Ed.
Note:
A
weekly
roundup
of
just
a
few
items
from
Howard
Bashman’s
How
Appealing
blog,
the
Web’s
first
blog
devoted
to
appellate
litigation.
Check
out
these
stories
and
more
at
How
Appealing.
“Fed
Independence
Reaches
Its
Moment
of
Truth
as
Supreme
Court
Weighs
Cook’s
Fate;
High
court
to
decide
whether
Trump
can
remove
board
member,
which
former
officials
see
as
threat
to
central
bank
independence”: Nick
Timiraos
of
The
Wall
Street
Journal
has this
report.
“11th
Circuit
upholds
law
targeting
racial
violence
on
government
property;
The
ruling
affirmed
the
conviction
of
Jordan
Leahy
for
using
his
car
to
terrorize
a
Black
family
on
a
Florida
road”: Megan
Butler
of
Courthouse
News
Service
has this
report on a
ruling that
the U.S.
Court
of
Appeals
for
the
Eleventh
Circuit issued
today.
“Barrett
spurns
Supreme
Court
bias
claims
after
string
of
Trump
shadow
docket
wins;
Justice
Amy
Coney
Barrett
sat
for
an
extended
discussion
where
she
defended
the
high
court’s
rulings
and
her
jurisprudence”: Kelsey
Reichmann
of
Courthouse
News
Service
has this
report.
“Judges
Say
Justices
Need
to
Give
More
Emergency
Docket
Guidance”: Justin
Wise
of
Bloomberg
Law
has this
report.
“Bonus
179:
The
Stare
Decisis-Free
Docket;
The
Court’s
recent
treatment
of
Humphrey’s
Executor
may
only
encourage
lower-court
judges
to
do
exactly
what
Justices
Gorsuch
and
Kavanaugh
purported
to
rail
against
in
August:
not
follow
precedents.” Steve
Vladeck
has this
post at
his
“One
First”
Substack
site.
“The
Situation:
Choose
Your
Own
Adventure:
Lindsey
Halligan
Edition;
Any
way
you
play,
you
lose.” Benjamin
Wittes
and
Anna
Bower
have this
post online
at
the
“Lawfare”
blog.
Are
personal
injury
lawyers
truly
taking
advantage
of
the
tools
available
to
them?
Our
friends
at
8am
surveyed
325
PI
professionals
to
find
out.
In
this
report,
ATL
contributor
and
8am
Insight
Strategist
Nicole
Black
shares
this
data
on
technology
use
—
contextualized
to
help
you
benchmark
how
your
firm
stacks
up.
Download
it
to
explore:
Experiences
with
and
plans
for
AI
adoption
Ethical
concerns
and
practical
challenges
faced
when
implementing
new
software
Adoption
rates
for
tools
that
increase
efficiency
Remote
work,
including
data
on
the
types
of
proceedings
conducted
virtually
Profitability
and
productivity
gains
realized
from
online
payment
solutions
State
and
federal
courts
have
adopted
a
number
of
technological
advances
in
recent
years
that
make
it
much
easier
to
handle
judicial
matters.
For
instance,
many
courts
adopted
virtual
courtrooms
complete
with
cameras,
monitors,
and
other
systems
to
accommodate
remote
proceedings.
In
addition,
most
courts
have
adopted
electronic
filing
systems
that
are
much
more
efficient
than
paper
filing
systems.
However,
many
courts
still
issue
handwritten
orders. Although
this
might
be
more
convenient
in
certain
circumstances,
courts
should
avoid
handwritten
orders
for
a
variety
of
reasons.
Difficult
To
Read
Perhaps
the
most
important
reason
why
handwritten
orders
should
be
avoided
is
that
they
are
difficult
to
read. In
many
instances,
handwritten
orders
are
written
on
carbon-copy
forms,
and
a
copy
of
a
form
might
be
difficult
for
a
litigant
to
review. The
process
of
scanning
a
handwritten
order
might
also
degrade
the
quality
of
the
text
on
the
decision. Moreover,
some
judges
and
judicial
staff
have
absolutely
horrible
handwriting,
and
it
is
altogether
difficult
to
discern
what
is
written
in
the
order.
A
few
years
ago,
I
filed
a
motion
that
the
judge
wanted
to
resolve
while
all
of
the
parties
were
in
the
courtroom. The
judge
wrote
out
an
order
that
was
around
a
paragraph
long,
and
he
told
us
we
would
be
able
to
see
the
decision
once
it
was
uploaded
later
that
day. When
I
finally
viewed
the
decision,
I
could
not
make
out
some
critical
language
in
the
order. My
adversary
and
I
had
different
interpretations
of
what
was
written
since
different
interpretations
of
the
language
had
different
impacts
on
our
clients. We
ended
up
needing
to
request
clarification
from
the
court,
which
wasted
more
time
than
if
the
court
typed
out
the
order
and
uploaded
that
instead
of
a
handwritten
order.
Space
Limitations
Handwritten
order
are
often
much
shorter
than
typed
orders. This
is
because
it
usually
takes
longer
to
write
a
decision
than
it
does
to
type
an
order. Accordingly,
judges
may
not
include
much
reasoning
around
their
decisions
when
they
choose
to
handwrite
an
order. This
can
have
significant
consequences
if
an
order
is
appealed
and
if
another
judge
needs
to
evaluate
why
a
judge
made
a
given
decision
on
an
issue.
Sometimes,
litigants
can
procure
the
record
of
oral
argument
to
ascertain
more
context
about
how
a
judge
arrived
at
a
given
decision.
However,
not
all
oral
arguments
are
recorded,
and
sometimes
judges
do
not
specify
why
they
decided
a
certain
way
during
oral
argument.
It
is
much
more
prudent
in
many
circumstances
for
judges
to
take
their
time
to
type
out
orders
so
that
they
can
be
more
comprehensive
when
deciding
how
they
arrived
at
a
given
position.
Editing
Is
Difficult
It
is
much
more
difficult
to
edit
a
handwritten
order
than
it
is
to
edit
a
typed
order. If
a
judge
wants
to
change
something
in
a
handwritten
decision,
they
may
need
to
strike
out
language,
include
arrows
to
added
language,
and
tuck
extra
words
into
the
margins. One
time,
I
saw
a
heavily
edited
handwritten
order
that
looked
more
like
a
treasure
map
than
a
judicial
order! If
judges
type
out
their
order,
they
can
just
delete
or
add
text
before
printing
out
the
order
and
filing
it. This
has
a
much
cleaner
look
than
a
handwritten
order
in
most
circumstances.
Clearly,
some
orders
are
just
easier
to
handwrite. For
instance,
if
the
parties
stipulate
to
items,
it
is
usually
easier
for
the
parties
to
write
the
items
down
and
have
a
judge
“so
order”
the
stipulation. Moreover,
for
smaller
matters,
it
might
be
completely
appropriate
for
a
judge
to
scribble
out
a
brief
order. However,
in
the
majority
of
circumstances,
it
is
usually
best
to
avoid
handwritten
orders
for
the
sake
of
clarity
and
efficiency.
Jordan
Rothman
is
a
partner
of The
Rothman
Law
Firm,
a
full-service
New
York
and
New
Jersey
law
firm.
He
is
also
the
founder
of Student
Debt
Diaries,
a
website
discussing
how
he
paid
off
his
student
loans.
You
can
reach
Jordan
through
email
at jordan@rothman.law.
The
flood
of
outrage
at
the
Disney/FCC
cancellation
of
Jimmy
Kimmel
ultimately forced
the
company
to
retreat and
put
Kimmel
back
on
the
air.
Disney
apparently
didn’t
much
like
the
wave
of
folks
cancelling
their
Disney+
streaming
video
subscriptions
in
response
to
the
government
and
a
major
corporation
coordinating
a
frontal
assault
on
the
First
Amendment.
Some
insiders
at
Disney
indicated
that
Disney
had
a
planned
Disney+
price
hike
coming
this
week,
and
executives
worried
the
backlash
to
both
was
going
to
cause
significant
financial
harm
to
their
quarterly
numbers,
as
revealed
by
independent
journalist
Marisa
Kabas.
SCOOP
—
Part
of
the
reason
Disney/ABC
may
have
rushed
to
sort
things
out
with
Kimmel
is
because
tomorrow
they
have
a
planned
price
increase
for
Disney+
streaming,
a
Disney
source
tells
me.
With
subscriptions
hemorrhaging
since
last
week,
they
couldn’t
risk
losing
more
users
with
this
announcement.
Indeed,
on
Tuesday
morning the
price
hike was
confirmed.
Local
ABC
broadcast
affiliate
owner
Sinclair
Broadcasting,
however,
appears
intent
on
pushing
its
luck.
We’ve
long
pointed
out
how
the
right-wing
broadcaster
is
basically
GOP
propaganda
pretending
to
be
local
news.
The
company
has
an
extended
history
of
kissing
Trump’s
ass,
airing
all
kinds
of pro-Trump
propaganda (the
company’s
infamous “must
run”
segments),
and
is often
cozy with white
nationalists.
“Beginning
Tuesday
night,
Sinclair
will
be
preempting Jimmy
Kimmel
Live! across
our
ABC
affiliate
stations
and
replacing
it
with
news
programming. Discussions
with
ABC
are
ongoing
as
we
evaluate
the
show’s
potential
return.”
Soon
after
Sinclair’s
announcement,
Nexstar
followed
suit
and said
it
would
also
not
show Kimmel’s
show
despite
the
high
ratings
it
was
guaranteed
to
get
last
night.
Sinclair
owns
39
ABC-affiliated
stations
across
the
country,
including
WJLA-TV
in
Washington,
D.C.
The
company,
along
with
the
nation’s
other
major
right-wing
local
broadcaster,
Nexstar,
originally
demanded
Kimmel
issue
an
apology
(for
doing
nothing
really
wrong),
and
donate
to
Charlie
Kirk’s
right-wing
outreach
(and
dim
college
kid
disinformation
project),
Turning
Point
USA.
Nexstar
is
pushing
for
Trump
FCC
approval
of
a
$6.2
billion
deal
merger
with
Tegna,
which
is
part
of a
massive
new
wave
of
harmful
media
consolidation
under
Trump
2.0.
The
Kimmel
saga
began
when
FCC
boss
Brendan
Carr,
once
again
abused
the
agency’s
regulatory
approval
powers
to
convince
Sinclair
and
Nexstar
that
pre-empting
Kimmel
for
criticizing
the
President would
be
in
their
best
interests.
That’s
clearly
an
illegal
government
effort
to
cancel
free
speech,
and
Disney
has
paid
the
price
already.
The
censorship
effort
saw
widespread,
bipartisan
backlash,
including
(somewhat
surprisingly)
from
the
likes
of Senators
Ted
Cruz
and
Mitch
McConnell,
and
former
Fox
News
propagandist
Tucker
Carlson.
They’re
at
least
aware
enough
to
know
that
this
sort
of
abuse
of
government
power
could
inevitably
be
turned
against them.
Sinclair
likely
still
believes
that
pushing
its
luck
and
continuing
to
“pre-empt”
Kimmel
gives
them
additional
leeway
within
the
Trump
administration,
cements
their
power
in
the
right-wing
propaganda
ecosystem,
and
makes
merger
approval
more
likely.
But
that’s
going
to
come
with
an
obvious
ratings
cost,
and
any
costs
incurred
by
those
identifying
Sinclair
stations
and
contacting
their
advertisers
to
complain
in
the
weeks
to
come:
Ultimately
Sinclair
and
Nexstar
may
get
more
harmful
media
consolidation
approved,
but
it’s
likely
going
to
be
more
trouble
than
it
was
worth.
The
MAGA
set
clearly
thinks
they
can
exploit
Charlie
Kirk’s
death
to
escalate
their
war
on
their
ideological
enemies,
but
having
been
pickled
in
their
own
propaganda,
one
gets
the
sense
they’re really
not
tuned
into
how
violently
unpopular
their
“movement”
is
becoming (something
set
to
get
worse
as
the
impacts
of
things
like
tariffs,
the elimination
of
all
corporate
oversight,
and
the
evisceration
of
the
social
safety
net
begin
to
arrive
in
concussive
waves).
Meanwhile,
local
broadcast
television
was
also already
seeing
steady
viewership
declines
as
their
mostly
older
audience
dies
off;
advertising
yourself
as
a
bunch
of
weird
censorial
zealots
engaged
in
fake
journalism
in
service
to
an
unpopular
idiot
king
isn’t
likely
to
help
the
company
make
inroads
with
a
younger
target
demographic
essential
for
the
company’s
longer
term
survival.
Kirkland
Doesn’t
See
The
Issue:
The
11
partners
that
jumped
ship
may
feel
otherwise.
Trump’s
Tylenol
Theories
Are
Emboldening
Plaintiffs:
They
want
to
get
a
second
shot
at
Kenvue.
As
If
You
Needed
Another
Reason
To
Join
A
Boutique:
They’re
taking
the
fight
to
Trump.
New
DOJ
Improv
Prompt
Is…
George
Soros
But
Somehow
Illegal:
The
DOJ
has
asked
its
prosecutors
to
figure
out
how
to
charge
George
Soros.
The
only
challenge
is
thinking
of
anything
he’s
actually
done
wrong.
Let’s
Talk
About
Parental
Leave:
What
is
requesting
parental
leave
like
at
your
firm?
Rep. Haley
Stevens (D-Mich.)
announced
today
she’s
introducing
articles
of
impeachment
against
which
Trump
cabinet
member
(who
received
his
JD
from
the
University
of
Virginia)?
Hint:
She
cited
the
“chaos”
and
“reckless
cuts”
in
his
department
in
her
announcement.
Who
says
lawyers
have
to
sacrifice
their
creative
side!
While
many
attorneys
find
the
daily
grind
of
practicing
law
keeps
them
from
their
artistic
passions,
there
are
still
avenues
to
keep
legal
eagles
from
letting
that
part
of
their
brain
atrophy
one
billable
hour
at
a
time.
For
example,
consider
joining
the
Department
of
Justice!
Yes,
according
to
a
report
from
the
New
York
Times,
lawyers
in
at
least
six
U.S.
Attorney’s
Offices
just
received
a
memo
from
a
senior
DOJ
official
inviting
them
to
flex
those
creative
muscles
and
figure
out
how
the
administration
can
put
George
Soros
in
jail.
Is
there
any
reason
to
put
Soros
in
jail?
Not
that
anyone
can
tell!
But
Donald
Trump
has
identified
Soros
as
a
political
enemy,
and
in
peak
proto-Pinochet
form,
Trump
wants
his
DOJ
to
put
the
aging
philanthropist
in
jail.
Come
with
me
and
you’ll
be In
a
world
of
pure
imagination
That
comparison
may
seem
like
“Trump
Derangement
Syndrome,”
a
sort
of
wild
hyperbole
that
takes
Trump’s
words
out
of
context
to
assume
the
worst.
Let’s
check
the
exact
quote
before
leaping
to
conclusions:
In
reply
to
a
question
from
NBC
News
about
Soros,
the
president
said
that
he
“should
be
put
in
jail.”
Cryptic!
The
man
truly
is
an
enigma
wrapped
in
a
riddle
wrapped
in
bronzer.
He
also
suggested
this
could
be
a
RICO
case
because
he’s
both
not
a
lawyer
and
incredibly
dumb.
In
any
event,
federal
prosecutors
are
now
tasked
with
inventing
charges
to
make
the
boss
happy.
He
already
posted-then-deleted
a
message
excoriating
Attorney
General
Bondi
for
not
prosecuting
his
political
enemies,
so
it’s
time
to
get
busy
over
there!
Even
if
there’s
no
conceivable
or,
frankly,
professionally
ethical
justification.
The
official’s
directive,
a
copy
of
which
was
viewed
by
The
New
York
Times,
goes
as
far
as
to
list
possible
charges
prosecutors
could
file,
ranging
from
arson
to
material
support
of
terrorism.
The
memo
suggests
department
leaders
are
following
orders
from
the
president
that
specific
people
or
groups
be
subject
to
criminal
investigation
—
a
major
break
from
decades
of
past
practice
meant
to
insulate
the
Justice
Department
from
political
interference.
This
is
the
practical
extension
of
the
White
House
decision
to
declare
Antifa
a
domestic
terrorism
organization,
allowing
him
to
broadly
accuse
anyone
left
of
Steve
Bannon
a
terrorist
member
of
the
non-existent
organization.
And,
critically,
to
accuse
anyone
giving
money
to
any
anti-authoritarian
protest
in
the
country
as
providing
“material
support”
to
terrorists.
What
else
can
they
come
up
with?
Lending
fraud?
Illegal
possession
of
classified
material?
Sexual
assault?
Epstein?
No,
people
wouldn’t
believe
one
old
guy
could
do
all
that!
Is
witchcraft
still
a
crime?
So
good
luck,
prosecutors!
These
enterprising
young
lawyers
will
need
to
show
some
powerful
creative
writing
chops
to
get
this
investigation
off
the
ground,
but
they
just
need
to
get
brainstorming
and
apply
themselves.
If
you’re
a
line
attorney
hoping
to
score
a
federal
judgeship
at
28,
consider
pitching
your
case
against
George
Soros
to
your
supervisors!
Think
of
it
like
McSweeney’s…
but
also
a
gross
violation
of
ethical
duties.
The
assassination
of
Charlie
Kirk
—
shocking,
disgraceful,
horrid,
any
number
of
adjectives
fit
here.
Whether
you
agreed
with
his
philosophy
in
whole
or
in
part,
whether
you
disagreed
vociferously
with
him
in
whole
or
in
part,
the
wanton
killing
of
a
31-year-old
husband
and
father
of
two
young
children
was
an
act
of
ruthless
cruelty
without
regard
to
its
consequences.
An
act
of
a
killer’s
supreme
selfishness,
no
matter
how
anyone
tries
to
spin
it.
It’s
clear
that
social
media
has
had
a
part
in
all
this.
Showing
Kirk’s
death
was
another
act
of
ruthless
cruelty.
At
some
time
in
the
future,
his
children
may
be
able
to
watch
that
terrible
event.
Why?
To
what
end?
Why
does
anyone
need
to
see
that?
Is
that
“news”
or
a
gratuitous
indignity?
No
excuses,
please.
Since
I
am
a
dinosaur
lawyer,
I
remember
all
too
well
the
assassinations
of
the
1960s. Those
acts
of
political
violence
stunned
the
nation.
There
was
no
internet
in
those
days,
and
definitely
no
social
media,
which
—
given
the
events
of
the
past
weeks
or
so
—
even
more,
deserves
the
term
“unsocial
media.”
Way
back
then,
people
relied
on
newspapers
and
broadcast
media
(radio
and
TV)
for
their
information.
There
was
implicit
trust
then
between
the
media
and
the
public,
only
to
be
broken
by
Vietnam.
Those
days
of
trust
are
long
gone.
In
light
of
Kirk’s
death
and
other
recent
news,
the
attacks
on
the
First
Amendment
are
relentless
and,
to
me
as
a
lawyer,
horrifying.
Perhaps
those
who
slept
through
Con
Law
class
may
view
free
speech
differently.
I
never
thought
that
Sen.
Ted
Cruz
and
I
would
ever
have
any
common
ground,
but
here
he
is,
with
a
warning
that
everyone,
whatever
political
persuasion,
needs
to
keep
in
mind.
He’s
spot
on;
the
party
in
power
will
change
at
some
point
and
he
warns
that
“mob
boss”
comments
could
lead
to “sauce
for
the
goose
is
sauce
for
the
gander.”
Has
the
internet
made
us
stupid?
Do
we
defer
way
too
much
to
what
appears
on
social
media
to
the
detriment
of
using
our
brains?
What
about
the
prevalence
of
AI
and
the
ever-consuming
role
it
plays
in
our
lives?
What
will
happen
to
our
abilities
to
think
critically?
Have
we
already
dumbed
down?
Are
we
now
too
lazy
to
make
sure
that
cited
cases
do
actually
exist,
that
they
are
not
hallucinations,
and
that
they
stand
for
the
propositions
for
which
they
are
proferred?
And
what
about
the
rigor
that
is
required
in
law
practice?
A
relic?
We
reach
immediately
for
the
smartphone
to
give
us
the
answer.
No
longer
do
we
have
the
patience
to
seek
the
answer
ourselves
when
Google
can
do
it
for
us.
So,
now
with
the
widespread
use
of
AI
in
its
various
permutations,
is
AI
making
us
lazy?
I
remember
the
“good
old
days,”
not
necessarily
“good”
but
they
were
definitely
“old”
when
we
had
to
do
the
mental
work
that
doesn’t
seem
to
be
required
as
much
today.
Is
critical
thinking
still
needed?
Or
can
we
offload
that
responsibility
to
AI
and
the
various
incarnations
that
we
see
all
around
us?
And
if
we
shrug
off
that
responsibility,
how
does
it
affect
our
professional
and
ethical
duties?
Are
we
then
shirking
them
or
still
working
with
them,
but
just
in
different
ways?
It
shouldn’t
come
as
a
surprise
to
any
lawyer
who
uses
ChatGPT
or
any
other
tool,
that
there
is
an
inverse
relationship
between
the
use
of
such
tools
and
the
effect
on
knowledge
workers,
which
is
what
we
are.
The
more
we
rely
on
AI,
the
less
we
need
to
use
our
brains.
We
are
all
knowledge
workers,
but
for
how
much
longer?
A
survey
earlier
this
year
drew
the
conclusion
that
while
Gen
AI
can
improve
worker
efficiency,
it
inhibits
critical
thinking,
leading
to
overreliance
on
AI,
and
reduces
the
ability
for
workers
to
problem
solve
on
their
own.
No
surprise
there.
Are
we
then
nothing
more
but
human
automatons?
Scary,
isn’t
it?
To
think
that
while
we
may
be
knowledge
workers,
essential
knowledge
may
no
longer
be
coming
from
us,
but
from
machines
who
don’t
take
time
off,
who
can
work
24/7,
who
don’t
have
student
loans
to
repay,
who
don’t
complain
about
billables,
required
minimum
hours,
and
partner
potential.
But
how
are
newbie
lawyers
to
learn
all
the
things
they
need
to
learn
to
be
competent
lawyers?
If
AI
does
the
work,
what
do
the
newbies
do
to
learn
what
they
need
to
know
to
become
competent
and
effective?
Jill
Switzer
has
been
an
active
member
of
the
State
Bar
of
California
for
over
40
years.
She
remembers
practicing
law
in
a
kinder,
gentler
time.
She’s
had
a
diverse
legal
career,
including
stints
as
a
deputy
district
attorney,
a
solo
practice,
and
several
senior
in-house
gigs.
She
now
mediates
full-time,
which
gives
her
the
opportunity
to
see
dinosaurs,
millennials,
and
those
in-between
interact
—
it’s
not
always
civil.
You
can
reach
her
by
email
at
[email protected].
