to curtail the trend, and he has seen improvement in recent years.

When asked about the one piece of advice Judge Marra would give to people appearing in front of him, he says it is “Forthrightness with the court. Your credibility is the most important thing you have.” For those who know him, Judge Marra’s advice is no mere lip service but words he lived by—through adversity in the courtroom, dedication to his family, and a lifetime of public service. 

Endnotes Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005).

2 134 S. Ct. 1090 (2014).

3 Doe No. 1 v. United States, 749 F. 3d 999 (11th Cir. 2014).

1

Welcome to Miami!

On behalf of the South Florida Chapter of the FBA, welcome to Miami! After 18 months of doing our part to flatten the curve, the time has come to swap out sweatpants for suits and reconnect with your fellow members of the FBA. We recognize that this will likely be the first in-person FBA event for most attendees, and, based on what we have planned, we are confident that you will not be disappointed.

Standing at the crossroads of South America and the Caribbean, the South Florida legal community is now more unique, diverse, and sophisticated than ever. While many legal communities experienced a mass exodus of attorneys during the pandemic, our bar has grown in number and prominence. Over the past few years, several top national law firms have expanded into the area, and Miami has welcomed many out-of-town attorneys to its ranks. As the pandemic winds down, the South Florida legal community has emerged stronger than ever before.

We designed the 2021 Annual Meeting & Convention to focus on reconnecting and socializing. Our programming reflects this goal. On Thursday evening, the U.S. District Court for the Southern District of Florida has graciously agreed to host a reception at the federal courthouse in the heart of Miami. That reception will not only feature a presentation about the history of the Southern District of Florida but will also allow you to meet and mingle with our local judges and practitioners in the magnificent Wilkie D. Ferguson Jr. U.S. Courthouse.

Friday evening will showcase the crown jewel of the weekend, the South Florida Chapter’s reception at the Pérez Art Museum Miami. After a day of meetings, CLE programming, and the FBA’s Public Service Luncheon, the South Florida Chapter has reserved the entire museum for you to enjoy. You will have full access to the museum as well as waterfront views, food, fun, and, of course, drinks. The Pérez Art Museum Miami is one of the city’s must-see attractions, and we cannot wait to share it with you.

You will also have plenty of time to enjoy all that Miami has to offer. For those who have not been to Miami recently, you will be pleasantly surprised at how much the city has changed: the skyline is fuller; the food scene is eclectic; and our cultural institutions continue to mature on pace with our city’s incredible growth. At the same time, the beaches, nightlife, and overall vibe continue to make Miami a destination in and of itself. Miami is not only open for business; it is thriving.

The 2021 Annual Meeting & Convention hotel is centrally located minutes away from Downtown, Brickell, the Design District, Little Haiti, Wynwood, South Beach, Little Havana, and Key Biscayne. Each of these neighborhoods has its own vibe, and each plays an important part in defining Miami’s cultural tapestry today. More information about all that Miami has to offer can be found on page 37 of this magazine.

We are so excited to host you in September. Thank you for giving us this opportunity to showcase our city and all that the Miami legal community has to offer. See you soon!

Yaniv Adar, President, South Florida Chapter of the FBA

July/August 2021 • THE FEDERAL LAWYER • 33

Register online at: www.fedbar.org/fbacon21

Offering In-Person and Virtual Registration Options!

SCHEDULE PREVIEW All events take place at the Hilton Miami Downtown unless otherwise noted. Session times are subject to change.

THURSDAY, SEPTEMBER 23

9:00 a.m.–9:15 a.m.

Welcome Remarks 9:00 a.m.–3:00 p.m.

FBA Board of Directors Meeting 9:15 a.m.–10:15 a.m.

General Session 10:30 a.m.–11:30 a.m.

Concurrent CLE Sessions 11:45 a.m.–1:00 p.m.

Younger Federal Lawyers Awards Luncheon 1:00 p.m.–2:00 p.m.

Concurrent CLE Sessions 2:15 p.m.–3:15 p.m.

Concurrent CLE Sessions 4:00 p.m.–6:00 p.m. Court Reception at the Wilkie D. Ferguson Jr. U.S. Courthouse—Hosted by the Judges of the U.S. District Court for the Southern District of Florida

FRIDAY, SEPTEMBER 24 9:00 a.m.–10:00 a.m.

10:15 a.m.–11:15 a.m.

10:15 a.m.–12:30 p.m.

11:30 a.m.–12:30 p.m.

11:30 a.m.–12:30 p.m.

12:45 p.m.–2:00 p.m.

2:15 p.m.–3:15 p.m.

2:15 p.m.–3:15 p.m.

2:15 p.m.–3:15 p.m.

2:15 p.m.–4:15 p.m.

3:30 p.m.–4:30 p.m.

3:30 p.m.–4:30 p.m.

3:30 p.m.–4:30 p.m.

Implicit Bias Session Concurrent CLE Sessions Foundation of the FBA Board of Directors Meeting Concurrent CLE Sessions Government Relations Committee Meeting Public Service Awards Luncheon Concurrent CLE Sessions Circuit Vice Presidents Training Misc. Section & Division Business Meetings FBBC Board of Directors Meeting Affinity Bar and Diversity & Inclusion Roundtable Circuit Vice Presidents Meeting Misc. Section & Division Business Meetings

6:30 p.m.–9:30 p.m.

Convention Reception at the Pérez Art Museum Miami—Hosted by the South Florida Chapter

SATURDAY, SEPTEMBER 25 9:30 a.m.–10:30 a.m.

9:30 a.m.–10:30 a.m.

10:45 a.m.–11:45 a.m.

Noon–1:15 p.m.

1:30 p.m.–4:00 p.m.

6:00 p.m.–7:00 p.m.

7:00 p.m.–9:00 p.m.

Chapter Leaders Meeting Section & Division Leaders Meeting National Council Q&A Session FBA Awards Luncheon National Council Meeting Fellows of the Foundation Toast (Invitation Only) Presidential Installation Celebration

34 • THE FEDERAL LAWYER • July/August 2021

THURSDAY RECEPTION

FRIDAY RECEPTION

Court Reception

Convention Reception

Date: Thursday, September 23 Time: 4:00 p.m.–6:00 p.m.

Location: Wilkie D. Ferguson Jr. U.S. Courthouse (400 North Miami Avenue, 14th Floor, Miami, FL)

Date: Friday, September 24 Time: 6:30 p.m.–9:30 p.m.

Location: Pérez Art Museum Miami (1103 Biscayne Boulevard, Miami, FL)

Please join the Judges of the U.S. District Court for the Southern District of Florida at a reception in recognition of the FBA’s sustained support to the court, featuring historian presentation and remarks by Chief Judge Cecilia M. Altonaga.

Convention attendees are invited to an evening reception hosted by the FBA South Florida Chapter. Located at Miami’s flagship art museum, surround yourself with international art and waterfront views at the Pérez Art Museum Miami.

PREVIEW OF CLE SESSIONS American Legal Organizations and the Federal Judicial System: A Conversation With Federalist Society President Eugene Meyer

Today, more and more of our federal judges are also members of legal organizations that debate the proper role of the judiciary in the American legal system. U.S. District Judge Roy K. Altman will interview Federalist Society President Eugene B. Meyer, examining the role that American legal organizations have in the federal judicial system and the impact of the Federalist Society.

Bankruptcy Practice Updates: Recent Legislation, Bankruptcy Code Changes, and New Case Law

Moderated by Bankruptcy Judge Gunn, this panel will explore current developments in bankruptcy law and practice, including examining the legal and practical impacts on bankruptcy courts and practitioners in the wake of COVID. Presenters will address the Small Business Reorganization Act; the Coronavirus Aid, Relief and Economic Security (CARES) Act; Chapter 11 updates; and the Consumer Bankruptcy Reform Act; along with other recently enacted and pending bankruptcy-related legislation.

Combating Ransomware Attacks: Legal and Technical Guidance

The proliferation of ransomware attacks hitting the United States has shut down critical infrastructure, compromised sensitive federal agencies, and significantly disrupted operations in major industries, including healthcare, energy, banking, and manufacturing. Panelists will provide guidance from the U.S. Department of Justice’s Cybercrime Section, the federal courts, legal and regulatory experts, and technical experts on this growing threat.

Developing Jury Appeal in Cases With Unsympathetic Witnesses or Clients

Much like people cannot choose their family members, lawyers often cannot choose their witnesses or clients. At times, witnesses and clients come with substantial baggage that, if not addressed properly, can derail your case. This presentation offers practical solutions for identifying problematic aspects in witness and client backgrounds, mitigating the effects of those challenges, presenting their testimony to jurors in a persuasive manner, and convincing a jury to believe the witness or buy into the client’s cause despite his or her challenges.

Diversity in the Federal Judiciary: What Does That Mean for Justice?

We often hear that there is a “need” for diversity on the bench at both the state and federal levels. Focusing on the federal judiciary, practically, what does that mean?

Panel discussion will delve into that question, as we speak to American Constitutional Society President Russell D. Feingold, U.S. Circuit Court Judge Adalberto J. Jordan, and U.S. District Court Judge Darrin P. Gayles.

Emerging Frontiers of INTERPOL Abuse

Though often portrayed in movies as an independent international coalition of crime-fighters, the reality of INTERPOL is very different. This panel will provide address INTERPOL functionality and its abuse, perpetrated by the increasing number of authoritarian governments that take advantage of INTERPOL’S systems to harass and seek the extradition of dissidents and other political targets. Well-versed in the intricacies of this topic, panelists will offer insight into strategies attorneys can employ to combat all forms of INTERPOL abuse.

F*** School Speech

After not making the varsity cheerleading team, a teenager took to social

media and posted a selfie with a friend, middle fingers raised, and captioned it “F*** school f*** softball f*** cheer f*** everything,” resulting in a one-year suspension from cheerleading. How are Mahanoy Area School District v. B.L. and Tinker v. Des Moines Independent Community School District related? This panel brings together ACLU attorney Sara Rose, who represented the student and her parents in their lawsuit, Professor Frank LoMonte, an expert in school speech, and Mary Beth Tinker, whose landmark 1969 lawsuit won the right for students to wear black armbands in protest of the Vietnam War.

Pandemics and Police Powers: The Constitutional Implications of Government Action

The COVID-19 pandemic led to state and local governments taking unprecedented actions, including entering stay-at-home orders and closing “nonessential” businesses. These actions have, in turn, been subject to constitutional challenges throughout the country. Speakers will examine court decisions from around the country—including decisions from Florida, California, and Pennsylvania—that addressed constitutional challenges to government restrictions.

Securities Regulation & Litigation for Cryptoassets: A New Frontier

Cryptoassets and decentralized finance are changing the world at a rapid pace.

Meanwhile, securities regulation and litigation are rooted in the Securities Act of 1933 and the Securities Exchange Act of 1934. How are parties, attorneys, and courts applying those archaic legal paradigms to new technologies, transactions, and disputes that were literally unimaginable to the drafters of those statutes? This panel will explore those issues, focusing on regulatory and litigation trends with cryptoassets and decentralized finance.

Tips From the Experts: Advocacy in the International Arbitration Arena

Within the global economy, we have seen a rise in cross-border disputes and a movement toward arbitration rather than the courts to resolve disputes. A panel of specialists will share some of the tricks of the trade that have made them seasoned arbitration practitioners and will identify the material differences in successfully advocating a major commercial dispute before an international arbitration tribunal and a federal court.

What Happens After You Give Your Client’s iPhone to a Forensic Investigator? Legal Frontiers in the Discovery of Personal Devices

Courts have struggled to keep pace with the expanding range of discovery into personal electronic devices. Your client’s iPhone might be a treasure trove of probative communications, but it also contains vast amounts of data, the usefulness of which can be an open question. Complicating the problem are vast differences in attorney understanding of technology. Panelists will unpack the mysteries of device discovery and help practitioners gain familiarity and confidence with these issues.

Why the Hague Abduction Convention Impact Rocks the Federal World

Learning the Hague Abduction Convention is essential private international law for all federal trial attorneys, federal judges, and magistrate judges. This article 6 treaty has been successful for the last 25 years because the federal courts’ influence and reach is without borders. Learning the treaty, developing case law, and having it all at your fingertips are essential tools for all federal court trial attorneys, judges, and their law clerks.

July/August 2021 • THE FEDERAL LAWYER • 35

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Bell Rosquete Reyes, PLLC + Becker & Poliakoff + Boies, Schiller & Flexner LLP + Brodsky Fotiu-Wojtowicz, PLLC + Everest Court Reporting, LLC + Homer Bonner Jacobs Ortiz, P.A. + J. Courtney Cunningham, PLLC + Jones Walker LLP + KapilaMukamal, LLP + Lalchandani Simon PL + Mandel & Mandel LLP + Phipps Reporting + Rabin & Lopez, P.A. + Roche Freedman LLP + Rothman & Associates, P.A. + St. Thomas University School of Law + Stumphauzer Foslid Sloman Ross & Kolaya, PLLC + Weisberg Kainen Mark, P.L. SPONSORSHIP OPPORTUNITIES AVAILABLE! Join our distinguished list of sponsors who help make both long-standing and new FBA conferences and seminars possible. Contact Caroline Bentley (sponsor@fedbar.org) to secure your sponsorship today!

36 • THE FEDERAL LAWYER • July/August 2021

Group Access Code: FBA21 Cut-Off Date: Reservations must be made no later than 5:00 p.m. ET on Tuesday, August 31.

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 roomtype and rate-available basis.

UNIQUELY

BY THE GREATER MIAMI CONVENTION & VISITORS BUREAU September is the perfect time to visit Greater Miami. In August and September 2021, the destination is celebrating the 20th edition of the Miami Spice Restaurant Months program. Top restaurants throughout Miami are offering incredible deals on three-course lunch and dinner menus. Visit MiamiTemptations.com for a list of participating restaurants and their menus. In addition to fine dining, Miami is renowned for its beautiful beaches, fascinating neighborhoods, thought-provoking museums, and amazing attractions. Read on for an introduction to places to explore in and around Downtown Miami. Visit the Greater Miami Convention & Visitors Bureau’s website at MiamiandBeaches.com to learn about all of Miami’s neighborhoods and attractions.

Downtown Miami/Brickell/Historic Overtown

Downtown Miami is Miami’s bustling epicenter, packed with gleaming skyscrapers, sweeping bay views, and exciting places to explore.

The area’s latest attraction is the Sky Views Miami observation wheel (skyviewsmiami.com). Towering more than 175 feet above Biscayne Bay, it features 42 climate-controlled gondolas providing breathtaking panoramic views. It’s located at Bayside Marketplace (baysidemarketplace.com), home to international restaurants, fine shops, and live music in a beautiful, waterfront setting. Bayside is also the launching point for several sightseeing cruise and bus tours.

Bayfront Park (bayfrontparkmiami.com) is a lush 32-acre site on Biscayne Bay, while the adjacent Maurice A. Ferré Park connects

two spectacular museums: Pérez Art Museum Miami (pamm.org), which displays global 20th- and 21st-century art, and the Phillip and Patricia Frost Museum of Science (frostscience.org), a groundbreaking institution boasting both a state-of-the-art planetarium and a cutting-edge aquarium.

Other museums in Downtown Miami include the Museum of Art and Design at Miami Dade College (mdcmoad.org), which is located in the historic Freedom Tower building, and HistoryMiami Museum (historymiami.org), a Smithsonian Affiliate chronicling and celebrating Miami’s past and present. If you’re looking to enjoy a live performance, check out the schedule at the Adrienne Arsht Center for the Performing Arts (arshtcenter.org), home to Florida Grand Opera, the Miami City Ballet, and the New World Symphony.

South of the Miami River, the booming Brickell district is home to a wide array of high-rise office towers, residential buildings, restaurants, and bars. Here you’ll find two shopping, dining, and lifestyle centers: the laid-back Mary Brickell Village (marybrickellvillage.com) and the stunning Brickell City Centre (brickellcitycentre.com).

Adjacent to Downtown Miami, Overtown was once a thriving African-American community of locally owned businesses. In recent years it has experienced a rebirth. Anchoring the district, the Lyric Theater (bahlt.org) is listed on the National Register of Historic Places and showcases local talent. The Black Archives leads tours of July/August 2021 • THE FEDERAL LAWYER • 37

Historic Overtown. Points of interest include the Black Police Precinct and Courthouse Museum (historicalblackprecinct.org).

Getting around Downtown Miami, Brickell, and Historic Overtown is a breeze, thanks to the free Metromover (miamidade. gov/transit) people-mover system. This elevated train circulates throughout the area, with stops at multiple stations. Under the Brickell Metrorail station, you’ll find the first completed phase of The Underline (theunderline.org), a linear park, urban trail, and public art destination.

Wynwood/Miami Design District

Just north of Downtown Miami, the Wynwood neighborhood boasts countless art galleries, museums, and art collections complementing the world-famous Wynwood Walls (thewynwoodwalls.com). This open-air street art gallery is the perfect spot to snap some selfies. For an even deeper look into the history of this art form, head to the Museum of Graffiti (museumofgraffiti.com). To check out the work of up-and-coming artists, visit the Bakehouse Art Complex (bacfl.org).

The artistic energy of Wynwood has expanded west to the Allapattah neighborhood, which is now home to the Rubell Museum’s (rubellmuseum.org) unparalleled contemporary art collection. Wynwood 38 • THE FEDERAL LAWYER • July/August 2021

is also home to imaginative restaurants, unique nightlife hot spots and innovative breweries like Cerveceria La Tropical (cervecerialatropical.com), a new craft brewery centered around a tropical garden.

Lovers of modern design, architecture, and fashion can happily pass the time in the Miami Design District. This local nexus of luxury shops, art galleries, showrooms, creative services, designer stores, antiques dealers, cafes, and bars is located north of Wynwood. Even the parking garages in the Miami Design District are works of art.

Seven stories high, with an unforgettable photo opportunity at every corner, Museum Garage features five façades created by five different designers, and an iconic pink roof with amazing views of Miami. Cultural happenings take place year-round at Palm Court and the Institute of Contemporary Art, Miami (icamiami.org), where admission is always free.

Miami Beach

Head east from Downtown Miami on the Venetian Causeway or the MacArthur Causeway to explore the magical world of Miami Beach.

The sparkling Atlantic Ocean lines Miami Beach for miles. Keep heading east until you hit the beach. This is a great spot to enjoy a morning or afternoon splashing in the warm surf and relaxing on the sand. Be sure to check out the colorful lifeguard stands. If you’d rather spend a few hours golfing, head to the historic Miami Beach Golf Club (miamibeachgolfclub.com).

In addition to sand, surf, and golf, there’s plenty else to see in Miami Beach. The Art Deco Historic District is one of Miami Beach’s most popular attractions. You can explore it on guided walking tours offered by the Miami Design Preservation League (mdpl.org).

Many of the striking buildings in Miami Beach house fascinating museums, including The Bass (thebass.org), Miami Beach’s

contemporary art museum. A dramatic Spanish Baroque building is home to The Wolfsonian—FIU (wolfsonian.org), a museum exploring advances made from the 1850s to the 1950s. The Jewish Museum of Florida—FIU (jmof.fiu.edu ) is located in two beautifully restored synagogues. The Holocaust Memorial Miami Beach (holocaustmemorialmiamibeach.org) is identified by the stunning image of a giant sculpted hand reaching toward the skies, while the Miami Beach Botanical Garden (mbgarden. org) is a peaceful urban oasis.

Fashionistas looking for cool retail head directly to South Beach’s shopping streets: Collins Avenue, Washington Avenue, and Ocean Drive. European-flavored Española Way (visitespanolaway.com) offers laid-back cafes and charming stores. Lincoln Road (lincolnrd.com) is an open-air pedestrian thoroughfare offering premier shopping, dining, and nightlife. It’s home to not one but two food halls featuring some of Greater Miami’s best restaurants and chefs: Lincoln Eatery (thelincolneatery.com) and Time Out Market Miami (timeoutmarket.com/miami).

The South of Fifth (SoFi) area of South Beach has a number of fine restaurants offering everything from steaks to stone crabs. At the southern tip of the island, South Pointe Park winds along the beach and Government Cut, the entrance to PortMiami. It’s the perfect spot to watch ships glide by as the sun sets behind the Downtown Miami skyline. The South Pointe Pier juts out into the water from this point. The pier features an entrance designed by famed artist Tobias Rehberger.

In addition to its quiet, tree-shaded streets and lovely homes, Coral Gables offers a host of attractions. This historic city is located west of Coconut Grove. Nature’s beauty and man’s ingenuity meet at Venetian Pool (coralgables.com/venetianpool), described as “the world’s most beautiful swimming hole.” Tee off at the Granada Golf Course and The Biltmore Golf Course (biltmorehotel.com/golf ).

Miracle Mile and the surrounding streets of downtown Coral Gables (experiencecoralgables.com) are home to an eclectic array of shops and restaurants.

North of Coral Gables, and just southwest of Downtown Miami, Little Havana is the colorful center of Hispanic culture in Miami.

Declared a national treasure by the National Trust for Historic Preservation, this slice of the motherland created by Cuban exiles in the 1960s hums with perpetual activity. The area around Southwest 8th Street (Calle Ocho) is filled with Latin-inspired cafes, restaurants, venues, and markets that give space and a voice to all the different backgrounds that have taken root in the neighborhood. Many cigar factories and shops feature authentic rolling rooms. Little Havana is also home to unique shops selling items such as traditional guayabera shirts.

National Parks

It’s amazing to think that there are two national parks just over an hour’s drive away from Downtown Miami’s glittering skyline. Spread across 1.5 million acres, Everglades National Park is the largest subtropical wilderness in the United States. Biscayne National Park is lesser known but equally fascinating. The largest marine sanctuary in the U.S. National Park system, this 173,000-acre park is 95% water and is best explored by boat. In addition to these national parks, Big Cypress National Preserve is a 729,000 acre park located about an hour west of Downtown Miami. Visit MiamiLand.com to learn more about these parks as well as other outdoor adventures throughout Greater Miami. 

Key Biscayne/Coconut Grove/Coral Gables/ Little Havana

Just south of Downtown Miami and Brickell, the scenic Rickenbacker Causeway leads to Key Biscayne. Along the causeway, you’ll find Miami Seaquarium (miamiseaquarium.com). It covers 38 acres, with sea turtles, manatees, wild birds, and fish of every size and color.

Dolphins, sea lions, and whales perform in shows under the landmark Golden Dome, designed by acclaimed architect Buckminster Fuller.

On Key Biscayne, Crandon Park offers two miles of beach, renowned golf, and tennis facilities as well as a full-service marina.

At the island’s southern tip, Bill Baggs Cape Florida State Park is home to over a mile of beach (ranked among the top 10 beaches in the country) as well as a lighthouse that was built in 1825. The 95foot whitewashed red-brick tower is the oldest structure standing in Greater Miami.

A little bohemian, a little Bahamian, and altogether fascinating, Coconut Grove is about 20 minutes south of Downtown Miami.

This is a place where people enjoy strolling the streets and sampling eclectic shopping and cuisine at a variety of shops and restaurants.

History and heritage still echo through The Grove, as you discover when walking beside the bay at Peacock Park, visiting The Barnacle Historic State Park or exploring the splendorous Vizcaya Museum and Gardens (vizcaya.org).

July/August 2021 • THE FEDERAL LAWYER • 39

40 • THE FEDERAL LAWYER • July/August 2021

Florida’s Early Federal Legal History (1824-1940) IRA COHEN

A

round the time of its statehood in 1845, Florida was largely a wet and wild swampland that was very sparsely populated. By way of illustration, the 1840 census registered only 446 people in all of Dade County.1 In barest summary, it was a dangerous, lawless, and violent place by most contemporary accounts. Eastern diamondback rattlesnakes, cottonmouths, brown recluse spiders, Florida black bears, and American alligators were, as they still are today, in great abundance.

During the time that Florida had been a territory, a host of important historical events had transpired around the nascent country, some of which indelibly affected Florida and its hardy inhabitants.

The White House had been the lodging of Presidents James Monroe, John Quincy Adams, Andrew Jackson, Martin Van Buren, William Henry Harrison, John Tyler, and James K. Polk. Among other notable events that had transpired during that epoch were the Indian Removal Act (1830), Nat Turner’s Revolt (1831), the Second Seminole War (1835), the Battle of the Alamo (1836), and, most regrettably, the forced removal of the Cherokee Nation from the Southeastern United States (1838).2 In its position as a U.S. territory,3 the courts constituted therein were, of course, federal courts. It is quite important to note, however, that they were not Article III courts, but rather territorial courts.

These territorial courts were purely creatures of congressional enactments under Article I of the U.S. Constitution.

As for the law writ large, Florida’s Supreme Court historians have mused that, in a very real sense, Floridians can boast to have law that is almost 1,000 years old4, which long predates the state’s very existence.5 This is not a byproduct or calculation of some “new math”; rather, as a matter of objective fact, the common law6 (as it existed in England on July 4, 1776) was adopted by the Florida Legislative Council in 1829 (while still holding territorial status).7 Leaving behind the folk courts of the shires and hundreds, the Norman Conquest in 1066 catapulted the law in England into a new and long-enduring phase.

As a postlude to America’s independence from Great Britain, the calendar pages had flipped a good 70 years when Florida finally was admitted to the Union in 1845 as the 27th state. The “Lone Star” State of Texas was admitted just ahead of Florida and entered the Union earlier that same year. James K. Polk was the commander in chief, and it was about one year before the Mexican-American War would begin.8 During that time, Florida law and its court system were affected, in some measure, by the interplay of several national invasions and influences.9 To be sure, Florida may accurately be referred to as the Land of Five Flags. During the 18th century, for example, Florida was, at various times, ruled by no less than three European powers: England, Spain, and France. The fourth flag was, of course, the Stars and Stripes.10 Then, in the early 1860s, after Florida had finally gained U.S. statehood, it shortly thereafter seceded from the United States (raising the Stars and Bars11), only to share in the ignominious denouement of the Confederacy.12 By the 1830s, Florida was divided informally into three areas: East Florida, from the Atlantic Ocean to the Suwannee River; Middle Florida, from the Suwannee to the Apalachicola River; and West Florida, from the Apalachicola to the Perdido River. The July/August 2021 • THE FEDERAL LAWYER • 41

southern area of the territory (i.e., south of present-day Gainesville) was scarcely settled at all. The entire territory’s economy was based on agriculture. The plantations, as it happened, were concentrated in Middle Florida, and their owners established the political and cultural tone for all of Florida from the time of statehood until after the Civil War.

Early Florida Federal (Territorial) Courts In the second quarter of the 1800s, as mentioned above, Florida was a U.S. territory. There were some lower courts established and a Florida Territorial Court of Appeals. The judges seated on the latter court served short, four-year, terms. The Florida territorial courts were established statutorily and under Article I of the U.S. Constitution. As such, they did not exercise federal jurisdiction reserved for Article III federal district courts, such as admiralty jurisdiction.

In an early case pertaining to the jurisdiction of such courts,13 Chief Justice John Marshall of the U.S. Supreme Court decided an appeal by holding that the Florida territorial courts were established under Article I of Constitution. The case had been before the territorial court for a ruling on the disposition of cotton bales that had been salvaged from a sunken ship. The judges of such courts did not enjoy lifetime appointments. Therefore, reasoned Justice Marshall, such courts could not exercise federal judicial powers, such as admiralty jurisdiction.

On the same day as statehood, Congress had the foresight to also create the U.S. District Court for the District of Florida.15 As was the case with all other states at the time, Congress made Florida into only one federal district. Moreover, despite the immense geographical area of the newly created District of Florida, Congress authorized only a single judgeship. Thus, one man was the face, and fount, of federal law for all of Florida.

In those early days, the District of Florida was not yet assigned to a circuit. Instead, the district court was afforded appellate jurisdictional powers (excepting appeals and writs of error16 to the U.S. Supreme Court). However, two years after statehood, in 1847, Congress bifurcated the Florida Congress into a pair of judicial districts, to wit, the Northern District and the Southern District.17 Each district was given one judgeship, and the then-sitting judge for the District of Florida, Judge Bronson, was assigned to the Northern District18 (where the state’s population’s center resided at the time).

It was quickly decided that appeals from cases in the Florida federal district courts were to be handed up to the Fifth Circuit Court of Appeals. Understandably, the appellate jurisdiction of the district courts in Florida was thereupon abolished.

Several cities within the Northern District already had been established for quite some time. St. Augustine dated back to 1565.

Jacksonville was founded in 1832, Tampa in 1855, and Ocala and Gainesville in 1869.

Judge Douglas was born and educated in Virginia. When he was just 29, in 1841, President John Tyler appointed him to the federal bench as a judge of the Territory of Florida’s Middle District Superior Court.

It was the same year that John Quincy Adams had argued, and won, the fabled Amistad (slave ship) case before the U.S. Supreme Court.

At that time, there were two territorial courts of appeal, one located in “East Florida” in St. Augustine and the other situated in “West Florida” in Pensacola. One of the standout judges of the Florida Territorial Court system was Hon. Samuel James Douglas (1812-1873). Judge Douglas went on later to become the 16th justice of the Florida Supreme Court (1866-1868).

Judge Douglas was born and educated in Virginia. When he was just 29, in 1841, President John Tyler appointed him to the federal bench as a judge of the Territory of Florida’s Middle District Superior Court. It was the same year that John Quincy Adams had argued, and won, the fabled Amistad (slave ship) case before the U.S. Supreme Court.14 Judge Douglas served until 1845, at which time Florida attained statehood. After a relatively short stint in private practice, President Zachary Taylor appointed Judge Douglas to be U.S. customs collector in Key West, Fla. (1849-1853).

After the commencement of hostilities in the Civil War, Judge Douglas returned to his home state of Virginia to sit on the bench of a court of the Confederacy. With war’s end, in 1865 he returned to Tallahassee. In 1866, Governor David Walker appointed Judge Douglas to the Florida Supreme Court, where he served for only two years.

In 1868, with a new constitution and a new governor in place, other justices were appointed to the high court.

42 • THE FEDERAL LAWYER • July/August 2021

Early Federal Judges of the District Courts of Florida Hon. Isaac Hopkins Bronson (1802-1855): The First Federal District Judge in Florida In 1846, the first (and only) federal judge for the embryonic U.S. District Court of Florida, Judge Isaac Hopkins Bronson, ascended to the bench. That same year, the United States and Britain entered into the Oregon Treaty, Iowa became a state, and California almost became independent during the so-called Bear Flag Revolt in “Alto California.”

Judge Bronson was a U.S. congressman from New York19 and a U.S. district judge for the District of Florida and, later, the Northern District of Florida.20 He was born up north on Oct. 16, 1802, in either Rutland, N.Y., or Waterbury, Conn. As was expected of other lawyers of the time, Judge Bronson read law21 in 1822. He was admitted to the bar and was in private practice in Watertown, N.Y., from 1822-1837. He also served a constituency in Congress from 18371839. He was a judge in New York from 1839-1840, before moving to St. Augustine, in St. John’s County, Florida Territory. Way down south in Florida, there were already several railroads in operation when Judge Bronson steamed into town.

Judge Bronson later moved to Palatka, Putnam County, Florida Territory. He then served as a judge of the U.S. District Court for the Eastern District of Florida Territory for its last five years in existence, from 1840-1845.

At age 44, on May 5, 1846, Judge Bronson was nominated by President Polk to the U.S. District Court for the District of Florida to a new judicial seat. Confirmed by the U.S. Senate on Aug. 8, 1846, he received his commission the same day (which was standard operating procedure at the time).

Two years later, Judge Bronson was reassigned to the U.S. District Court for the Northern District of Florida on Feb. 23, 1847, to the newly created seat there. Judge Bronson served in that seat for eight years until his death on Aug. 13, 1855, in Palatka, Fla.

Early Judges of the Southern and Northern Districts of Florida Hon. William Marvin (1808-1902): Public Servant Extraordinaire Judge William Marvin was a U.S. district judge for the Southern District of Florida.22 He also served as the seventh governor of the state of Florida.

Judge Marvin was born in Fairfield, N.Y., on April 14, 1808. A farm boy, he later studied law with a local attorney and gained admission to the New York Bar in 1833, at age 25. He practiced in Phelps, N.Y., until 1835.

In 1835, Judge Marvin was appointed as U.S. attorney for the Southern District of Florida Territory, where he served until 1839.23 He also wore separate hats as both a member of the Florida Territorial Council (1837) and a delegate to the Florida Constitutional Convention (1838-1839).

Judge Marvin, age 31 at the time, became the judge of the U.S. District Court for the Southern District of Florida Territory in 1839 and sat until 1845. After leaving the bench, he resumed practicing law in Key West, where he served as mayor in 1861.

Back in 1847, while Abraham Lincoln was in the U.S. House of Representatives, the Battles of Buena Vista and Vera Cruz were waged in the Mexican-American war. On March 2 of that year, Judge Marvin was nominated by President Polk to the U.S. District Court for the Southern District of Florida when he was just 39 years old. He was confirmed by the U.S. Senate on March 3, 1847 and received his commission the same day.

Judge Marvin remained loyal to the Union during the Civil War, so the judge’s federal judicial service was terminated when he resigned on July 1, 1863. The next year, on Feb. 20, 1864, the Battle of Olustee was waged near Ocean Pond in Baker County. It was the largest Civil War battle in Florida and resulted in a decisive win for the Southern forces.24 Following his resignation from the federal bench, Judge Marvin retraced his steps back north and resumed private practice in New York. But he later renewed his Florida connection. At the end of the Civil War, Judge Marvin was appointed as provisional governor of Florida by President Andrew Johnson. He served from July 13, 1865, to Dec. 20, 1865,25 and, wearing that new hat, he oversaw Florida’s effort to repeal its secession ordinance and prepare to rejoin the Union.

Yet, his public service was not done. Judge Marvin ran for the U.S. Senate and also, in 1866, served a second term as mayor of Key West. He left Florida during Reconstruction and returned to the practice of law, while remaining active in politics. He died in Skaneateles, N.Y., on July 9, 1902, at the ripe old age of 94.

Judge Marvin’s political, public, and service life spanned more than 65 years. His formidable legacy also includes the fact that he was the author of a nationally recognized textbook on marine salvage law: A Treatise on the Law of Wreck and Salvage.26

Hon. McQueen McIntosh (1822-1868): Judge for the Blue/Judge for the Gray Judge McQueen McIntosh was a U.S. district judge for the Northern District of Florida.27 Born in 1822 near Darien, Ga., Judge McIntosh was a planter in Florida, but he entered the private practice of law in Jacksonville, Fla., in 1850, the same year that California became a state.

By that year, the population of Dade County had dwindled down to just 159 people.28 President Taylor had died while in office, and Vice President Fillmore became president, only to be succeeded in 1852 by Franklin Pierce.

Judge McIntosh was nominated by President Pierce on Feb. 27, 1856, to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge Bronson. Confirmed by the U.S. Senate on March 11, 1856, he received his commission the same day.

Later that year, James Buchanan became the new president.

In January 1861, Florida seceded from the Union, along with the states of Alabama, Georgia, and Louisiana. As a result, Judge McIntosh resigned, and his service was terminated by the government on Jan. 3, 1861, due to the impending hostilities of the Civil War. Following his resignation from the federal bench, Judge McIntosh shed his blue suit for a gray one, donned a new black robe, and served as a judge of the Confederate District Court for the District of Florida starting in 1861.

By the end of that year, Abraham Lincoln had become president of the United States, and Jefferson Davis had been elected president of the Confederacy. The Civil War had commenced at Fort Sumpter, and the (First) Battle of Bull Run was in the history books.

Judge McIntosh died on June 18, 1868, in Pensacola. During that same year Congress passed a number of Reconstruction Acts, Ulysses S. Grant became president, and the state of Florida, along with the states of Alabama, Arkansas, Louisiana, North Carolina, and South Carolina, was re-admitted to the Union.

Hon. Philip Fraser (1814-1876): Attorney, Mayor, and Judge Judge Philip Fraser was a U.S. district judge for the Northern District of Florida.29 Born in Montrose, Pa., on Jan. 27, 1814, Judge Fraser practiced as an attorney in Jacksonville, Fla. He also served as mayor of Jacksonville from 1855 to 1856.

On June 14, 1862, at age 48, Judge Fraser was nominated by President Abraham Lincoln to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge McIntosh. In 1862, the year that General Robert E. Lee was placed in command of the Army of Northern Virginia, Judge Fraser was confirmed by the U.S. Senate on July 17, 1862, and, as was then par for the course, received his commission the same day.

In 1876, the year of a disputed presidential election, Central Park opened in New York, and the National League of Baseball was formed to showcase America’s pastime. Out West, Colorado became a state and Lt. Colonel George Armstrong Custer, along with his ill-fated troops, made their “Last Stand” and were massacred at the Battle of the Little Big Horn in Montana Territory. Judge Fraser remained on the bench until his death in that year, on July 26, 1876, at the age of 62.

Hon. Thomas Jefferson Boynton (1838-1871): Lawyer, Newsman, Judge Judge Thomas Jefferson Boynton was a U.S. district judge for the Southern District of Florida.30 Born on Aug. 31, 1838, in AmJuly/August 2021 • THE FEDERAL LAWYER • 43

herst, Ohio, Judge Boynton read the law in 1858, the year of the famous Lincoln-Douglas debates.31 Judge Boynton was in private practice in St. Joseph, Mo., from 1858-1861. He worked in the newspaper industry as a reporter and editor until 1861, and then he was U.S. attorney for the Southern District of Florida from 1861-1863, the latter year being the time of the legendary Battle of Gettysburg.

Judge Boynton received a recess appointment from President Lincoln on Oct. 19, 1863, to the seat on the U.S. District Court for the Southern District of Florida that was vacated by Judge Marvin.

He was a youthful 25 years of age. In New York, there were draft riots. In the South, pro-Union Virginia counties seceded and became the state of West Virginia.

In 1864, Nevada became a state and Union General Sherman was hell-bent on his infamous “March to the Sea.” Judge Boynton was again nominated for the same position by President Lincoln on Jan. 5, 1864. He was confirmed by the Senate a short time later and received his commission on January 20 of that year.

Judge Boynton was 32 years old when his service terminated on Jan. 1, 1870, after six years, due to his resignation. About a month later, the Fifteenth Amendment to the U.S. Constitution (Right to Vote Not Denied by Race, Color, or Previous Servitude) was ratified. In 1870, according to the census, Dade County had only 85 inhabitants.32 A year later, Boynton untimely passed away in New York at age 33.

Hon. John McKinney (1829-1871): “Princeton Man” and ShortTerm Judge Judge John McKinney was a U.S. district judge for the Southern District of Florida.33 Born in Lycoming County, Pa. (in 1829), Judge McKinney graduated from the College of New Jersey (now Princeton University) in 1848 with an Artium Baccalaureus (A.B.) degree.

That was the same year in which Dred Scott sued for his freedom.34 Judge McKinney read law in 1850—the same year that California became a state, and the Compromise of 1850 (with the Fugitive Slave Act) was passed by Congress. Judge McKinney served as a clerk in the Solicitor’s Office of the U.S. Department of the Treasury in Washington, D.C., beginning in 1861. He received a recess appointment from President Ulysses S. Grant on Nov. 8, 1870, to a seat on the U.S. District Court for the Southern District of Florida vacated by Judge Boynton. He thereafter was nominated to the same position by President Grant on Dec. 7, 1870, and confirmed and commissioned by the U.S. Senate on Feb. 18, 1871.

In 1871, the New York Times went public with evidence of Boss Tweed’s avaricious crimes, and New York’s political atmosphere was all aflame; meanwhile, the city of Chicago was literally burning, devastated by the Great Fire. Sadly, Judge McKinney only sat on the Florida federal bench for less than a year, when his service terminated on Oct. 12, 1871, due to his death at just 42 years of age.

Hon. James William Locke (1837-1922): 40 Years on the Florida Federal Bench Judge James William Locke was a U.S. district judge for the Southern District of Florida.35 He was born in Wilmington, Vt., in 1837, the same year that Oberlin College became the first coeducational college in the United States.

James William Locke read law to enter the bar in 1859. In that year, abolitionist John Brown was busy raiding Harper’s Ferry, W.Va., and the Comstock Lode (of silver) was discovered in Virginia City, 44 • THE FEDERAL LAWYER • July/August 2021

Nev., then Utah Territory. Judge Locke served as paymaster’s clerk in the U.S. Navy from 1861-1865 during the American Civil War. He was engaged in the private practice of law in Key West, Fla., from 1865-1872.

Judge Locke served as county superintendent of education for Monroe County and as a clerk and, later, commissioner of the U.S. District Court for the Southern District of Florida.36 He served as a judge of the Monroe County Court from 1868-1870 and as a member of the Florida Senate from 1870-1872.

President Grant nominated Judge Locke to the U.S. District Court for the Southern District of Florida on Jan. 15, 1872, to the seat vacated by Judge McKinney. Confirmed by the U.S. Senate on Feb. 1, 1872, he received his commission that day.

In 1912, the Girl Scouts of the USA was born, and the RMS Titanic sank after hitting an iceberg. Judge Locke’s service ended on July 4 of that year; he retired after over four decades on the bench. He was President Grant’s longest-serving judicial appointee and the longest to have served as a federal judge in Florida. In fall 1922, Judge Locke died at age 85, on September 5, in Kittery, Maine.

Hon. Thomas Settle (1831-1888): State Supreme Court Judge and Federal Jurist Judge Thomas Settle had a remarkably busy career before he ascended the Florida federal bench. He was a U.S. envoy extraordinary and minister plenipotentiary to Peru, an associate justice of the Supreme Court of North Carolina, and, finally, a U.S. district judge for the Northern District of Florida.37 Born on Jan. 23, 1831, in Rockingham County, N.C., Judge Settle received an A.B. degree in 1850 from the University of North Carolina at Chapel Hill. In 1854, the Whig party collapsed, the Treaty of Kanagawa was signed with Japan, and Judge Settle read the law at Richmond Hill Law School. He served in North Carolina politics until 1859.

Judge Settle returned to private practice in North Carolina from 1860-1861. He was solicitor for the Fourth Judicial Circuit of North Carolina in 1861 and from 1862-1868. In the interregnum, he was a captain in the Confederate States Army from 1861-1862. After the war ended, he was elected as a member of the North Carolina Senate and was speaker of that body. He rose to become an associate justice of the Supreme Court of North Carolina from 1868-1871 and again from 1872-1876.

Judge Settle thereafter was nominated by President Ulysses S. Grant on Jan. 26, 1877, to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge Fraser. He was confirmed by the U.S. Senate on Jan. 30, 1877, and received his commission the same day, in the year that the Nez Perce War started and Reconstruction ended.

Judge Settle’s service terminated after 11 years on the bench, on Dec. 1, 1888, upon his death in Raleigh, N.C., at age 57.

Hon. Charles Swayne (1842-1907): Impeached, but Not Convicted Judge Charles Swayne was a U.S. district judge for the Northern District of Florida38 whose claim to fame is that he prevailed over an impeachment effort leveled against him.

Born in Guyencourt, Del., on Aug. 10, 1842, in the year of Dorr’s Rebellion (a mini-civil war) in Rhode Island, Judge Swayne received a Bachelor of Laws from the University of Pennsylvania

Law School in 1871. He was involved in the private practice of law in Philadelphia from 1871-1885 and, thereafter, in Pensacola, Fla., from 1885-1889. In 1888, his bid as a candidate for the Florida Supreme Court was unsuccessful.

Judge Swayne received a recess appointment from President Benjamin Harrison on May 17, 1889, to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge Settle.

He was nominated to the same position by President Harrison on Dec. 5, 1889. In that year, telephone service was first instituted in Miami. Judge Swayne was confirmed by the U.S. Senate on April 1, 1890, and received his commission the same day.

Teddy Roosevelt was elected president in 1904; the Panama Canal Zone was acquired in that year; and the World’s Fair was held in St. Louis. It was also the year that Judge Swayne was impeached by the U.S. House of Representatives (on December 13). The judge was accused of filing false travel vouchers, improperly using private railroad cars, unlawfully imprisoning two attorneys for contempt, and living outside of his judicial district. The charges against the popular jurist did not stick.

Swayne’s impeachment trial in the Senate lasted about two and a half months. When it ended, on Feb. 27, 1905, the Senate voted to acquit on each of the 12 articles. Curiously enough, it appears that there was little doubt that Judge Swayne actually was guilty of some of the offenses charged against him. Ostensibly, his lawyer admit-

On Sept. 4, 1907, Judge Sheppard received a recess appointment from President Theodore Roosevelt to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge Swayne. Formally nominated to the same position by President Roosevelt on Dec. 3, 1907, Judge Sheppard was confirmed by the U.S. Senate on May 20, 1908 and received his commission the same day.

Judge Sheppard “died with his boots on,” while in judicial office, on April 21, 1934, at age 74. He had served for 27 years on the bench.

In that year, Adolf Hitler became the “Fuhrer,” Mao Zedong began his long march northwards in China with 100,000 soldiers, and the federal Securities and Exchange Act was passed.

Hon. John Moses Cheney (1859-1922): Federal Judge and Civil Rights Lawyer Judge John Moses Cheney was a Florida attorney and a short-term U.S. district judge for the Southern District of Florida.40 He was born on Jan. 6, 1859, in Milwaukee. Judge Cheney received a Bachelor of Laws in 1885 from the Boston University School of Law. Grover Cleveland was president at the time of his graduation.

Judge Cheney was in private practice in Orlando, Fla., from 18861906. He was the city attorney for Orlando from 1889-1890. He also served as the U.S. attorney for the Southern District of Florida from 1906-1912. By 1910, Dade County’s population had risen to 11,933.41 Judge Cheney received a recess appointment from President William

Judge Swayne received a recess appointment from President Benjamin Harrison on May 17, 1889, to the seat on the U.S. District Court for the Northern District of Florida vacated by Judge Settle.

He was nominated to the same position by President Harrison on Dec. 5, 1889. ted as much, but characterized the judge’s lapses in judgment as “inadvertent.” The Senate, moreover, was quite forgiving and simply refused to convict Judge Swayne because the senators did not believe the judge’s personal peccadilloes amounted to the required lofty bar of “high crimes and misdemeanors.”

Judge Swayne, thus, survived his impeachment ordeal and went on to serve for two more years in judicial office before he died on July 5, 1907, at age 65.

Hon. William Bostwick Sheppard (1860-1934): U.S. Attorney and Federal Judge Judge William Bostwick Sheppard was a U.S. district judge for the Northern District of Florida.39 He was born in Bristol, Fla., on Oct. 4, 1860, a few months after the arrival of the Pony Express on April 3 and two months prior to South Carolina’s secession from the Union on December 30. Judge Sheppard attended the University of North Carolina at Chapel Hill. While far up north, in Springfield, Mass., James Naismith was busy inventing America’s beloved game of basketball, Judge Sheppard read the law to enter the bar in 1891.

Judge Sheppard was a customs collector in Apalachicola, Fla., from 1889-1894 and from 1897-1901. He was in private practice in Apalachicola from 1891-1903, serving as mayor of the city in 1894. He then served as U.S. attorney for the Northern District of Florida from 1903-1907.

Howard Taft on Aug. 26, 1912, to the seat on the U.S. District Court for the Southern District of Florida vacated by Judge Locke. He was nominated to the same position by President Taft on Dec. 3, 1912. The Miami airport had opened in that same year. Judge Cheney’s service terminated on March 3, 1913, after he was not confirmed by the U.S. Senate (which never held a vote on his nomination).

Judge Cheney resumed private practice in Orlando from 19131922. A staunch Republican, Cheney later represented African American clients during the segregation era and supported voter registration drives during his U.S. Senate campaign in the era of white supremacy supported by the Democratic Party in Florida and across the South. Efforts to register African Americans resulted in the Ocoee massacre.42 Cheney died two years later, on June 2, 1922, at age 63, in Orlando.

Hon. Rhydon Mays Call (1858-1927): Circuit Court and U.S. District Judge Judge Rhydon Mays Call was a U.S. district judge for the Southern District of Florida.43 He was born on Jan. 13, 1858, in Fernandina Beach, Fla. In the year that Judge Call was born, the transatlantic cable was laid between the continents.

Judge Call received his Bachelor of Laws in 1878 from Washington and Lee University School of Law. Judge Call was in July/August 2021 • THE FEDERAL LAWYER • 45

private practice in Jacksonville, Fla., from 1881-1893. He then sat as a judge of the Circuit Court of Florida for the Fourth Judicial Circuit for 20 years, from 1893-1913.

In 1913, Woodrow Wilson was president, and the infamous Sixteenth Amendment was ratified, thus establishing an income tax in America. Judge Call received a recess appointment from President Woodrow Wilson on March 26, 1913, to the seat on the U.S. District Court for the Southern District of Florida vacated by Judge Cheney. He was nominated to the same position by President Wilson on April 12, 1913. He was confirmed and commissioned by the U.S. Senate on April 24, 1913.

The 1920 census for Dade County shows that the population had almost quadrupled in 10 years to 42,753.44 Meanwhile, aviator Charles Lindbergh had completed his first trans-Atlantic flight in 1927, and Babe Ruth belted out a then-record 60 home runs in one season for the New York Yankees. After a total of 34 years in black robes, Judge Call’s federal court service terminated on Dec. 15, 1927, upon his death at age 69.

Hon. Lake Jones (1867-1930): Attorney and Federal Jurist Judge Lake Jones was an American lawyer and a U.S. district judge for the Southern District of Florida.45 He was born in Vicksburg, Miss., on Feb. 10, 1867. During that year, Nebraska became a state, and the United States purchased the Territory of Alaska from the Russian Empire.46 Judge Jones was a clerk and inspector for the U.S. Post Office Department from 1885-1909 and then graduated from Northwestern University Pritzker School of Law with a Bachelor of Laws in 1909.

William Howard Taft became president that year, and the NAACP was founded by W.E.B. Du Bois. Judge Jones was in private practice in Jacksonville from 1909-1921.

The Immigration Act of 1924 and the Indian Citizenship Act were passed in the same year that Judge Jones was nominated by President Calvin Coolidge to the U.S. District Court for the Southern District of Florida, to a new seat authorized by 42 Stat. 837. He was confirmed by the Senate on Feb. 18, 1924, and received his commission the same day.

After just a half dozen years on the bench, his service terminated on June 7, 1930, upon his death at age 63 in Jacksonville. In 1930, Mickey Mouse, Birdseye frozen foods, Betty Boop, Scotch Tape, and Kentucky Fried Chicken entered the American scene.

Hon. Alexander Akerman (1869-1948): U.S. Attorney, Lawyer, District Judge Judge Alexander Akerman was a U.S. district judge for the Southern District of Florida.47 A few months after the first Transcontinental Railroad was completed on May 10 at Promontory Summit in Utah Territory, Judge Akerman was born on Oct. 9, 1869, in Elberton, Ga. The son of noted attorney Amos T. Akerman,48 he read law in 1892 and entered private practice in Cartersville, Ga., the same year.

In 1898, Judge Akerman was made a referee in bankruptcy (a position created by the Bankruptcy Act of 1898 and the predecessor of modern bankruptcy judges) for the U.S. District Court for the Southern District of Georgia. He was then an assistant U.S. attorney for the Southern District of Georgia from 1901-1912 and rose to the office of the U.S. attorney for the Southern District of Georgia from 1912-1914.

World War I started, and Mother’s Day was established as a 46 • THE FEDERAL LAWYER • July/August 2021

holiday in 1914. In that year, Judge Akerman relocated to Florida and was in private practice in Kissimmee from 1914-1920. In 1920, Judge Akerman moved to Orlando and formed, with Judge Cheney (see discussion, supra), a new firm of lawyers. Today, that megafirm is known as Akerman LLP and is one of the largest law firms in Florida.

President Calvin Coolidge nominated Judge Akerman to the U.S. District Court for the Southern District of Florida on Jan. 19, 1929, the year of the stock market crash, to a new seat created by 45 Stat.

1081. Confirmed by the Senate on Feb. 15, 1929, he received his federal commission the same day.

Judge Akerman assumed senior status on Oct. 8, 1939. He remained on the court until his death on Aug. 21, 1948, at age 79, after serving 19 years on the federal bench.

Hon. H. Lockwood Ritter (1868-1951): Impeached, Convicted, and Disgraced Jurist Judge Halsted Lockwood Ritter was a U.S. district judge for the Southern District of Florida.49 He is remembered, unfortunately for him, as the 13th individual to be impeached by the U.S. House of Representatives and just the fourth individual to be convicted and removed from federal office by the U.S. Senate.50 Judge Ritter was born in Indianapolis on July 14, 1868. At age 23, he earned a Bachelor of Philosophy degree; a year later, he had a Bachelor of Laws. In 1893, he secured his Artium Magister (today, an M.A.) in 1893. All of Judge Ritter’s degrees were granted by DePauw University.

Judge Ritter was busily engaged in the practice of law in the Crossroads of America from 1895-1895. His next stint in private practice came in Denver, where he stayed until 1925. In that year, he and his family moved southeast to West Palm Beach, Fla., due to his wife’s ill health. Ritter practiced there until 1929, the year in which the University of Miami was founded.

Ritter was nominated by President Calvin Coolidge on Jan. 23, 1929, to the seat on the U.S. District Court for the Southern District of Florida vacated by Judge Call. He was confirmed by the U.S. Senate on Feb. 15, 1929, and received his commission the same day.

Judge Ritter’s service, however, was terminated early, not by death, but rather, on April 17, 1936, after a three-year legal saga, due to his impeachment, conviction, and ultimate removal from judicial office.

The House of Representatives, having considered the matter, impeached the judge (181 votes to 146) as to seven articles of impeachment, including (1) ordering the payment of “exorbitant” legal fees with intent to embezzle; (2) showing judicial favoritism in bankruptcy cases; (3) practicing law while a judge; (4) tax evasion; and (5) bringing the judiciary into disrepute.51 After an 11-day trial, the U.S. Senate voted to acquit the judge of all but one—the last article (see number (5), supra)—by a vote of 56 to 28.52 After his removal from office, Judge Ritter continued to practice law in Miami for about 15 years. He became ill and died on Oct. 15, 1951, at age 83 in Laurel, Miss.

The Federal Judicial Districts of Florida (1845-1940) Throughout its history, much like the Sunshine State’s seacoast has been punctuated with majestic lighthouses, Florida’s legal landscape has been dotted with beautiful, historic federal courthouses. Hands down, the earliest-built federal courthouse building in Florida was the building used in St. Augustine for the Northern District court, which dated back to circa 1603. The District Court for the District of Florida sat in that locale from 1845-1847; the Circuit Court bench was there from 1862-1868;

and the District Court presided there from 1847-1868.53 The federal courthouse for the Northern District of Florida was located in Pensacola from 1887-1939.54 The Circuit Court presided there, in “The City of Five Flags,” from 1887-1911.55 As for the Southern District court, it is noteworthy that the judge originally resided in Key West, not Miami.56 In the first place, the city of Miami did not exist until much later in time. The Miami area, then known as “Biscayne Bay Country,” did not become a city until 1896. As for Miami Beach, that area was not incorporated until even later, in 1915. Further, there were no “Spring Breakers” to speak of, inasmuch as there was no Fort Lauderdale (at least until 1911).

Originally, the federal court in Key West was housed in a building shared by the post office, custom house, and courthouse. There sat both the U.S. District Court for the Southern District of Florida (1891-1932) and the U.S. Circuit Court for the Southern District of Florida (1891-1911).57 In Miami, there was a federal courthouse that stood only from 1914-1933. Hurricanes had ruined the structure, and it was the termites, not the jurists, that were effectively holding court. In 1933, the condemned building was replaced by the Dyer courthouse.

The federal courthouse in Jacksonville was constructed for the Southern District of Florida in 1895.58 The Circuit Court sat there until 1911, and the District Court was there until as late as 1933. Also built in 1895 was the Northern District federal courthouse in Tallahassee; it served as the home of the Circuit Court from 1895-1911 and for the District Court from 1895-1937.59 Over in Tampa, the courthouse was erected in 1905. The Circuit Court sat there until 1911; the District Court (for the Southern District for Florida) was in session there from 1904-1962.60 In Ocala, the Circuit Court sat in the courthouse from 1909-1911. In the same building sat the District Court (for the Southern District of Florida) from 1910-1956.61 In Gainesville, the federal court was built in 1911 for the Northern District of Florida.62 The Circuit Court sat there only in 1911. There had been a federal courthouse in Fernandina since 191263 (then part of the Southern District).64 In Fort Myers, the federal courthouse for the Southern District dated back to 1933.65 The Fort Pierce courthouse (which was in the Southern District at the time) was constructed in 1935.66 In 1928, a new Florida federal courthouse for the Northern District of Florida rose up in Mariana,67 the site of a Civil War battle.68 That edifice served the court, and the public, until 1977.

In 1922, a temporary judgeship was authorized for the Southern District, but it was never made permanent.69 Seven years later, in 1929, an additional judge was in fact authorized.70 Yet another judicial seat was created just one year later for the Southern District, where the population was growing by leaps and bounds.71 As for the federal judicial complement of the state at that time, by 1922, one judge was assigned to the Northern District and two to the Southern District. In 1929, the tally increased to one for the Northern District and three for the Southern District.72 In 1930, Eastern Airlines started flying its Miami to New York route. Two years later, in 1932, a new courthouse (now known as the Sidney M. Aronovitz U.S. Courthouse) was built in Key West. The building is located within the Key West Historic District and, as such, is listed on the National Register of Historic Places.73

Epilogue Thirty-one years later, in November 1963, some very special, and secret, flights were taking place high above certain areas not too far

from Orlando. By 1965, many huge tracts of realty were being gobbled up in those same areas by oddly named dummy corporations.

The Middle District of Florida would soon be destined to have a new star attraction, not with a courthouse, but rather Cinderella’s Castle, and would come to be known as the iconic Walt Disney World.

In roughly 140 years, Florida had gone from the Wetlands to “Wonderland,” and from the buccaneers of the Florida Straits to the “Pirates of the Caribbean.” Counting back a century, the population of (Miami-)Dade had risen meteorically from 83 souls back in 1860 to over 2.7 million people in 2019. The population continues to grow.

During the period from 1824-1940, 16 to 20 lawyers held seats on the federal courts established in and for, first, the territory and, later, the state of Florida. Most were not law-school educated; rather, they were trained in the art of jurisprudence by “reading the law.” Some were appointed as young as age 25, and some remained active on the bench for more than three or four decades.

These hardy individuals show us, through their impressive biographical sketches, that they evinced a common desire to serve their country and the public. They were politicians, legislators, soldiers, bureaucrats, and private practitioners who shared their (relatively) vast experience and scholarly inclinations with the litigants and counselors that appeared before them.

These intrepid young attorneys donned the black robes in what was then a sparsely populated southeastern portion of young America, a region that likely was home to more alligators and snakes than settlers. They were, each of them, dutifully engaged to what Justice Story would have called the “jealous mistress” of the law.74 To their credit, the vast majority of them served the public and their nation well, and with honor and distinction, paving the path for future generations of federal lawyers and jurists.

Naturally, the federal courts in Florida have grown along with the state and the populace and are, today, among some of the busiest halls of justice in the nation.75 This portends to be the wave of the future as well. And why not? Florida has an enviable climate, beautiful beaches, great outdoor activities, low taxes, and early-bird dinners.

Eventually, many more people will come to Florida. That is a legal certainty. How do I know? My fellow Queens College alumnus and popular comedian Jerry Seinfeld said it best: “My parents didn’t want to move to Florida, but they turned 60 and that’s the law!”  Ira Cohen, Esq., B.A., J.D., LL.M., is a partner of Henkel & Cohen, P.A., of Miami. He is a member of the Florida and New York Bars and has been practicing Intellectual Property Law for almost 40 years. Cohen served as judicial law clerk to Hon. Harold J. Raby, U.S. magistrate judge for the Southern District of New York. He is a proud member of the FBA and a Life Fellow of the Foundation of the FBA. Cohen also is deputy chair and a board member of the Intellectual Property Law Section of the FBA.

Endnotes Univ. of S. Fla., Miami-Dade County, Florida, Exploring Florida, https://fcit.usf.edu/florida/docs/c/census/Miami-Dade. htm (last visited June 15, 2021) [hereinafter Miami-Dade County Census].

2 From the Cherokee Nation’s point of view, their people suffered the “Great Death” from 1690-1740, when half the tribe died from the wars and diseases brought across the Atlantic by the Europeans. See 1

July/August 2021 • THE FEDERAL LAWYER • 47

Florida Tribe of Cherokee Indians, http://p10.hostingprod. com/@chaplaindavis.com/FLORIDA/history (last visited June 15, 2021).

3 Florida became a U.S. territory in 1821 under President James Monroe, two years after the Adams-Onis Treaty (1819) between the United States and Spain.

4 Legal scholars tend to agree that the common law—which derives its nomenclature from the fact that it was “common” to all of the king’s courts across Merry Old England—stemmed from the decisions, practices, and procedures of the courts of the English kings following William of Orange’s Norman Conquest in the year 1066.

5 History of Florida Law, www.floridasupremecourt.org/Aboutthe-Court/History-of-Florida-Law (last visited June 15, 2021).

6 “Common law systems” are those that afford great weight to judicial precedent as well as to the type of reasoning utilized in England’s legal system.

7 See Fla. Stat. § 2.01, which reads: “Common law and certain statutes declared in force. The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.”

8 Stemming from the annexation of the Republic of Texas by the United States, the Mexican-American War was waged between 1846 and 1848.

9 See, generally, M.C. Mirow, Spanish Courts, in Florida’s Other Courts: Unconventional Justice in the Sunshine State 9, 27 (Robert M. Jarvis, ed., Gainesville: Univ. Press of Florida, 2018).

10 Also known as Old Glory, the Red, White, and Blue, and The StarSpangled Banner.

11 The “Stars and Bars” flag of the Confederate States of America was adopted on March 4, 1861, and used until 1863. The more recognizable “Stainless Banner” was utilized from 1863-1865.

12 General Robert E. Lee surrendered on Apr. 9, 1865, at Appomattox Court House, Virginia.

13 Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828).

14 United States v. The Amistad, 40 U.S. (15 Pet.) 518 (1841).

15 28 Cong. Ch 75, 28th Cong. (1845).

16 A writ of error is defined by Black’s Law Dictionary as “[a] writ issued by an appellate court directing a lower court to deliver the record in the case for review.” Writ of Error, Black’s Law Dictionary 1749 (9th ed. 2009).

17 29 Cong. Ch. 20, 29th Cong. (1847).

18 Id. 19 Federal Judicial Center, https://www.fjc.gov/history/judges/ bronson-isaac-hopkins (last visited June 15, 2021).

20 Biographical Directory of the United States Congress, https://bioguideretro.congress.gov/Home/SearchResults (last visited June 15, 2021).

21 Before law schools were firmly established in this country, “reading law” was the method by which students of the law could gain admittance to legal profession. In short, they joined the legal profession by virtue of their satisfactory apprenticeship under the tutelage and mentorship of an older and, presumably, more experienced lawyer. A small number of states in the United States 48 • THE FEDERAL LAWYER • July/August 2021

still allow this method. See Corey Adwar, There’s a Way to Become An Attorney Without Setting Foot in Law School, Insider ( July 30, 2014), https://www.businessinsider.com/how-to-become-an-attorneywithout-law-school-2014-7.

22 Federal Judicial Center, https://www.fjc.gov/history/judges/ marvin-william (last visited June 15, 2021).

23 Id. 24 Every February, there is an historical reenactment of the battle in Olustee Battlefield Historic State Park, which is nestled inside of the Osceola National Forest.

25 Proclamation No. 47, 13 Stat. 771 ( July 13, 1865).

26 William Marvin A Treatise on the Law of Wreck and Salvage (Boston, Little, Brown and Company 1858).

27 Federal Judicial Center, https://www.fjc.gov/history/judges/ mcintosh-mcqueen (last visited June 15, 2021).

28 Miami-Dade County Census, supra note 1.

29 Federal Judicial Center, https://www.fjc.gov/history/judges/ fraser-philip (last visited June 15, 2021).

30 Federal Judicial Center, https://www.fjc.gov/history/judges/ boynton-thomas-jefferson (last visited June 15, 2021).

31 The debates were mainly concerned with the extension of slavery into the various U.S. territories.

32 Miami-Dade County Census, supra note 1.

33 Federal Judicial Center, https://www.fjc.gov/history/judges/ mckinney-john (last visited June 15, 2021).

34 See Dred Scott v. Sandford, 60 U.S. 393, 408 (1857), a landmark decision of the Supreme Court in which the Court held that the U.S. Constitution was not meant to include American citizenship for Black people (whether they were slaves or freemen) and, thus, the rights and privileges of the Constitution did not apply to them.

35 Federal Judicial Center, https://www.fjc.gov/history/judges/ locke-james-william (last visited June 15, 2021).

36 In the early 19th century, U.S. commissioners performed judicial functions analogous to the duties of a local magistrate or justice of the peace for the various states.

37 Federal Judicial Center, https://www.fjc.gov/history/judges/ settle-thomas (last visited June 15, 2021).

38 Federal Judicial Center, https://www.fjc.gov/history/judges/ swayne-charles (last visited June 15, 2021).

39 Federal Judicial Center, https://www.fjc.gov/history/judges/ sheppard-william-bostwick (last visited June 15, 2021) 40 Federal Judicial Center, https://www.fjc.gov/history/judges/ cheney-john-moses (last visited June 15, 2021) 41 Miami-Dade County Census, supra note 1.

42 Carlee Hoffmann & Claire Strom, A Perfect Storm: The Ocoee Riot of 1920, 93-1 Fla. Historical Quarterly 37 (2014).

43 Federal Judicial Center, https://www.fjc.gov/history/judges/ call-rhydon-mays (last visited June 15, 2021).

44 Miami-Dade County Census, supra note 1.

45 Federal Judicial Center, https://www.fjc.gov/history/judges/ jones-lake (last visited June 15, 2021).

46 The colossal 586,412 square miles purchased by virtue of “Seward’s Folly” only cost the U.S. $7.2 million dollars, or just two cents per acre.

47 Federal Judicial Center, https://www.fjc.gov/history/judges/ akerman-alexander (last visited June 15, 2021).

48 Amos Tappan Akerman (1820-1881) served as attorney general

under President Grant. He was the only Confederate official to rise to the rank of a cabinet member during Reconstruction and, later, became well-known for prosecuting many members of the Ku Klux Klan.

49 Federal Judicial Center, https://www.fjc.gov/history/judges/ ritter-halsted-lockwood (last visited June 15, 2021).

50 See generally Emily Field Van Tassel, Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992, Federal Judicial Center (1993), https://www.fjc.gov/sites/default/files/2012/ judgeres.pdf 51 Deschler’s Precedents, Impeachment of Judge Ritter, Ch. 14, § 18 (2013), https://www.govinfo.gov/content/pkg/GPO-HPRECDESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3-5-5-5.pdf 52 The Constitution requires a two-thirds vote of the Senate for a conviction in a case of impeachment.

53 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/saint-augustine-florida-ca.-1603 (last visited June 17, 2021).

54 Federal Judicial Center, https://www.fjc.gov/history/ courthouses/descriptions?page=2 (last visited June 17, 2021).

55 Id. 56 12 Stat. 576.

57 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/key-west-florida-189 (last visited June 17, 2021).

58 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/jacksonville-florida-1895 (last visited June 17, 2021).

59 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/tallahassee-florida-1895 (last visited June 17, 2021).

60 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/tampa-florida-1905 (last visited June 17, 2021).

61 Federal Judicial Center, https://www.fjc.gov/history/ courthouses/descriptions?page=2 (last visited June 17, 2021).

62 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/gainesville-florida-1911 (last visited June 17, 2021).

63 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/fernandina-florida-1912 (last visited June 17, 2021).

64 In 1962, it became a courthouse in the Middle District of Florida.

65 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/fort-myers-florida-1933 (last visited June 17, 2021).

66 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/fort-pierce-florida-1935 (last visited June 17, 2021).

67 Mariana is located northwest of Tallahassee and northeast of Panama City near Interstate 10. It is one of the oldest towns in the

state and the seat of Jackson County. During the Blue-Gray skirmish, 150 elderly men and young boys successfully defended the town against 900 Union soldiers.

68 Federal Judicial Center, https://www.fjc.gov/history/ courthouse/marianna-florida-1928 (last visited June 17, 2021).

69 67 Cong. Ch. 306, 67th Cong. (1922).

70 70 Cong. Ch. 72, 70th Cong. (1929).

71 71 Cong. Ch. 635, 71st Cong. (1930).

72 The Middle District of Florida was established much later. By the 1960s, the judicial caseload had skyrocketed in Florida. The Middle District of Florida was created by Congress on July 30, 1962. The new district was manned by the transfer of a trio of judges from the Southern District. S. Res. 1824, 87th Cong. (1962). Historically, the Middle District’s Courthouse was located in Tampa. It was housed in the U.S. Post Office building built in 1905; it continued to serve as a post office and customs house until 1931. See U.S. District Court for the Middle District of Florida, The Creation of the Middle District of Florida, www.flmd.uscourts.gov/ the-creation-of-the-middle-district-of-florida (last visited June 17, 2021). The building that is located at 601 North Florida Avenue today is owned by the city of Tampa.

73 U.S. General Services Administration, U.S. Post Office, Courthouse, and Custom House, Key West, FL, gsa.gov/ historic-buildings/us-post-office-courthouse-and-custom-housekey-west-fl (last visited June 17, 2021).

74 “I will not say with Lord Hale, that ‘the law will admit of no rival, and nothing to go even with it;’ but I will say, that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favours, but by a lavish homage.” Joseph Story, A Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University on the Twenty-fifth Day of August, 1829 at 29 (HardPress 2018).

75 In 2014, 11,441 new cases were filed in the Southern District of Florida and 2,252 cases were filed in the Northern District.

Ballotpedia, https://ballotpedia.org/United_States_District_ Court_for_the_Southern_District_of_Florida (last visited June 17, 2021); Ballotpedia, https://ballotpedia.org/United_States_ District_Court_for_the_Middle_District_of_Florida (last visited June 17, 2021); Ballotpedia, https://ballotpedia.org/United_ States_District_Court_for_the_Northern_District_of_Florida (last visited June 17, 2021).

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50 • THE FEDERAL LAWYER • July/August 2021

Spotlight on Ariana Fajardo Orshan First Woman U.S. Attorney for the Southern District of Florida, Sept. 17, 2018 – March 27, 2021 YISEL VALDES AND ANA MARIA MARTINEZ

A

riana leaves a legacy of getting the job done. She deftly navigated all the hurdles to successfully accomplish our goals, even amid these unprecedented times. Her support and inspiration to push further was felt in every HSI investigative priority, but none more so than her visionary push against money laundering and foreign public corruption. Her support in this regard has allowed HSI to pursue some of the largest money laundering investigations involving foreign corruption that have ever been pursued.” - Anthony Salisbury, Special Agent in Charge of Homeland Security Investigations in Miami

If there is one quality that defines Ariana Fajardo Orshan, it is that she is a natural-born leader. Others turn to her with the utmost confidence in her ability to get the job done with humility, compassion, and skill. This was no exception when she was tapped to be the first Senate-confirmed female U.S. attorney for the Southern District of Florida, a district that, in terms of size, is bigger than the state of Maryland. Before assuming this unprecedented role, Fajardo had proven over and over again that she was not afraid to be the “first” at anything, that perseverance and hard work were two of her best allies, and that she would always put her best foot forward to rise to the occasion.

Fajardo, born in Hialeah, Fla., is the oldest of three siblings. She grew up in Miami Springs as part of a tight-knit family, and alongside extended family members who lived within blocks of each other.

Many years before, her grandparents emigrated from Cuba, left everything behind, and settled in the United States. Growing up, Fajardo’s maternal grandfather, who was a lawyer in Cuba, would advise her to study medicine and stay away from the law. He thought that the legal field was too tough. A high school counselor also tried to steer her away from the law. Yet, that was exactly where Fajardo gravitated. As a sophomore in high school, she decided to become a

lawyer. She followed her passion for advocacy with a clear understanding that her personality, shaped by the strong and educated women in her family, was best suited for the law.

After high school, Fajardo attended Florida International University in Miami, where she pursued a degree in criminal justice. True to her passion, as a college student, Fajardo volunteered in the guardian ad litem program, a network of advocates and professional staff members who represented the voices of abused children in the courtroom.

Fajardo subsequently obtained a J.D. from Nova Southeastern University Shepard Broad College of Law. She chose that law school for, among other reasons, its nationally recognized trial advocacy program.

During law school, Fajardo interned at the Miami-Dade County State Attorney’s Office (SAO) and fell in love with the prospect of serving and protecting her community as a prosecutor. After graduating from law school, she declined an offer of full-time employment at a law firm. Instead, she followed her passion and joined the SAO, where she worked for approximately six years. As a prosecutor, she quickly assumed leadership positions. For example, supervisors appreciated Fajardo’s leadership and litigation skills and selected her to train the incoming class of prosecutors. She was also selected to July/August 2021 • THE FEDERAL LAWYER • 51

be an assistant chief in county court. She eventually specialized in narcotics and organized crime cases. She traveled to Venezuela and Honduras with the Department of Justice’s Office of Overseas Prosecutorial Development, Assistance and Training, as part of an effort to strengthen foreign criminal justice sector institutions and enhance the administration of justice abroad.

While immersed in a flourishing career as a prosecutor, Fajardo started to set her eyes on her goal to become a judge. That title was not new in Fajardo’s family. Her maternal grandfather’s sister had been a judge in Cuba and it was the memory of her great aunt that served as Fajardo’s inspiration as she embarked on the journey to reach what some consider to be the pinnacle of a legal career: being a judge.

Fajardo understood that she needed to diversify her legal experience to prepare to be a judge. Therefore, she left the SAO and joined a firm where she engaged in a civil practice and found a wonderful mentor who taught her many valuable lessons. Through her community volunteer work, Fajardo also met lawyers who opened her eyes to the practice of family law. She quickly realized that being a family law attorney would further develop her skills as a civil lawyer.

For her, a family law attorney was a professional with experience in multiple practice areas (e.g., trust and estates, commercial litigation, business law, property) to best advise clients. In 2003, Fajardo joined a boutique firm where she specialized in family law and litigation. As a family law attorney, she found satisfaction in being able to efficiently resolve her clients’ cases before setting foot in the courtroom.

In 2012, Fajardo’s dream came true when Florida Governor Rick Scott appointed her to the bench. As a circuit court judge for the Eleventh Judicial Circuit, she initially served in the criminal division.

However, after approximately one year, a new opportunity knocked on her door. The chief judge tapped Fajardo to become the first fulltime judge in the new Unified Children’s Court, which was created so that all pending court cases related to one family would be assigned to the same judge to promote judicial economy, ensure consistent rulings, and eliminate the duplication of resources. Fajardo spearheaded this division, which would grow to have dozens of assigned judges in subsequent years. This new position came with powerful personal lessons and growth for her. More than ever, she became aware of the role of unconscious bias and the importance of not judging others based on her life experiences but, rather, based on their experiences. She also learned the importance of judicial restraint, particularly when litigants would invite her to opine on issues that were beyond her judicial authority or jurisdiction. Her passion for family law led her to serve her community and influence the new generation of lawyers as a professor as well. For three years, she balanced her time on the bench with her service as an adjunct professor of family law at the FIU College of Law. During Fajardo’s service as a judge of the Unified Children’s Court, the opportunity arose to become the first Senate-confirmed female U.S. attorney for the Southern District of Florida. After consulting with her family, she agreed to pursue this opportunity. Those who know her were not surprised because new challenges had never deterred her, and the prospect of excelling at a new undertaking had always motived her. The day she received the phone call informing her that she was officially nominated for the position, Fajardo was driving from the cemetery, where she had visited the gravesite of her father, who had unexpectedly passed away. The significance of that moment was not lost on Fajardo, who was convinced that her father was watching over her. He was a man who would have been incredibly proud to see his daughter become the U.S. attorney in his community.

52 • THE FEDERAL LAWYER • July/August 2021

“Ariana has always inspired others to dream more, learn more, and become more. Those are the true qualities of a great leader.”

—Christine Hernandez, Assistant United States Attorney, Miami, Florida Fajardo assumed the role of U.S. attorney on Sept. 17, 2018.

The two and a half years of her tenure were replete with challenges.

Shortly after Fajardo became the U.S. attorney, the country experienced the longest federal government shutdown in history, lasting approximately 35 days, from Dec. 22, 2018, until Jan. 25, 2019. Fajardo was moved by the reality that some of her staff lived paycheck to paycheck, kept coming to work, and had not been paid during the shutdown. She bought pizza for everyone. Then, on her birthday in January, she bought cake.

Fajardo was also at the helm during the COVID-19 pandemic, the various protests for racial justice, the attack on our nation’s Capitol building on Jan. 6, 2021, and the death of two FBI agents while they were executing a search warrant. In the midst of all of these challenges, Fajardo led with compassion, ensuring the safety of her employees during the pandemic, extending a listening ear at a time when racial tensions were high, unequivocally condemning the attack on the Capitol, and supporting the FBI during one of its lowest moments.

Fajardo also had notable achievements as the top prosecutor in South Florida. For example, under her watch, the district battled drug crimes head on, prosecuted criminals who preyed on seniors as well doctors and other professionals who stole millions of dollars from Medicare and Medicaid, went after individuals engaged in foreign corruption and money laundering, tackled the new breed of crime related to COVID-19 relief fraud, and rooted out corruption in local government. Fajardo left behind an almost fully staffed office with new money laundering and collateral litigation units, expanded training facilities, and a state-of-the-art media studio. Most importantly, in a big and geographically spread out office, Fajardo was a present and connected leader who would regularly meet with line prosecutors and visit the distant branch offices.

Notwithstanding the many important roles that Fajardo has had over the years, none is more important and sacred to her than being a mother to her teenage son, Lucas. This is her greatest accomplishment. She has strived to raise a well-grounded, positive, and humble individual who is also a source of immense pride and joy for her.

When asked how she would like to be remembered after she is no longer the U.S. attorney, Fajardo did not hesitate to say, “By the people I hired. Their success is my success.” This answer embodies her philosophy about her achievements. She is quick to acknowledge that she could not have accomplished as much as she has throughout her legal career without the help of others. She believes that paying it forward is the best way to serve.  isel Valdes and Ana Y Maria Martinez serve as assistant U.S. attorneys in the Economic Crimes Section of the U.S. Attorney’s Office of the Southern District of Florida. Valdes is an active member of several committees, and Martinez is a past president of the FBA’s South Florida Chapter.

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54 • THE FEDERAL LAWYER • July/August 2021

Rule 4(d) and Self-Initiated Extensions to Answer WILLIAM M. JANSSEN

I

nviting a defendant to waive formal service of process is a useful tool for federal plaintiffs. It can reduce the costs, logistics, and uncertainty of serving process, and it achieves those benefits with very little effort. When invited, defendants are disincentivized to say “no”—agreeing to waive nearly triples a defendant’s time for responding to the new lawsuit, while refusing to waive usually triggers a cost-shift of actual service expenses back onto that defendant. But what if the plaintiff forgets to ask? Or, what if the plaintiff intends, for strategy reasons, to avoid asking? Can a defendant leap past the missing invitation, unilaterally notify the court that it is waiving service, and thereby fetch for itself an extension of response time? Two courts have now accepted (over the plaintiff ’s objection) a defendant’s self-acquired Rule 4(d) extension, with another calling the approach “interesting.”1 Have those courts uncovered a heretofore undiscovered right to a time extension in civil litigation?

Rule 4(d) Waivers and Their Time Extensions

A little history about service-by-mail helps set this stage. Within the United States,2 serving by mail is permitted under the Federal Rules of Civil Procedure only indirectly. If a defendant is served using a mailing method approved by the laws of the state where the federal action is pending or where the service is being made, the federal courts will accept that method as valid service.3 Otherwise, for most civil cases, there is no nationally authorized federal service-by-mail procedure.

This is not new. No general mailing option was included in the Federal Rules of Civil Procedure when they first took effect in 1938.

At one point back in 1982, federal service by mail had been proposed, with caveats that included obligatory registered/certified mail, return-receipt, and delivery-restriction requirements.4 But the proposed amendment was stalled by an Act of Congress before it could take effect.5 A few months later, Congress enacted its own, preferred modification of Rule 4, permitting litigants to serve by regular mail (deleting the proposed “registered” or “certified” restriction), but

that permission was only conditional—the served party would have to sign and return a sworn acknowledgement of receipt within 20 days for the mailed service to be considered effective.6 Failure to sign and return came at a cost, however; the new rule language provided that the court “shall” order an unwilling recipient to pay the costs of personal service unless good cause was shown.7 This authority to “penalize” a groundless refusal, explained Congress at the time, was intended both to encourage prompt compliance and to shift the expenses of an unnecessary formality to the blameworthy party.8 Congress’s handiwork lasted a decade. In 1993, Rule 4 was amended again, this time by the U.S. Supreme Court and this time without congressional intervention. Much of what Congress had done in 1983 was retained, but a decade’s worth of experience had revealed the need for some sharpening. Those adjustments included several that are relevant here. First, references to the procedure as “service-by-mail” were replaced by “requests” for “waiver” because some practitioners had been left with the impression that the mails could be used “without the affirmative cooperation of the defenJuly/August 2021 • THE FEDERAL LAWYER • 55

dant”; however, under both the 1983 version and the 1993 version of the rule, that understanding was wrong. Second, the mechanics of the waiver procedure—how to address the request, what the request must contain, new waiver forms, the filing of the acceptance, and the effective date of “service”—were all delineated. Third, the formerly implicit duty on defendants to cooperate in avoiding unnecessary service costs was made explicit by inclusion in the text of the rule.

Fourth, the “good cause” option for escaping cost-shifting was retained, but with the advisory committee’s admonition that “sufficient cause should be rare.” Fifth, the time for a waiving defendant to answer the complaint was extended, both “as an inducement to waive service” and to counter the incentive to refuse waiver as a means to delay the proceedings.9 The 1993 overhaul was polished during the 2007 “re-styling” project, but without substantive change.

So, for nearly 30 years now, serving by mail in the federal courts has been working like this: unless applicable state procedures or some other federal rule or statute provides otherwise, service of process cannot be accomplished by mail, but a complainant can invite a defendant to “waive” the chore of formal service and, if that defendant does so in a writing that the plaintiff then files with the court, the time for the waiving party’s response to the complaint is extended from 21 to 60 days (90 days if sent outside the United States).10 This waiver process, then, seems to start with an invitation.

Courts Discussing Rule 4(d) Extensions Without an Invitation Two federal decisions (both unpublished) granted defendants the extension effect of a waiver, even though plaintiffs both denied that they had ever requested the defendants to waive.

In Doe 1438 v. Pennsylvania State University,11 a graduate student filed a lawsuit against his school and then attempted service with a certified mailing that included a blank waiver of summons form but, evidently, no written request-to-waive. Defense counsel wrote back to the student, advising that certified mail was improper service but that counsel had authority to waive. The student subsequently amended the complaint, again sending via certified mail. This time, defense counsel sent back (and later self-filed) an executed waiver of summons form. When the school failed to respond to the complaint within 14 days after the certified mailing of the amendment, the student moved for entry of default. The school contended that its response was not delinquent because it enjoyed the benefit of the 60day extension of time to answer. The trial court agreed. The missing written request and the plaintiff ’s decision not to file the executed waiver, ruled the court, did “not preclude a defendant from validly waiving service.”12 In Cutler v. Green,13 a township official appearing pro se sued various defendants for conspiracy. About a month after commencement, several of the defendants filed with the court a joint waiver.

The plaintiff responded by insisting that he had never sent anyone a waiver request and that the putative waiver, “aimed solely at delaying these proceedings,” constituted “fraudulent testimony” and “a fraud on the Court.”14 The plaintiff sought an “immediate judgment.”

Within a 60-day time window from the date they had served plaintiff with their waiver, defendants moved to dismiss the action. The court considered, and granted, those motions. The court reasoned that although Rule 4 did not “explicitly state that a defendant may waive service in the absence of a request from a plaintiff for a waiver,” the rule did provide that that “[a]n individual … that is subject to service 56 • THE FEDERAL LAWYER • July/August 2021

under Rule 4(d) … has a duty to avoid unnecessary expenses of serving the summons.”15 Although no federal appellate court seems, as yet, to have ruled on the propriety of service waivers without invitation, the Tenth Circuit confronted but sidestepped the question in Watson v. Mylan Pharmaceuticals.16 There, the plaintiff argued that the trial court had erred in refusing to find defendants in default because they had no extended time to file their answers. The trial judge “was wrong to accord” the defendants a Rule 4(d) extension, the plaintiff contended, “because she never requested a waiver from them, and Rule 4(d) does not permit defendants to unilaterally waive service.”17 The Tenth Circuit declared this argument “interesting” but “ultimately irrelevant,” ruling that entry of default was improper in that case for other reasons. But the court dropped a footnote to add: “Although there is sparse authority on this issue, the only decisions we have located suggest that defendants may unilaterally waive service.”18

Who’s Right?

Like all the others, Rule 4(d) of the Federal Rules of Civil Procedure is accorded the force and effect of a federal statute.19 As such, discerning its meaning begins with its language, “giving the words used their ordinary meaning.”20 The rule’s text does not expressly address whether a defendant, by self-filing an uninvited waiver of service, is entitled to an extension of time to respond to a complaint. That scenario is simply not addressed textually at all. Nor is it discussed in the advisory committee’s notes that accompanied the 1993 amendment to the rule.21 Applying the so-called “surplusage canon” does lead to a probable answer, however. This canon of statutory construction counsels observance of the longstanding principle that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”22 The modern iteration of this canon, heralded now as a “cardinal principle of statutory construction,” imposes on courts the duty “to give effect, if possible, to every clause and word of a statute.”23 That duty—to give effect to every word of a statute—likely defeats a defendant’s right to self-acquire (without invitation) a Rule 4(d) time extension.

Here’s why.

The Rule 4(d) time extension appears in the third-to-last subpart of the rule, labeled: “Time to Answer After a Waiver.”24 The subpart provides that a defendant who timely “returns” a waiver need not serve an answer until 60 days “after the request was sent” (or 90 days after, if sent to an address outside the United States). Here, the surplusage canon difficulty begins with the verb “returns” and the incongruity of being tasked to “return” something that was never given. But the real, dooming challenge is the counting one: the rule directs that its grant of a time extension is to be computed from the day the “request” was “sent.” If no “request” is ever “sent,” the computation needed to set the Rule 4(d) extension is impossible to perform since it is triggered by an event that never occurred. Ergo, for a defendant to self-acquire a Rule 4(d) extension in the absence of a plaintiff ’s waiver request, the words “returns,” “request,” and “sent” must be ignored, the timing formula the rule installs must be disregarded, and an entirely new replacement time computation trigger must be conjured. That is a big “ask,” and one tough to square with the command of this “cardinal principle” of statutory construction.

Other portions of Rule 4(d) only reinforce this conclusion. Rule 4(d) begins with a subpart labeled: “Requesting a Waiver.”25 It pro-

vides that a plaintiff “may” notify a defendant of a new lawsuit and “request” that the defendant waive formal service. The verb “may” here is worthy of special attention: its appearance following the 2007 “re-styling” of the Civil Rules has a precise, considered connotation: “may” now means “has discretion to,” “is permitted to,” and “has a right to.”26 Thus, although it is true that this subpart imposes on defendants a duty to avoid causing unnecessary service expenses, nothing in the Rule imposes on plaintiffs a duty to “request” a waiver.

Doing so lies in their exclusive prerogative.

The Rule then meticulously sets out the approved waiver procedure. The “notice” and “request” must satisfy several Rule-imposed requirements, notably: (a) “inform[ing] the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service”; (b) stating the date the “request” was “sent”; and (c) affording the recipient at least 30 days “after the request was sent” to “return” the waiver. A defendant’s right to self-acquire a Rule 4(d) extension thus will also require a court to discount the absence of the obligatory Rule 4 notice form, the impossibility of having to list a nonexistent date, and the inability to compute the “return” period for a “notice” never “sent.”

The Doe 1438 court tried to work through these language tangles, reasoning that because courts have, on occasion, overlooked a plaintiff ’s incidental failings with a waiver packet, so as to continue to hold a recalcitrant, non-waiving defendant liable for the process-server cost-shift, it ought to be equally permissible to overlook a plaintiff ’s deliberate choice not to request a waiver, so as to allow a defendant to self-initiate one.27 That logic is a bit hard to accept.

Treating a misassembled waiver request as though it were properly prepared seems fundamentally different than treating a waiver request that never existed as though it actually did.

The sounder conclusion, then, seems to be the one the courts to date have rejected—the text of Rule 4(d) is just not compatible with the view that a defendant can acquire a Rule 4(d) extension in the absence of a plaintiff ’s request to waive service of process.

“But wait,” you say. Aren’t the underlying objectives of Rule 4(d) quite plain (i.e., streamlining the service of process chore, ensuring fair and timely notice of a pending lawsuit, and making litigation quicker and less expensive), and wouldn’t those objectives all be well-served and better incentivized by allowing defendants to initiate a service waiver? Perhaps. But that is not how Rule 4(d) is written, and it is the Rule as written, not an underlying vision, that must hold sway.28

Devising a Fix The courts in Doe 1438 and Cutler did not dally long before granting defendants a Rule 4(d) extension of time to respond to those complaints. And they did so notwithstanding the unambiguous language of the Rule which, as we have seen, is incompatible with that result. In both cases, the plaintiffs denied that any “request” for waiver had ever been “sent.” It was, thus, impossible for the courts in those cases to apply Rule 4(d) to calculate the date when the claimed time extension would expire because, by its terms, a Rule 4(d) extension runs for 60 (or 90) days after the written “request” for waiver was “sent.” Nonetheless, both courts granted defendants their Rule 4(d) extension.

Why? In explaining their decisions, both courts emphasized the first sentence of Rule 4(d), which declares it the “duty” of individuals, corporations, and associations “to avoid unnecessary expenses of serving the summons.”29 Put another way, the courts permitted those

defendants a time extension because it made good sense to do so, given the underlying policy goals of the Rule.

Serving process can be expensive; rates vary by location, and costs can mount quickly if the defendant is difficult to track down or evasive when located.30 Serving process can be delaying; routine service windows are still five to seven days, and even that assumes the delivery is uneventful. Serving process can be uncertain; effective service requires delivery in the right manner to the right recipient (or representative), which can often prove intricate. Serving process can be confrontational, embarrassing, and even dangerous.31 Yet, serving process is essential: without lawful service, personal jurisdiction will not attach, and the tribunal will lack the judicial authority to proceed in the case.32 A waiver of service entirely sidesteps these concerns. It avoids service costs, service delays, service uncertainty, and service dangers, all while ensuring—from the defendant’s own lips—that actual, effective notice of the pending lawsuit has occurred. If a defendant is prepared to acknowledge receipt and willingly forego the formalities of formal service, the “duty” imposed by the first sentence of Rule 4(d) is respected and the case is positioned to move forward. This, in turn, helps achieve the touchstone objectives of all the federal rules—the just, speedy, and inexpensive determination of every civil lawsuit.33 To incentivize this behavior, Rule 4(d) offers its time extension inducement. Thus, because a defendant’s self-initiated waiver achieves the Rule’s objectives, it stands to reason that it should entitle such a defendant to the inducing time extension, too.

There remains, however, another interest to consider. The plaintiff may, for some case strategy reason, have intentionally avoided seeking a defendant’s waiver. Perhaps the plaintiff did not want to extend the defendant’s response time, or wanted to allow the case to remain pending for a period of time prior to service. Allowing a defendant to self-initiate the waiver process intrudes into this plaintiff autonomy. A self-initiated waiver could also run the risk that the plaintiff will incur process-server costs, only to later find those dollars wasted once the defendant files the waiver.

Litigation realities suggest answers to each of these concerns.

First, to self-initiate a waiver ahead of actual service, the defendant will need to be monitoring electronic dockets for new filings; not every (or even many) defendants are committed to doing that, so self-initiated waivers are unlikely to happen all that often. Second, a plaintiff anxious for a tight time schedule can specially arrange to have service accomplished immediately after filing, thus depriving the defendant of the self-initiation opportunity (recall that a waiving defendant is granted a time extension only if the waiver is done before formal service of process has occurred). Third, self-initiated waivers will not necessarily slow the litigation down even if they do occur; in fact, because a court’s scheduling order is typically issued within 90 days after the first service,34 self-initiated waivers actually may help accelerate proceedings. Fourth, avoiding a time extension to answer may not always be practical; extensions are encouraged as a matter of lawyer collegiality and are liberally available upon a showing of good cause.35 Fifth, a strategy to commence a lawsuit and then deliberately slow-walk service of process is not an approach the law ought to reward: the rules nudge the parties in precisely the opposite direction.36 Sixth, to mitigate the burden of having incurred process-server fees ultimately proven unnecessary by a defendant’s self-initiated waiver, a court could allow those fees to be awarded as taxable costs at the case’s conclusion; some courts already hold that process-server expenses are July/August 2021 • THE FEDERAL LAWYER • 57

taxable,37 and nationalizing this option would require a very modest statutory amendment, as proposed below. Lastly, the substantial benefits to parties, their counsel, and the court system flowing from the early certainty that waivers of service bestow must be weighed against any remaining plaintiff-prerogative concerns.

As this article demonstrates, the current text of Rule 4(d) is not compatible with defendant-initiated waivers of service. By amending three procedural sentences, two in the Federal Rules of Civil Procedure and one in the Judiciary Code, that gap can be easily remedied.

A suggested set of language revisions follows (proposed omissions shown as strikeouts; proposed additions shown in bold with underscoring). Two alternatives are offered for revising Rule 4(d)(3): the first imposes no constraint on a defendant’s time for self-initiating a waiver (beyond, of course, the requirement that the waiver occur before formal service); the second caps that self-waiving window at seven days to more directly forestall delaying tactics by a defendant.

Amending Fed. R. Civ. P. 4(d)(3) [Option #1]: “Time to Answer After a Waiver. A defendant who, before being served with process, either files or timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent or filed (whichever date is earlier)—or until 90 days after it was sent or filed (whichever date is earlier) if that to the defendant is outside any judicial district of the United States.

Amending Fed. R. Civ. P. 4(d)(3) [Option #2]: “Time to Answer After a Waiver. A defendant who, before being served with process, either files (within 7 days of commencement) or timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent or filed (whichever date is earlier)—or until 90 days after it was sent or filed (whichever date is earlier) if that to the defendant is outside any judicial district of the United States.

Amending Fed. R. Civ. P. 4(d)(4): “Results of Filing a Waiver. When the plaintiff files a waiver is filed, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

Amending 28 U.S.C. § 1921(6): “A judge or clerk of any court of the United States may tax as costs the following: *** (6) Compensation of court appointed experts, compensation of interpreters, expenses of private service of process, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.”

Following the lead of the Federal Rules of Civil Procedure, several states have adopted waiver procedures that mirror federal Rule 4(d).38 To permit defendant-initiated waivers, those states might similarly amend their procedures and allowable “costs” authorizations.

Take-Away 58 • THE FEDERAL LAWYER • July/August 2021

Some federal courts have held that a defendant can self-initiate a waiver of service of process (without ever being asked to do so by the plaintiff ) and, thereby, acquire an automatic extension of time to respond to a newly filed lawsuit. Sound policy supports that view, but the plain language of Federal Rule of Civil Procedure 4(d) presently does not. With a few uncluttering amendments, that gap could be corrected.  William M. Janssen is a professor of law at Charleston School of Law and the author of several texts on federal civil practice, including the Federal Civil Rules Handbook (29th edition, 2021). ©2021 William M. Janssen. All rights reserved.

Endnotes See Doe 1438 v. Pa. State Univ., 4:19-CV-01438, 2020 WL 3976950, at *2-4 (M.D. Pa. July 14, 2020); Cutler v. Green, CV 17-984, 2017 WL 2957817, at *4 n.7 (E.D. Pa. July 11, 2017), aff ’d, 754 F. App’x 96 (3d Cir. 2018); see also Watson v. Mylan Pharms., 795 F. App’x 584, 58788 & n.5 (10th Cir. 2019) (“interesting”).

2 Options for mail service on a defendant located outside the United States are more plentiful. See generally Fed. R. Civ. P. 4(f ); Water Splash, Inc. v. Menon, 581 U.S. __, 137 S. Ct. 1504, 1508-13 (2017) (mail service in Hague Service Convention signatory countries may be permitted).

3 See, e.g., Fed. R. Civ. P. 4(e)(1) & 4(h)(1)(A).

4 See Advisory Comm. on Civil Rules’ Final Draft of Proposed Amendments to Rule 4, Jan. 15, 1982 (available at www.uscourts.gov/sites/default/files/fr_import/CV01-1982.pdf ) (proposing adoption of a new Rule 4(d)(8)).

5 See Pub. Law No. 97-227, 96 Stat. 246 (1982). See generally Delaying Effect of Certain Changes in the Federal Rules of Civil Procedure, 128 Cong. Rec. 17,874-76 (1982) (discussing concerns with proposed amendment).

6 See Pub. Law No. 97-462, 96 Stat. 2527 (1983) (enacting Fed. R. Civ. P. 4(c)(2)(C)(ii) & 4(c)(2)(E) (superseded in 1993)).

7 See id. (enacting Fed. R. Civ. P. 4(c)(2)(D) (superseded in 1993)).

8 See 128 Cong. Rec. 30,929, 30,932-33 (1982) (discussing mail service provision in House Bill).

9 See Fed. R. Civ. P. 4(d) (effective Dec. 1, 1993) and advisory committee’s note (1993).

10 See Fed. R. Civ. P. 4(d).

11 4:19-CV-01438, 2020 WL 3976950, at *2-4 (M.D. Pa. July 14, 2020).

12 Id. at *3, see also id. at *4 (“[C]ourts have held that the ‘waiver of service surely can occur without a request from the plaintiff.’“) (citation omitted).

13 2017 WL 2957817, at *4 n.7 (E.D. Pa. July 11, 2017), aff ’d, 754 F. App’x 96 (3d Cir. 2018).

14 Id. at *4 n.7.

15 Id. (citing Rule 4(d)).

16 795 F. App’x 584, 587-88 & n.5 (10th Cir. 2019).

17 Id. at 587.

18 Id. at 587 n.5.

19 See Sibbach v. Wilson & Co., 312 U.S. 1, 13 (1941) (assuming, of course, that the rule was promulgated lawfully within the power 1

delegated by Congress, a condition Rule 4(d)’s objective does not seem to contravene).

20 Artis v. District of Columbia, 583 U.S. __, 138 S. Ct. 594, 603 (2018) (citation omitted).

21 Although not binding, the advisory committee notes accompanying an amendment to the Federal Rules of Civil Procedure are “of weight” in construing a particular rule’s meaning.

See Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (citation omitted).

Alas, they do not help much here.

22 Market Co. v. Hoffman, 101 U.S. 112, 115 (1879) (citation to English treatise omitted).

23 Duncan v. Walker, 533 U.S. 167, 174 (2001).

24 Fed. R. Civ. P. 4(d)(3).

25 Fed. R. Civ. P. 4(d)(1).

26 See Bryan A. Garner, Guidelines for Drafting and Editing Court Rules § 4.2(A) (2007), https://www.uscourts.gov/sites/ default/files/guide.pdf.

27 Doe 1438, 2020 WL 3976950, at *3. Although the plaintiff in Doe 1438 seems to have included the waiver form in his mailing, he did not also include the written request-for-waiver form and persistently denied that any waiver was sought.

28 See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538 (1947) (quoting a letter from Justice Oliver Wendell Holmes: “Only a day or two ago—when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean.”), quoted in Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 29 (Thomson/West 2012).

29 See Doe 1438, 2020 WL 3976950, at *3-4; Cutler, 2017 WL 2957817, at *4 n.7. Not all individuals are eligible to being asked to waive service of process; for obvious reasons, minors and incompetent

persons are excluded from Rule 4(d). See Fed. R. Civ. P. 4(d) advisory committee’s note (1993) (“[D]ue to their presumed inability to understand the request and its consequences, [such defendants] must generally be served through fiduciaries.”).

30 See, e.g., Thumbtack, How much does a process server cost? (Aug. 26, 2020), https://www.thumbtack.com/p/process-server-cost (discussing cost and timing).

31 See, e.g., Brown v. Jacobs, 768 S.E.2d 421 (Va. 2015) (holding that hiring attorney had no special duty to warn process-server who was shot and killed by the intended recipient/defendant).

32 See Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”).

33 Fed. R. Civ. P. 1.

34 See Fed. R. Civ. P. 16(b)(2).

35 See, e.g., Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995) (civility extensions); N.D. Cal. Guidelines for Prof’l Conduct § 4 (“Consistent with existing law and court orders, a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected.”); Fed. R. Civ. P. 6(b)(1)(A) (good cause extensions).

36 See Fed. R. Civ. P. 1 (“just, speedy, and inexpensive”); see also Fed. R. Civ. P. 4(m) advisory committee’s note (2015) (explaining that the allowable time for service of process is being shortened from 120 days to 90 days “to reduce delay at the beginning of litigation”).

37 See Francisco v. Verizon S., Inc., 272 F.R.D. 436, 441-42 (E.D. Va. 2011) (discussing national division).

38 See, e.g., Ariz. R. Civ. P. 4.1(c)(3); Fla. R. Civ. P. 1.070(i)(4); Ga. Code § 9-11-4(d)(5); Minn. R. Civ. P. 4.05(c); Ohio R. Civ. P. 4.7(D); R.I. R. Civ. P. 4(d)(3); Tenn. R. Civ. P. 4.07(3).

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July/August 2021 • THE FEDERAL LAWYER • 59

60 • THE FEDERAL LAWYER • July/August 2021

On Bitcoin and Ponzi Schemes TAL J. LIFSHITZ

B

ernie Madoff died in federal prison a few months ago with the dubious distinction of being the mastermind of the largest and most infamous Ponzi scheme of all time. Madoff stole tens of billions of dollars from thousands of investors over the course of 17 years. He received a 150-year prison sentence for his crimes and was ordered to forfeit $170 billion in assets. Madoff ’s scheme collapsed in 2008, but the recovery and distribution of assets pursuant to the unwinding of the scheme, and the inevitable litigation accompanying that process, continue today.

Satoshi Nakamoto’s legacy remains to be determined. Most know him as the man behind the curtain—the anonymous founder of Bitcoin, the cryptocurrency that has gone from a cypherpunk electronic cash experiment to a digital asset, which, at its all-time high, has already surpassed a $1 trillion market cap.

At least 35 publicly traded companies now hold bitcoin on their balance sheets. (Capital “B” Bitcoin refers to the Bitcoin network, which enables participants to send and receive the lowercase “b” bitcoin virtual currency that is sent through that network and can, for example, find itself on a company’s balance sheet.) The recently confirmed SEC chair, Gary Gensler, has taught courses at MIT—“Blockchain and Money” (Fall 2018) and “FinTech: Shaping the Financial World” (Spring 2020)—exploring Bitcoin and other cryptocurrencies. And the Miami Heat’s basketball arena, formerly known as AmericanAirlines Arena (or the “triple A”), will now be named for FTX, the cryptocurrency exchange that won the arena’s naming rights earlier this year.1 At its 2021 all-time high, one bitcoin was worth over $63,000.

A year ago, one bitcoin was worth approximately $20,000. A year

before that, it was worth approximately $3,000. A year before that, Justice Breyer was analyzing the definition of “money” in an artful dissent in which he observed that “perhaps one day employees will be paid in [b]itcoin or some other type of cryptocurrency.”2 Justice Breyer’s prediction came true with astonishing speed.

Earlier this year, Miami Mayor Francis Suarez suggested that the city pay municipal workers, accept tax payments, and invest city funds in bitcoin.3 More recently, Mayor Scott Conger of Jackson, Tenn., announced that his city is likewise exploring paying employees in bitcoin, as well as mining bitcoin to add it to the city’s balance sheet.4 And the NFL’s most recent number one overall draft pick, Clemson quarterback Trevor Lawrence, announced that he’s investing his approximately $22 million signing bonus in bitcoin and other cryptocurrencies (while at least two other NFL players have already been taking their salaries in bitcoin).

By any measure, Bitcoin has been an extraordinary, perhaps even revolutionary, success. Such success inevitably attracts new market participants. And there have been many. The global cryptocurrency market cap has already exceeded $2 trillion. There are nearly 5,000 digital coins or tokens tracked on CoinMarketCap, a popular price-tracking website for cryptoassets. Each coin offers unique features or utility and—if you are an investor or speculator—wildly varying opportunities for returns. By now, many people have, at a minimum, heard of Ether and Dogecoin, which themselves have accounted for approximately half a trillion dollars of the cryptocurrency market cap at their highs—notwithstanding that Dogecoin, which is based on an internet meme, was openly created as a joke to prove that people will buy anything.

The biggest problem with Bitcoin? It’s complicated. In a March 2018 segment of his show Last Week Tonight, John Oliver described cryptocurrencies as “everything you don’t understand about money, combined with everything you don’t understand about computers.”

Bitcoin’s complexity inevitably invites confusion, fear, uncertainty, and doubt—what the cryptocurrency community aptly refers to as “FUD.” FUD over how Bitcoin works, FUD over how cryptoJuly/August 2021 • THE FEDERAL LAWYER • 61

currencies work, FUD over how blockchain technology works, and general confusion and FUD over Ponzi schemes and how they work.

All this FUD has inevitably led some to proclaim that Bitcoin itself, for example, is a Ponzi scheme.

Bitcoin may be difficult to understand. Its price may be subject to manipulation. Normal market forces may ultimately drive its price to zero. Some of its various promoters, acting independently, might be engaged in various forms of fraud. It might be a “bubble.” Or one bitcoin could become worth millions and get adopted as a new global currency. Any of these scenarios could be true.

But Bitcoin itself is not a “Ponzi” scheme. A Ponzi scheme is a particular species of fraud, and Bitcoin doesn’t fit the definition.

Understanding how a Ponzi scheme works, and how Bitcoin and cryptocurrencies work, is important, not only for the sake of accuracy but also for the sake of consumer protection. Because there is plenty of fraud in the world of cryptocurrencies. A 2018 study that analyzed initial coin offerings (ICOs)—the unregulated cryptocurrency analog of an IPO—concluded that over 80 percent were “scams.”5 Nothing suggests that those numbers have improved, which is a scary prospect in the aftermath of the 2021 cryptocurrency bull market. Fortunes are made in such markets, to be sure.

Dogecoin, the “joke” coin, was at one point up approximately 11,680 percent so far this year (notwithstanding a slight dip after Elon Musk jokingly referred to it as a “hustle” while hosting Saturday Night Live). But such successes are inevitably accompanied by stories of life savings lost and lives ruined.

Perhaps some tragedy can be avoided. This article seeks to level the playing field a bit by clarifying some of the confusion around Bitcoin, cryptocurrencies, Ponzi schemes, and fraud; and by identifying red flags present in such scams—both “traditional” and those involving virtual currency. We will briefly review Ponzi schemes, how they started, and how they work. We will then analyze the genesis and evolution of cryptocurrencies, including some representative crypto-related fraud. We will conclude by examining the relevant regulatory and legal framework and whether it is sufficient to address the unsettling new world of crypto fraud.

What’s a Ponzi Scheme?

The SEC defines a Ponzi scheme as “an investment fraud that pays existing investors with funds collected from new investors …. With little or no legitimate earnings, Ponzi schemes require a constant flow of new money to survive. When it becomes hard to recruit new investors, or when large numbers of existing investors cash out, these schemes tend to collapse.”6 This is why Ponzi schemes are commonly referred to as a “house of cards.”

These schemes are named after Charles Ponzi, who defrauded thousands in the 1920s by falsely claiming he could sell international postal coupons—pieces of paper good for the price of one international airmail letter stamp in any country—at 100 percent profit.

Since individual postal administrations set the price of the coupons sold at their offices, a coupon bought in a country with low postage rates could be worth more than its purchase price in another country with higher rates. For example, if the United States sold a coupon for $.25 and Canada accepted the coupon in payment for a stamp worth $.50, a buyer of the U.S. coupon could double their money.

Ponzi realized he could exploit the price differential between Italian and American coupons to make a profit, since a coupon bought 62 • THE FEDERAL LAWYER • July/August 2021

in Italy was then worth four times the price in the United States. Of course, actually converting the coupons into cash at any scale was utterly impracticable. But that didn’t stop Ponzi, who convinced some of his friends that he could double their money in 90 days using the coupon scheme. While Ponzi never actually used the money to buy Italian coupons, he took in enough cash to pay some of the earlier investors, which helped him attract more investors, and on and on the cycle continued—until it collapsed when a savvy investor did the math and realized there weren’t enough coupons in the world to support Ponzi’s claims.7 There have been thousands of similar schemes. While no official statistics are available, a simple word search on Westlaw returns more than 9,000 separate opinions with the word “Ponzi.”

Of course, there are now laws and regulations in place to prevent and uncover such misconduct. But none of those laws and regulations stopped Madoff. It took the 2008 financial crisis, which made it hard to recruit new investors, to bring down Madoff ’s scheme. And that same crisis ignited the cryptocurrency industry.

Enter Satoshi Nakamoto “I’ve been working on a new electronic cash system that’s fully peerto-peer, with no trusted party.”8 On Oct. 31, 2008, Satoshi Nakamoto delivered the above message via email to a small mailing list of cryptographers. It contained a link to a nine-page white paper titled “Bitcoin: A Peer-to-Peer Electronic Cash System” that focused on the architecture of what is now called a “blockchain.” On Jan. 3, 2009, Bitcoin’s genesis block—the first block in its “chain”—was created. The timing of Bitcoin’s debut was not a coincidence. Satoshi embedded a message in it, for anyone to see, referring to banks and bailouts: “The Times 03/Jan/2009 Chancellor on brink of second bailout for banks.”9 But what is a “peer-to-peer electronic cash system”? How does Bitcoin work? It’s often described as digital money, which sounds simple enough. But Bitcoin is more accurately described as a worldwide platform that allows people to communicate directly without a middleman (a trusted party like a bank) to validate their messages, and which is—above all else—focused on executing transfers of money. (If you are wondering what problem this solves, think wire transfers available 24/7 that settle rapidly with little to no fees or even a need for a bank account; at least, that’s part of the idea.)

This is what Satoshi meant by “peer-to-peer electronic cash.”

The Bitcoin platform is operated, managed, and maintained globally using open-source software available for anyone (including you) to see, download, and use. In this way, Bitcoin functions as a secure platform for electronic cash transactions by allowing those who run it to maintain and validate a public ledger. The ledger records every bitcoin transaction that has ever or will ever occur and allows anyone (including you) to retain a complete record of every transaction ever made on the network, to ensure that the ledger is immutable.

According to the SEC, “Bitcoin has been described as a decentralized, peer-to-peer virtual currency that is used like money—it can be exchanged for traditional currencies such as the U.S. dollar, or used to purchase goods or services, usually online. Unlike traditional currencies, Bitcoin operates without central authority or banks and is not backed by any government.”10 That last sentence is critical. Bitcoin is “decentralized” because it operates without “central authority,” instead distributing that author-

ity to anyone who chooses to download the software and participate in maintenance of the platform. In other words, “[n]o one ‘owns’ the Bitcoin network, it is not a formal organization, and it has no board of directors or central governance structure.”11 So, at least as to Bitcoin, there is no individual “Charles Ponzi” to pay back early investors with new investor funds, there is no centralized recruitment of new investors, and there is no single figure whom investors (or the authorities) can chase if they seek to cash out or suspect fraud.

The revolutionary potential of this decentralized technology has largely driven the skyrocketing value of bitcoin as an asset. It was only a matter of time before fraudsters took advantage of this crypto hype.

Crypto Meets Ponzi Bitcoiin—note the extra “i”—was actually promoted by Steven Seagal and billed itself as “the world’s first self-sustaining cryptocurrency.” Its promoters touted that the Bitcoiin tokens would be deliverable on a reputable blockchain called Ethereum, that invested funds would be used to develop a coin like bitcoin, and that the tokens would be tradeable on a proprietary digital asset trading platform.

This was a sham. The promoters misappropriated millions of dollars of investor funds for their own personal benefit. Even Seagal was fined by the SEC for failing to disclose a fee he received in return for his promotion.

Bitconnect investors fared no better. They were promised returns of over 40 percent per month. Instead, Bitconnect collapsed when two state regulators issued cease and desist letters, and the crypto community started openly referring to it as a Ponzi scheme.

Representatives of OneCoin, which pitched itself as the next Bitcoin, were in the middle of a sales pitch to investors when law enforcement raided their meeting and arrested 18 company employees. Multiple national authorities have described OneCoin as a Ponzi scheme, which, according to some sources, stole up to $19.4 billion.

In the Shavers Ponzi scheme, the fraudsters advertised a bitcoin “investment opportunity” in an online Bitcoin forum. Investors were allegedly promised up to 7 percent interest per week and that their funds would be used for bitcoin arbitrage activities in order to generate the returns. Instead, in classic Ponzi fashion, invested bitcoin was used to pay existing investors and exchanged into U.S. dollars to pay the organizer’s personal expenses.

The allure of the world of cryptocurrency to fraudsters has undoubtedly been strengthened by the lack of any crypto-specific regulations as well as the delayed application of existing regulations— such as federal and state securities laws—to the rapidly developing crypto space. In one particularly egregious example, a company called Crypto Calls held itself out as a leading “crypto pump group” that could skyrocket the value of a cryptocurrency using a classic “pump and dump” approach. Such tactics would never be permissible in the world of securities regulated by states and the SEC; but in the world of crypto, this company promoted its business openly.

So it was no surprise when, in 2013, the SEC issued an investor alert on “Ponzi Schemes Using Virtual Currencies.” The SEC warned that, “[a]s with many frauds, Ponzi scheme organizers often use the latest innovation, technology, product or growth industry to entice investors and give their scheme the promise of high returns. Potential investors are often less skeptical of an investment opportunity when assessing something novel, new or ‘cutting-edge.’”

Of course, in 2013, Bitcoin and other virtual currencies were—if nothing else—novel, new, and “cutting edge.” The SEC was appro-

priately worried that “the rising use of virtual currencies in the global marketplace may entice fraudsters to lure investors into Ponzi and other schemes in which these currencies are used to facilitate fraudulent, or simply fabricated, investments or transactions.”12 2014 brought another SEC investor alert titled “Bitcoin and Other Virtual Currency-Related Investments” to alert investors to the potential risks of investments involving bitcoin and other virtual currencies and explain that “the rise of Bitcoin and other virtual and digital currencies creates new concerns for investors.” This time, the SEC singled out Bitcoin by name, warning that “[a] new product, technology, or innovation—such as Bitcoin—has the potential to give rise both to frauds and high-risk investment opportunities. Potential investors can be easily enticed with the promise of high returns in a new investment space and also may be less skeptical when assessing something novel, new and cutting-edge.”13 Sensing Bitcoin’s growing momentum, the SEC began to tailor its fraud-related investment advice to the burgeoning cryptocurrency, advising investors that [i]f you are thinking about investing in a Bitcoin-related opportunity, here are some things you should consider.

Investments involving Bitcoin may have a heightened risk of fraud. Innovations and new technologies are often used by fraudsters to perpetrate fraudulent investment schemes.

Fraudsters may entice investors by touting a Bitcoin investment “opportunity” as a way to get into this cutting-edge space, promising or guaranteeing high investment returns.

Investors may find these investment pitches hard to resist.

The SEC offered three specific warnings. First, that Bitcoin users may be targets for fraudulent or high-risk investment schemes because of their recent and unexpected increase in wealth (from the appreciation of their bitcoin). Fraudsters might, according to the SEC, take advantage of Bitcoin users’ vested interest in the success of Bitcoin to lure these users into Bitcoin-related investment schemes. The fraudsters may be (or pretend to be) Bitcoin users themselves. Similarly, promoters may find Bitcoin users to be a receptive audience for legitimate but high-risk investment opportunities. Fraudsters and promoters may solicit investors through forums and online sites frequented by members of the Bitcoin community.

Second, the SEC warned that using bitcoin may limit recovery in the event of fraud or theft because the third-party wallet services, payment processors, and bitcoin exchanges that play important roles in the use of bitcoin may be unregulated or operating unlawfully, and because law enforcement officials could face particular challenges when investigating the illicit use of virtual currency. Such challenges include (i) money tracing, since traditional financial institutions (like banks) often are not involved with bitcoin transactions, making it more difficult to follow the flow of funds; (ii) the international scope of bitcoin transactions, which could potentially restrict how the SEC can use, receive, or even locate information as part of an investigation; (iii) the lack of any central Bitcoin authority, which leaves the SEC relying on other sources, such as bitcoin exchanges or users, for its investigatory focus; and (iv) the difficulty of seizing or freezing illicit proceeds held in bitcoin, even if located, since bitcoin wallets are July/August 2021 • THE FEDERAL LAWYER • 63

encrypted and might not be held by a third-party custodian (unlike money held in a bank or brokerage account).

Finally, the SEC emphasized bitcoin’s unique investment risks, each of which should be considered in connection with the evaluation of any bitcoin investment. First, while U.S.-based securities accounts and bank accounts are often insured by the Securities Investor Protection Corporation and Federal Deposit Insurance Corporation, respectively, bitcoin held in a digital wallet or exchange do not have similar protections. Second, bitcoin’s exchange rate historically has been volatile and could drastically decline (it has dropped as much as 50 percent or more in a single day). Third, bitcoin are not legal tender (except in El Salvador as of June 2021), so federal, state, or foreign governments may restrict their use and exchange. Fourth, bitcoin exchanges may stop operating temporarily or permanently due to fraud, technical glitches, hackers, or malware (and bitcoin also may be stolen by hackers). Finally, as a recent invention, Bitcoin does not have an established track record of credibility and trust (i.e., bitcoin and other virtual currencies are evolving daily).14 The government warnings have evolved as well. In 2019, another investor alert was released, this time jointly by the SEC’s Office of Investor Education and Advocacy and the Commodity Futures Trading Commission’s Office of Customer Education and Outreach (CFTC), warning investors to scrutinize investment opportunities through websites purporting to operate advisory and trading businesses related to digital assets. This alert, titled “Watch Out for Fraudulent Digital Asset and ‘Crypto’ Trading Websites,” explained that “SEC and CFTC staff have recently observed investment scams where fraudsters tout digital asset or ‘cryptocurrency’ advisory and trading businesses. In some cases, the fraudsters claim to invest customers’ funds in proprietary crypto trading systems or in ‘mining’ farms. The fraudsters promise high guaranteed returns (for example, 20-50%) with little or no risk.”

In some cases, the alert explained, after the investors make an investment, typically using a digital asset such as bitcoin, they never hear from the fraudsters again, and the stolen funds have already quickly been moved overseas, out of the victim’s practical reach. In other cases, the fraudsters con investors into paying purported taxes or other bogus fees to withdraw fake “profits”: an advance fee fraud scam.15 There have been many alerts and warnings from the regulators over the last decade. But how much progress has been made in actually tracking and preventing such fraud, or more generally, in offering guidance and clarity to the crypto community over how and which regulations even apply? The answer is “not enough.”

So Where Are We With Crypto Regulations?

In the highest profile crypto-related lawsuit now pending, the SEC has sued one of the biggest players in the industry, Ripple, for the unregistered offer and sale of over $1.3 billion of its signature digital currency XRP. (XRP is currently ranked the fifth largest cryptocurrency on CoinMarketCap, with a market cap of over $63 billion.)

One of Ripple’s defensive arguments is that it has been operating openly for eight years alongside other cryptocurrencies, like bitcoin, that have not been treated as securities. So Ripple asks, why is XRP being targeted, and why now? So far, that has proved to be a difficult question for the SEC to answer, and Ripple has scored some significant discovery victories regarding, for example, compelled production of internal SEC discussions about whether Ripple’s XRP tokens 64 • THE FEDERAL LAWYER • July/August 2021

are similar to cryptocurrencies like bitcoin, which have been deemed “commodities” outside the purview of the SEC. The securities laws should provide guidance and clarity on, for example, whether a crypto coin or token like bitcoin or XRP meets the Supreme Court’s Howey test for a security—thereby subjecting the crypto to a legal and regulatory regime that offers consumers substantial security and protection.16 Unfortunately, the guidance has been murky. In April 2019, the SEC released a “Framework for ‘Investment Contract’ Analysis of Digital Assets” to try to assist those considering an ICO in determining whether the federal securities laws would apply under Howey.17 But some commentators have said that the framework raises more questions than it answers.

Beyond the securities laws, historically there has been another check on fraudsters and Ponzi schemers. Federal law has long required banks—a necessary component of any “old school” Ponzi scheme—to be wary of such illegal conduct. Enacted in 1970, the Bank Secrecy Act (BSA), enlisted bank employees into the war against money laundering and other financial crimes. The BSA led to the adoption of “know your customer” (KYC) policies by financial institutions throughout the country. These policies require banks to know the customer’s identity, the purpose of their accounts, and the types of transactions the customer is expected to have, in order to combat the illegal use of financial services.

Subsequent regulations have also required banks to report suspicious activity, including any potentially criminal conduct, to a centralized federal authority, the Treasury Department’s Financial Crimes Enforcement Network. And after 9/11, the USA PATRIOT Act led to additional requirements for banks to identify and verify the identity of customers opening new accounts.

However, as the SEC noted in its 2014 alert, crypto-based frauds generally do not flow through banks, neutralizing the well-established oversight of the BSA and the PATRIOT Act, and making it difficult (if not impossible) to trace and seize funds after a fraud is revealed.

Clarity, guidance, and investor protection are needed. Hopefully, some help is on the horizon. The Anti-Money Laundering Act (2020), for example, expands the scope of activities subject to BSA requirements to include institutions engaged in the transmission of virtual currencies—not just traditional banks. And in April, SEC Commissioner Hester M. Peirce, nicknamed “Crypto mom,” released an updated version of a Token Safe Harbor Proposal that would give crypto startups a three-year grace period within which they could sell tokens through ICOs to fund development efforts, exempted from the registration provisions of the federal securities laws, as long as they comply with reporting requirements that could ensure the absence of fraud.

And most recently, the House of Representatives passed a bipartisan bill called the ‘‘Eliminate Barriers to Innovation Act of 2021’’ (H.R. 1602) that would create a digital assets working group between the SEC and the CFTC. If this act becomes law, within one year, the new working group will need to provide a report on the legal and regulatory frameworks related to digital assets, including the impact that the current lack of clarity regarding digital assets has had on primary and secondary markets, and provide recommendations on, among other things, how to reduce fraud and increase investor protections.

Closing Thoughts E.O. Wilson, a sociobiologist from Harvard, has explained that the fundamental problem of humanity is that we have paleolithic

emotions, medieval institutions, and accelerating God-like technology. Our evolutionary instincts and institutions, such as law and government, are stagnant compared to technologies like Bitcoin and blockchain, which advance every day and can become obsolescent in months rather than decades.

Our laws are struggling to keep up with our technologies and the scammers and fraudsters who exploit them. This is an exciting time in the world of cryptocurrencies and blockchain. It’s also a dangerous time for those who are uninformed, don’t do their research, and let the fear of missing out on something “novel, new, or cutting-edge” overwhelm rational and prudent investing diligence.

The red flags of fraud haven’t changed. “Guaranteed” high investment returns don’t exist. Unsolicited sales pitches from people you don’t know are suspicious. If the investment sounds too good to be true, it probably is. Investments providing higher returns typically involve more risk. Fraudsters like to try to create a false sense of urgency to get in on the investment, so take your time researching an investment opportunity before handing over your money.

While Bitcoin doesn’t satisfy the definition of a “Ponzi” scheme, there are undoubtedly many cryptocurrencies that do. Time will tell. Be careful. Do your research. And if you find yourself a victim, contact an attorney.

DISCLAIMER The views expressed in this article are not those of the author’s employer, clients, or any other organization. The opinions expressed do not constitute legal advice or risk management advice. The views discussed are for educational purposes only.  Tal J. Lifshitz is a partner in Kozyak Tropin & Throckmorton’s complex litigation department.

An experienced litigator and former federal judicial law clerk, he has represented a wide range of sophisticated corporate and individual clients, including investors in high-stakes business disputes, investment and securities frauds, and Ponzi scheme litigation. Lifshitz speaks and writes regularly on trial practice, class actions, and the intersection of law and technology, including FinTech, blockchain, and digital currency. He is active on social media and can be followed on LinkedIn and Twitter for litigation skills and tips, thoughts on law and technology, and more. ©2021 Tal J. Lifshitz. All rights

Sec. Exch. Comm’n, Ponzi Schemes, https://www.investor.gov/ introduction-investing/investing-basics/glossary/ponzi-schemes (last visited May 10, 2021).

7 As Chief Justice Taft explained, when analyzing Ponzi’s scheme at the Supreme Court, Ponzi “was always insolvent, and became daily more so, the more his business succeeded. He made no investments of any kind, so that all the money he had at any time was solely the result of loans by his dupes.” Cunningham v. Brown, 265 U.S. 1, 8 (1924).

8 Satoshi Nakamoto, Bitcoin P2P E-cash Paper, https:// www.metzdowd.com/pipermail/cryptography/2008October/014810.html (last visited June 4, 2021).

9 Justin S. Wales and Richard J. Ovelmen, Bitcoin Is Speech: Notes Toward Developing the Conceptual Contours of Its Protection Under the First Amendment, 74 U. Miami L. Rev. 204, 206–07 (2019).

10 Sec. Exch. Comm’n, Investor Alert: Bitcoin and Other Virtual Currency-Related Investments (May 7, 2014), https://www.sec.gov/oiea/investor-alerts-bulletins/investoralertsia_ bitcoin.html.

11 Wales and Ovelmen, supra note 9, at 210–12.

12 Sec. Exch. Comm’n, Investor Alert: Ponzi Schemes Using Virtual Currencies ( July 1, 2013), https://www.sec.gov/ investor/alerts/ia_virtualcurrencies.html.

13 FINRA had also recently issued an Investor Alert cautioning investors about the risks of buying and using digital currency such as bitcoin, and the North American Securities Administrators Association (NASAA) included digital currency on its list of the top 10 threats to investors for 2013.

14 Virtual Currency-Related Investments, supra note 10.

15 Sec. Exch. Comm’n, Investor Alert: Watch Out for Fraudulent Digital Asset and “Crypto” Trading Websites (Apr. 24, 2019), https://www.sec.gov/oiea/investor-alerts-andbulletins/ia_fraudulentdigitalasset.

16 SEC v. W.J. Howey Co., 328 U.S. 293 (1946).

17 Sec. Exch. Comm’n, Framework for “Investment Contract” Analysis of Digital Assets n.1 (Apr. 3, 2019), https://www.sec.gov/corpfin/framework-investment-contractanalysis-digital-assets#_edn1.

6

reserved.

Endnotes Andrew Ross Sorkin et al., Miami Wants to Be the Hub for Bitcoin, N.Y. Times (Mar. 23, 2021), https://www.nytimes.com/2021/03/23/ business/dealbook/miami-suarez-crypto.html.

2 See Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2076 (2018) (Breyer, J., dissenting) (citing F. Martin, Money: The Unauthorized Biography—From Coinage to Cryptocurrencies 275–278 (1st Vintage Books ed. 2015)).

3 Sorkin, supra note 1.

4 Mayor Scott Conger (@MayorConger), Twitter (Apr. 20, 2021, 10:13 PM), https://twitter.com/MayorConger/ status/1384691758936825857.

5 Shobhit Seth, 80% of ICOs Are Scams: Report, Investopedia (Apr. 2, 2018), https://www.investopedia.com/news/80-icos-are-scamsreport/.

1

July/August 2021 • THE FEDERAL LAWYER • 65

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 several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Cedar Point Nursery v.

Hassid (No. 20-107) Oral argument: Mar. 22, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

Question as Framed for the Court by the Parties Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.

Facts In 1975, California passed the Agricultural Labor Relations Act (ALRA or Act), which established the Agricultural Labor Relations Board (ALRB or Board). The ALRB found that there were few opportunities for unions to communicate with agricultural workers. In response, the Board promulgated an access regulation which allowed union organizers to approach agricultural workers under limited circumstances while the workers were physically present on their employer’s property. Under the regulation, labor organizers can visit the employer’s property after providing the employer and a regional office with notice. Union organizers can visit an employer’s property for four thirty-day periods a year and only for three one-hour periods.

Two separate incidents led the two petitioners, Cedar Point Nursery (Cedar Point) and Fowler Packing Company (Fowler), to bring this action against the respondent, Victoria Hassid (Hassid) in her capacity as chair of the ALRB. Cedar Point raises strawberry plants that are sold to strawberry producers. Cedar Point has 400 seasonal workers and 100 full-time workers: the seasonal workers are housed at hotels, and none live onsite. On October

29, 2015, without providing the required notice, union organizers from the United Farm Workers of America (UFW) allegedly entered Cedar Point’s property early in the morning. Thereinafter, Cedar Point accused UFW’s organizers of using bullhorns to “disrupt[] work,” and “distract[] and intimidat[e] workers.” Cedar Point brought charges against UFW for violating the access regulation, and in turn, UFW brought charges against Cedar Point for unfair labor practices. Cedar Point states that it would like to exclude UFW organizers from its property in the future but is unable to under the access regulation.

The other petitioner, Fowler, is a “largescale shipper of table grapes and citrus” employing roughly 2,500 workers. Fowler’s employees do not live on the property.

UFW’s organizers were allegedly unable to access Fowler’s property during three days in July 2015, and UFW brought an unfair labor practice charge against Fowler with the Board. While UFW withdrew the charges, Fowler also argues that it would prefer to exclude “union trespassers” from its property but cannot because of the access regulation.

Together, Cedar Point and Fowler (Growers) sued the Board for declaratory and injunctive relief under 42 U.S.C. § 1983, seeking an injunction to prevent the Board from enforcing the access regulation against them. They argued that by enforcing the access regulation against them, the Board is taking their property in violation of the Fifth Amendment, and that the Board also violated the Fourth Amendment’s guarantee against unlawful seizure. The Board dismissed their suit and Growers appealed to the district court, which also dismissed both claims. On Growers' appeal to the Ninth Cir-

66 • THE FEDERAL LAWYER • July/August 2021

cuit, the court affirmed the district court’s dismissal. First, the court found that Growers did not make out a claim that there was a per se physical taking of Growers' property when the access regulation was applied to Growers. Second, the court determined that Growers also did not make out a claim showing that the access regulation affected a Fourth Amendment seizure of Growers’ property.

The U.S. Supreme Court granted certiorari on Growers’ Fifth Amendment claim on November 13, 2020.

Legal Analysis DOES THE ACCESS REGULATION CONSTITUTE A PHYSICAL TAKING? Growers argue that the access regulation, which gives a right of access to union organizers to meet with agricultural employees on the employer’s land during limited times and for specific reasons, qualifies as a physical taking and therefore is in violation of the Fifth Amendment. Specifically, Growers argue that the access regulation qualifies as an easement. There are two types of takings under the Fifth Amendment, physical and regulatory takings; the two types undergo different legal analysis. Growers argue that the easement here qualifies as a physical taking, rather than a regulatory taking. The rule that governs physical takings comes from Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, which establishes that the government has a “categorical duty to compensate” property owners when it has physically taken possession of their property interest. Regulatory takings, however, are not subject to this “categorical duty to compensate.”

Growers further elaborate that the access regulation qualifies as a physical taking for several reasons. First, Growers note that an easement in gross is recognized as a property interest in California, and the access regulation clearly qualifies as an easement.

Growers also note that the Court has held that permanent physical intrusions onto property are a per se taking. Growers use Kaiser Aetna v. United States to show that the Court has required just compensation even

when the government’s physical invasion is only an easement. They also reference Nollan v. Cal. Coastal Comm’n to show that the Court has held that easements qualify as physical takings despite there being no permanent occupation.

Further, Growers claim that the access regulation’s time restriction does not change this analysis. Growers’ reasoning for this is: (1) limitations are part of the nature of easements and limiting the physical takings analysis to continuous occupation would remove all easements from this category, and (2) the Court has analyzed easements as physical takings before, despite the fact that some of these easements had time restrictions. Growers note that “time-limited easements” are still physical takings because “limitations are inherent to easements.”

Hassid argues that the access regulation is a regulatory taking, and the Court has refrained from creating a definitive test for determining when a regulatory taking violates the Takings Clause. Hassid points out that a physical taking has traditionally only been applied where the government directly takes the owner’s property for its own purpose. Although Hassid acknowledges that the Court has expanded from this traditional reading, they have mostly abstained from extending physical takings through applying concrete rules.

Hassid contends that there are few, narrow types of regulatory actions that can qualify as per se takings. The first is one of “permanent physical occupation” of an owner’s property. The second is a regulation that “deprives” a property owner “‘of all economically beneficial uses’ of his property.” Hassid claims that the access regulation does neither of these things. Additionally, Hassid argues that the Court has specifically rejected analogizing access regulations under the National Labor Relations Act (NLRA) (which the access regulation in California is modeled after) to a type of permanent physical occupation. Hassid argues that Loretto v. Teleprompter Manhattan CATV Corp. demonstrates that the Court has specifically laid out the extreme effects to which regulations rise to the level of takings. Hassid claims that regulations must effectively remove an owner’s rights to their property, including the loss of power to exclude individuals from the property and use the property, and deny a property owner’s power to control their property.

PER SE RULES AND THE RIGHT TO EXCLUDE Growers argue that the right to exclude is one of the most basic rights of property owners, and one which the access regulation blatantly defies. Indeed, Growers claim that the right to exclude is “deeply rooted” in the American legal framework. Therefore, even an occupation that does not take up much space or seriously interfere with the property owner’s use of the land requires compensation. Growers claim that the only way to protect the fundamental right to exclude is to qualify all easements that affect this right without compensation as a violation of the Fifth Amendment Takings Clause. Growers address the case PruneYard Shopping Center v. Robins, where the Court ruled that a regulation requiring a mall owner to allow speech (even speech he disagreed with) on his property was not a taking; in that case, a California statute required the property owner to allow “certain expressive speech” on his property. Additionally, the Growers claim that PruneYard has been limited to “publicly accessible” property. Growers also argue that since PruneYard, the Court has continuously reaffirmed the right to exclude as a fundamental property right. Therefore, Growers claim that PruneYard is an “anomaly” and one that the Court has subsequently limited in application.

Hassid contends that the Court has not categorically defined easements as physical takings. Hassid notes that the fact that easements are real California property interests does not impact the analysis; if this fact did, it would empower states to define what is a physical taking merely through what qualifies as a real property interest. Hassid claims that the decision in PruneYard was not as limited as Growers suggest. Specifically, Hassid claims that the Court in PruneYard only viewed the openness to the public as one consideration in its very context-specific analysis of whether the regulation could qualify as a taking. Hassid also claims that the Court has upheld other regulations that have restricted a property owner’s right to exclude before.

Discussion NECESSITY OF THE ACCESS REGULATION Western Growers Association (Western) and other trade organizations, in support of the Growers, contend that the access rule was adopted when there were fewer methods of communication and is no longer necessary

for unions to communicate with agricultural employees. Western supports this with statistics that show that agricultural workers no longer migrate as often and generally do not live on their employers' property. Further, Western asserts that agricultural employees have access to smartphones to communicate with union organizers and each other.

By contrast, California Rural Legal Assistance, Inc. and other advocacy organizations (Legal Assistance), in support of Hassid, argue that agricultural employees remain difficult to access. Legal Assistance points to Board findings that computers, cell phones, social media, and radio were “unworkable” communication methods because of language barriers. Legal Assistance contends that many agricultural workers are immigrants who speak different languages and read at fourth-grade to seventh-grade levels, rendering print communication challenging.

Legal Assistance also argues that internet access and mobile phones remain luxuries for agricultural workers.

REGULATION’S IMPACT ON PROPERTY OWNERS The Chamber of Commerce of the United States of America (Chamber of Commerce), in support of Growers, reasons that the Fifth Amendment’s prohibition on uncompensated government takings is crucial for business owners to invest confidently in their property, whereby they contribute to national prosperity. Therefore, Chamber of Commerce argues, the Takings Clause provides assurance that policymakers will consider the costs and benefits of public use to property owners, because the public must compensate property owners for their sacrifice.

Property Law Professors (Professors), in support of Hassid, contend that the Growers have retained their right to exclude.

Professors argue that the Growers still own the farm, determine how the land is used, decide which parties can enter, with the only restriction coming from the access rule. Professors also express concerns that many government programs might become compensable takings if this case is decided in the Growers’ favor.

Written by Alyssa Ertel and Kathryn Rider.

Edited by Kayla Anderson.

Full text available at https://www.law. cornell.edu/supct/cert/20-107. 

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National Collegiate Athletic Association v.

Alston (No. 20-512)

Oral argument: Mar. 31, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

Question as Framed for the Court by the Parties Whether the U.S. Court of Appeals for the Ninth Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law.

Facts The National Collegiate Athletic Association (NCAA) governs intercollegiate sports by administering rules related to its member schools’ student-athletes. The NCAA divides its school constituents into three separate divisions, with Division 1 (D1) schools sponsoring the most financial aid and athletic programs for student-athletes.

In August 2014, the NCAA amended its D1 bylaws to impose limitations on the amount and type of compensation that student-athletes are entitled to. The amended bylaws included an “Amateurism Rule,” which sets forth that student-athletes are not eligible for intercollegiate competition if they use their sports skills for compensation not permitted by the NCAA. In 2009, University of California, Los Angeles (UCLA) basketball player Ed O’Bannon filed an antitrust lawsuit against the NCAA for the unauthorized use of his “names, images, and likenesses” (NILs) in a video game, and for prohibiting himself or other similarly-situated players from receiving compensation for such use (including full cost of attendance). The district court in that case found for O’Bannon under the rule of reason and held that the NCAA’s long-held compensation system and bylaws operate as an unreasonable restraint of trade in violation of antitrust law. The case was appealed to the Ninth Circuit.

In 2014, while O’Bannon v. NCAA was still being litigated, a class of Football Bowl Subdivision and D1 student-athletes (collectively, Alston) filed separate antitrust actions against the NCAA in the U.S. District Court for the Northern District Court of California, challenging the NCAA’s compensation system. In 2015, following the Ninth Circuit’s decision in O’Bannon, the NCAA requested

that the Northern District of California issue a judgment on the pleadings and preclude student-athletes from pursuing the matter further. In seeking the court’s judgment, the NCAA cited the Ninth Circuit’s O’Bannon proceedings, which only required that the NCAA member schools provide full education-related costs of attendance to their student-athletes. The NCAA additionally asserted that because the NCAA had already amended its bylaws to fulfill the O’Bannon requirement, the student-athletes’ antitrust challenges could not proceed further. The district court, however, denied the NCAA’s motion, finding that the matters at issue in the instant case were significantly different from those in O’Bannon.

Following the district court’s ruling, both parties filed for summary judgment, but the district court again denied the NCAA’s motion and granted student-athletes summary judgment. The NCAA subsequently appealed to the U.S. Court of Appeals for the Ninth Circuit. On appeal, the three-judge panel affirmed the district court’s decision, holding that the district court did not err in its conclusion that the NCAA compensation system violated the Sherman Antitrust Act. In response, the NCAA, together with the American Athletic Conference et al. (AAC), filed petitions to the Supreme Court to hear its appeal in October 2020. The Supreme Court granted a writ of certiorari on December 16, 2020, consolidating this case with American Athletic Conference v. Alston (20-520).

Legal Analysis FRAMEWORK FOR ANALYZING UNREASONABLE RESTRAINT Petitioner NCAA argues that the court should review its rules on the compensation of student-athletes deferentially and without detailed analysis under the rule of reason. The NCAA emphasizes that most restraints on trade are analyzed under the rule of reason—which assesses whether “the restrictive practice imposes an unreasonable restraint on competition.” According to the NCAA, application of the rule of reason does not always demand a detailed analysis, and courts can apply the rule to “prohibit anticompetitive restraints and promote procompetitive ones,” especially regarding to joint ventures. Accordingly, the NCAA argues that the Court generally defers to sports leagues when they define their own procompetitive restraints and upholds such

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restraints without detailed rule-of-reason analysis so long as the league offers some justification. The NCAA asserts that the Court applied these principles in Board of Regents v. University of Oklahoma, demonstrating that amateurism is essential to the “product” offered by the NCAA—amateur college sports—and that its procompetitive activity preserves that product. Therefore, the NCAA concludes, the Court should uphold the NCAA’s amateurism rules without detailed rule-of-reason analysis because they are designed to maintain the character of amateur college sports.

The AAC, as co-petitioner, further argues that the NCAA player-eligibility rules should have been upheld under the quick look doctrine. The AAC maintains that the Court has demonstrated that some agreements are legal on a limited “quick look,” and so the courts should defer to restraints “reasonably related” to the distinct product of a sports league or other joint venture. In determining whether a restraint is legal under a quick look, the AAC argues, the court assesses whether the restraint is procompetitive.

According to the AAC, any rules that are required for a sports league to exist enjoy a presumption of pro-competitiveness and lawfulness. Moreover, the AAC contends that Board of Regents has already determined that the amateurism rules are valid and procompetitive. Therefore, the AAC concludes that the district court should have dismissed the case on a quick look, and the Court should reverse the district court’s decision or dismiss the case.

Respondent Alston responds that the NCAA misconstrues the reasoning of Board of Regents, arguing that the NCAA overstates the amount of latitude that the case affords the NCAA as a joint venture in setting competitive rules. Alston argues that the NCAA overlooks a critical feature of the decision: although the Court recognized the need for “ample latitude,” the Court decided that a rule of reason analysis would still govern the claims. Even if a rule of reason inquiry were not supported by Board of Regents, Alston asserts that changed factual circumstances justify not giving Board of Regents, decided in 1984, stare decisis effect. Alston notes that college athletics are significantly larger commercial enterprises than they were when the Court decided Board of Regents. Thus, Alston concludes that the NCAA’s rules must be assessed under the rule of reason,

not some presumptions based on forty-yearold dicta.

Alston further contends that the quick look doctrine supports a finding of illegality in this case. Alston first refutes the AAC’s contention that the quick look doctrine could be used to uphold a restriction on trade. Instead, Alston argues that the quick look doctrine can only be used to prove that a restriction on trade violates antitrust laws and cannot be “turned on its head” to prove a restriction is lawful. Alston emphasizes that the Court’s cases have described the quick look doctrine as a method to denounce anticompetitive restrictions more quickly. But even if the lower courts had applied the quick look doctrine to decide whether the NCAA’s rules violated antitrust laws, Alston maintains that his claim would have still succeeded. According to Alston, the NCAA’s restrictions were “so plainly anticompetitive” that only a “quick look” was needed to show that the restrictions were an illegal restraint on trade.

RULE OF REASON ANALYSIS: GRANULARITY IN STEP ONE AND STEP TWO The NCAA argues that the district court erred by applying different levels of generality in the first and second step of its rule of reason analysis. The NCAA explains that under the rule of reason, a plaintiff must first prove that restraints have significant anticompetitive effects, then the burden shifts to the defendant to prove that those restraints have procompetitive effects. If the defendant proves that the restraints do, the NCAA maintains, the burden shifts back to the plaintiff to show that those procompetitive effects could have been achieved by a “substantially less restrictive alternative.”

The NCAA claims that because at Step 1 Alston successfully challenged “the NCAA’s entire compensation framework” as anticompetitive, the burden at Step 2 of the rule of reason analysis should have only required the NCAA to prove that its rules as a whole produced procompetitive benefits. Instead, the NCAA notes, the district court required the NCAA to prove that every one of the challenged rules had procompetitive effects.

By requiring different levels of generality at the first and second steps of the rule of reason analysis, the NCAA claims, the district court eased the burden on the party challenging the alleged restraint while making it more difficult for the party defending against

the claim to show that each challenged rule had a procompetitive effect.

Alston refutes the claim that the district court applied a different level of generality to claims at the first and second step of the rule of reason analysis. Rather, Alston argues that neither the district court nor the Ninth Circuit required the NCAA to justify each individual rule. According to Alston, the district court instead based its holding on the fact that the NCAA had not shown a procompetitive explanation for its rules in aggregate. Alston points to the testimony of the NCAA’s witnesses in the district court who testified that the challenged rules allow athletes to be compensated in ways inconsistent with the principle of amateurism. Based on this and other evidence, Alston maintains that the district court, examining “all aspects of the rules in aggregate,” rejected the NCAA’s single “sweeping theory” of amateurism as lacking a clear definition.

Alston also asserts that the Ninth Circuit’s decision confirmed this analysis, claiming that the court granted the NCAA even greater flexibility at the second step than otherwise required. In particular, Alston references language in the concurring opinion mentioning that the district court allowed the NCAA to justify its amateurism rules by showing they had a procompetitive effect on the product market where college sports compete with professional sports rather than on the labor market for student-athletes that the rule directly affects.

Discussion CHILLING EFFECT ON BUSINESS CONDUCT Antitrust economists, in support of the NCAA and AAC, contend that the Ninth Circuit’s decision will impede the creativity and freedom of economic actors in designing their own products and business models.

Antitrust economists assert that the NCAA’s product—amateur college sports—is just one such business product, and that its ability to develop its business product in its own way promotes consumer welfare. Thus, the Ninth Circuit’s decision, the antitrust economics argue, will inhibit innovative product design and lead entrepreneurs to “forego experimentation with product design that would otherwise benefit consumers.”

The representatives of the plaintiff class in O’Bannon (Class Representatives), in support of Alston, counter that the NCAA’s dire projections about the business of college

sports are unsupported and therefore should not be accepted. The Class Representatives argue that the NCAA has repeatedly warned of the potential “peril to college athletics” posed by economic competition as an excuse whenever the NCAA’s compensation system has been challenged in previous antitrust cases. However, the Class Representatives contend, permitting schools to freely engage in commercial and trade activities has had “zero impact” on the consumer demand for college sports, which still flourish.

Written by Jin-Taek Hong and Daniel McCarthy. Edited by Prachee Sawant.

Full text available at http://www.law. cornell.edu/supct/cert/20-512. 

City of San Antonio, Texas v. Hotels.com, L.P. (No. 20-334)

Oral Argument: Apr. 21, 2021 Court below: U.S. Court of Appeals for the Fifth Circuit

Question as Framed for the Court by the Parties Whether, as the U.S. Court of Appeals for the Fifth Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Federal Rule of Appellate Procedure 39(e).

Facts In 2006, the City of San Antonio filed a class action lawsuit against online travel companies (OTCs), including Hotels.com, Hotwire, Orbitz, and Travelocity, for failure to pay municipal hotel occupancy taxes in full. The lawsuit was brought on behalf of 173 Texas municipalities and claimed that the OTCs were underpaying hotel occupancy taxes included in hotel reservations facilitated by the online services. In 2011, a federal district court ordered the OTCs to pay occupancy taxes on the hotel reservations they facilitated, and found that the hotel occupancy tax applies to the retail room rate, not the negotiated discounted room rate. The district court denied the OTCs’ motion to amend its decision and entered a final judgment against the OTCs. After the OTCs requested appeal bonds, the district court approved the amount requested and stayed the judgment until the resolution of all post-judgment motions. Between May 2013 and November 2014, the OTCs filed their appeal bonds three times. In 2016, the district court resolved the matter by denying

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the OTCs’ remaining post-judgment motions and entering a judgment of $84,123,089 in penalties, unpaid taxes, and interest against the OTCs. In 2007, the City of Houston similarly sued OTCs seeking damages and penalties for unpaid hotel occupancy taxes on the retail rates that exceed the discounted rates that hotels invoiced OTCs for listing hotel rooms on their website. In contrast to the City of San Antonio case, the state trial court granted the OTCs’ summary judgment against the City of Houston. The City of Houston appealed the trial court’s legal finding that the ordinance and resolution imposing hotel occupancy taxes applied to the discounted rate instead of the retail rate of the hotel reservation. In 2011, the Court of Appeals for the Fourteenth Circuit concluded that the trial court correctly interpreted the local ordinance and resolution at issue and affirmed the trial court’s judgment in favor of the OTCs. In 2017, the Court of Appeals for the Fifth Circuit vacated the district court’s judgment against the OTCs and found the state court’s decision controlling on the tax issue. The Fifth Circuit ordered the City of San Antonio to pay the OTCs the “costs on appeal to be taxed by the Clerk of this Court.” The district court subsequently entered a final judgment for the OTCs, “releasing all supersedeas bonds, and awarding costs to the OTCs as the prevailing parties.”

The OTCs filed a bill of costs in the district court, including $2,008,359 for the OTCs’ appeal bond premiums and “post-judgment interest” to be paid by the non-prevailing party. The City of San Antonio urged the district court to reduce the amount of premiums from the bill of costs. The district court denied the City of San Antonio’s request for a payment reduction and entered a bill of costs against the city for $2,226,724.37. The City of San Antonio appealed the appeal bond cost amount to the Fifth Circuit. In May 2020, the Fifth Circuit affirmed the district court’s denial.

The City of San Antonio then petitioned for a writ of certiorari to appeal the issue before the Supreme Court of the United States, and on January 8, 2021, the Court granted certiorari.

Legal Analysis TEXT AND STRUCTURE OF RULE 39 Petitioner City of San Antonio (San Antonio) argues that the text and structure of

Rule 39(e) of the Federal Rules of Appellate Procedure afford district courts discretion to “reduce or deny cost awards.” San Antonio argues that the word “taxable” in Rule 39(e) is permissive, as it denotes the possibility of being taxed but “does not compel a district court to award anything.” Citing the Fifth Circuit in Sioux, San Antonio argues that the Fifth Circuit relied on an outdated version of Rule 39(e) that explicitly stated that costs “shall be taxed in the district court.”

However, since such mandatory language was removed by Rule 39(e)’s 1998 amendment, San Antonio argues that there is no ground to justify the Fifth Circuit’s ruling in Sioux. Hence, San Antonio contends that the advisory committee responsible for drafting the amendment preserved the district court’s discretionary power by selecting a permissive term in the Rule and omitting a mandatory one. Pointing to Rule 54(d) (1) and Section 1920, San Antonio further asserts that there are multiple ways to grant courts discretion over costs. San Antonio argues that Rule 39(e) confers district courts discretion over costs even without the permissive phrase “unless the court orders otherwise” found in Rule 54(d)(1) because including such phrase would have posed problems unique to Rule 39(e). Specifically, San Antonio argues that including “unless the court orders otherwise” in Rule 39(e) would have unnecessarily disrupted its purpose by (1) overpowering district courts, and (2) permitting litigants to seek appellate costs at appellate courts, which would upset the appellate court’s Rule 39(a) determination concerning which parties are taxed.

In other words, San Antonio contends that inserting such a clause in Rule 39(e) would have impermissibly granted district courts power to award costs to parties not entitled to those costs under Rule 39(a).

Respondent Hotels.com counters that the inclusion of the word “taxable” in Rule 39(e) does not confer district courts discretion over costs. Hotels.com argues that the lack of an express mandatory term in Rule 39(e) is not evidence of a conferral of discretion over costs. Instead, Hotels.com asserts that a lack of discretion can be inferred by looking at other language in the Rule, such as mention of the appellate court’s “sole authority” to determine award of full appellate costs, the district court’s duty to act “for the benefit of the party entitled to costs,” and lack of the phrase “unless the court orders otherwise.” Hotels.com argues

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that district courts do not have discretion to determine costs because Rule 39(a) and other Federal Rules of Appellate Procedure include a default rule: the entitlement determined in district court depends on the outcome of the appeal. Hotels.com therefore contends that appellate courts possess the sole authority to decide whether a party is entitled to costs. Hotels.com also argues that San Antonio overestimates the weight of the 1998 amendment following the decision in Sioux because the advisory committee responsible for drafting the amendment stated the change in language was intended only to be “stylistic” and not substantive. Hotels. com also contends that Rule 39(e) omits the permissive phrase “unless the court orders otherwise,” despite its presence in other subdivisions of Rule 39, which strongly suggests that the drafters of the rule did not intend that discretionary authority over costs be vested in district courts.

ROLE DIVISION BETWEEN APPELLATE COURTS AND DISTRICT COURTS San Antonio argues that Rule 39(a) was not intended to vest appellate courts with sole discretionary authority over costs because it would leave district courts with largely perfunctory tasks in awarding costs. Specifically, San Antonio contends that if Rule 39(a) is understood to only authorize appellate courts to award Rule 39(e) costs, then there would be no reason to remand the issue to the district courts to enter a ministerial order over the costs. San Antonio asserts that Hotels.com ignores the structure of Rule 39, which proceeds in two distinct stages: (1) Rule 39(a) gives appellate courts authority over determining who receives cost awards (2) and then Rules 39(c)-(e) authorize courts in collateral proceedings to decide “what costs are available and how those costs must be taxed.”

Hotels.com argues that the district court only has a ministerial duty to judicially determine the correct amount of the prevailing party’s costs under Rule 39(e). Hotels.com asserts that because the language in Rule 39(e) uses “taxed in the district court,” rather than “taxed by the district court,” the role of district courts regarding costs is a modest one and is limited to a “clerical matter that can be done by the court clerk.” Specifically, Hotels.com contends that district courts play a “largely ministerial role” confined to merely determining “the amounts incurred in each Rule 39(e) category,” which may

require no involvement whatsoever by the district court judge. Hotels.com also argues that the logical extension of the division between Rule 39(a) and Rule 39(e) only leads to the conclusion that district courts should not upset the appellate court’s decision on cost entitlement. Hotels.com maintains that appellate courts have the authority to determine entitlements to costs and district courts have no authority to object to or decline those assessments.

Discussion TAXABLE APPELLATE COSTS A group of organizations affiliated with local governments (collectively local government organizations), in support of the City of San Antonio, contend that reductions of taxable appellate costs are appropriate in light of the financial burden large appellate bond premiums impose on litigants. The local government organizations assert that local governments are frequently a party to litigation and thus subject to substantial taxable appellate costs that include sizeable appellate bond premiums. The local government organizations contend that significant considerations unique to litigation at the trial court level may compel a court to reduce or deny appellate costs, such as parties’ relative abilities to pay and the public policy concerns for indigent litigants. The local government organizations argue that many of these considerations arise only in district court after testimony and evidence have been introduced before the fact finder and that these considerations bear directly on the amount of appellate costs a party has the ability to pay. The local government organizations specifically argue that the district court should retain discretion in taxing appellate costs to parties after firsthand consideration of the cost amounts, the losing party’s good faith, the strength and importance of the unsuccessful legal positions, the reasons for the incurred costs, and the losing party’s ability to pay.

Hotels.com argues that the substantial appellate bond premiums are appropriately included in taxable appellate costs because each party in this case knew that if the district court judgment was reversed on appeal, the bond premiums would be recovered as litigation costs. Hotels.com asserts that San Antonio “insisted” that the appellee purchase the hefty appeals bond and assumed the risk of potentially paying the full amount on appeal. Hotels.com further argues that

San Antonio missed its opportunity to raise this issue before the appellate court when it was determining the cost award amount, so it is inappropriate for the U.S. Supreme Court to reconsider the issue now. Hotel. com also contends that appellate courts already weigh equitable considerations, including “the nature and significance of the result of the appeal,” when awarding appellate costs, so subsequent appellate cost adjustments would be a “recipe for wasteful litigation.” Specifically, Hotels.com argues that San Antonio’s approach would unnecessarily require the case go to the appellate court a second time so it can decide the “propriety of the trial court’s exercise of discretion.”

Written by William Kwon and Christine Yuan.

Edited by Zora Franicevic.

Full text available at http://www.law. cornell.edu/supct/cert/20-334. 

Mahanoy Area School District v. B.L. (20-255)

Oral argument: Apr. 28, 2021 Court below: U.S. Court of Appeals for the Third Circuit

Question as Framed for the Court by the Parties Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Facts Respondent B.L., a student at Mahanoy Area High School (MAHS), tried out for the cheerleading team during her freshman year of high school and made the junior varsity ( JV) squad. She tried out again as a sophomore and was again assigned to JV. B.L. was especially frustrated after failing to make the varsity squad a second time when she saw that a freshman had been promoted to the varsity team instead. Frustrated by her relegation to the JV squad, school exams, and struggles on her softball team, B.L. posted a picture of herself and her friend with their middle fingers raised, with the caption “Fuck school fuck softball fuck cheer fuck everything” on her Snapchat story.

B.L. subsequently added another post to her Snapchat story, with the caption “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”

Several students expressed concerns about B.L.’s posts to MAHS’s cheerleading coaches. The coaches told B.L. that her post violated team and school rules, including rules mandating that cheerleaders show respect towards the team and others, refrain from posting “negative information” about cheerleading on the internet, and behave in a way that does not harm the image of the Mahanoy Area School District. Consequently, the coaches removed B.L. from the JV cheerleading team. B.L. and her parents appealed to school authorities to reinstate B.L. on the cheerleading team, but the authorities upheld the coaches’ decision to suspend B.L. B.L. and her parents then sued Petitioner Mahanoy Area School District (Mahanoy) in the U.S. District Court for the Middle District of Pennsylvania. B.L. made three arguments: first, that her suspension from the cheerleading team violated the First Amendment; second, that the school rules she was accused of breaking were unacceptably broad and discriminated against certain viewpoints; and third, that the school’s rules were unconstitutionally vague. The district court granted B.L. summary judgment, ruling that the school district could not regulate B.L.’s Snapchat post as it was off-campus speech, and that the snap had not caused a “substantial disruption of the school environment.” Consequently, the district court held that the school district violated B.L.’s First Amendment rights.

Mahanoy subsequently appealed to the U.S. Court of Appeals for the Third Circuit.

Affirming the district court’s opinion, the appellate court decided that B.L. did not waive her First Amendment rights by agreeing to abide by school rules, and that her post was fully protected by the First Amendment. Mahanoy then appealed to the Supreme Court.

Legal Analysis SHOULD OFF-CAMPUS SPEECH BE REGULATED ON SCHOOL CAMPUSES? Mahanoy Area School District (Mahanoy) argues that historically, schools have had authority to regulate off-campus behavior that disrupts school operations; Mahanoy notes that public schools share authority with parents to regulate student conduct and exercise “near-plenary authority over student discipline.” Mahanoy, agreeing with the Court’s decision in Tinker v. Des Moines Independent Community School District, acknowledges that public schools do not pos-

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sess absolute authority over students and that students possess First Amendment speech protections at school so long as the students’ expression does not become substantially disruptive to the proper functioning of school. Mahanoy insists, however, that the Court intended for Tinker to extend beyond the schoolhouse gates and include not just on-campus speech, but any type of speech that was likely to result in on-campus harm.

Mahanoy further argues that the Court’s post-Tinker decisions support regulation of off-campus speech that causes on-campus harm; Mahanoy explains that in Grayned v.

City of Rockford, the Court held that a city could punish an adult protester for expressive conduct that occurred off campus but was audible and visible from school grounds and capable of disrupting school order.

From this, Mahanoy reasons that if adults can be punished for off-campus conduct that disrupts school operations, then schools and municipalities should be able to punish their own students for similar off-premise conduct. Further, Mahanoy argues that the Court has allowed schools to enforce broader restrictions on student speech where the restrictions relate to protecting certain pedagogical purposes. Mahanoy explains that in Bethel School District No. 403 v. Fraser, the Court allowed for a school to punish a student for using vulgar language even though the student caused no substantial disruption specifically because the school had an interest in teaching students socially acceptable behavior. Mahanoy further points to another case, Morse v. Frederick, where the Court allowed schools to discipline students who advocate for illegal drug use when the speech occurred at a school event because schools have a unique interest in teaching students the dangers of illegal drug use. Further, Mahanoy contends that schools already have authority to regulate off-campus activities in furtherance of pedagogical goals, particularly through homework, summer reading assignments, discussion of test answers with peers, and group project communications.

Therefore, Mahanoy argues, if schools can regulate this off-campus conduct and speech that does not have a harmful impact on the school, then it would follow that schools should be permitted to regulate off-campus conduct that does harm school operations.

B.L. counters that Tinker was meant to act as a narrow exception to First Amendment principles and only meant to apply to speech that occurs on school grounds,

at school-related events, or on the way to and from school. B.L. arrives at this conclusion by noting that Tinker “plainly distinguishe[d]” on-campus and off-campus speech when it used the explicit language of “at the schoolhouse gate.” B.L. further posits that young people must have full First Amendment rights outside of school because Tinker’s reasoning rested on, and was limited to, the uniqueness of the academic environment in public schools. Quoting Morse, B.L. maintains that the Court’s jurisprudence in school-speech cases has always rested on the notion that the schools’ ability to restrict speech within schools rests against the backdrop that “the government could not censor similar speech outside the school.” B.L. illustrates its argument further by comparing two additional cases: Hazelwood School District v. Kuhlmeier and Papish v. University of Missouri Board of Curators. In the first case, B.L. explains, the Court held that official school newspapers could censor student speech on the basis of content while, in the second, the Court reasoned that schools could not censor students in underground newspapers distributed on campus because the newspaper was produced independent of the school. Additionally, B.L. asserts that Tinker’s rationale only works specifically because off-campus speech was left untouched, which left open ample “alternative channels” for free speech.

B.L. contends that expanding Tinker to off-campus speech that occurs outside the supervision or sponsorship of the school would make the substantial-disruption standard unconstitutionally vague because it would premise a student’s liability on the subjective reaction of those in charge—to wit, the standard would effectively be swallowed whole by allowing punishment of practically anything. B.L. thus takes issue with Mahanoy’s assertion that schools may act “in loco parentis,” or in the place of a parent, even outside the school gates because allowing such regulation abrogates the constitutional right of parents to decide the manner in which to raise their children. After all, B.L. maintains, it is not the duty of the government to impose restrictions on any First Amendment principle—including speech and religion—simply based on what it believes a reasonable parent “ought to want.”

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Discussion IMPLICATIONS FOR SCHOOLS’ ABILITY TO CURTAIL OFF-CAMPUS BULLYING The Cyberbullying Research Center and other organizations (CRC et al.), in support of Mahanoy, assert that allowing the Third Circuit’s ruling to stand will severely impair schools’ ability to curtail bullying that occurs off campus. Bullying, CRC et al. explain, causes significant harm to already-marginalized groups of students, and schools must be able to regulate bullying that occurs outside of school in order to protect student welfare.

Mahanoy contends that the Third Circuit’s ruling would undermine schools’ ability to ensure that students or teachers are not harassed at extracurricular functions occurring off school grounds. Massachusetts and other states (Massachusetts et al.), also in support of Mahanoy, further explain that schools must be able to intervene when bullying causes harm to students. Limiting disruptive bullying speech, Massachusetts et al. argue, does not constitute a restriction of students’ First Amendment free speech rights.

On the other hand, the National Women’s Law Center and additional organizations (NWLC et al.), in support of B.L., contend that a ruling in B.L.’s favor would not dismantle schools’ authority to punish off-campus bullying, nor should it. However, according to NWLC et al., a rule allowing schools to regulate all off-campus speech that may cause a “substantial disruption” to the school environment extends far beyond the realm of bullying. NWLC et al. assert that under such a rule, students in historically marginalized groups would be more likely to be disciplined for “disruptive” behavior due to racial or other forms of discrimination. Further, NWLC et al. argue, such an overbroad rule would infringe on the rights of students to organize and protest against harmful aspects of the school environment—conduct that would otherwise enjoy constitutional protection.

Written by Thomas Shannan and Allison Franz. Edited by Gabriela Markolovic.

Full text available at https://www.law. cornell.edu/supct/cert/20-255. 

United States v. Cooley (No. 19-1414)

Oral argument: Mar. 23, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to rule on whether a tribal police officer has authority

to temporarily stop and search a non-Indian on public rights-of-way within Indian jurisdiction based on a potential violation of state or federal law. Petitioner United States argues Indian tribes have broad sovereign authority to protect people and property within its borders, which includes the authority to temporarily stop and search non-Indians in Indian jurisdiction for potential state- or federal-law violations.

Respondent Cooley counters that Indian tribes have no such authority because they do not have inherent sovereign authority to conduct this type of stop and search; in addition, neither Congress nor the courts have given tribal officers the authority to do so. The outcome of this case has significant policy implications raising concerns of the proper balance between public safety and individual rights on Indian jurisdiction.

The case also implicates the scope of tribal sovereignty and the proper role of Congress and the courts in delineating the extent of tribal authority over non-Indians within tribal territory.

Full text available at https://www.law. cornell.edu/supct/cert/19-1414. 

Caniglia v. Strom (No. 20-157)

Oral argument: Mar. 24, 2021 Court below: U.S. Court of Appeals for the First Circuit

This case asks the U.S. Supreme Court to determine whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. The community caretaking exception allows for the warrantless seizure of evidence that police find while fulfilling their community caretaker role, which is unrelated to the “detection, investigation, or acquisition of evidence” of criminal activity. Petitioner Edward Caniglia argues that this exception applies only to vehicular searches and seizures, given that the Fourth Amendment affords significantly greater protection to the home over automobiles.

Respondents, including the City of Cranston, the police department, and city officials, counter that the community caretaking doctrine applies to the home based on the Fourth Amendment’s reasonableness analysis, which permits warrantless searches and seizures when community safety interests outweigh privacy interests. The outcome of this case will affect the balance between privacy concerns and public safety

concerns. The outcome will also affect police incentives in exercising their role as community caretakers.

Full text available at https://www.law. cornell.edu/supct/cert/20-157.

Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System (No. 20-222)

Oral Argument: Mar. 29, 2021 Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to clarify whether a defendant in a securities class action may rebut the Basic presumption by pointing to the generic nature of the misstatements and by showing that those misstatements did not affect the price of the defendant’s securities. Goldman Sachs Group Inc. argues that courts must consider evidence of the generality of alleged misstatements when determining whether to certify a shareholder class in a securities class action suit. Goldman further argues that defendants only bear the burden of producing some proof that their misstatement did not negatively impact the stock price, while plaintiffs bear the burden of persuading the Court that investors relied on the defendant’s alleged misstatements. The Arkansas Teacher Retirement System (ATRS) counters that the lower courts properly weighed the evidence presented at the class certification stage of the litigation, including the generic nature of the misstatements, when it decided to grant certification of plaintiffs’ shareholder class. ATRS also argues that the defendants implicitly bear both the burden of production and the burden of persuasion when rebutting the presumption because they must make a showing that the particular misrepresentation at issue did not affect the stock’s market price. The outcome of this case will have implications on the availability of class-action lawsuits for investors and the risk of class-action litigation for corporate defendants.

Full text available at http://www.law. cornell.edu/supct/cert/20-222. 

TransUnion LLC v. Ramirez (No. 20-297)

Oral argument: Mar. 30, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether Article III or the typicality

requirement of Federal Rule of Civil Procedure 23 (FRCP) should allow a class action claiming statutory damages when most of the class members did not suffer actual injury, or an injury similar to that of the class representative. Petitioner TransUnion, LLC (TransUnion) argues that in order for a class in a statutory damages action to have standing under Article III, each absent class member must show common concrete injury and, if future risk constitutes the injury, must demonstrate that such risk is certainly impending. TransUnion asserts that to achieve typicality under FRCP 23, a class representative’s facts must be substantially shared with those of the rest of the class.

Respondent Sergio L. Ramirez (Ramirez) counters that a class may show Article III injury by demonstrating that the harm caused by a statutory violation is analogous to that of common law claims. Ramirez also asserts that the typicality requirement is satisfied when a class representative shares the same interest and has suffered injury common to the absent class members. This case involves questions of how the Court should weigh the role of class actions and statutory damages in protecting consumers against the due process rights of litigants.

Full text available at http://www.law. cornell.edu/supct/cert/20-297. 

Sanchez v. Mayorkas (20-315)

Oral argument: Apr. 19, 2021 Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to determine whether noncitizens residing in the United States under Temporary Protected Status (TPS) are eligible to receive lawful permanent resident (LPR) status if they were not formally inspected and admitted into the United States. Jose Santos Sanchez and Sonia Gonzalez are a married couple from El Salvador who received TPS in 2001 after entering the United States unlawfully in the late 1990s. The couple argues that they are eligible to apply for permanent residency because TPS recipients are deemed, by definition and by Congress, as having met the requirements of formal inspection and admission for the purposes of changing residency status. The government counters that individuals who initially entered the country unlawfully cannot apply for permanent residency because they cannot overcome the requirement of being formally inspected and

July/August 2021 • THE FEDERAL LAWYER • 73

admitted into the United States, even if they were eventually granted TPS. The outcome of this case has important implications for resolving inconsistent application of the law by federal courts and for understanding the qualifications needed to receive permanent residency in the United States.

Full text available at http://www.law. cornell.edu/supct/cert/20-315. 

Yellen v. Confederated Tribes of the Chehalis Reservation (No. 20-543)

Oral argument: Apr. 19, 2020 Court below: U.S. Court of Appeals for the District of Columbia Circuit

This case asks whether the Alaska Native Corporations (ANCs) are entitled to relief provided to “Indian Tribes” under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act incorporates the definition of “Indian tribe[s]” from the Indian Self-Determination and Education Assistance Act. Petitioners U.S. Treasury and ANCs argue that Congress expressly included the Alaska Native Corporations in the definition of Indian tribes and that the plain-meaning of the term “recognition” in the statute supports this inclusion. Respondent Confederated Tribes of the Chehalis Reservation and Ute Indian Tribe of the Uintah and Ouray Reservation argue that the ANCs do not qualify as Indian tribes because they are not formally recognized by a governmental authority or Congress as a sovereign tribe.

The Supreme Court’s decision will impact the ability of Alaska Native Corporations to access funding through federal programs.

Full text available at http://www.law. cornell.edu/supct/cert/20-543.

Greer v. United States (No. 19-8709)

Oral argument: Apr. 20, 2021 Court below: U.S. Court of Appeals for the Eleventh Circuit

This case asks the Supreme Court to consider the proper evidentiary scope of plain-error review under Rule 52(b) of the Federal Rules of Civil Procedure, and the bounds of the reviewing court’s discretion to provide the defendant remedy for such an error. A jury found the petitioner, Gregory Greer, guilty of possessing a firearm as a felon.

However, the prosecution did not prove to the jury that Greer knew about his felony

status—a fact that the Supreme Court subsequently held is an element that the prosecution must prove. On review, the appellate court found that there was no plain error in Greer’s case because he had stipulated to his felony status before the jury trial. Greer contends that the appellate court could not consider evidence on plain-error review that was not presented to the jury at trial, given the text of Rule 52 and Greer’s constitutional rights to trial by jury and due process. The United States responds that a reviewing court may look to matters outside the trial record in order to determine whether an error at trial meets the requirements that allow the court to exercise its remedial discretion, such as whether the error prejudiced the outcome of the trial or adversely affects the reputation of the judicial proceedings. The outcome of the Supreme Court’s decision will have important implications for matters of fundamental fairness and the balance between judge and jury.

Full text available at http://www.law. cornell.edu/supct/cert/19-8709. 

United States v. Gary (No. 20-444)

Oral argument: Apr. 20, 2021 Court below: U.S. Court of Appeals for the Fourth Circuit

This case asks the Supreme Court to decide whether a defendant who has pled guilty to the possession of a firearm should receive automatic plain-error relief if the defendant was not advised that an element of the offense is that he knew of his status as a felon.

Petitioner United States argues that the guilty plea should not be reversed because plain-error review applies and insists that the respondent did not make the requisite showing of case-specific prejudice. Respondent Michael Andrew Gary counters that the guilty plea should be reversed because plain-error review does not apply in this case and that in the event that it does apply, case-specific prejudice is not required due to the error’s classification as “structural.” The outcome of this case will affect the obligations and strategies of criminal defendants and prosecutors, as well as the burden on the judicial system.

Full text available at http://www.law. cornell.edu/supct/cert/20-444. 

74 • THE FEDERAL LAWYER • July/August 2021

Minerva Surgical Inc. v.

Hologic Inc. (No. 20-440) Oral argument: Apr. 21, 2021 Court below: U.S. Court of Appeals for the Federal Circuit

This case asks the Supreme Court to rule on the validity of the assignor estoppel doctrine.

Under this doctrine, an assignor of a patent may not, in a suit against the assignee, claim that the patent is invalid. Petitioner Minerva Surgical Inc. argues assignor estoppel is not supported in the Patent Act and Court precedent favors the doctrine’s abolition.

Respondent Hologic Inc. counters that assignor estoppel is implicit in the Patent Act and that stare decisis dictates that the Court uphold assignor estoppel. The outcome of this case has significant policy implications regarding the proper balance of the public interest in challenging potentially invalid patents and the interest in promoting equity and fair dealing in the assignor–assignee relationship.

Full text available at http://www.law. cornell.edu/supct/cert/20-440. 

Americans for Prosperity Foundation v. Rodriquez (No. 19-251)

Oral argument: Apr. 26, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether a state charitable donor disclosure regulation unconstitutionally infringes on donors’ and charitable organizations’ free speech and association rights. California recently started enforcing its Schedule B regulation, which requires charitable organizations to provide the confidential names of their financial donors. Petitioners Americans for Prosperity Foundation and Thomas More Law Center argue that this compelled disclosure is facially unconstitutional because it fails “exacting” scrutiny and unconstitutional as applied to them because of the extreme risks to their political minority donors.

Respondent Matthew Rodriquez, the Attorney General of California, argues that the regulation is necessary to enforce charitable fraud laws and that California can meet its regulatory objectives while simultaneously protecting donors’ confidential data. The Supreme Court’s decision will determine whether charities in California must disclose the names of their donors to state regulators and will also determine the bounds of organizational free association rights.

Full text available at http://www.law.cornell. edu/supct/cert/19-251. 

Guam v. United States (No. 20-382)

Oral argument: Apr. 26, 2021 Court below: U.S. Court of Appeals for the D.C. Circuit

This case asks the Supreme Court to determine how two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allocate responsibility for cleaning up environmental sites. CERCLA Section 107 allows a party to recover direct costs of cleaning up a site from responsible parties, while Section 113 allows a party who has already settled its own responsibility to recover “contribution” from other responsible parties. The territory of Guam, which owns a toxic waste dump, sued the United States to help fund the dump cleanup under both Sections 107 and 113. However, the lower court found that the availability of Section 113 barred Guam’s Section 107 claim based on a previous settlement between Guam and the federal government unrelated to CERCLA. Petitioner Guam argues that a settlement that does not mention CERCLA and disclaims any liability determination cannot force a party to bring a Section 113 claim instead of a Section 107 claim. Respondent United States counters that Section 113 broadly encompasses settlements that resolve liability under other laws besides CERCLA. This case has implications for prompt cleanups of environmental hazards across the United States.

Full text available at http://www.law. cornell.edu/supct/cert/20-382. 

HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association (No. 20-472)

Oral argument: Apr. 27, 2021 Court below: U.S. Court of Appeals for the Tenth Circuit

This case asks the Supreme Court to decide whether the EPA’s Renewable Fuel Standards (RFS) requires small refineries to have continuously received the hardship exemption since 2011 to qualify for a hardship exemption under Section 7545(o)(9)(B) (i). Specifically, the Court must determine whether the statutory phrase “extension” acquires one of two definitions: a narrow definition, preferred by the Tenth Circuit

and Respondent Renewable Fuels Association (RFA), which supports the case for continuity; or a broad reading, supported by Petitioner HollyFrontier Cheyenne Refining (Cheyenne), which effectively means to “grant” or “make available.” In selecting the appropriate definition, the Court must decide if and to what extent it should read “extension” apart from its broader statutory context or consider other factors such as congressional purpose and whether the EPA’s interpretation receives deference. This case has policy implications for the finances of local refineries, economies of local communities, and environmental health.

Full text available at http://www.law. cornell.edu/supct/cert/20-472.

United States v. PalomarSantiago (20-437)

Oral argument: Apr. 27, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

The case asks the Court to determine whether a defendant can challenge the validity of a removal order for unlawful reentry solely by showing that the order was based on a criminal conviction that is no longer a removable offense without having to meet the procedural requirements of demonstrating administrative exhaustion and no opportunity for judicial review. Respondent Refugio Palomar-Santiago was removed in 1998 for a DUI, and in 2001, DUIs were re-classified as a nonremovable offense. Palomar-Santiago was then found living in the United States in 2017 and was charged with unlawful reentry

by Petitioner United States. Palomar-Santiago asserts, as a defense, that the original removal order was unlawful. The United States contends that Palomar-Santiago cannot challenge the validity of the original removal order absent the procedural requirements of administrative exhaustion and judicial review of the original order. Palomar-Santiago counters that procedural rights should not obstruct substantive rights, and that he should be able to challenge the legality of the removal order even absent judicial review.

The Supreme Court’s decision in this case will implicate immigration procedure and the ability of noncitizens to challenge unlawful removal orders.

Full text available at http://www.law. cornell.edu/supct/cert/20-437. 

PennEast Pipeline Company, LLC v. State of New Jersey, et al.

(No. 19-1039)

Oral argument: Apr. 28, 2021 Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to consider whether a private company can exercise the federal government’s eminent-domain power and also considers the scope of a federal court’s jurisdiction. Once the Federal Energy Regulatory Commission has issued a certificate of public convenience and necessity, the Natural Gas Act authorizes private parties to exercise the federal government’s eminent-domain power to secure rights-ofway and compensation to the landowner.

Petitioner PennEast Pipeline Company, LLC argues that the Natural Gas Act’s delegation is necessary and ministerial, and there is no insult to state sovereignty in suits such as this. By contrast, Respondent New Jersey et al. contend that this delegation violates the Eleventh Amendment’s guarantee of sovereign immunity to the states. Both PennEast and New Jersey argue that the Third Circuit properly exercised its jurisdiction over the case. The outcome of this case has implications for siting new natural gas pipelines, eminent domain, and states’ rights.

Full text available at http://www.law. cornell.edu/supct/cert/19-1039.

Terry v. United States (20-5904)

Oral argument: May 4, 2021 Court below: U.S. Court of Appeals for the Eleventh Circuit

This case asks the Supreme Court to interpret the meaning of “covered offense” under Section 404(a) of the First Step Act to determine which crimes fall under its definition, and thus, may be subject to retroactive reduced sentencing. Petitioner Tarahrick Terry pled guilty to possessing with the intent to distribute an unspecified amount of cocaine base (or “crack cocaine”) in violation of 21 U.S.C. § 841(b)(1)(C) in 2008. In 2010, Congress enacted the Fair Sentencing Act, which amended parts of 21 U.S.C. § 841 to adjust the difference in sentencing between crimes involving crack cocaine and those involving powder cocaine.

In 2018, Congress enacted the First Step Act, which made the Fair Sentencing Act’s amendments retroactive. Terry, in support

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of vacatur, argues that violations of Section 841(b)(1)(C) are “covered offenses” under Section 404 of the First Step Act, based on the text of Section 404(a), as well as the statute’s design and history. Adam K. Mortara, as amicus curiae in support of the judgment below, argues that Terry’s offense is not

a “covered offense” under Section 404(a) based on a proper construction of the statute and the meaning of the phrases “violation of a Federal criminal statute” and “statutory penalties.” The case has implications for future retroactive sentencing statutory amendments, as well as inmates currently in

custody for low-level crack-cocaine offenses before Congress passed the Fair Sentencing Act of 2010.

Full text available at http://www.law. cornell.edu/supct/cert/20-5904. 

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.

If you would like to search for a specific judge, it is recommended that you use the search function above and type in the judge’s last name. This index will be updated with both new profiles and historical profiles on a regular basis.

If the judge you are looking for does not appear, this either means that they have not yet been added to the index or have not been profiled. The Federal Lawyer encourages submissions of judicial profiles; contact Managing Editor Sarah Perlman at sperlman@fedbar.org for more information.

76 • THE FEDERAL LAWYER • July/August 2021

Access the index today at www.fedbar.org/JPI

Book Reviews

The President Who Would Not Be King: Executive Power under the Constitution

By Michael W. McConnell Princeton University Press, 2020 421 pages, $35.00

Reviewed by Louis Fisher

Michael McConnell served as federal appellate judge with the Tenth Circuit from 2002 to 2009. Since that time, he has been with Stanford Law School. His book explores many important constitutional issues regarding presidential power, separation of powers, and the belief in judicial finality. The foreword by Stephen Macedo explains that the book went to press “at a time of intense concern about the erosion of checks on the powers of the American Presidency.”

In the Introduction, McConnell states that the three most recent presidents— George W. Bush (“Bush II”), Barack Obama, and Donald Trump—“have asserted an extraordinary power to act both domestically and globally without congressional approval and even in the teeth of congressional opposition.” Starting with Harry Truman and 78 • THE FEDERAL LAWYER • July/August 2021

his military actions in Korea, we have had presidents willing to go to war unilaterally without seeking prior authority from Congress. Instead, they seek authority from the UN Security Council and NATO allies, as with military initiatives by Clinton in Somalia and Bosnia followed by Obama in Libya. As explained by McConnell, Obama criticized Bush II for trying “to bring more and more power into the Executive Branch and not go through Congress at all,” a pattern Obama intended to reverse “when I become president of the United States of America.” Yet once elected, he chose to act unilaterally in many areas, both domestically and abroad. McConnell cites this statement by Obama: “We can’t wait for Congress to do its job. So where they won’t act, I will.” As the book explains, Trump acted in the same manner, stating that when someone “is the President of the United States, the authority is total.”

In describing the allocation of constitutional power among the three branches, McConnell states that Article I vests in Congress “only the legislative powers ‘herein granted.’” That is the language of Article I, but in addition to powers expressly granted, the Framers recognized that all three branches have a host of implied powers.

From the start, Congress had the implied power to create committees, hire staff to provide support, and take other actions necessary to function effectively. As the book explains, the president has an implied power to remove executive officials who are unwilling or unable to carry out their duties.

McConnell explains that President George Washington’s Neutrality Proclamation of 1793 warned Americans they would be “liable to punishment or forfeiture” if they engaged in privateering against English shipping or took sides in military actions between England and France. Some individuals were prosecuted under his proclamation.

The book does not explain the role of jurors who told President Washington they would acquit whoever was brought into court. The reason: criminal law could not be made unilaterally by the president. Instead, statutory action is required. Washington got the mes-

sage, stopped prosecutions, and requested authority from Congress. Statutory support was granted the following year.

In discussing the Founding Fathers, McConnell, on page 50, explains that the modern notion that presidents have “broad inherent powers to initiate military actions and are the sole organ of the nation in foreign affairs” is beyond even the vision of those who advocated strong presidential power, such as Alexander Hamilton. Quite true. The source of the sole-organ doctrine is United States v. Curtiss-Wright (1936), described on page 334 as recognizing “a broader range of legitimate delegation in the foreign affairs arena than in domestic law, though for unpersuasive reasons.” “Unpersuasive” is the correct word, but McConnell does not explain that the sole-organ doctrine in Curtiss-Wright had its source in major misconceptions by the Supreme Court that scholars quickly repudiated.

The issue in Curtiss-Wright was whether Congress could delegate to the President authority to impose an arms embargo covering a region in South America. When President Franklin D. Roosevelt implemented this policy, he announced that he was acting solely under statutory authority. Yet Justice George Sutherland, writing for the Court, not only upheld the statute but advanced a notion of presidential power that was “plenary and exclusive” in external affairs—a doctrine the Framers clearly rejected. The Constitution vests many powers of external affairs in Congress, including the power to declare war, regulate commerce with foreign nations, and make rules for the regulation of the land and naval forces, as well as the Senate’s power to ratify treaties.

After upholding the delegation, Sutherland added extraneous material (judicial dicta) to his decision. The material was not merely extraneous. It was erroneous, as scholars quickly pointed out. The year 1800 marked an election contest between President John Adams and Thomas Jefferson. In the House, those who supported Jefferson argued that Adams either be impeached or censured for turning over to England an individual charged with murder. Adams had

sent Thomas Nash, a native Irishman, to England for trial. Jeffersonians wrongly thought he was an American.

John Marshall took the floor to reject the move to impeach or censure President Adams. He explained that the Jay Treaty with England contained an extradition provision in Article 27 directing each country to deliver up to each other “all persons” charged with murder or forgery. President Adams was carrying out a treaty, his constitutional duty. During his speech, Marshall added this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is ambiguous, but Marshall was clearly defending Adams for carrying out a treaty.

After Marshall completed his presentation, Jeffersonians found his argument so tightly reasoned that they dropped efforts to censure or impeach Adams.

Despite the clarity of Marshall’s speech, the executive branch began to rely heavily on the erroneous dicta in Curtiss-Wright to expand presidential power. As noted by Harold Koh in his book, The National Security Constitution (1990), Justice Sutherland’s “lavish description of the president’s powers is so often quoted that it has come to be known as the ‘Curtiss-Wright, so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”

McConnell analyzes the Supreme Court’s decision in Youngstown Co. v. Sawyer (1952), striking down President Truman’s seizure of steel mills in order to prosecute the war in Korea. He focuses on Justice Jackson’s concurrence, which advanced a “celebrated three-part framework for analyzing the scope of presidential power”: (1) acting pursuant to an express or implied statutory authority, (2) relying not on congressional authority but “a zone of twilight” in which the two branches may have concurrent authority, and (3) leaving courts to evaluate presidential initiatives that are incompatible with the expressed or implied will of Congress.

To McConnell, this approach was “deeply misleading” because it “essentially ignores Article II’s structure” in defining presidential power. The three-part analysis might be “elegant” but is “ultimately unhelpful and misleading.” No doubt, Jackson’s concurrence opens the door to much presidential abuse. He lamented the meager guidance left by the Framers: “Just what our forefathers did envision, or would have envisioned had

they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Here, Jackson let his gifts as a writer outrun his judicial duty for legal analysis.

As McConnell explains, Jackson’s second category implies that congressional inertia or quiescence may “enable, if not invite” presidential acts that are authorized neither by statute nor the Constitution. It “gives comfort to President Obama’s notorious claim that when Congress does not enact legislation he desires, this somehow empowers the President to act unilaterally.” Congress’s failure to pass immigration reform “did not empower President Obama to fashion his own.” Moreover, the decision

by Congress to provide less money than President Trump requested for a wall on the Mexican border “did not empower President Trump to move funds from elsewhere,” which is what he did.

At the end of his opinion in Youngstown, Jackson clearly identified fundamental constitutional principles established by the Framers. With clear and explicit reasoning, he rejected the notion of a president at liberty to act unilaterally in external affairs: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” That analysis rejects Jackson’s three-part framework.

On page 223, McConnell discusses “the famous separation-of-powers case—INS v.

Chadha, which invalidated the legislative veto.” A year before the Supreme Court decided that case, in 1983, I published an article in the Washington Post explaining that the legislative veto would continue regardless of what the Court decided. Starting with World War II, Congress and executive agencies understood the practical need for agencies to seek approval from designated committees in order to shift funds from one purpose to another to meet new needs. Regardless of Chadha, that process has continued. Hundreds of legislative vetoes have been exercised in the years after a decision that revealed no understanding or even recognition of this legislative-executive accommodation.

The scope of presidential power in external affairs reached the Supreme Court in Zivotofsky v. Kerry (2015), which McConnell analyzes in several pages of the book. On July 17, 2014, I filed an amicus brief with the

Supreme Court on this case, pointing out three erroneous dicta in Curtiss-Wright and asking the Court to correct them. The brief is available at www.loufisher.org/docs/pip/ Zivotofsky.pdf. Although the Court chose not to analyze the errors in Curtiss-Wright, McConnell points to an article by Jack Goldsmith in the Harvard Law Review that is highly critical of Zivotofsky for expanding presidential power.

On pages 291-95, McConnell provides his evaluation of Zivotofsky. As he points out, the Court held that congressional legislation challenged in the case “interferes with the President’s unilateral and ‘exclusive’ power to recognize foreign governments and determine their territorial bounds.” To that extent, the Court echoed the sole-organ doctrine in Curtiss-Wright. As McConnell points out, the Court sustained presidential action “despite the lack of clear textual command, a history that ‘is not all on one side,’ and a dearth of directly pertinent precedent.” Under the framework set forth in his book, McConnell regards the majority opinion as “deeply flawed.” He supports the dissents by Chief Justice Roberts and Justices Alito and Scalia.

Toward the end of the book, McConnell states that if an issue reaches the Supreme Court “the judgment of the court will be final.” The record of the Supreme Court does not support that position. The process of constitutional interpretation involves all three branches, state action, and the general public. I explore that issue in my book, Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (2019). An early example is the Court upholding the constitutionality of the U.S. Bank in McCulloch v. Maryland (1819). That not did stop President Andrew Jackson in 1832 from vetoing a U.S. Bank bill in 1832, holding it unconstitutional. He said the opinion of judges “has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Congress did not override his veto.

Another example of the Supreme Court lacking the final word is the issue of regulating child labor. In 1918 the Supreme Court, divided 5-4, held that legislation passed by Congress to limit child labor through the interstate commerce clause was unconstitutional. Not accepting that as the last word, Congress passed legislation to regulate child labor through the taxing power. In 1922,

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the Court voted 8 to 1 to strike that down as unconstitutional. The Supreme Court had the last word? No. Despite those decisions, Congress in 1938 once again passed legislation to regulate child labor under the Commerce Clause. The Supreme Court in United States v. Darby (1941) unanimously upheld the statute. The Court decided that its 1918 decision departed from the principles of the Commerce Clause and “should be and now is overruled.”

A contemporary example that undercuts judicial finality involves the Japanese-American cases of Hirabayashi (1943) and Korematsu (1944). In both cases, the Supreme Court upheld the decision by President Roosevelt to place a curfew on Japanese Americans and relocate many to detention camps. A major figure in this policy was General John L. DeWitt, who believed that all Japanese, by race alone, are disloyal.

On Feb. 20, 1976, President Gerald Ford issued a proclamation apologizing for the treatment of Japanese Americans during World War II. In 1980, Congress established a commission to gather facts and determine the wrongdoing by Roosevelt’s order. The commission’s report stated that the order “was not justified by military necessity” and that the detentions “were not driven by analysis of military conditions.” The principal causes were “race prejudice, war hysteria, and a failure of political leadership.”

In 1988, Congress passed legislation that acknowledged the “fundamental injustice” of evacuating, relocating, and interning U.S. citizens of Japanese ancestry. With those actions underway, Hirabayashi and Korematsu returned to court to underscore the extent to which executive officials had deceived the judiciary and the general public. In light of that evidence, their convictions were vacated by lower courts during the 1980s. The Supreme Court had sufficient evidence that its decisions in 1943 and 1944 were invalid but chose not to act.

Korematsu was reconsidered in Trump v. Hawaii (2018). For the majority, Chief Justice Roberts noted that the dissent by Justice Sotomayor, joined by Justice Ginsburg, repudiated Korematsu. To Roberts, whatever “rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” The forcible relocation of U.S. citizens to concentration camps had no application to actions by President Trump to

deny certain foreign nationals the privilege of admission. But he then added The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—”has no place in law under the Constitution,” 323 U.S., at 248 ( Jackson, J., dissenting).”

If Korematsu was wrong the day it was decided, why did it take the Supreme Court 74 years to finally admit error? Louis Fisher is a visiting scholar at the William and Mary Law School. He served four decades with the Library of Congress as senior specialist in separation of powers with the Congressional Research Service (1970-2006) and specialist in constitutional law with the Law Library of Congress (2006-2010). He is the author of 27 books and more than 600 articles. Many of his articles and congressional testimony are placed on his personal webpage, http://www.loufisher.org.

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law

By Preet Bharara New York: Alfred A. Knopf, 2019 345 pages, $27.95

Reviewed by Jeremy S. Weber

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Listeners of Preet Bharara’s popular Stay Tuned with Preet podcast do not just stay tuned for the former U.S. attorney for the Southern District of New York’s legal acumen. What makes Bharara’s podcast so beloved is his gentle humanity and his downright decency that stands out in an age of shouting personalities and intractable politics. For those podcast listeners and for the rest of us, Bharara’s Doing Justice similarly works like a warm blanket on a cold night, reassuring us that capable stewards of the criminal justice system exist. There really are people in positions of power who care about doing things right but care even more about doing the right things.

Doing Justice is ostensibly a handbook on the role of the prosecutor, but it is much more of a spiritual guide than a technical manual. Throughout its four sections that track the phases of a criminal matter (inquiry, accusation, judgment, and punishment), Doing Justice stresses the dilemmas and temptations prosecutors face, and the ethical guideposts that the best prosecutors use to resolve these situations. In so doing, Bharara presents a book that is not so much a “howto” for prosecutors but a “what-to.” In his own words, Bharara says that Doing Justice grew out of his desire to provide prosecutors with lessons not from “legal texts and treatises but from the real-life human dilemmas that would perplex them every day.”

The book’s four sections are replete with significant and spot-on examples of the dilemmas and moral principles Bharara lays out. For example, in the inquiry section (appropriately, the longest section in the book), Bharara stresses the fact that justice is carried out by fallible human beings, and emphasizes the need for rigor, humility, curiosity and inquiry, and humanity in conducting investigations. He illustrates this with a powerful example of Eric Glisson, a man incarcerated for 17 years for a crime he did not commit, and the U.S. Attorney Office investigator who cared enough to see that the wrong was righted. Similar first-hand accounts from Bharara’s experience pervade the book, from the moving account of a sex worker who was robbed at gunpoint and the prosecutors who cared enough to achieve a conviction, to the wrenching case of a child abducted at infancy and the difficult decision Bharara faced about what sentence to seek when the crime was discovered years later.

Doing Justice is filled with high-minded ideals about what justice is, but “Doing” is the

key word in the book’s title; Bharara writes about the difficulties involved in translating the ideals of justice into action.

Bharara’s significant and fascinating examples come from hard-wrought experience. His service as the U.S. attorney for the Southern District of New York followed a two-decade career split between private law firms and government service, plus time on Senator Chuck Schumer’s staff. At the Southern District of New York, Bharara handled the full gamut of complex and high-visibility criminal (and civil) matters, including domestic and international terrorism, narcotics and arms trafficking, financial and healthcare fraud, cybercrime, public corruption, gang violence, organized crime, and civil rights violations. His office prosecuted figures such as Osama bin Laden’s son-in-law, the Times Square bomber, a Somali pirate, a Galleon hedge fun founder, a Goldman Sachs board member, and members of New York City and New York State governments. His willingness to take on well-connected Wall Street officials earned him the title of “The Man Who Terrifies Wall Street” from The New Yorker and a “prosecutor who knew how to drain a swamp” from The New York Times.

Anyone with such a resume could be forgiven for using a book to brag, but Doing Justice is most relatable when Bharara admits to his limitations and failings. He writes, endearingly, [s]elf-doubt in moderation is animating and motivating, not paralyzing.

Leaders who have purged themselves of all self-doubt will not be leaders for long and, in my view, are dangerous while in command. I learned, over time, that self-doubt is my friend, and arrogance my enemy.

Later, he writes that crooked police and bungling lawyers are not so much the enemy of justice as “decent men and women who fail to maintain excellence, who drift from best practices, who forget to be utterly terrified of getting it wrong.” He writes of difficult decisions he faces with great candor and transparency, often wondering aloud whether he made the right decision and leaving it up to the reader to decide. For prosecutors with a conscience who live in constant dread of mishandling their solemn responsibilities, Doing Justice warrants a place not on the bookshelf but on the nightstand, ready to be read and

re-read for assurance that a lack of confidence is more a virtue than a failing. It is a testament to an underappreciated virtue in 21st century America: the need for all of us to be open to the possibility that we are wrong.

In a way, much of Doing Justice can be read as an extended commentary on American Bar Association Model Rule of Professional Conduct 3.8, Special Responsibilities of a Prosecutor. While the book does not explicitly mention the model rule, many of the rule’s themes pervade the book: the duty of the prosecutor not to prosecute a charge known not to be supported by probable cause, the responsibility to timely disclose exculpatory or mitigating evidence or information to the defense, and the obligation to refrain from making prejudicial extrajudicial comments.

As a career Air Force prosecutor and judge, I find much in Doing Justice reminiscent of the Air Force’s standards for criminal justice, which stressed that the duty of a prosecutor “is to seek justice, not merely to convict.”

The wise and restrained use of prosecutorial discretion is a theme of Bharara, who writes, for example, that exercise of discretion “is a bulwark against over-criminalization,” “a recognition of (and an imperfect fix for) the laziness of legislatures who pass broad statutes, ratcheting criminal sanctions ever upward.” He observes that “[c]riminal prosecution is the bluntest and severest of tools available,” and recognizes that “prosecution cannot solve every social, political, or even public safety problem. It just can’t.”

Readers will find great reassurance in Doing Justice, a renewed sense of faith in the criminal justice system at a time when that faith is sorely tested by political influence and evidence of inequality in the law’s application. Bharara appeals to the better angels of our nature in appealing for a return to basic American values and norms, and warns us of the results if the law (particularly criminal law) loses its moral authority. Doing Justice also serves as a call to public service through the law through soaring Kennedy-esque appeals to our desire to serve the greater good. He writes The hope is that no man is above the law; that power and privilege do not immunize you from accountability and punishment; that corruption can be fought. And that there are people brave enough to fight it. It shows the universal craving for honest government and the rule of law. Because

as it turns out, the dream of honest government, where no one is above the law and the oath of office matters, is the dream of civilized people everywhere.

Doing Justice is a book about the criminal justice system, but it is also much more. Perhaps the most striking aspect of the book is how much it has to say about modern America—both what is wrong with it and how it can right itself. Bharara aptly notes that the same problems that affect the law affect all of us in our daily lives, but the law can also show us how to deal with those problems.

The tools of the law—debate, listening, being open to criticism and other views, and reason—can bridge the divide that engulfs our country. He writes It turns out that the law has something to teach us about truth, dignity, and justice. About how to resolve disagreements and disputes—with reason and evidence rather than taunts and character assassination.

Much of what passes for argument in the public square these days would be laughed out of court.

Most moving is this passage about how discussion in modern society differs from courtroom proceedings: I think too many people take advantage of their right to cloister, to live in their little echo chambers, to settle into small societies of like-minded souls, never taking the time to test and strengthen the rightness of their beliefs through searching inquiry, vigorous debate, and open dialogue.

There is no such luxury at a criminal trial. There you cannot hide in your self-absorbed bunker, especially if you are the prosecutor. People are paid and obliged by oath and blessed by the Constitution. To do what? To attack every single allegation and argument you have made. And to do it with great zeal. So in that world you have to engage with your critics.

And you must engage using facts, truth, and logic. You cannot just say, “I believe this” or “These are my alternative facts.” Honest engagement is the essence of the job. And it is the most exhilarating thing in the world.

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We malign lawyers as litigious and combative, often deservedly so, but I vastly prefer the spirit of respectful engagement and combat to what we have now in so many parts of society—siloed self-congratulation, self-affirmation, without risk of challenge or dissent or real and respectful debate.

This passage particularly struck home.

The idea should make us all proud to be part of a profession where honest debate and persuasion still take place.

The only real criticism of Doing Justice comes not in what it says but what it doesn’t say, particularly on race. The book says little of the dangers of racial bias that have plagued our justice system, and some of what it does say involves the reverse problem of “positive bias,” as Bharara calls it—the danger in believing that rich, powerful, and resected people cannot engage in crime. Do-

ing Justice was released in 2019, a year before protests over racial injustice again erupted.

As a prosecutor born in India to a Sikh father and a Hindu mother, Bharara’s voice can be a prominent one in exploring the issues of race and justice, just as it often is on his podcast.

It is unfortunate that the timing of his book did not drive exploration of how race plays into the ethical duties of the prosecutor.

Another unfortunate victim of the timing of the book’s release is that Bharara’s appeals to the rule of law, to peaceful and respectful debate, and to higher values beyond mere adherence to the law seem quaint in light of the insurrection fomented at the Capitol Building on Jan. 6, 2021. Bharara takes the high road throughout this book, never mentioning the darker elements of society that led to the insurrection. Perhaps these subjects can be the basis for Bharara’s next book in addition to podcast episodes.

Doing Justice is at once an appeal to virtue and a warning of the dangers for missteps or

abuse in the legal system. The best teachers tend to be those who step behind the comfort of the podium and take the risk of revealing their humanity. Aspiring and active prosecutors—along with many others—will learn much from Bharara’s hard-earned lessons.  Jeremy S. Weber is the deputy district counsel for military programs at the U.S. Army Corps of Engineers, Sacramento District. He is a retired Air Force judge advocate who served as a criminal appeals judge and as a law professor at Air University. He has authored numerous law review articles in military and civilian journals. The views expressed in this book review are solely those of the author.

Get Published in The Federal Lawyer The Federal Lawyer strives for diverse coverage of the federal legal profession, and your contribution is encouraged to

maintain this diversity. Writer’s guidelines are available online at www.fedbar.org/tflwritersguidelines. Contact Lynne Agoston, managing editor, at social@fedbar.org or (240) 404-6488 with topic suggestions or questions.

82 • THE FEDERAL LAWYER • July/August 2021

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Chapter Exchange

ELEVENTH CIRCUIT

South Florida, Broward County, and Palm Beach County Chapters While the pandemic has continued to force most events to be held virtually, this has actually helped lawyers and judges reach more students to discuss civics. On April 27, 2021, the U.S. District Court and leaders from the South Florida, Broward County, and Palm Beach County Chapters of the FBA brought Law Day to close to 1,000 students across three South Florida counties. The theme of this year’s Law Day was timelier than ever: “Advancing the Rule of Law Now.” Law Day is observed every year across the nation to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession. On Feb. 3, 1958, President Dwight Eisenhower established Law Day by proclamation, and, in 1961, May 1 was designated by a joint resolution of Congress as the official date for celebrating Law Day.

While ordinarily Law Day is celebrated inside the courthouse, because of the pandemic, the Federal Court in the Southern District of Florida virtually brought Law Day to students from Hialeah Gardens Senior High School’s Law Academy and Barbara Goleman Senior High School’s Law Magnet & Law Society. The program was presented to these two schools via Zoom, and the students were actively engaged in the program, while other schools in Miami-Dade County, Broward County, and Palm Beach County also observed the program via Zoom. Due to the overwhelming interest in the program and the ability to live stream the Zoom webinar, the program was presented to more students and schools via YouTube Live.

The discussion this year centered on the ABA theme “Advancing the Rule of Law Now,” and focused on the idea that all of us share the responsibility to promote the Rule of Law, defend liberty, and pursue justice. The students learned about the Rule

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of Law and how it applies to everyday life.

They tested their knowledge of the Rule of Law with interactive polling questions and follow-up comments from the volunteer attorneys. The students also engaged in a spirited and thoughtful discussion about high-profile current events that have provided an opportunity for all of us to reflect on the Rule of Law in our country.

The event was coordinated by U.S. District Court Judge Beth Bloom and FBA South Florida Chapter secretary and civics liaison Stephanie Turk, an associate at Stearns Weaver Miller Weissler Alhadeff & Sitterson. “The opportunity to reach such a wide number of students, reflect about the Rule of Law together, and engage in a spirited discussion about crucial current events that we have witnessed as a country was a unique experience. The students were very motivated to express themselves and contribute to a rich discussion,” Judge Bloom commented. “The level of the students’

engagement and their ability to articulate their reasoning regarding several current event topics involving the Rule of Law was inspiring,” Turk added.

Additionally, attorney volunteers from each of the three local FBA chapters helped facilitate discussions with the students. The attorneys included Stephanie Turk, Yisel Valdes, Jessica Neer McDonald, Jonathan Osborne, Alexis Fields, Andrew Lowenstein, and Andrew Kwan.

Dr. Derrick J. Johnson, law instructor at Hialeah Gardens Senior High School Academy of Law Studies, was also impressed with the program. “Judge Bloom and the volunteer attorneys afforded my students an excellent opportunity to explore the importance of the Rule of Law, as well as a unique opportunity to engage in a rich discussion about relevant topics in our nation today.”

Ana Soto-Gonzalez, mock trial coach and Law Society sponsor from Barbara Goleman Senior High School, similarly enjoyed the program. “My students were so engaged with the program topics that we continued the discussion in the following class. Additionally, I appreciated that it provided my students with an opportunity to hear from attorneys that looked like them and had different backgrounds that my students could relate to and be inspired by. For many of my students, this was the first time they spoke to

a judge in person, and they felt very honored to be able to do this with Judge Bloom.”

Students also enjoyed the program and learned a great deal. Here’s what some students said about what they learned: “No one is above the law, and it was created to protect our citizens.”

“No matter what, you can become a lawyer.”

“It was super cool, it was really an honor having Judge Bloom there because it felt like us law students were really given an opportunity that not many can have, to meet a real judge and lawyers, it was a nice experience.”

“Rule of Law ensures us citizens that no matter your status, the law applies to everyone. Because of Rule of Law, we can have a safer mentality on situations that we experience in our day-to-day life, like crossing the street or driving.”

“I learned to have more trust and confidence in law. With this trust, I can go on about my day with my mind at ease knowing that if anything bad were to happen, the law is always there to prevail justice.”

“It was a great opportunity to watch real judges and attorneys talk about issues going on right now.”

“I learned that if you put your work and dedication toward what you love, you can achieve your goals and aspire to be what you want.”

“It was amazing how she [ Judge Bloom] talked about things, and the discussions really inspired me to learn and read more about this Rule of Law topic.”

“Until seeing the video it never crossed my mind how every part of our daily lives is influenced by the law. The example with buying a sandwich made me reconsider how important the law is for the most simple actions, and as long as no one is above the law, society functions the best it can.”

“Having a judge facilitate this discussion was really different and it was great.”

“I learned how case rulings may affect our lives and how we can learn from them in order to become a more civilized society.”

“The harder you work and more prepared you are, the further you’ll get in life.”

“It is okay to have different opinions, as long as you respect others.”

“It was a once in a lifetime opportunity.” 

Tampa Bay Chapter The Tampa Bay Chapter of the FBA, in conjunction with the Middle District of Florida, presented the FBA Civics Education Training Program, “Civil Discourse and Difficult Conversations,” April 8-9, 2021. The program was presented via Zoom to two groups of high school students in back-toback class periods. It was enlightening for all involved. The students were great advocates,

As previously mentioned, during the program, the students tested their knowledge about the Rule of Law with polling questions.

Here is a chance to test your knowledge: 1. The Rule of Law is a principle under which all persons, institutions, and entities are accountable to laws that are: a. Publicly promulgated b. Equally enforced c. Independently adjudicated d. C onsistent with international human rights principles e. All of the above 2. True or False: Our nation’s fundamental law is the Golden Rule. a. True b. False

3. True or False: When an individual becomes a citizen of the United States, the individual is required to take an oath to, among other things, support and defend the Constitution and laws of the United States. a. True b. False 4. In our Constitution, how many branches of government were created? a. 2 b. 3 c. 5 d. 10

5. The courts, the judiciary, have the responsibility to _________ the laws. a. Make b. Enforce c. Interpret 6. True or False: The Constitution protects the impartiality of federal judges when they have to make unpopular decisions in order to follow the Rule of Law. a. True b. False

7. Are judges able to impose their personal beliefs on others when deciding issues before them? a. Yes b. No 8. True or False: Laws reflect the will of the people and the people consent to abide by the laws. a. True b. False 9. True or False: Laws are made in a private process and are not available to the public. a. True b. False

Quiz Answer Key: 1. e 2. b (Correct answer: Constitution) 3. a 4. b 5. c 6. a 7. b 8. a 9. b (Correct answer: Laws are made in a public process and are available to the public.)

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Zoom presentation of “Civil Discourse and Difficult Conversations."

or read in a textbook. I acknowledge how busy you all must be, so my students and I are grateful for the time you carved out for us and this positive learning opportunity. I look forward to future presentations, perhaps in person.

and far less lenient in their assessments of the defendant’s actions than the adult volunteers.

The program took place over the course of two days. On the first day, judges and attorney volunteers spoke about careers in the law and gave practical advice. On the second day, 16 students took part in oral argument on behalf of either the United States or a defendant accused of making criminal threats on social media. The remaining students acted as the jury. Plant High School Constitutional Law teacher Tamara Phillips had previously taught her students the Elonis v. US Supreme Court case on which the mock oral argument was based and had assigned the students to prepare a mock oral argument before the event, so the quality of the student presentations was quite good.

We received appreciation from the students and a special thank you note from Ms. Phillips: This program was meaningful and productive for the students and me. I sincerely appreciate each person that engaged my students. Each of you was kind and relatable. You may never know the impact that your words leave on a student, but I can tell you that the students gave positive feedback and expressed appreciation for the program and specifically hearing from each of you. All of you mentioned topics that we’ve studied in class, and it was good for my students to hear real-life connections to topics they’ve only heard in a lecture

The Tampa Bay Chapter of the FBA is grateful for the time of Judge Virginia Covington, Judge Anne-Leigh Gaylord Moe, Ms. Richter, Mr. Wright and Ms. Lyons. We look forward to resuming in person mock oral arguments in the next school year.

In honor of Black History Month, the Young Lawyers Division (YLD) of the Tampa Bay Chapter of the FBA launched a virtual book drive in February to donate racially, culturally, and otherwise diverse and inclusive books to local elementary schools.

As part of the drive, the YLD partnered with the Hillsborough County Public Schools Transformation Network, an organization that serves underperforming schools in underserved communities. A total of 575 books were donated to five schools that had requested more representative books for their students. Members of the YLD delivered the books in March and met with representatives from the Transformation Network and each school. The schools were very grateful for the book donations and emphasized the impact that new, diverse books can have in increasing students’ interests in reading, learning, and goal-setting. 

Left: YLD committee members Daniella Sterns and Soma Nwokolo deliver books to James Elementary School in Tampa Bay, Fla. Right: YLD committee members Daniella Sterns and Soma Nwokolo deliver books to Kenly Elementary School in Tampa Bay, Fla.

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Sections & Divisions

Virtual Thurgood Marshall Memorial Moot Court Competition.

YOUNGER LAWYERS DIVISION The YLD’s Thurgood Marshall Memorial Moot Court Competition Goes Virtual!

Teams representing schools from across the country participated in the 26th Annual Thurgood Marshall Memorial Moot Court Competition from March 8-12, 2021. After canceling the oral argument portion of the 2020 competition due to the COVID-19 pandemic, the entire 2021 competition was held virtually.

The competition kicked off on March 8 with a virtual program and a welcome keynote address from Colonel Luis O. Rodriguez, associate judge, U.S. Army Court of Criminal Appeals. Following the welcome address, all were invited to a training to address any questions regarding the virtual format. While initially nervous about potential challenges (such as mute button mishaps, miscommunications, and screen delays), there were ultimately very few and the competition ran smoothly.

Making it one of the premier moot court competitions in the country, the oral argument rounds mirror real court proceedings.

As in previous years, the volunteer judges

who serve as judges in the competition are actual state or federal judges, practitioners, or scholars, thereby reinforcing the “real-world” experience for the law students.

While oral argument rounds are normally held in courthouses in Washington, D.C., as lawyers have had to pivot to virtual hearings, conferences, and even trials in some cases, students participated in the oral argument rounds virtually via Zoom this year. FBA staff served as bailiffs in the virtual courtrooms. Following the oral argument rounds, judges submitted their scores and feedback via an online platform.

The 2021 problem was authored by Hon. Melissa Burns, U.S. magistrate judge for the District of Arizona. The problem presented two constitutional issues arising from a hypothetical federal criminal case: improper search and seizure under the Fourth Amendment and a defendant’s due process right to a complete defense at trial. With regard to the first issue, defendant Kenny Bearson was convicted of two counts of first-degree murder. Evidence at trial included a pawn shop receipt that the police had seized from the defendant’s home. The pawn shop receipt, which was seen in plain view, indicated that the defendant had pawned several

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rifles (some capable of shooting bullets that were found at the scene of the crime) weeks after the murders. Before going into the defendant’s home, the police met at the front door, where the defendant’s sister, who apparently had been smoking medicinal marijuana and, after questioning from the police, consented to let them enter. Eventually those issues found their way to the U.S. Supreme Court.

Each of the teams submitted a written brief, supporting either the Petitioner or Respondent, and participated in two preliminary rounds, taking place March 9 and March 10. Following the preliminary rounds, teams were ranked based on a combination of written and oral argument scores, and the top 16 teams advanced to the next round. The playoff rounds, which consisted of the round of 16, quarterfinal, semi-final, and final rounds, took place on March 11 and the morning of March 12.

The teams advanced in the playoff rounds based on a combination of written and oral argument scores. The final round was held on the afternoon of March 12. During this round, the competition champion was selected based on oral argument in the final round only. The final round panel consisted

of Judge Paulette Burton, senior judge at the U.S. Army Court of Criminal Appeals; Judge Fansu Ku, trial judge at the U.S. Army Judge Advocate General’s Corps; Judge Dan Polster of the Northern District of Ohio; and West Allen, FBA president.

The annual Thurgood Marshall Memorial Moot Court Competition is the YLD’s signature event. Initially developed as a means to demonstrate the value of the YLD’s board to the FBA and FBA membership at large, the competition has grown to be one of the most prestigious moot court competitions in the country, creating opportunities for law students to develop their written and oral advocacy skills. Now in its 26th year, the competition continues to create meaningful opportunities for law students. Growing from its inaugural competition, in addition to the problem author—who writes the competition problem and bench brief—the Moot Court Committee solicits over 75 volunteer judges for the preliminary rounds alone. In recent years, competition directors—who are selected by the YLD board of directors—oversee the competition, coordinating with FBA staff and working groups and committees.

This year’s competition directors, Amy Boyle (YLD treasurer and board member), Ben Barnes (YLD board member), and Ben Reese (YLD board member), thank all who volunteered their time to serve as judges during the weeklong competition; the final round judges; the YLD board; the Moot Court Committee; Colonel Luis O. Rodriguez; the Army JAG Corps and the Foundation of the Federal Bar Association, who generously sponsored the competition; the participants and their coaches, who impressed with their oral advocacy skills and careful preparation; and the dedicated FBA staff, whose efforts make the competition a success year after year.

If you know of any law students eager to learn about federal practice, please encourage them to participate in the Thurgood A. Marshall Memorial Moot Court Competition. The YLD Moot Court Committee is also looking for a problem author for the 2022 competition. If you are interested, please contact Amy Boyle (boyle@halunenlaw.com). 

2021 Moot Court Winners 1st Place Brief: University of Kansas School of Law (Team 20) 2nd Place Brief: Drexel University Thomas R. Kline School of Law (Team 19)

3rd Place Brief: University of Illinois College of Law (Team 7)

Those of us who had the privilege of serving as his law clerk, whether it’s on the [federal] Court of Appeals or the Florida Supreme Court, we sort of consider ourselves as members of a very special group because we began our careers under the tutelage of one of America’s most admired and respected judges. He’s a legend.

1st Place Preliminary Round Oralist: Caleb Kampsen, University of Kansas School of Law (Team 20) 2nd Place Preliminary Round Oralist: (TIE) Delaney Gold-Diamond, UCLA School of Law (Team 2); Seth Connell, Regent University School of Law (Team 13); Andrew Peterson, University of Minnesota Law School (Team 17) 3rd Place Preliminary Round Oralist: Ben Ramberg, University of Kansas School of Law (Team 20) Best Final Round Oralist: Delaney GoldDiamond, UCLA School of Law (Team 2) Overall Champion: UCLA School of Law (Team 2) 2nd Place: Regent University School of Law (Team 13) 3rd Place: University of Miami School of Law (Team 21)

FEDERAL LITIGATION SECTION Tribute to Judge Joseph Woodrow Hatchett: The First of Many, But Not the Last (1932-2021) The death of Judge Joseph Woodrow Hatchett on April 30, 2021, came as a shock to many. Indeed, to those he had impacted, his 88 years spent on this earth seemed like a relatively short time for a man of such widespread influence.

Judge Hatchett served as the first African American on the Eleventh Circuit Court of Appeals, which was established in 1981 when Congress split the Fifth Circuit. While on the circuit court bench, he trained dozens of new lawyers as law clerks and interns. After serving as the chief judge for the Eleventh Circuit, he retired from the bench in 1999. To date, he is the only African American to ever serve as chief judge of the Eleventh Circuit.

Judge Hatchett’s many accomplishments are described in a judicial profile in earlier issue of The Federal Lawyer (see https://www. fedbar.org/wp-content/uploads/2019/10/ HatchettSEPT1997-pdf-3.pdf ), but he continued to break new ground after that profile was published.

Throughout his career, Judge Hatchett continued to inspire many. Eleventh Circuit Judge Charles Wilson stated,

Judge Hatchett was Judge Wilson’s predecessor on the Eleventh Circuit Court of Appeals. In his own right, Judge Wilson is a very accomplished jurist who credits Judge Hatchett with his career and marriage—he met his wife while clerking for Judge Hatchett. He stated that he would lean on Judge Hatchett for guidance and assistance for over 40 years, even as a federal judge.

Judge Wilson described Judge Hatchett as having “remarkable intellect and sound judgment, deep compassion for people, the less fortunate and oppressed.” He noted that he never lost sight of the role the courts play in protecting the rights of people.

In paying his respects to Judge Hatchett, Chief U.S. District Judge Mark Walker stated that “he was a great judge, but more importantly a great man. It’s important that we study his history as a lawyer and as a judge.

It reminds us of the importance of the role of the judiciary and the rule of law.”

He was a mentor for many Black lawyers who followed him. He will continue to be an inspiration for all lawyers who will serve as pioneers for their particular community in paving the way for new entrants into the legal field.

Federal judges receive compensation even after retirement. Thus, many do not continue to work full time. But never one to sit idle, Judge Hatchett decided to join a private firm, Akerman, after leaving the bench. He helped the firm develop its Appellate Law Practice and was the department chair for many years.

Former partner Kathi Giddings described Judge Hatchett as “the calm in the storm” and “unflappable.” She noted that he always made you feel good about yourself and brought out the best in everybody despite overcoming so many obstacles and being called racial epithets, even while on the bench.

As part of Akerman’s appellate practice section, Judge Hatchett began holding court again, offering mock appellate arguments to attorneys scheduled to appear before the federal circuit court as a way to allow them to practice and receive a hands-on and valuable critique of their arguments. The program was

July/August 2021 • THE FEDERAL LAWYER • 89

so popular, they offered it to attorneys from outside the firm with much success. Akerman continues that practice to this day in what it calls the “Akerman Bench.”

Judge Hatchett also continued his fight for justice and equality. He worked with the NAACP as a lead attorney and fought to preserve statewide preference programs that benefitted minorities and women in Florida. In April 2018, he retired from the practice of law.

Throughout his career, he always made time for his family, ensuring that they knew they were loved and appreciated. He did not “bring work home,” so to speak. He was just “Papa.” He also was a musician, fisherman, and winemaker.

So, what do you say about someone who was so impactful to so many lives? As one of his former law clerks, Ted Smalls, succinctly stated, “he gave us all gifts; it’s up to us now to carry it on.”

Finally, Judge Hatchett’s grandson, Rashad Green, who has followed in his grandfather’s footsteps as a civil rights lawyer, offered this message on behalf of his family: Papa was a great man who walked in humility. He rarely, if ever, spoke of his life achievements. His concern was always for us and not him. He lived to serve God and others. He valued and respected the sanctity of life and

human dignity. He loved to fish and spend time on the farm. He loved his family with all that he had in him.

That is Papa to us. Our family will miss him forever.

Judge Hatchett is survived by Delores Grayson (his friend and partner); his children, Cheryl Clark and Brenda Hatchett; eight grandchildren; and nine great-grandchildren. His wife, Betty Hatchett, preceded him in death in 2019.

To read the full version of this article, please visit the Tampa Bay Chapter website: www.federalbartampa.org. 

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.

90 • THE FEDERAL LAWYER • July/August 2021

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Member Spotlight * Denotes Sustaining Member Carmelle Alipio Gabrielle Baehr Tara Horton Clayton Prickett Jade Robinson Mary Scruggs Charles Summers F. Braxton Terry Vanessa Walsh

Lula Mustafai Victoria Noto Nicolette Ragnanan Bryan Ramdat Sofiya Rubenova Daniel Smith Raj Telwala Jasmine Vega Alexander Zhik

Maryland Chapter

FIRST CIRCUIT

Southern District of New York Chapter

Cassandra Crawford Lindsey Freeman Matthew Gibbons

1st Circuit At Large Maria Babajanian S James Boumil Jonathan Coley Lisa Holley Carl Hurvich

Hon. Raymond L. Acosta Puerto Rico Chapter

Reinaldo Calderon Joanne Gonzales Varon Lope Laguna-Maldonado Melanie Negron Rivera

Massachusetts Chapter Nathanael Davis Jennifer Doherty David Hennessy Lisa McNaughton Seth Orkand Paul Toland Bert Ware

Rhode Island Chapter Larry White Joshua Xavier

SECOND CIRCUIT

2nd Circuit At Large Nico Gurian Robert Manukyan Heather Martone Steven Schindler Chelsea Scism Caeden Sehested Blaine Woodson

Eastern District of New York Chapter Alessandra Albano Inna Anopa Ariel Berkowitz Taylor Bialek Natalia Bianco Samuel Bifulco Gabrielle Costa Joseph Doria Johanna Kristin Ellerup Pamela Fisher-McLeod Matthew Golyan Nicole Grube Kirsten Jackson Gary Kaufman Daniel LeBrun Beana Manashvily Aaron Margulis Felicia Mulholland

Maryam Asenuga Mary Elizabeth Bogan Sam Braverman Karen Callahan Alyssa Feldman Christopher Leung Cecilia Lopez Santiesteban Elizabeth Rieser-Murphy Caitlin Robin Izak Rosenfeld

THIRD CIRCUIT

3rd Circuit At Large Matthew James Brittany Pierce Jaimes Spring

Delaware Chapter Cortlan Hitch Robert Kravetz

Eastern District of Pennsylvania Chapter Evan Butts Robert Lefevre

Middle District of Pennsylvania Chapter Stephen Linebaugh Stefanie Mekilo Philip Riley

John Butler Heather Koontz Gregory Lawrence Edward Neufville Alison Schurick

Middle District of North Carolina Chapter

Northern Virginia Chapter Daniel Allison Charles Duross Alex Faig Aidan Grano Alison Harmes Greer Lynch Cristina Stam Clare Wuerker

Richmond Chapter Amy Austin Emily Guillaume Ella Markina

South Carolina Chapter

Samantha Marcello

Western District of North Carolina Chapter Daniel Bradley

Western District of Virgina

Robert Magnanini

Kate Adams Zachary Lee Imani Sowell Fay Spence John Thomas

FOURTH CIRCUIT

FIFTH CIRCUIT

Alan DuBois Peter Frost Kang Il Lee Carlos Moreno Marysia Pomorski Austin Strine Jamie Vavonese

Jason Binford Andrey Burin Matthew Moreland

New Jersey Chapter

4th Circuit At Large

Eastern District of North Carolina Chapter Daniel Donahue William Finn Lauren Golden David Venable Madison Waller

Hampton Roads Chapter William Jackson Michael Jordan Colleen Shook

5th Circuit At Large

Austin Chapter

Eloisa Ontiveros Garcia Thomas Parnham Amber Vazquez

Baton Rouge Chapter Jennifer Dietz Brianna Golden Zachary Miller

Dallas Chapter Jenny Ecklund Michael Kelly

El Paso Chapter Norma Islas

Fort Worth Chapter

San Antonio Chapter

Mississippi Chapter

Southern District of Texas Chapter

Adara Manamperi Samantha Rokkett Breanna Goff Mike Hurst J Mauldin

New Orleans Chapter Whitney Antoine Taylor Bacques Gabrielle Ball Trey Bartholomew Bayle Beermann Elise Benezech Joseph Brogdon Curtis Case Jared Civello Alexa Daigla John D’Avello Arianna de Goede Lisa Diaz Alex Ducros Ally Duplechain Jasmine Englert Taylor Gamm Michael Giardina Gillian Griffin John Halfacre Katherine Halliday Jimmie Herring Patrick Isacks Christopher Joseph Cherish Kenner-Creecy Brian Klebba David Kleinschmidt Aaron Koenck Hannah Lafrance Jordan LeBlanc Grant Leger Tyler Loga William Logan Taylor Lombardo Tiyanna Lords Michael Maldonado Laura Marcantel Harrison Martin Fielding Mathins Caroline McCaffrey Rachel Moody Surekha Naidoo William Newman Caitlin Newswanger Jordan Nixon Connor Peth Brittany Reed Daniel Schwank Danielle Sczesny Delaney Shea Etheldreda Smith Taylor Somerville Trisha Speeg Mary Taliancich Patrick Talley Tyrianne Varnado Taylor Waxley Jennifer Webre Meredith Will Jordan Womac

Charles Garcia

Maria Bartlett Joshua Bauer Richard Berry Eric Boylan David Calvillo Ted Evans Cassie Maneen Adela Martinez Tina Nguyen John Reed Poorav Rohatgi Adam Russ Erik Sunde Joel Vale Alec Zorich

SIXTH CIRCUIT

6th Circuit At Large Michelle Crawford Louise Griffin Aneca Lasley Hillary Scholten Maria Spasovska

Chattanooga Chapter Derek Mullins

Cincinnati-Northern Kentucky, John W. Peck Chapter Zenaida Lockard Jessica Powell

Columbus Chapter Neema Ashou David Carey Laren Knoll Stephanie Kortokrax Jesse Taylor

Dayton Chapter Madison Batley Dmitriy Bikmayev Dylan Haynes Benjamin Reeb

Kentucky Chapter Cornelius Smal

Knoxville Chapter Toby Carpenter

Memphis Mid-South Chapter Shayla Purifoy Michael Rafferty

Northern District of Ohio Chapter Duncan Brown Christopher Ernst Francis Fungsang Edward Heindel Anne Hurst Jacqueline Johnson Melissa Kobasher

July/August 2021 • THE FEDERAL LAWYER • 93

Segev Phillips Marques Richeson Dayna Terrell James Walsh Aaron Williams

SEVENTH CIRCUIT 7th Circuit At Large Carol Brown Vernita Cockrell Katerina Kokkas Brian Pierson Robert Schwaba Michael Shakman

Central District of Illinois Chapter Joseph Brehm

Chicago Chapter Ali Alsarraf Elizabeth Astrup Michael Baker Herschenia Brown Herschenia Brown Jennifer Dlugosz Gabriel Fuentes Jona Goldschmidt Malgorzata Kozaka Stephen Lee Nia Mack Todd Ohlms Raj Patel Nicole Provax John Sciaccotta Rachel Simon Brian Smith Sean Suber Samuel Young

Indianapolis Chapter Christopher Cody

Lafayette/Acadiana Chapter Brian Colomb

P. Michael Mahoney (Rockford, Illinois) Chapter Jordan Emmert

Southern District of Illinois Chapter David Dugan Katherine Lewis Stephen McGlynn

Rachael Hafdahl Mark Ireland Christine Jordan Scott Mah Casey Matthiesen Graciela Quintana Kevin Riach Anne Rondoni Tavernier Alexandria Schroeder David Stern Gina Tonn Saukshmya Trichi Joshua Weichsel

Nebraska Chapter Andrea Snowball

Phoenix Chapter

Kristine Beaudoin Patty Ferguson-Bohnee Richard Palmer Stephany Poe David Potts Bruce Samuels Eric Wilkins

South Dakota Chapter Michael O’Leary

St. Louis Chapter Kevin Carnie Jennifer Hoekel Christopher Lawhorn Bradley Schneider

NINTH CIRCUIT

9th Circuit At Large

Amy Brantly Jeffery Daar Ethan Davis Sara Dutschke Alisa Edelson David Gonzalez Katerina Karamousalidou Susannah Lund Maribel Reynoso Blunt Samantha Stearns Malissa Thomas David Wasserman

Alaska Chapter Siena Caruso Terri Davenport Kyle Reardon Moira Smith

Idaho Chapter

EIGHTH CIRCUIT

John Cutler Wade Foster Josh Hurwit Courtney Wucetich Zachary Zollinger

Chloe Raimey

Inland Empire Chapter

Wisconsin Chapter Nola Hitchcock Cross

8th Circuit At Large Arkansas Chapter R Anaicka Ortiz-Reed

Iowa Chapter

Dennis Mandsager

Minnesota Chapter Ann Bildtsen Joel Dahlgren Samuel Edmunds Margaret Fitzpatrick

Ami Sagel

Los Angeles Chapter Julian Andre Celene Andrews Alex Botoman Yujin Chun Miles Freeman Matthew Goodman Chloe Hassenfratz Peter Johnson Glenn Kats Shaun Khojayan

94 • THE FEDERAL LAWYER • July/August 2021

Arnold Lee Sharlene Lee Christopher Pitoun Rick Richmond Rasha Shields David Sutton Kara Wolke

Montana Chapter Monte Mills Kekek Stark

Nevada Chapter

Gregory Gutierrez Lori Johnson Jessica Recarey-Valenzuela

Northern District of California Chapter Nicholas Hartmann Joshua Klein Julian Park Robert Pohls Steven Tidrick

Orange County Chapter

Kiimberly Carasso Elizabeth Dahlstrom Maria Elena Garcia James Michalski

Oregon Chapter Randi Ensley Jon Monson Natalie Wight

Sacramento Chapter Michael Anderson Roza Patterson

San Diego Chapter Liza Ahmed Wendell Alford Rebecca Anderson Alisha Ansari Luiz Arroyo Tina Arroyo Jessica Ayala Kelly Becker Karen Beretsky Gabriel Bronshteyn Jenny Burns Laura Castillo Soojin Cha Bob Chen Eric Chiang Christine Choi Janaki Chopra Cindy Cipriani Susannah Conn Oana Constatin Christine Cotner Jenna Crawford Kim Cruz Evangeline Dech Hannah Dubina Lana Elfarra Chrysta Elliot Kristyn Francese James Gaeta Daniel Galvan Michelle Ganotis Ashley Goff Wesley Gonzales Belen Granados Carolyn Guist

Andre Guiulfo Brian Hazan Kathryn Healy Susan Henderson Samuel Hoops Desi Kalcheva Anne Kammer Jeremy Kauffman Felicia Kit Tyler Lee Brittany Little Daniel Loehr Margaret Maloy Justin Martin Marissa Marxen Kathleen Mayer Danica Mazenko Moana McCullan Dzvinka McKie Matthew Mejia Shadi Melvin Ami Mody Daniel Morales Jun Nam Spencer Nichols Nicola O’Donoghue Jessica O’Malley Shelby Poteet Emily Roberts Ken Sexauer Dean Shaffer Amy Silva Marjeta Six Armilla Staley-Ngomo Monica Sullivan Caroline Tan James Teal Macklin Thornton Reed Trechter Steve Uribe Nicole Welindt Jenny Williams Stacey Zumo

San Joaquin Valley Chapter Melanie Alsworth

Washington State Jessica Andrade Meliha Jusupovic Elizabeth Kelley Lauren King Alejandro Monarrez Grover Peters

Northern/Eastern Oklahoma Chapter Lexie Allen Lyric Clark Rachel Cory Matthew Covert Kyle DeFord David Dossman Caitlin Frazier Jayci Jones Brandon Keaton Candace Lamkin Thomas Landrum Taylor Morain Murry Morie Emilee Morris Tristan Reagan Bailey Ryals Rebecca Sheetz Morgan Thomas Megan Wagner Ibrahim Yaseen

Oklahoma City Chapter

K. McKenzie Anderson Drew Davis Susanna Gattoni Scott Maule Elke Meeus

Utah Chapter

Blaine Benard Brian Malone Eric Maxfield Ralph Mercer Megan Olmstead Darren Reid Ronald Rencher Steve Sansom Emily Schilling

Wyoming Chapter Brynn Hvidston Sean Larson Amy Potter Sandra Potter Jessica Tracy

ELEVENTH CIRCUIT 11th Circuit At Large

Megan McKenna

Deidre Colson Bridget Gonzalez Jolyon Morris Danielle Perez Nestor Perez Jenniffer Pineda Rayon Eva Sarmiento Donald Schutz

Colorado Chapter

Atlanta Chapter

Kansas and Western District of Missouri Chapter

Birmingham Chapter

TENTH CIRCUIT

10th Circuit At Large Thomasina Real Bird Sarah Wolter

Toby Crouse William Gaddy Elizabeth Martin Jill Morris

New Mexico Chapter Kenneth Bobroff Hannah Stephens Gabriel Vadasz

Kamryn Deegan Stacie Dukes Andrew Mason Sheila Tyler Jack Selden Robert Stewart

Broward County Chapter Troy Liggett Yuliana Reyes

North Alabama Chapter

Montgomery Jones

North Central Florida Chapter Barrett Cappadonna

Orlando Chapter

Gisselle Calderon-Cruz Olamide Oladapo Carlos Rocha Trevor Ward Jasmine Williams Kendra Willis

Palm Beach Chapter Shaniek Maynard Robin Rosenberg

South Florida Chapter

Paul Brown Amanda Cachaldora Jabari Caldwell Daniel Castilla Michael Holt Jordi Martinez-Cid Elise Nuevo Niama Obas Jessica Pagliery Karissa Peralta Alejandro Rodriguez Vanzetti Sara Saba Giuliana Santini Daniel Tilley Ryan Zagare

Southern District of Georgia Chapter

Southwest Florida Chapter Kyle Cohen Nicomedes Herrera

Tallahassee Chapter Samuel Bunton

Tampa Bay Chapter Sarah Anderson Ivan Ayala Garcia Nancy Eriksen Samantha Gerencir Faith Gold Kamal Jefferson Madison Mahaffy Madeleine Vaughn Peter Zinober

Katrien Keyaerts

D.C. CIRCUIT

D.C. Circuit At Large Diana Chicas GarcÌa Debolina Das Antaeus Edelsohn Jaycie Gibney Luis Lopez Bronte Montgomery Amy Norris Kathryn Sinniger Darrell Valdez Desiree Williams

Capitol Hill Chapter Marissa Lee

District of Columbia Chapter Erica Bahnsen Micah Bluming Christopher Buckley Christine Couvillon

Katherine Cureton AJ Dhali John Dolan Peter Ford Daniel Fundakowski Nicholas Gunther Elizabeth Harris Michael Harris Lauren Ingram Marylee Keller Kathleen Kohl Jenny Magallanes John Martin Brian McLaughlin Elizabeth Oyer Brandon Padgett Jennifer Seybold Silvija Strikis David Woll Brian Woods

WRITE A BOOK REVIEW TO BE FEATURED IN THE FEDERAL LAWYER The Federal Lawyer encourages book review submissions. Writer’s guidelines are available online at www.fedbar.org/ TFLwritersguidelines.

Email social@fedbar.org with book suggestions or questions regarding your submission today.

July/August 2021 • THE FEDERAL LAWYER • 95

Federal Bar Association Calendar of Events 

Visit Fedbar.org for more information.

J U LY

J U LY 7 Oklahoma City Chapter: An Introduction to Corpus Linguistics J U LY 1 3 John W. Peck Cincinnati-Northern KY Chapter: Federal Practice Seminar for the Southern District of Ohio J U LY 1 4 Employment Litigation in Federal Court: The Nuts and Bolts

AU G U ST 2 0 2 1

AU G U S T 2 The Capitol Hill Chapter’s Quarterly Supreme Court Update

SEPTEMBER 2021

SEPTEMBER 23-25 2021 FBA Annual Meeting & Convention Miami SEPTEMBER 23 [VIRTUAL] FBA Board of Directors Meeting SEPTEMBER 24 [VIRTUAL] FBBC Board of Directors Meeting SEPTEMBER 25 [VIRTUAL] National Council Meeting

MARCH 2022

MARCH 29 IP Section: Small Group SCOTUS Admissions Ceremony

REFOCUS RECONNECT RENEW It’s time to renew your FBA membership today.

Turn to page 53 or visit fedbar.org to find out more information on renewing your membership.