Advisory Opinions - 2023 Year In Review And 2024 Predictions (With David Lat)

Episode Date: December 28, 2023

Sarah joins David Lat's Original Jurisdiction to review 2023's best (and worst) legal cases and lawyers and make some hopeful (and less hopeful) predictions about the coming year. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to a special year-end episode of Advisory Opinions. Actually, this is sort of an episode of Original Jurisdiction. David Latt, good friend, sometime host and author of the newsletter Original Jurisdiction, reached out and said, what if we did a crossover, sort of like Times Person of the Year, but for huge legal nerds?

And obviously, I was like, yes, we must do this immediately. So what follows is about an hour of David and I doing, you know, the biggest legal stories of the year, disagreeing at some points, agreeing on others. I hope you enjoy. Thank you so much for joining me, Sarah. Great to be here. So I have to also thank you for performing a public service. I was only about a third of the way through the Colorado disqualification opinions. And then I stumbled upon the latest episode

of Advisory Opinions in which you and David French read all those pages so we don't have to. It's so true. Look, it was a labor of joy, but it was a labor. Yeah, you know, I will go back readers, don't worry, I will go back and read them myself. But for anyone who's looking for a clear and fun, digestible summary and analysis of the Colorado opinions, you should all go check out the latest episode of advisory opinions. So again, thank you for that. Thank you. So I'm intrigued. I posted the other day about a font dispute concerning the pages of original jurisdiction on the Substack newsletter website. Serif or

sans serif? Sans serif meaning kind of without the little curlicues and adornments and serif being, including those, sort of like a font like Times adornments and serif being, including those, sort of like a font, like Times New Roman is a serif font and Currier, I guess, is an example of a sans serif font. But it sounds like from your email to me, you have some strong views on this. Well, it's mostly that I think it's this larger philosophical debate that you're stumbling into. You and I talked about this a lot. I've talked about it on advisory opinions a lot, for instance, that you really should be thinking of judges on these two different axes, just like the conservative to liberal axis everyone knows about fine. But then there's this institutional vertical axis, and you've got to really understand where

your judge or justice falls along that axis as well. And I actually think that the serif to sans serif font is a decent way of explaining institutionalism because I've had a hard time actually sort of, I don't know, defining it, putting words to what I mean by that y-axis. And I feel like this is the metaphor. So you're institutionalists like the serifs. It's beautiful. It's elegant. The sans serif is ugly, but incredibly functional. I guess that's kind of brilliant, actually. I hadn't really thought of it that way. So Justice Kavanaugh is going to want serifs.

And Justice Gorsuch, sans serif. Although it is interesting, some people are arguing that there is a difference between print and online. And I think some of the champions of sans serif are saying that the institutionalist vibe, I think they would argue, for online is actually sans serif is kind of their argument.

No, it's ugly. So I will say that in terms of where the poll is right now, because I did take a reader poll, I was actually surprised by this. I thought that lawyers are going to want to be institutionalists and conservative and everyone was raised on Times New Roman, but 59% favor sans serif, which surprised me, especially since Zach and I also have an editorial assistant recently started working for me, and they favored serif. What's your personal preference? Oh, definitely serif. And I feel like the sans serif people are buying into this populist moment. No, it's just wrong.

So I haven't decided yet. The poll is favoring sans serif. But one point that was raised with me by one reader, and I'll quote this person's comment, quote, I'm partially cited. Assuming the font size stays as it is in your sample, there's a significant readability difference between the two fonts. Your elegant writing speaks for itself, close quote,

because I had contrasted the elegance of serif with the readability of sans Serif. This also makes me think of the Atchison case involving the ADA person. You know, some sites have had issues about Braille or audio reading. So I do want it to be accessible to people with differing levels of vision. So that does weigh on me, but I have not decided yet. Oh, let's be clear. If there's actually people who cannot read the serif, then it's not worth doing at all. There's necessary, but not sufficient. It is necessary for everyone to be able to read it. So I'm with you. If this is actually affecting people's ability

to read the content, it's an easy question. If we're just doing on aesthetics, though, I would argue it's also an easy answer, but the other way. So I will just make one last point on this. There is a dispute on the readability point because another reader commented that the modern serif fonts are actually well designed to be read and some people see them better because of the additional curl cues, what have you. So I may have to delve into this a little more deeply, but... I did think that was the point of serif fonts, that actually it's supposed to differentiate each letter from one another.

But David, I do have a confession to make, which is I'm in some ways the worst possible person to ask this to because I think I don't read using letters. And I know there's some other people like this. But when I try to explain it, it's a little weird. So for instance, I don't know if anyone knows about synesthesia out there. When I was in like eighth grade, I started asking people how they see their calendars.

And that really freaked people out. But if you don't know what synesthesia is, it's basically when you're a baby, all of your senses are intertwined. And then as you get older, the neurons sort of form stronger pathways to some parts of your brain than others. But for synesthetes, sometimes those senses still have pathways that connect. And so at the most extreme, synesthetes feel musical notes. Some are crunchy, some are soft, or they have colors associated with letters, for instance. And they've studied this and it's not just the letters of the magnets that your parents put on the refrigerator. Mine is time. Time is actually the most common form of synesthesia. I actually have a physical concept of time. So July would be at noon on your clock. January would be at about five and it runs counterclockwise. It's really weird.

Anyway, for words, I don't really use letters. I'm a very fast reader. And the reason is because they're pictures, like each little word's a picture. So I have no idea how to spell things. And I can easily get words incorrect because if they're close to one another, like one letter off in the center somewhere, like I won't really notice it. Wow, that's fascinating. I had heard about the phenomenon, but I think I heard about it more in terms of, I don't know, like colors having smells. Yeah. It could be any combo of senses would be synesthesia.

The reading thing is not. I just think it might be related in some other, just like my brain sort of skipped some steps. Well, that's a great, that's a superpower as a lawyer or legal commentator. To be able to read quickly. Hence the 213 pages of the Colorado Supreme Court decision. So I have you here for a year in review because you are one of

the most encyclopedically knowledgeable people about law in the legal profession I can think of. So let's jump right in. This is the 2023 year in review. And if we have some time, I think maybe we'll make some predictions about 2024. But in the spirit of Times Person of the Year, and also in the spirit of the Judicial Notice weekly roundups of Lawyer of the Week, Judge of the Week, I think Sarah and I are going to go through Lawyer of the Year, Judge of the Year, etc. And caveat, the Lawyer of the Year, Judge of the it doesn't necessarily mean the most wonderful or awesome or fabulous. I think, we can debate this, but I think it's the most influential or important.

And some of the people who've won Time Person of the Year of the Years have not been the loveliest people. So... Hitler, cough, cough. Yeah, exactly. So for Lawyer of the Year, I'm going to go with Lawyers of the Year.

Maybe this is cheating a little, but Time One did like you or something for like the internet age or something. So I don't think it with lawyers of the year. Maybe this is cheating a little, but time one did like you or something for like the internet age or something. So I don't think it's a total cop out. The lawyers of the year, I'm going to go with Jack Smith and Fonny Willis. They brought us some of the, not the, but some of the first criminal indictments

of a president, current or former. Jack Smith's cases are, well, we'll see what happens with them. We'll talk about them shortly, but they are obviously getting headlines and they're going to be very consequential, hugely consequential, perhaps in the presidential election. And Fannie Willis, many of us were skeptical of her sprawling case, including you and David French on Advisory Opinions, AO. But so far, she's racking up pleas. She's getting cooperators. She's kicking butt and taking names, you could argue.

So I would say Jack Smith and Fonny Willis. I think that's actually spot on. And I think if time were doing lawyer of the year, I think that's exactly who they'd pick. I think you could probably pick one over the other. I think Jack Smith certainly has more gravitas and has moved along faster, pushed through some of the barriers that were there, and frankly, had a more coherent strategy, in my view. I think that Jack Smith, for instance, had to make some judgment calls in that Florida case.

He absolutely could have moved the Florida case nearly immediately if he had only brought the obstruction charges and not brought the documents charges as well, the documents are what's slowing this whole thing down. And you wouldn't necessarily need any of the classification or SCIF problems to review classified documents if you had only brought the obstruction charges. But of course, if he had brought the obstruction charges, the complaint would have been, he didn't even commit a crime. You're just like tagging him for not doing what you want and not being compliant enough. And the documents charges are so egregious. It would have been really hard not to bring those. So like, those are the sort of judgment calls

that you can second guess Jack Smith on. But both of them were good or bad options, depending on how you want to look at it. The January 6th case, he's litigating that to the hilt, man. Jack Smith has been around a long time. This is a Hague prosecutor, and he's never met a defendant he doesn't like to indict. So he's aggressive. And I think that case is probably, again, more aggressive than it needed to be. He could have just brought the charges on the false slate of electors, for instance.

I think it would have made it a cleaner rifle shot. But he felt like he had these other charges that he could bring, and he did. I think the biggest time person of the year write-up of Jack Smith is he didn't bring the incitement charges. Yes. And will that decision down the road,

20, 30 years from now, will we look back on that as being really pivotal in some ways? I agree with you. I think that's a huge call. I think it's the right call. I would again reference you and David disagreeing on incitement and the so called Brandenburg standard. And a prosecutor is supposed to bring charges that they think they can prove beyond a reasonable doubt. And if people just already disagree as outside commentators, not the jury, I would not bring it. But let me ask you, who would be your lawyer or lawyers of the year? Well, I picked Will Concevoy. Will Concevoy passed away this past year.

He was young. He was just in his 40s, but had a real outsized influence on the legal profession, I think, for his few years that he was with us. Most importantly for this past year, of course, the affirmative action case that made it to the Supreme Court was his brainchild, like from the beginning. So I think in that sense, he's left a real legacy on jurisprudence in the country and the effect that that case will have now. I mean, there's a lot of cases that are just now lining up behind that. The Thomas Jefferson case of the high school admissions policy where it's race neutral, so to speak, but the purpose is to limit the number of Asian students or increase diversity,

for instance, even if it's race neutral on its face. This is going to have all sorts of implications in the law. And I think that's important. And again, whether you agree or disagree, Will did this. And it's a cool thing he's been able to leave behind on that front. But I actually think that more importantly, Will's legacy as a partner and running his own law firm was even more important. And we'll talk about this a little more later, but he started his own boutique law firm, Constable McCarthy. There's lots of boutiques out there. lawyers had oral arguments, including Supreme Court oral arguments so early on in that law firm without having any of the big names batting there and giving lawyers experience and not trying to build it around one person. Will died of brain cancer. He was one of my closest friends. So

a self-serving pick perhaps, but actually I think he in many ways is a great example to all lawyers. Again, set aside the political differences or even legal philosophical differences you may have. He had a brilliant career and I encourage any young, for all the law students out there who are struggling around finals, go check out Will's career because this is someone who was not born with everyone recognizing how brilliant he was and went to Princeton, Harvard, Yale, Rhodes Scholar.

That's not Will's story. And I think it's inspiring and neat. I totally agree with you. And again, I would refer listeners to your beautiful tribute to him on Advisory Opinions. I wrote an obituary for him on Original Jurisdiction. Really just a remarkable lawyer and person. And as you mentioned, the SFFA cases are going to be hugely influential. There's a follow-on case now about the military service academies.

And I will say also, just because a lot of my listeners also like to focus on the law firm business of law piece of it, by building his firm in the way that he did with arguments and great assignments distributed in a fairly egalitarian way, I think he's built a firm that is going to last. I think that Constable McCarthy will still be around a decade from now. And a lot of other great litigation boutiques may not be because they are just too focused on one person, one key person. And so I agree with you. I do think it's really an excellent choice. And we should remember and salute Will and Ferentis colleagues for what they've built. What's next, David?

So quick honorable mentions. Here's some other random contenders I thought about. I thought about the lawyers who worked on the huge Dominion v. Fox settlement from Sussman, Godfrey, and Clare Locke. I thought about Robbie Kaplan and Kaplan-Hecker for the E. Jean Carroll litigation against Donald Trump. Many people know that I've been following the murder of law professor Dan Markell for many years. Georgia Kaplman and Sarah Dugan secured major conviction of Charlie Adelson in that. There were, of course, the prosecutors of Sam Bankman-Fried, Daniel Sassoon, Nicholas Roos,

Beth Wilkinson of Wilkinson-Stechloff, who saved the Microsoft Activision deal, Alex Spiro, who is sort of Elon Musk's go-to lawyer, who won that big securities case from early in the year, David Weiss, the embattled special prosecutor in the Hunter Biden case, Lena Kahn, the embattled antitrust czarina at the Federal Trade Commission.

And finally, I would give a shout out to Greg Lukianoff and FIRE for standing up for free speech in these perilous times. So those, I guess, would be sort of like my honorable mentions. Anyone you want to give an additional shout out to before we turn to Judge? I think I would underline Greg Lukianoff

because while there have already been many free speech cases or strongly worded letters sent by fire this year, and I'll highlight this in some of my picks coming down the pike, but what we have seen post-October 7th, I think will be how 2023 is remembered.

And the biggest thing that happened culturally in the United States was the battle lines that were drawn in our country around anti-Semitism, around the politics of Israel, defining all those things, the meltdown of college campuses and higher education. And that's where FIRE is going to be. So not only have they already been really influential this year, but talk about future bets. Like, that's where my money is. Yep.

And I would urge people to check out his and Ricky Schlott's new book, The Canceling of the American Mind, a follow-up to The Coddling of the American Mind. And again, thanks to them for all their great work. So now let's turn to Judge of the Year. And I'll let you go first, Sarah. Okay. I spent, I will tell you, the most amount of time on this one

because it's so hard. I, you know, read hundreds of opinions a year. If not more than that, I don't even know. And so I was very excited about this one. And I'll tell you, I went for a bit of a dark horse methodology here. I picked for judge of the year, Daniel Collins of the Ninth Circuit. He has never been on your

judge of the week list, David. In fact, I couldn't find any mention of him in your write-ups. And that's why I picked him. Because there are dark horses out there, like dark matter. And in fact, a law clerk pulled these numbers for me on highest success rate on dissentals. So we're gonna have to find some of these terms here. But basically, when a panel decides something at a circuit court, and then there's a discussion of whether the entire court should hear that en banc, meaning all of the judges, oftentimes, very oftentimes, the whole court decides not to take it, meaning to let the panel decision stand. But when you're a circuit judge and you think the panel was wrong and your court decides that they don't want to hear it again, basically deciding that they don't

want to reverse the panel or change circuit precedent, it's really the only way to change circuit precedent, you write something that is lovingly now called a dissental, dissent from denial, fraunbank review. And it's basically a little like waving your hand up to the Supreme Court saying, hey, this is my own judicial cert petition of sorts. And that's how we think of them, you know, you and I and the people who watch this sort of stuff. And so who's actually writing the most successful judicial cert petitions, the most successful of their dissentals? And the answer is Judge Collins in the Ninth Circuit. Huh.

And you do have to factor in, like, if you've only written one dissental and the Supreme Court ended up taking it, I'm not really counting that. Sure. Yeah, you need to have quite a few of them to begin with for us to really start judging. Okay, so since 2017, he has written 15 dissentals. He has had eight granted. That is a 53% batting average, which is just so, so much higher. I had actually said on AO that I

thought just, you know, off the top of my head that Patrick Boumete was probably the most likely to get the Supreme Court's attention. I wasn't far off, to be honest. He's also written 15 dissentals. He's had six grants and one GVR, meaning that the Supreme Court just reversed and sent it back without even really hearing the case, probably in light of another case. And that still puts him below Judge Collins, even if you count that GVR. So it's good to have the data. Don't just go by vibes. And congratulations to Judge Collins for picking some good cases or being really persuasive in that writing. That's really impressive. You teased this on the last episode of AO and

I would have guessed Judge Bumate. So that is interesting. I also have to give a shout out to my former boss, Judge O'Scanlan, who back in the day had a very high batting average on this. He's now senior status, but that's intriguing. You know what's funny? We actually very intentionally started in 2017 to exclude Judge O'Scanlan. That was the whole point. No offense, Judge. No. In fact, it was because everyone knows that Judge O'Scanliff would win this if we did a longer horizon. But I wanted to look at

who right now is most likely to get a case that they wanted to flag reheard. And so you got to kind of limit the time frame, but it can't be too short because you got to give the cases enough time to percolate. On the Fifth Circuit, by the way, Judge O, far and away,

the dissentilist of the judges. He's written 11 with only two grants. Oh, interesting. So you're not a super high batting average. Okay, interesting. Wow, well, that's fascinating. Thank you for sharing that. I assume you'll do a deeper dive into that

in maybe the next episode of AO. So in terms of my picks, when I said judge of the year, I would also include the members of the Supreme Court, even though I guess they're justices, but they are judges. And I'll tell you, I was actually a little torn. I will go with Chief Justice Roberts. I know that's kind of a very, well, you know, this is a Time magazine kind of copycat. That's kind of a very timey pick.

He wrote Morvey Harper, the independent state legislature opinion. He wrote more v. Harper, the independent state legislature opinion. He wrote Biden v. Nebraska, invalidating the Biden student loan forgiveness plan. He wrote, obviously, the affirmative action and opinion, students for fair admissions v. Harvard. I think you could also kind of credit him with getting the ethics code done, since that probably involved him herding cats. But if you had to pick a justice for justice of the Year, who would you go with? So that's interesting because, and this probably isn't how you should think about this, but I already think that there's a very high likelihood that the Chief Justice will be my pick for next year's Justice of the Year. And I'll explain why. And it's because of these two cases, the

is Trump absolutely immune from criminal prosecution? And of course, does the 14th Amendment Section 3 bar him from appearing on the ballot? This is what the chief justice was, you know, created in a petri dish to do. This is the whole role that he sees himself as fulfilling. You know, Bush v. Gore was 5-4. It was, at the time, at least seen as catastrophic to the court's credibility that they would break along quote-unquote partisan lines for that decision, picking the next U.S. president. And if you remember the chief justice's confirmation hearing and put it in this lens, this is what he was talking about. This is the balls and strikes. This is the judicial minimalism trying to maximize unanimous opinions

or at least the highest number of justices available by making it the narrowest decisions possible. Thus far, I don't know what grade he would give himself on how he's done if that were his goal, but it's all coming down to this inning. Like this is why it matters. And if he is able to keep the court together, either through a per curiam opinion where there's no noted dissents, for instance, like maybe it's not unanimous, but we don't need to highlight to everyone it's not

unanimous, or having 9-0 opinions on this sort of stuff, he absolutely will be justice of the year next year when that happens. So given that, I don't think I'd want to pick him this year. I think I'd obviously pick the swing justice, Justice Brett Kavanaugh, highest percentage to be in the majority, like since he's been on the court, like every single year he's in that spot. That's a pretty powerful position to be in. And I would say, though, in defense of picking the chief,

although I agree with you that he's probably the front runner for next year, too, he's often right behind Justice Kavanaugh by just a few percentage points. Adam Feldman at Empirical SCOTUS and SCOTUS blog and all those folks track these things. And so the chief is very influential, but not as influential as he was when Justice Ginsburg was on the court where he was both the chief and the swing vote. So that was huge. But I will say on the issue of the Colorado opinion and disqualification, I think there's kind of almost like a consensus emerging that this should be unanimously reversed. A couple of prominent liberal law professors have written about this recently. Larry Lessig had a piece in Slate the other night. Samuel Moyn has a piece in The Times today. And they're urging the Supreme Court to reverse the Colorado Supreme Court and essentially put Trump back on the ballot.

And these are not conservatives. These are not FedSoc type people. So I'm really curious to see whether the chief can rise to the occasion, as you suggest, and get 9-0. Even if it's a per curiam, I think that that would be a major achievement. And I think our country needs that kind of unity for something like this.

Yeah, I mean, remember, it was a 4-3 decision out of Colorado, and the three other courts who have looked at it all came out the other way. So in some ways, you know, if it's a close call, which even Colorado seems to acknowledge it's a close call, then maybe we don't do this big thing. It's almost a version of major questions doctrine writ large. But you know, this gets to... I have a theory that I've been developing. I've worked in the Department of Justice under three different attorneys general.

And I have a theory about the types of people we should be picking for attorneys general, setting ideology totally aside. But for instance, I now pretty firmly believe that we should only have attorneys general that don't need jobs afterward. It doesn't mean they can't have jobs afterward, but we do not want people in that role thinking about how it will affect their ability to provide for their family later. Because even the most honorable people are not going to want their children to be hungry or not be able to go to school or whatever. And the role of Attorney General right now

and the high possibility that you're going to be in an antagonistic position with both the White House and the Capitol, both parties potentially, as certainly we were during the Sessions years, you want someone who's going to just do that without fear or favor. So in a similar vein, I've been thinking a lot about the type of person you want as chief justice, right? They're primus inter pares, meaning they just have one vote like everyone else.

I mean, he does get $10,000 more and he's the head of the Smithsonian board. But yes, he can assign opinions when he's in the majority, stuff like that. But it's really, to the extent he has a leadership role, it's one of persuasion. And the chief justice was pretty young when he came on. He had been on the DC circuit, but was not a justice. And that's not totally unusual by any means. But in our sort of modern era, we're going to get to look at different models for how influential chief justices have been,

how much their colleagues respect them and they're able to move them even when, hey, I maybe don't agree with you on the law, but for instance, in this case, the institutional concerns, this is the highest institutional concern this court has faced, certainly since Bush v. Gore.

And I would argue it's actually a much bigger institutional challenge than Bush v. Gore. It will be very interesting to see how the chief does. I think he has struggled in the past with some of his colleagues. Yes, I totally agree. In fairness, I would say he's navigating a very difficult and very polarized time. Yes, and strong-willed colleagues. I'm not blaming him necessarily. I might be blaming the colleagues. Yes. No, no, no.

He has a very difficult job. So in terms of runners-up, I would give a shout-out to Justice Thomas, who was at the eye of the storm in terms of the ethics controversies. I didn't really want to make him Justice of the Year in the sense that the ethics controversies

aren't about his work as a judge. I think Rahimi, the Second Amendment case, is in a way a legacy or an offshoot of his opinion in Bruin, but I didn't want to necessarily highlight him, even though I think he has been one of the most talked about. I think the ethics controversies, as you've discussed and I've discussed, are varying in significance, and some of them are important and some of them are silly.

So I think a lot of people on the left would probably name him Justice of the Year just because he was so talked about, all the ProPublica stories, including some recent ones. And then just to toss out a couple of other names I thought about, Justice Arthur Engeron of New York Supreme Court, who's presiding over Trump's civil fraud case,

Judge Matthew Kazmarek, who handed down the mythic Pressstone district court opinion, Judge Kyle Duncan, although not necessarily for his rulings, but because of the Stanford free speech imbroglio. Judge Pauline Newman of the Federal Circuit has been involved in this controversy to remove her from the bench. And finally, I would give a shout out to Judge Tanya Shutkin of the U.S. District Court for the District of Columbia, who's overseeing the federal January 6th case. Any other judges you might want to give a shout out to

in this little wrap up? That's such a good list. And, you know, if we weren't so in the weeds on jurisprudence, I think the obvious answer is Justice Thomas. So I'd underline that one. I think Judge Chutkin probably is runner up at this point for next year's,

but she could easily get into that top slot if, you know, things go a little differently for the chief. So I'd hold on her. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this

frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's aurafFrames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Turning to ruling of the year, and maybe this is kind of a touch back to, we'll contemplate your pick for lawyer of the year. I would go with students for fair admissions

v. Harvard and University of North Carolina. Now, I do have a bee in my bonnet about racial preferences in education. I wrote a big piece on original jurisdiction, which to this day is one of my most read about it. So I do have a sort of personal obsession with this issue dating back to maybe when I was a very anxious Asian American high school student trying to get into college. But I do think that it is a powerful and important opinion. It is in many ways a ringing endorsement of the colorblindness of the Constitution. And colorblindness is not a very popular theory for race relations in many other parts of the culture or the society. So I think that that's important. As you alluded to in your discussion of will,

there's a lot of follow-on litigation. It's going to reverberate for years later. It's not a sort of a one off important thing like Biden v. Nebraska, the student loan case involving four hundred thirty billion dollars of debt, 43 million borrowers. That was a very consequential opinion just standing alone in terms of its real world consequences. But jurisprudentially, gosh, I don't even think we remember how it was decided. Whereas I think SFFA is really going to reverberate. And then the other opinion I would give a shout out to, but kind of would have been the most important thing if it had gone the other

way, Moore v. Harper, the independent state legislature theory. That was the dog that didn't bark. It would have been hugely consequential if the court had ruled to give state legislatures that kind of power over federal elections, but they didn't. So that's my pick for ruling of the year. What about you, Sarah? I feel like again and again, you actually, I mean, you did set the rules. So I guess this shouldn't surprise me, but you're really channeling like, if Time Magazine did something like this, what would they do? And instead, I'm like, what would the nerdiest nerdy people do? Well, your listeners and mine are pretty nerdy, so that's good.

So we're sort of doing two different things here. So my ruling of the year is actually a concurrence written by Justice Amy Coney Barrett in Biden v. Nebraska. This was the student loan case, which, yes, was important on its own, but I don't really care about what the case was about. Her concurrence, yes, was important on its own, but I don't really care about what the case was about. Her concurrence, however, I think will probably be

what was most influential from this entire term moving forward. Her concurrence was defining the major questions doctrine. This has been controversial now for the last few years with some people claiming it sort of sprouted from the foam in 2018. That's not true, of course, at least in my view. The name has kind of come about more recently, but the concept that we read certain statutes in a way to assume that Congress, Justice Scalia wrote that Congress doesn't hide elephants in mouse holes. And this has sort of been part of the jumping off point for the major questions doctrine,

though Justice Breyer wrote about it when he was a law professor in the 80s. He, in some ways, is credited with creating something akin to a proto major questions doctrine. And even among the conservative justices, I think there's been some disagreement on exactly what the major questions doctrine is. I've used a shorthand to explain the difference between non-delegation doctrine and major questions doctrine. Non-delegation doctrine being, can Congress give it to the executive branch? And major questions doctrine being, did Congress give it to the executive branch? And what I sort of appreciated about

Justice Barrett's concurrence in Biden v. Nebraska is that she probably heard me say that and wanted to tell me in a very kind way why I was wrong. It's really well written. You know, you and I have talked about who we think the best writers on the court are. And, you know, she probably doesn't get enough credit for her writing because it's not flashy.

It doesn't have a lot of like pizzazz or the jokes. But boy, as a law professor, you can see why she was so popular and why she shined because this is written as like the law professor you wish you had explaining major questions doctrine. Highly recommend it. It starts on page roughly 33 of Biden v. Nebraska. So go check it out. I agree. And I had actually forgotten about that. That was the highlight of Biden v. Nebraska,

this brilliant exegesis of the major questions doctrine. And for people out there who like to hate on it, I would just urge you, go back and read this concurrence and then see what you think, because she really does do such a wonderful job of explaining it and whether how we should think of it. Is it kind of like a clear statement rule? Where does it fit in terms of the canons? I think the elephants and mouse holes comment. I did look it up. I believe it's from Whitman v. American Trucking Association, Justice Scalia, 2001. He does cite Brown and Williamson, which is kind of where I think of this doctrine as having its origins. But the actual phrase, I believe, came from American trucking. But again, Justice Barrett's concurrence is brilliant. Really, I would say that that is my favorite.

I guess if the category were kind of worded as opinion of the year rather than ruling, I would say this is really such a great opinion. And I agree with you also on... So I'm a bad textualist is what you're saying. I would say I agree with you. She doesn't get enough credit for her writing because I remember, I can't remember who said this. Somebody said this to Tony Morrow, the legal journalist, that she has an austere, desert-like writing style.

It's kind of like the late Chief Justice Rehnquist. Not a lot of bells and whistles. Not the fun flourishes of a Justice Scalia or a Justice Kagan, who are, I must confess, two of my favorite writers because I like fun flourishes. But just as a craftsperson, Justice Barrett has to be up there,

and I agree with you. That was a great, great opinion. craftsperson, Justice Barrett has to be up there. And I agree with you. That was a great, great opinion. By the way, Justice Barrett quotes Justice Kagan, because part of this is to answer Justice Kagan's critiques of the major questions doctrine and quoting Justice Kagan at the very top of her concurrence here. When textualism would frustrate broader goals, special canons like the major questions doctrine magically appear as a get out of text free card. I mean, that's why Kay can get so much credit. Yeah, that is undeniably brilliant. She is such a great...

And look, I do lean towards the fun side in writing, so I probably would go with her. You're just fun people. Yeah. Kind of in the middle ground, I would say is somebody like Chief Justice Roberts fine people. Yeah. Kind of in the middle ground, I would say, is somebody like Chief Justice Roberts, who has some great turns of phrase,

but is not quite as, I think you could say, fun. Maybe critics of the Kagan Scalia style would say self-indulgent. I think Roberts may kind of be in between the Barrett and the Scalia molds. At the recent National Lawyers Convention of Federalist Society,

Justice Barrett described herself as a, quote, one jalapeno kind of gal, meaning that on a menu with one to three jalapenos for the spiciness of the menu items, her old boss gets a five. And remember, she said it was one out of three. So then she goes to five for her old boss, Justice Scalia, for whom she clerked.

But she says she's a one jalapeno kind of gal. But again, I think what comes out of her kitchen is delicious. Yeah, you don't think of the Chief Justice as a real fun time Sally, but he has some moments in his writing. And he takes clearly his comments from the bench very seriously. He's very stayed from the bench. But then occasionally, I mean, don't forget, it's the chief justice who wrote the best way to end discrimination on the basis of race is to end discriminating on the basis of race. Like, okay. That is definitely one of the most memorable and most quoted lines of any Supreme Court opinion. So turning to litigation of the year, what's your pick in this category?

of the year. What's your pick in this category? Well, this is where I'm going to cheat a little because I'm picking the Title VI lawsuits that are being filed against all of these schools in the wake of October 7th. Title VI, of course, is about the creation of a hostile learning environment due to one's religion, race, etc. Obviously, in this case, it's going to be religion. It has to be severe and pervasive. And on October 10th, 12th, David and I over at Advisory Opinions were really debating about how we would define severe and pervasive. Sometimes it's read as severe or pervasive, for instance. Something can be severe enough that it didn't need to happen more than once. In some past cases, we are past that whole conversation now. There's really no question that this will not turn on the definition of severe and pervasive anymore.

If anything, the problem will be that it has been so pervasive that can you really say that every single school in the United States has violated Title VI? You know, when something is broken so much, how will that affect litigation? That is certainly the litigation of the year for me. Of course, it's not resolved. It's not even very far along. But it's what I've been watching most. It's what I'll continue watching. I think that's an excellent pick.

And I would highlight a couple of cases. There's the one against NYU that was filed by the Kazowitz law firm. There's one against the University of Pennsylvania, which really has some terrible allegations. The University of Pennsylvania is where President Liz McGill recently announced her resignation. And so I think it's very of the moment. And I'm really curious to see how these cases unfold. They have important implications for anti-discrimination law, for higher education law, and just for culturally and socially where we are as a nation. So I will is cheating because this includes so many cases. But I would say the social media cases. There are the two net choice cases, one of which I believe your husband, aka husband of the pod, Scott Keller, is working on. Those cases are going to the Supreme Court. Yeah, I couldn't pick that one.

Yeah, exactly. But no, no, no. I would have allowed it. I would have allowed it. But these cases involve the ability of large social media platforms to regulate the content of their users. They're a way. Because the people who support the laws out of Texas and Florida, their issue here is, say, we're protecting free speech because we're protecting the rights of conservative speakers on these platforms not to be muzzled, censored, or canceled. So I think those cases are very important. But, and you and David French have talked a lot about these cases on advisory opinions, there are some more cases. There is the Murthy v. Missouri case about the ability of the government to pressure, persuade, cajole, compel social media companies to moderate certain content. And then also, and I would kind of put these as the least important in the bucket,

there are two cases involving the social media accounts of public officials and their proper treatment. That's O'Connor Ratcliffe v. Garnier. So I would have said, I would have thought it would be Lindke, but I went back and listened to the chief's pronunciation. I guess it's Linky. Linky v. Freed.

I think the chief must make some clerk or someone look up pronunciations of these cases because he has to announce them at the start. Except he got Jarkuzi wrong. That is true. It's Jarkuzi. And he said Jarkuzi and the guy actually corrected him.

Yes, I know exactly. Which was kind of funny, actually. But yeah, like there are a bunch of those pronunciation issues. I think the most commonly mispronounced one is actually probably Grutter, the big affirmative action case. It just reads so naturally as Grutter. But I have really gone down this rabbit hole and found old YouTube clips of her lawyer having a conference on the courthouse steps. It's Grutter, Barbara Grutter, maybe.

So that would be my pick, the social media cases, which are going to define our rights and responsibilities on the internet for years to come. And in a way, and I think David, the other David, David French, has pointed this out. These may finally deliver on the promise of a social media term because we had the Gonzalez v. Google

and Twitter v. Tomnet cases from last year, which turned out to be big nothing burgers. We were all so excited. And then Justice Kagan pointed out that we are the not the nine greatest experts on the internet. And sure enough, reflecting that humility, they did nothing with those cases.

So we'll see what happens here. Termis interruptus was this case. Yes, exactly. All ready to go. Yes, exactly. I can think of some other terms, but I won't go there. And then in terms of runners up for litigation,

there are the Trump criminal cases, particularly the DC case by Jack Smith, but maybe those will be next year's litigation of the year. Antitrust litigation, generally, there are some ongoing Google cases, including the one before Judge Maeda. Then there's the case in which Epic Games, the maker of Fortnite, just prevailed over Google. And then there's some huge cases coming along down the pipe. But again, they're going to be decided next year. Purdue Pharma involving the bankruptcy code

and discharges of parties who have not filed for bankruptcy. Rahimi, the case about whether or not people with domestic violence orders entered against them can have guns. The Mifeprestone litigation, which the court recently granted cert on. So that is all coming down the pike. Anything else you want to highlight before we go on to law firm of the year? We didn't talk about ours ahead of time, and I'm glad we didn't. But also, I would have picked the tech term. I really was like struggling over the tech cases. Those seem clearly to be litigation of the year. But I was like, but we haven't actually... Again, it was like this feeling of like, you're ready to go.

And then it didn't really happen. So I don't want to judge that it will this year. But at some point, they're going to have to grapple with that. So maybe I'll just make it ruling of the year. So turning to law firm, what is your pick? Oh, well, since you just said that I could be self-interested, how can I not pick my husband's law firm? Lahatsky, Keller, Cohn, they've got the net choice cases. And this is the Texas social media bill, Florida social media bill. It's getting argued at the court here in the next few months.

Also, it's a boutique. And this is more why I actually maybe seriously pick them because we have new models of law firms coming out. And I wanted to actually use this as an opportunity to pick your brain because there

is no one smarter on the economic model of law firms, I think right now, than David Latt. And so when you see what's going on with the AM laws, and you then see the proliferation of top tier partners starting their own thing and being successful at it, both in terms of high profile cases, also in terms of profit and business development. What is the future of private legal practice at this point? So it's interesting. I do a lot of cheating on this, a lot of categories rather than individual things. But I would have picked litigation boutiques as the law firm of the year. So very consistent with your mention of Lahachoski Keller Cohn, which picked up John Cohn from Sidley.

And it's a sign when a prominent big law partner like John Cohn is going over to a boutique. But there were tons of other examples of that this year. For example, Hunter Biden's lead lawyer, Chris Clark, went over to Clark Smith Villazor or started Clark Smith Villazor. Well, it was already a firm, but he kind of became a name partner just like John Cohn did. And with M&A kind of on the downswing this year, it was a very weak year for transactional work, which really drives big law. I really would

say it would be the year of litigation-focused firms. And just here's some greatest hits. Sussman, Godfrey, and Clare Locke prevailed in Dominion v. Fox, $787.5 million settlement, one of the largest settlements in history. Wilkinson-Stechloff, Beth Wilkinson basically saved the Microsoft Activision deal, which I think might be the largest transaction to close in 2023. I mentioned Clark Smith-Villazor, which represented Hunter Biden, Kaplan-Hecker and Robbie Kaplan, which represented Gene Carroll. There's so many other firms too. Cooper and Kirk, Constable McCarthy on the conservative side, Gupta-Wesler on the more progressive side, Molo Lampkin, Selendi Gay. They're just doing such great work. And I think there are two things driving the rise of these boutiques, I would say, or maybe three. One is the problems with conflicts. When you have a global law firm

with thousands and thousands of clients, and then somebody comes through the door with a really interesting litigation, you have a conflict problem, a client conflict problem. You may not be able to take that case because it conflicts with the interests of an existing client.

Well, think about the boutique you didn't mention yet, Clement Murphy, right? Oh, of course. Paul Clement leaves Kirkland. Now there's some squabbling at the margins here over how exactly that went down, depending on whether you ask Kirkland or Paul. But regardless, it's a conflicts issue. Yes, absolutely. So conflicts are huge.

I think that's one major thing driving the rise of the boutiques. The second thing I would say is the economics of it. Large law firms are still very much hooked on the billable hour, and their rates have gone higher and higher, around $2,500 an hour in some cases. Whereas with litigation, people want more flexible arrangements, including contingency fees, perhaps, or flat fees or other alternative fees. And boutiques have a greater ability to do that. And then I guess the third and final thing I would say driving the rise of boutiques is technology. Before, if you had a case with millions of documents, it would be very hard to hire a small firm. But now, with vendors that sometimes clients prefer to be doing the document work rather than having $800 an hour associates reviewing documents,

with the rise of vendors, a boutique can work with a vendor and do a lot of these big cases. Or sometimes more commonly, they will co-counsel with a larger firm and the large firm will do the heavy lifting and the boutique gets to do the fun stuff, the strategy, the brain trust work. So I would say really boutiques are kind of where it's at and not even necessarily boutiques, maybe litigation focused firms,

because some of these firms are a little large, maybe to be boutiques. You could argue about Sussman or Boyce Shiller, which came back from the dead. I think everyone had written them off in 2020 when they had massive partner defections, but they got hundreds of millions of dollars in settlements for Jeffrey Epstein victims from JP Morgan and Deutsche Bank. They had this giant Blue Cross, Blue Shield, multi-billion dollar settlement approved, which is going to give them a nine figure fee. Hamish Hume got the $600 million verdict for Fannie Mae and Freddie Mac shareholders.

So, Boyce Shiller is back and doing very, very well. So, a lot of people are still stuck in that 2020 narrative of the firm. Oh, gosh, it's in a death spiral. Boyce Shiller is doing great. So, I would say litigation boutiques and litigation-focused firms are doing great. A couple notes on that. One, I interviewed with Hamish Hume when I interviewed at Boyce Shiller. And like, you want to work for that dude. He is just cool. There's cool lawyers out there and then there's

nerd lawyers. He is a cool, smart lawyer. No, I think you're exactly right to highlight those. The only thing I'd add is on the billables, it's not just that you're paying as a client $2,500 for your brand name lawyer. You're probably happy to pay that. It's that you're paying $700 an hour for a first-year associate who doesn't know how to tie their shoelaces. And the other thing that the litigation boutiques don't have to do is hire first-year associates. They will be totally missing from the lineup in these smaller law firms because what they're doing is basically sending them to the big law firms to get trained and taking them later when they're more valuable,

when they want that flexibility. Maybe it's work from home. Maybe it's live where you want to live and work remotely, whatever that is. So they're basically just scavengers poaching up, which makes it a problem, right? Because then big law still has to exist. Someone still has to train these baby lawyers.

The boutiques aren't really doing that yet. And the boutiques can't exist separately for another reason, which is also what you mentioned. They're not doing discovery. They're not built for discovery. So when you have big litigation, the boutiques really are only there for motions practice, strategic stuff.

They still need bodies to throw at the problem. That's always going to be a big law thing. So I don't see a world in which it all goes one way or the other. But as the law firms become more transaction partner heavy and the litigation almost becomes a loss leader in these firms,

it's hard to see why the sort of best associates will want to stay in that model. And then you've got a problem just overall to the ecosystem, right? If we think of this as like different predators, you know, the cheetahs need to still be able to eat. The lions and the hyenas can't take all of their food or else you don't end up with cheetahs. Yes. And again, as you mentioned,

the boutiques are sort of like these scavengers. The big law firms are still doing a lot of the training. And so I think they still do have an important role to play. And I would point out that on the transactional side, for various reasons, boutiques really have not been very dominant. And I think part of that is because when you're doing a multi-billion dollar M&A deal,

you need a lot of support. You need tax. You need employee benefits and ERISA. You need people who deal with public company stuff if it's a public deal. You need so lot of support. You need tax. You need employee benefits and ERISA. You need people who deal with public company stuff if it's a public deal. You need so much more. And just the team for one of these multi-billion dollar M&A deals

can already be dozens of lawyers and that's already a boutique. If I had to pick a big law firm of the year, because I know a lot of my listeners aren't big law and maybe you'll feel slighted if we just talk about boutiques, I would say Paul Weiss. They've been growing at a rapid clip.

They just signed the largest commercial office lease in the country this year, taking more than 18 floors at this newly renovated building on 6th Avenue. They made some major lateral hires, including from firms that usually are on the Raider side rather than the Raided, like Kirkland & Ellis. They picked up Catherine Forrest,

the antitrust litigator from Cravath. They picked up Andrea Wolquist-Brown from Wachtel, which almost never loses partners. And Robert Kindler, who's now their global co-chair of M&A, he came over from the world of banking. And in the league tables by Refinitiv, which look at who's on the most deals

for the largest amounts of money for the first nine months of the year, because we're not quite at the end of the year, Paul Weiss rose from number 19 to number five. It's usually thought of as a litigation firm, thanks to people like Ted Wells and Cannon Shanmugam and Loretta Lynch and all those people. But with Scott Barchet and all these other people they've hired, it's become a force to be reckoned with in M&A as well. So if I have to pick a big law firm, because I don't want to neglect my big law listeners,

I'll say Paul Weiss. Okay. So let's turn to predictions for 2024. I've divided them up into three buckets. So my first question for you is, what do you predict about SCOTUS? And this is very general, open-ended, so you can kind of opine in a very free-form way. Will an asteroid hit the Earth? I think this will be a bust year. You know, we talked about this in terms of booms or busts. Some years have just sort of the big, big, big cases. I think this will be emergency docket term, I think, because of those

Trump cases. But I don't think the sort of merits docket cases are going to be as big as we think. I think the Fifth Circuit's going to get reversed on a lot of their cases that were sort of where the big stuff is, whether it's the SEC being able to adjudicate in-house or even net choice, the case that we talked about on whether Texas can force social media companies to keep up content they don't want to keep up. No. So I think the Supreme Court is going to have a lot of

just what I would call gnaw-dogging. Like gnaw-dog. We're not doing that. We're not expanding this. And overall, I'd say that this fits with a larger trend, which is it's not going to be the court that conservatives wanted or liberals feared. Meaning conservatives have gotten their big wins. This idea that they can keep pushing the envelope to see where they can take a 6-3 court for a spin, I just don't think it's going to happen. I think instead what you're going to have is a lot of conservatives getting over their skis,

trying to get these big wins that they're not going to get. And the way that I know that is because of how few cert grants we're getting, which means that there are not four justices saying yes to taking cases. Now, you know that there's going to be three justices saying no, fine. The liberal justices are going to not want to take many cases. That should leave you with six yes votes. But we're seeing fewer and fewer cases. Last term only had 58. I mean, a mere record low. If conservatives thought they were going to have some big win, you'd expect a whole lot of cert grants all the time. It's not what we're seeing. It's because the conservative justices don't think they have the votes. I totally agree with you. You pretty much took all of my predictions.

I think that it's going to anger some of our more progressive listeners who kind of say the Supreme Court is still run wild. But I think a lot of conservatives will be disappointed with the court, too, to highlight some other cases where I think the Fifth Circuit is going to get gnawed-dogged. Rahimi, the domestic violence Second Amendment case, the Mifeprestone case, probably. There are a lot of cases where I think the conservatives are not necessarily going to be thrilled. Well, the Fifth Circuit, remember, has the most cert grants. Generally speaking, when the court grants cert on something, it's got a more likely than not chance of being reversed.

This used to be the Ninth Circuit, the liberal circuit. Now it's the conservative Circuit having the most cert grants. That should tell you something. Exactly. And the final thing I would highlight, going back to a drum that you like to beat, is I do think that the institutionalists will be in control. And they're really those three. I know some people on the left hate the 3-3-3 thing, but I agree with you and David. It is kind of a 3-3-3 court. And those three institutionalists in the middle, the chief, Justice Kavanaugh, Justice Barrett, they're in control. And I think they're going to make that felt.

So second category for predictions, Trump stuff. Are we going to have a trial before the election? Are we going to have a conviction before the election? I know some of your views from advisory opinions, but for people who don't listen to it, and they should, or maybe your views have evolved or changed on some things. We've had a lot of activity in the past few weeks. What's your prediction on the legal fate of Donald J. Trump? Yes. So remember, there's four criminal cases. I think the only one that has a real shot of going

before the election is the January 6th case out of D.C., the federal case with Jack Smith before Judge Chuck and most people, including very smart people who I think might even be right and I'm wrong, think that that will happen before the election, the trial will happen, and that he'll be convicted. I don't think the trial will happen before the election, but I do think he'll be convicted if it does. And I think it's a close, close call of whether it happens before the election. The reason that I am where I am is that there's 10 ways for the trial to get delayed. And there's really only one way for it to happen before the election. And while I think that the one way for it to happen before the election is the most

likely of all of them, it's below 50%. So even if that's a 40% chance, my 10 ways have a 60% chance added together. And therefore, I think that it probably doesn't happen. You know, I'll just give one example where the Supreme Court doesn't take the prosecutorial immunity case and says like, no, we're going to let the DC Circuit do this. The DC Circuit's hearing arguments on January 9th, that's going to take them at least a little bit of time to write their decision. At that point, it would then go to the Supreme Court for cert. I mean, this is a March 4th trial. I don't think so. Now, it can still be delayed by a couple months before you're getting into like really weird, are they still going to hold this trial October 15th?

But that's a mess. The other trials I do not think have a strong chance of going. The New York State one for one, that's not even a real case as best I can tell. It was a press release. District attorney got to say he was the first one to indict Donald Trump and has made no movement in that case. In fairness, Donald Trump has no interest in it moving either. But you've got everyone up there

who's like, that was fun. Then you've got the Florida federal case. All the classified documents in that are just going to drag it down. And again, when you've got a defendant who doesn't want this to move quickly, every single classified document can delay this. So he's in the driver's seat when it comes to delaying that trial, I think. The Georgia case is interesting. I think it could have moved the fastest of all of them if there weren't 19 defendants.

Like, I don't know why she did this blunderbuss, you know, 37 indictments, 19 defendants, whatever the numbers actually were, which I used to have like, you know, basically tattooed. I don't know why she did it that way. And for those who say like, well, you know, if he were to get elected, obviously the federal cases would not only cease to exist, it's very possible they would cease to exist with prejudice,

meaning you couldn't even bring them later. But the state cases could continue. I'm one of the people who does not think that is true. I think there are separation of powers reasons that even though the states are a separate sovereign, so to speak, nevertheless, a state cannot prosecute a sitting president. Again, it raises the separation of powers issues. Just imagine how it could be used to harass basically a president if you had 400 random elected DAs all bringing cases against a president for political reasons. So I think those would be put on hold too. Interesting. I'll have to think more about that last issue. I have not given it enough thought and it's a pretty interesting one, the separation of powers point. In terms of my predictions, I think I agree with

you largely, but I will part ways. I think that maybe it's going to be close. I think maybe the January 6 DDC trial will happen before the election. I don't think it's happening on March 4th, which is wishful thinking. But it does seem that both Jack Smith and Judge Shutkin are very intent on moving this forward. And I do think that the Supreme Court and the D.C. Circuit are aware of the public attention these cases are getting, and they will try to move expeditiously, even though there's no rule saying these things have to go before the election. I think there is a feeling in the air that they should or that it would be relevant to the decisions of American voters. So I think if they're going to try to move quickly, Judge Chuck has said she's going to try to treat

him like any other defendant. So I think it could go. And I think he'll be convicted. There is the whole issue about the interpretation of the federal obstruction statute, what's going to happen there. I think he'll be convicted, but it will be maybe a mixed verdict. There are four counts. I don't know if they'll get convictions on all four, but that will be my prediction. And then the last topic I want to talk about predictions on, since it's very important

to both my listeners and yours, is free speech and the law surrounding free speech and the First Amendment. What do you think about the coming year, 2024? Well, the people who hate free speech keep learning that they like it more than they thought. In that sense, free speech tends to always win because at some point you'll figure out that you're in the minority and that people don't like your speech and that you'd like the protection of free speech as well.

Certainly, the college administrators are figuring that out, right? Like, oh, no, we're not free speech places. We, in fact, believe in safe spaces and having safe learning environments where people don't feel words or violence and yada, yada. And then it's like, oh, wait, but now our students have these very fringe beliefs. Free speech is really important for us to debate these issues.

So in that sense, it was a big win for free speech this year, but it feels like a hollow victory in a lot of ways because I just don't know that people actually took away the right lessons from any of that. They actually will then, you know, fight for free speech down the road

or if we'll just all go back or it even gets worse where people simply weaponize this and don't care what the next move is. They don't mind being hypocrites anymore. And I mean that on the right and the left. Who's the party that's now the champion for free speech?

I don't know. You have Ron DeSantis down in Florida as the sort of avatar of Own the Libs, and you have Gavin Newsom in California passing laws about how doctors can't say things about COVID that he doesn't like. Again, both of the most egregious versions of their anti-speech laws were enjoined tootsweet by judges in those states, which should tell us something. In part that they would have known that these weren't going to pass legal muster, but they were going to be so popular with their voters and their bases that they did it anyway. And that's what scares me about free speech is that free speech isn't popular. It's never been

super popular, to be clear. Free speech has never been like everyone's favorite thing of like, I love Nazis and Skokie. But people felt pride in a, you know, I will defend to the death your right to say it. Where is that now? Where's the party that does that? Where's even the political movement that's for that? So I see lots of positive signs

and I'm worried that they're not going anywhere. So I'll part ways with you here since we actually often have a mind meld. I'm going to see the glasses half full. I think that we're going to see wins for the social media companies in the NetChoice cases. I think we're going to see some limits on government coercion of various private actors

in the Murthy and also the Vulo case out of the Second Circuit. I think we're going to see an improvement in culture, because as you mentioned, people on the left who said that cancel culture was some kind of chimera of the right are now realizing, oh, wait, it exists because now pro-Palestinian speakers are getting canceled, including a number of associates, both current and incoming at law firms. And so I think maybe now we're starting to see things come back. And also, I think we will have a decline in statement culture where law schools, universities, and law firms

are issuing statements on everything under the sun, which I think is bad because it promotes a kind of institutional orthodoxy in the words of former Stanford law dean Jenny Martinez. I also urge people to look at the Calvin Report out of the University of Chicago, which advocates institutional neutrality. Because before there was no cost to issuing a statement.

You issue a progressive or liberal statement, the liberals and progressives are happy, the conservatives are silent because they're just used to that. But then with the Israel-Palestine conflict, there were two strong constituencies on both sides. You had students and faculty who were very pro-Palestine, you had donors and alumni who were very pro-Israel,

and university presidents discovered, oh, wait, maybe there's no benefit here because we're getting attacked on both sides. So I'm hopeful. I share your caution, but I am hopeful that in terms of both the law, we're going to have some good decisions, including ones from SCOTUS. And I think culturally, people are now being reminded that free speech benefits all of us. Well, cheers to that.