Category: News Feeds

In a move reminiscent of Britain declaring war on the German Empire in the aftermath of the Kaiser’s invasion of Belgium en route to France, the eighth most popular website in the United States, Pornhub (no link — to protect the innocent and to let web filters take a break) declared patent war on interactive video marketer-turned-voluminous patent case filer, Haulstars. Just as Belgium was a neutral country thrust into the midst of the real battle between European powers Germany and France, so too were Haulstars’ (in cases filed under its corporate name, Scorpcast LLC) initial targets seemingly neutral “content partners” of Pornhub, rather than Pornhub (MG Freesites Ltd., for those who prefer corporate monikers over brand names) itself. While the appeal of Haulstars’ assault on the relatively weaker — and perhaps most importantly considering that Haulstars is asserting a single patent, less likely to IPR — content partners is an obvious starting gambit for a patent enforcer, it has also drawn a strong reaction from Pornhub.

Like the British, Pornhub has thrown its own legal forces into the fray. At the tip of the spear — at least until what seems like the inevitable IPR gets filed — is a declaratory judgment lawsuit filed on July 28, 2020, against Haulstars in Delaware district court. A new front in the patent war between the parties has therefore been opened. In the case, Pornhub seeks a declaration that it doesn’t infringe Haulstars’ United States Patent No. 9,965,780 (“the ‘780 Patent”), which it notes is already the subject of 18 pending lawsuits (filed by Haulstars against Pornhub’s content partners) in the Eastern District in Texas. In support of its demand for declaratory judgment, Pornhub points to the fact that the Pornhub website is accused of infringement in each of the 18 Texas cases, since “ScorpCast specifically refers to the Pornhub website as the “Accused Instrumentalities” in its infringement allegations in each of the Copending Complaints.” As a result, Pornhub argues that declaratory judgment jurisdiction lies in Delaware, since it has a “reasonable apprehension and potential that ScorpCast could file a lawsuit against FreeSites for infringement of the ‘780 Patent.”

The ‘780 Patent itself is a key reference point for Haulstars’ own customer marketing. On its website, the company declares that it “offers patented interactive video technology that makes content experiential and shoppable.” As part of its assertion of the ‘780 Patent against Pornhub’s content partners, Haulstars alleges that the videos uploaded to Pornhub by those content partners, when combined with Pornhub’s interface, “enables a navigation event to occur at least in response to a user selecting images and/or text (together “Tags”), which are overlayed over the video, resulting in a navigation event opportunity.” Put differently, Haulstars’ infringement claims center on the “Tags” functionality offered by Pornhub’s video playback interface, where the content partner can “add Tags to the slider bar” which can contain text or images, and “allow the user to to jump to specific points in the video.” While Pornhub aficionados may be more familiar than most with that functionality, it seems clear that it is not limited to porn per se, but is technology relevant to video playback generally. At the same time, Haulstars apparent strategy of trying to take the path of least resistance with its assertion of the ‘780 Patent suggests that it considered Pornhub an easier initial target than YouTube, for example.

The filing of the declaratory judgment action by Pornhub puts the lie to any suggestion that it would be unwilling to defend its suppliers (i.e., content partners) or leave itself vulnerable to an infringement claim by Haulstars at a time and place not of its choosing. Not only did Pornhub protect its ability to IPR by filing only for a declaratory judgment of noninfringement as opposed to invalidity as well, it also included some substantive points that preview its noninfringement arguments as to the ‘780 Patent. For example, it points out that when the Pornhub user interacts with the video playback bar, the image shown to the user is from the video itself, not from a separate image as required by the claims. Similarly, Pornhub points out that any text shown to the user is not clickable — and thus can’t trigger a “corresponding navigation event” as required by the claims. At first blush, it seems like these arguments will at least trigger claim construction issues for resolution by the court, assuming one of the earlier-filed Texas cases doesn’t get to Markman first. But at the same time, I would not be surprised to see Pornhub file an IPR in short order, in support perhaps of trying to get all the District Court cases stayed while the validity of the ‘780 Patent is litigated in the PTAB.

Ultimately, this situation highlights the panoply of options available to a determined accused infringer, even what that party is initially attacked indirectly. Considering the porn industry’s robust relationship with IP issues — whether it be copyright in video content, trademark protection of brand names, or patenting activity around innovative adult toys — it is perhaps not a surprise to see Pornhub taking an active approach to defending its content partners, and by extension itself, from the attempts of an industry outsider to force it to pay royalties. At the same time, Haulstars has clearly committed to making the most out of the ‘780 Patent and will have no choice but to press its claims against multiple fronts in the absence of settlement.  It may not be titillating to anyone but patent litigators, but the procedural maneuverings thus far suggest this is one patent battle worth a watch.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

It seems that Donald Trump’s banker is no more interested in following the rules than her most famous client.

In June 2013, the banker, Rosemary Vrablic, and two of her Deutsche Bank colleagues purchased a Park Avenue apartment for about $1.5 million from a company called Bergel 715 Associates, according to New York property records.

Mr. Kushner, a senior adviser to the president, disclosed in an annual personal financial report late Friday that he and his wife, Ivanka Trump, had received $1 million to $5 million last year from Bergel 715…. Typically banks restrict employees from doing personal business with clients because of the potential for conflicts between the employees’ interests and those of the bank.

Who wants to talk some more about Alan Dershowitz getting a massage in his underpants at billionaire pedophile Jeffrey Epstein’s house?

Let’s go with nobody. No one earth needs the visual of Dersh in his skivvies getting rubbed down by an “old Russian lady,” and we don’t want to think about his “perfect, perfect sex life” either. Hardest of passes!

And yet the distinguished law professor will not shut up about it, so here we are. Again.

Currently he’s got his knickers in a twist — shut up, he wears them all the time! — because of an episode of CBS’s The Good Fight in which a fictional attorney who is supposed to have previously represented Epstein refers to Professor Dershowitz as a “shyster.”

“Probably about the time he ditched me for Dershowitz,” says the character played by actor David Alford. “At least I didn’t get a massage, like that shyster. And for the purposes of any potential lawsuit, ‘shyster’ is just my opinion not a statement of fact.”

“The idea that a fictional character can get away with defaming somebody is really a new one,” Dershowitz told Variety, which printed his letter and CBS’s response in full. “You either have to have an entirely fictional account in which they make up the names of everybody or a truthful account. You can’t mix the genres. When you do mix the genres, the law of defamation applies.”

Or as his lawyer Imran H. Ansari put it in his demand that CBS retract the episode and issue a public apology for defaming his client, “Clearly, the dialogue and the context in which it is made, with words loaded with innuendo such as ‘massage,’ ‘Epstein,’ the ‘Virgin Islands,’ in combination with the word ‘shyster,’ falsely suggests that Professor Dershowitz engaged in sexual conduct, i.e. a ‘massage,’ with an underage girl associated with Epstein, and is crooked, unscrupulous and lying about it, i.e. a ‘shyster.’”

From the one-liner about “just my opinion,” Ansari infers “consciousness of guilt,” calling it “indicative that CBS knew the statements were defamatory, yes [sic… “yet”] sought, albeit weakly, to skirt liability.” Because sure, why not, right?

We can only imagine that Jonathan Anschell, ViacomCBS Media Networks executive VP and general counsel was delighted to have this one land on his desk. It’s not every day you get to defend a television character from charges of defaming a world-famous, nudist law professor!

If we understand your letter correctly, you are complaining about a line spoken by a fictional character, in an episode of the fictional series “The Good Fight” (the “Series”). You make this complaint on behalf of Professor Alan Dershowitz, a public figure who has long been associated with Jeffrey Epstein, and who has admitted on television to receiving a massage from a woman at Epstein’s mansion. In the non-fictional world, these factors require us to decline your request that we withdraw the episode, and our correspondence could end right here. Nevertheless, out of respect for Professor Dershowitz, we explain more fully below.

Noting that the very precedents cited in Ansari’s letter affirm that there is no liability for expressions of opinion and that “[v]iewers are generally familiar with dramatized [shows] in which scenes, conversations, and even characters are fictionalized and imagined,” Anschell concludes, “In other words, as one might explain to a small child, the Series, its characters and the things they say are all make-believe.”

Needless to say, CBS will not be apologizing or yanking the episode any time soon. Will Dersh make good on his threat to sue to avenge his honor? Well, we are talking about the same guy who has engaged in protracted defamation litigation to remind America once again of his association with a known pedophile, so … odds are good!

Alan Dershowitz Demands Apology for ‘The Good Fight’ Jeffrey Epstein Episode (EXCLUSIVE) [Variety]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Dzhokhar Tsarnaev was convicted in the 2013 Boston Marathon bombing, but last week a federal appeals court overturned the decision to execute him due to the trial judge’s failure to properly screen the jury. It will not change the verdict of conviction on the underlying charges, but at least now Tsarnaev, 18 years old at the time of the incident, will not be executed.

Realizing the controversial nature of the ruling, the appellate judges made sure to point out in their written decision that Tsarnaev will still spend the rest of his life in a maximum-security prison deep underground in Florence, Colorado. He’s not getting off easy.

The trial took place in Boston within 20 months of the bombing. Defense attorneys moved four times for a change of venue claiming it would be impossible to get a fair jury in the same town where the bombing occurred.

Federal Judge George O’Toole disagreed in spite of the massive amount of media coverage capturing the event itself, the chase of the suspects (Tsarnaev’s brother died in a gun battle with police), and later the trial, verdict and sentence.

It’s tough to get an unbiased jury in any trial, but when the charges are so heinous and the event so close to home, it’s almost impossible.

Interestingly, the circuit court did not base its decision to overturn the death penalty on the denial of a change of venue, but rather on O’Toole’s failure to sufficiently scrutinize jurors (who decided the death issue) for potential prejudice.

The decision is important not only because it gives Tsarnaev a second chance at life, but because it’s a template for judges in all high-publicity cases on how to better select fair jurors.

Whether they be death-penalty eligible or not, all defendants deserve jurors free from the taint of negative publicity. Many judges handling these cases are first-timers to such giant media attention. Take the cases of the machete murder of the 16-year-old boy called “Junior” in the Bronx last year, or the trial of Harvey Weinstein in January. Both of these trials were the first time either judge dealt with such a publicity onslaught.

Super-trials like these don’t come up that often, but when they do, the presiding judge faces a universe of worries he’d never had to deal with before. How to accommodate the crowds, keep people safe, handle the incessant media attention, and assure that unsequestered jurors won’t be tainted by what they see online or hear from friends.

It all comes down to trusting the jurors’ self-reporting. When they say they’re not posting about the case on social media or viewing anything related, is it true?

Appellate judges reviewing the Tsarnaev conviction found the judge abused his discretion in failing to either question or kick off two jurors when their social media postings were brought to his attention during trial.

Juror 286 (all jurors were anonymous and assigned numbers), the foreperson, retweeted a post commending “all of the law enforcement professionals who went through hell to bring in that piece of garbage.”

Another juror posted on Facebook that he was among the pool of people being considered for the jury to which his friend replied, “if you’re really on jury duty, this guy’s got no shot in hell.”

Defense attorneys argued in appeal that these jurors came into the case with undisclosed biases. The appellate court agreed, “A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished. To help make that promise a reality, decisions long on our books say that a judge handling a case involving prejudicial pretrial publicity must elicit ‘the kind and degree’ of each prospective juror’s exposure to the case if asked by counsel. Only then can the judge reliably assess whether a potential juror can ignore that publicity, as the law requires.”

Although the court called up some 1,373 jurors in its venire and had them fill out a 100-question questionnaire, it was not enough vetting to understand what the jurors’ exposure to the case had been, what they may have written or read about the crime, and whether what ever prior exposure to the case they had, made them unable to be fair.

The judge should have asked about not just about their degree of exposure to the case, but the kind of exposure.

Another issue implicit in this is that jurors are not the best judges of their own impartiality. Prospective jurors may have an interest in concealing their own biases or may not even be aware of them.

The more information the court and attorneys have in determining who to seat, the better they can more objectively decide who is the most likely to be fair.

I seated a person in a rape case a long time ago who failed to reveal that she volunteered on a rape hotline. When I questioned her after the conviction she stated, “Nobody ever asked me.” Needless to say, I never fail to ask that question now.

Setting time limits on voir dire, while expedient for the court, creates further hardships for attorneys. It’s tough to get to know anyone during jury questioning, but with diminishing time limits imposed for each round (the first round 20 minutes, the next 10, the third only five), getting sufficient evidence to deselect jurors becomes tough.

With this decision, judges in high-stakes, high-publicity cases might think twice before cutting short counsel’s voir dire. And if information is presented that challenges the juror’s ability to be fair, a judge might have to excuse him or her even if in the middle of trial.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama.

If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability. I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.

— Sen. Tim Kaine (D-Va.), politely warning Senate Republicans that should they dare try to fill a possible Supreme Court vacancy in 2020, either before the election or in the lame duck session, then Democrats may consider adding additional seats to the high court whenever the party regains power. Talks about a potential SCOTUS vacancy have been reignited thanks to a recent announcement from Justice Ruth Bader Ginsburg, 87, that she’s been undergoing treatment for a cancer reoccurrence.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Delving into the open comments surrounding the ongoing bar exam kerfuffle is not for the faint of heart. One might expect scratching the surface would produce some brief glimpses into the terror of the legal profession’s great abyss and, as it turns out, that’s exactly what we’ve got.

This one came to my attention through @LOLOverruled’s Twitter account and it’s pure distilled bar exam fan fiction. This from Nevada, where the attempt to keep the bar exam going despite a global pandemic ran afoul of ILG’s broken testing platform. Given the now failed online effort, there’s a new round of open comment on what the state should do going forward.

This is an excellent opening. All of these things are true and if you expect this to turn into a plea for diploma privilege, then you’re in for a real surprise!

So, yes, we went from dubious efficacy and discriminatory to “stop whining about it” in a matter of paragraphs.

The reason why applicants feel that the ILG breakdown should mark the end of the exam is best summed up by Homer Simpson:

The online test idea was a game effort and it didn’t work. We’re now looking at a ramshackle testing procedure for no other reason than the state’s unwillingness to let go of tradition. The takeaway from the ILG debacle should be “maybe this is a sign.” After all, as the introduction to this comment points out, there’s not much going for the bar exam in the best of conditions.

Homer isn’t always a good life coach, but when you’re banging your head against the wall trying to get a test together so badly that you’re grasping at straws to just get something out there, then maybe the lesson in that case really is “never try.”

No matter how messed up you think the criminal justice system is, you probably still think that behind every conviction there is a crime. Sure, maybe it shouldn’t be a crime, or maybe the wrong person was convicted or the sentence far outstrips the societal harm but you have to imagine that a crime has been committed. Except in far too many cases, that is simply not true.

In this week’s episode, I speak with former New York City public defender and Montclair State University professor, Jessica S. Henry, about her new book — available today — Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened. We chat about the definition of no-crime convictions, what’s the prevalence and scope of no-crime convictions, and finally what can be done to stop this miscarriage of justice, particularly within the current criminal justice reform zeitgeist.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Two weeks ago, I shared with you the complete roster of Supreme Court clerks for October Term 2020, which will officially begin on the first Monday of October. That start date remains unchanged, even if the Court will probably still be doing telephonic arguments then.

As promised in my last post, here’s a deeper dive into the demographics of the OT 2020 clerk class. Let’s jump right in, starting with….

1. Gender. The class contains 38 clerks: four clerks to each of the nine active justices except for Justice Ginsburg, who’s getting five — the fifth being Thad Eagles, originally hired by the late Justice Stevens — plus one clerk to retired Justice Kennedy (I’m not sure why retired Justice Souter is no longer hiring a clerk). Of the 38 clerks, 22 are men and 16 are women, making for a class that’s 58 percent male and 42 percent female.

That’s about the same as the October Term 2019 clerk class, which was 59 percent male and 41 percent female. It’s a bit lower in the representation of women than the October Term 2018 clerk class, which was the first majority-female clerk class in SCOTUS history (thanks in part to Justice Kavanaugh’s all-female class of clerks in OT 2018, another first for the Court).

Speaking of Justice Kavanaugh and gender equality among SCOTUS clerks, look ahead to his clerk cohort for October Term 2021 (listed below) — another group of four women. Assuming no other justice has an all-female clerk class in OT 2021 — which seems quite likely, based on history — Justice Kavanaugh will have had two all-female clerk classes before any other justice has had even one. This also means that of the 16 clerks hired in his first four terms, 13 will have been women.

The unfortunately small number of women advocates who appear regularly before the Court, as well as the relatively small number of women judges and justices, is partly the result of the gender disparity among the ranks of Supreme Court clerks, who are disproportionately represented among the ranks of top appellate lawyers, federal judges, and Supreme Court justices. If we want to improve the representation of women in these groups, we need to have more women as SCOTUS clerks. So kudos to Justice Kavanaugh for being part of the solution on this issue.

2. Feeder schools. Last term, October Term 2019, the group of law schools producing Supreme Court clerks was impressively diverse, with a dozen schools minting SCOTUS clerks. This term, October Term 2020, the pendulum has swung back toward elitism, with just seven leading law schools producing all 38 clerks. Here’s the ranking, with the number of clerks noted parenthetically:

• Yale (15)
• Harvard (7)
• Chicago (5)
• NYU (4)
• Stanford (3)
• UVA (2)
• Michigan (2)

For OT 2020, the top three feeder schools remain the same as those of OT 2019, in the same order — with Yale actually improving its haul of SCOTUS clerkships to 15 (up from 11 last term), followed by Harvard with seven and Chicago with five. NYU had an unusually strong showing in OT 2020, taking fourth place with four clerks — and putting its uptown rival Columbia, which had no clerks this term, to shame.

3. Feeder judges. Like the ranks of feeder schools, the ranks of feeder judges contracted slightly this term as well. For this term, OT 2020, a total of 39 different lower-court judges sent clerks to One First Street, compared to 47 judges for OT 2019.

Here are the feeder judges with more than one clerk at the Court for OT 2020, with the number of clerks noted parenthetically:

• Katzmann (4)
• W. Pryor (4)
• Srinivasan (4)
• Sutton (3)
• Wilkinson (3)
• Boasberg (D.D.C.) (3)
• Rakoff (S.D.N.Y.) (3)
• Furman (S.D.N.Y.) (3)
• Calabresi (2)
• E. Carnes (2)
• Garland (2)
• Katsas (2)
• Kethledge (6)
• Watford (2)
• Oetken (S.D.N.Y.) (2)

A few other observations:

(a) Chief Justice Roberts disappointed conservatives with a number of his votes in OT 2019, leading one court watcher I know to complain that JGR is now basically “a moderate Democrat.” And in terms of his clerk hiring practices, he looks like a moderate Democrat too.

For OT 2020, the Chief’s four clerks served eight different lower-court judges. Of those eight judges, five were appointed by Democratic presidents, and three were appointed by Republican presidents. And looking ahead to OT 2021, his one hire so far clerked for two Democratic appointees.

(b) As I tweeted previously at @SCOTUSambitions, where I report SCOTUS clerk hires in something closer to real time, there’s actually a fair amount of “across the aisle” clerk hiring these days. For example, take Chief Judge Sri Srinivasan, appointed to the D.C. Circuit by President Barack Obama (and considered by Obama for SCOTUS). Chief Judge Srinivasan’s three most recent feeds all went to Republican appointees: Chief Justice Roberts, Justice Kavanaugh, and Justice Kennedy.

This hasn’t always been the case. Back in 2010, for example, Adam Liptak wrote a New York Times article about how heavily justices hired clerks from lower-court judges appointed by a president of the same party as the justice’s.

In an age of increased political polarization, it’s nice to see the Supreme Court transcending politics, at least to some extent — in its rulings, as Professor Akhil Reed Amar argued in a recent Times op-ed, and in its clerk hiring as well.

(c) An interesting new trend: clerking for two federal appellate judges.

The reason there are so many feeder judges, and more feeder judges than there are clerks, is because many SCOTUS clerks serve multiple clerkships before coming to the Court. The most typical path is to clerk for a district judge and a circuit judge (e.g., the tag team of Judge Rakoff and Chief Judge Katzmann). But as you can see in the list of OT 2020 clerks below, clerking for two circuit judges is now becoming “a thing,” as the kids say.

I personally think the combination of a district and circuit clerkship is professionally preferable to two circuit clerkships. Trial and appellate clerkships are different experiences, and you learn different from things from each one. But some clerks with a “SCOTUS or bust” attitude find that having two former circuit judges who can go to bat for them is helpful when it comes time to apply to clerk for the Court. Two feeders is better than one, right?

4. Ms. Irrelevant. As longtime readers of Supreme Court Clerk Hiring Watch know, each year I prepare a special profile of the last clerk whose hiring I learn about. It’s ATL’s version of the NFL’s Mr. Irrelevant.

Or in this case, Ms. Irrelevant — Amy Upshaw (Chicago 2016/Sykes), clerking for Justice Thomas. So here’s some background and a few fun facts about Amy.

Amy R. Upshaw graduated from the University of South Carolina, where she was a McNair Scholar — a recipient of the most prestigious undergraduate scholarship at USC. She then went on to the University of Chicago Law School, where she served as Comments Editor for The University of Chicago Law Review. She graduated from Chicago with honors in 2016, then clerked for Judge Diane Sykes of the Seventh Circuit — a prominent feeder judge and a SCOTUS shortlister for President Donald Trump.

(Digression: Judge Sykes is now 62, turning 63 in December, so she’s probably out of the SCOTUS running now. All eyes are now on a younger female Seventh Circuit jurist, Amy Coney Barrett (who’s not even 50). But Judge Sykes can always treasure the shoutout she received in February 2016 from then-candidate Trump, who cited her during a presidential debate after the death of Justice Scalia as exactly the type of judge he’d appoint to the Court.)

After clerking for Judge Sykes, Amy Upshaw worked as an associate in the D.C. office of King & Spalding, where she focused on appellate and constitutional law. As a graduate of a top state university (where she received a top scholarship), a graduate of a top law school (with honors), a former law clerk to a top feeder judge, and a former associate at a top Biglaw firm, Amy seems to be a typical SCOTUS clerk in many ways.

But Amy is more interesting than the sum of her resume items. Let’s turn to the more personal, shall we?

Like many SCOTUS clerks, Amy has a high-powered spouse: Margaret Upshaw, her former Chicago Law classmate. Maggie clerked for Judge William Fletcher (9th Cir.), served as a Bristow Fellow in the Office of the Solicitor General, and now works as a litigation associate in the Washington office of Latham & Watkins.

(I’m guessing that Maggie took Amy’s surname, since Amy was Amy Upshaw back in college. Also, please note that I’m not “outing” Amy; this 2016 article on the Chicago Law website notes her marriage to Maggie.)

Friends of the couple inform me that Amy and Maggie Upshaw are like the same-sex version of Mary Matalin and James Carville — i.e., a conservative/liberal couple. Maggie is liberal — not surprising, given that she’s a graduate of a top law school (even the somewhat more moderate U. Chicago still skews left), as well as a former law clerk to Judge Willy Fletcher, a leading liberal light of the Ninth Circuit. Meanwhile, Amy is conservative: she grew up (Tennessee) and went to college (South Carolina) in the South, she lists the Bible as a favorite book, she clerked for a conservative circuit judge, and she’s now clerking for a conservative justice.

(And no, Justice Thomas doesn’t do the whole “counter-clerk” thing. As he memorably quipped, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”)

Is it surprising that Justice Thomas has hired an LGBTQ clerk? Not really. Although he is Catholic and conservative, Justice Thomas never had the same problem with same-sex marriage that, say, the late Justice Scalia did. Although he joined Justice Scalia in dissenting from Lawrence v. Texas, in which the Supreme Court invalidated Texas’s sodomy law, Justice Thomas wrote a separate dissent in which he opined that Texas’s law was “uncommonly silly.” As Justice Thomas further explained, “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

And I don’t even think that Amy Upshaw is Justice Thomas’s first LGBTQ clerk. Again relying on information that’s already public, Matthew Berry (who overlapped with me in law school) is openly gay and clerked for Justice Thomas. (I don’t know whether Matt was out at the time of his clerkship, but I wouldn’t be surprised if he was.)

(Digression: like Justice Thomas, Judge Sykes has also had gay clerks in the past. See, e.g., Josh Handell — whose August 2018 wedding to William Clayman was actually officiated by Judge Sykes.)

What else can we add about Amy? We’ve heard from a few folks who know her, and they sing her praises — describing her as a brilliant lawyer, a wonderful person, a devoted mother (she and Maggie have a young child), and a worthy clerk to Justice Thomas.

So congratulations to Amy Upshaw — and to all of her fellow law clerks for October Term 2020, listed below, along with a few hires for OT 2021 and OT 2022.

If you have any corrections to this information, or if you have any hiring news I have not yet reported, please reach out by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, because that’s how I locate these tips in my overwhelmed inbox. Thanks!

OCTOBER TERM 2020 SUPREME COURT CLERK HIRES

Chief Justice John G. Roberts
1. Leslie Arffa (Yale 2018/Livingston/Boasberg (D.D.C.))
2. Patrick Fuster (Chicago 2018/Watford/Chhabria (N.D. Cal.))
3. Benjamin Gifford (Harvard 2017/Rakoff (S.D.N.Y.)/Katzmann)
4. Stephen Hammer (Harvard 2018/Sutton/Katsas)

Justice Clarence Thomas
1. Philip Cooper (Chicago 2017/W. Pryor/Stras)
2. Joshua Divine (Yale 2016/W. Pryor)
3. Jack Millman (NYU 2016/O’Scannlain/E. Carnes)
4. Amy Upshaw (Chicago 2016/Sykes)

Justice Ruth Bader Ginsburg
1. Jack Boeglin (Yale 2016/Srinivasan/Calabresi)
2. Thaddeus Eagles (NYU 2015/Rakoff (S.D.N.Y.)/Katzmann)
3. Eliza Lehner (Yale 2017/Watford/Furman (S.D.N.Y.))
4. David Louk (Yale 2015/Boasberg (D.D.C.)/Katzmann)
5. Brittany Jones Record (Stanford 2016/Sutton/Millett)

Justice Stephen G. Breyer
1. Emily Barnet (Yale 2015/Rakoff (S.D.N.Y.)/Katzmann)
2. Diana Li Kim (Yale 2017/Hall (D. Conn.)/Calabresi)
3. Arjun Ramamurti (Yale 2018/Garland/Pillard)
4. Daniel Richardson (UVA 2018/Wilkinson/Bristow)

Justice Samuel Alito
1. Taylor Hoogendorn (Yale 2018/Wilkinson/Katsas)
2. Mary Miller (U. Michigan 2016/Owen/Leon (D.D.C.))
3. Maria Monaghan (UVA 2017/Thapar/E. Carnes)
4. David Phillips (Harvard 2018/Colloton/Silberman)

Justice Sonia Sotomayor
1. Greg Cui (Yale 2017/Fletcher/Furman (S.D.N.Y.))
2. Kristen Loveland (NYU 2016/Furman (S.D.N.Y.)/Lohier)
3. Imelme Umana (Harvard 2018/Wilkins)
4. Sarah Weiner (Yale 2017/Tatel/Oetken (S.D.N.Y.))

Justice Elena Kagan
1. Peter Davis (Stanford 2017/Srinivasan/Boasberg (D.D.C.))
2. Madeleine Joseph (Harvard 2018/S. Lynch/Howell (D.D.C.))
3. Isaac Park (Harvard 2018/Srinivasan/Oetken (S.D.N.Y.)
4. Joshua Revesz (Yale 2017/Garland)

Justice Neil M. Gorsuch
1. James Burnham (U. Chicago 2009/Kozinski)
2. Trevor Ezell (Stanford 2017/Sutton/Oldham)
3. Krista Perry (U. Chicago 2016/W. Pryor/Kennedy)
4. John Ramer (Michigan 2017/Kethledge/Bristow)

Justice Brett M. Kavanaugh
1. Harry Graver (Harvard 2019/Wilkinson)
2. Tyler Infinger (NYU 2016/Rao)
3. Zoe Jacoby (Yale 2019/Barrett)
4. Megan McGlynn (Yale 2017/W. Pryor/Friedrich (D.D.C.))

Justice Anthony M. Kennedy (retired):
1. Ben Wallace (Yale 2016/Kethledge/Srinivasan)

OCTOBER TERM 2021 SUPREME COURT CLERK HIRES (as of August 3, 2020)

Chief Justice John G. Roberts
1. Maxwell Gottschall (Harvard 2019/Srinivasan/Boasberg (D.D.C.))
2. ?
3. ?
4. ?

Justice Clarence Thomas
1. Christopher Goodnow (Harvard 2017/Sykes/Katsas)
2. Manuel Valle (U. Chicago 2017/E. Jones/Larsen)
3. ?
4. ?

Hired by Justice Thomas for OT 2022: Bijan Aboutarabi (U. Chicago 2018/W. Pryor/Thapar).

Justice Ruth Bader Ginsburg
1. ?
2. ?
3. ?
4. ?

Justice Stephen G. Breyer
1. Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))
2. ?
3. ?
4. ?

Justice Samuel Alito
1. ?
2. ?
3. ?
4. ?

Justice Sonia Sotomayor
1. ?
2. ?
3. ?
4. ?

Justice Elena Kagan
1. Andra Lim (Stanford 2019/Friedland)
2. ?
3. ?
4. ?

Justice Neil M. Gorsuch

1. Stephanie Barclay (BYU 2011/N.R. Smith)
2. Louis Capozzi (Penn 2019/Scirica/Wilkinson)
3. Mark Storslee (Stanford 2015/O’Scannlain)
4. ?

Justice Brett M. Kavanaugh

1. Alexa Baltes (Notre Dame 2017/Gruender/Barrett)
2. Athie Livas (Yale 2019/Thapar/Friedrich (D.D.C.))
3. Jenna Pavelec (Yale 2017/Thapar/Kethledge)
4. Sarah Welch (Chicago 2019/Sutton/W. Pryor)

Hired by Justice Kavanaugh for October Term 2022: Thomas Hopson (Yale 2020/Katsas/Friedrich (D.D.C.)), Cameron Pritchett (Harvard 2018/Edwards/Gallager (D. Md.)), and David Steinbach (Stanford 2019/Boasberg (D.D.C.)/Srinivasan).

Justice Anthony M. Kennedy (retired):
1. ?

Once again, do you know about a hire not previously reported, or do you have an addition or correction to any of this info? Please share what you know by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, as the subject line of your email or the first words of your text, because that’s how I locate these tips in my inundated inbox. Thanks!

Earlier:

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Entering time — there are few aspects of the day-to-day practice of law that are so important yet so universally despised by lawyers. That’s because keeping track of and entering time has traditionally been a tedious task that takes up precious billable hours in its own right and takes you away from your actual work.

In reality, though, time entry doesn’t have to be a dreadful, time-consuming chore. Designed by lawyers for lawyers, WiseTime is the first truly autonomous timekeeping system that accurately tracks your time without interrupting your workflows. By harnessing the power of AI, WiseTime has developed a tool that keeps track of your time as you work, with no extra effort on your part.

WiseTime is an application that runs in the background on your computer, privately capturing your activity behind the scenes. You do your normal work and WiseTime does its magic. Tracking time really can be that simple.

How Autonomous Time Capture Works

Your WiseTime experience starts with your personal timeline, where you can see all the time the system has captured while you’ve worked. 

Everything you see on your timeline is private to you. You’ll see blocks of time for emails you’ve written, documents you’ve worked on, websites or programs you’ve spent time in, and more — a to-the-minute breakdown of how you’ve spent your day on your computer.

WiseTime recognizes whatever window is open at the front of your computer and records the time you’re active in that window. If you have a document open for five hours in the background, no time will be recorded for that document until you start working in it.

When you view your timeline at the end of the day, you’ll see all activities laid out chronologically. From there, you can group items together — say, if you worked on a document for an hour in the morning and two hours in the afternoon, or if a number of different activities fall under a single entry such as trial preparation. Just select the items that go together and enter a description. 

WiseTime connects to your practice management or billing system of choice, meaning it imports matter IDs, client references, and whatever other markers you need to properly bill your time. These will appear as tags in the time blocks WiseTime generates. Because WiseTime automatically syncs across your systems, when it sees a case reference in an email subject or a matter number in a document title, it applies appropriate tags automatically, speeding up the time entry process.

In addition to these automatic tags, WiseTime has recently introduced AI and machine learning functionality into your timeline to produce suggested tagging for the tasks in your time blocks. As you accept or reject those suggestions, WiseTime learns to suggest more accurate tags in the future. The program also collects knowledge across your whole team’s tags, increasing its speed and accuracy in suggesting tags for untagged time entries. As WiseTime continues to get smarter, your time entry continues to get quicker as you spend even less time on sorting and tagging.

Once everything looks right, you post your time to the system with a single click. Only at this point does your time become visible to anyone else. Until then, the record of what you’ve done all day is private to you and you alone.

Even in today’s digital world no lawyer does all their work on the computer, so you can always add manual time to WiseTime for work you did offline. Blocks of missing time where you were inactive on your computer will show up in your timeline, allowing you to account for them and assign the proper activities to them. 

WiseTime makes adding manual time even easier by prompting you to do so whenever you’ve been inactive for a period of time (and you can specify how long that period is). When you return to your computer to work, you’ll be asked if you want to manually add the missing time.

Just say yes, choose the type of activity, whether it was a phone call, a meeting, working on paperwork, or something else, and add that time to your timeline to submit later. You’ll get a similar prompt at the beginning of every day, allowing you to account for any work you did since you last logged off. With WiseTime’s smart features, you’ll no longer lose time for phone calls or unplanned meetings — the kinds of interruptions that people routinely forget to include when they’re recreating time entries down the road. 

Once time is released, it’s now visible to whoever’s in charge on WiseTime’s separate manager dashboard. 

Here they can see their team members’ time, broken down by the matters they worked on. The managers’ dashboard gives superiors a great way to see where their team’s time is being spent, which clients are generating the most billable hours, and what activities are taking place for individual clients.

It might sound too good to be true, but AI makes it all possible. WiseTime constantly captures all your time in the background without you having to do any input. You just pick what you want to submit, manipulate it however you need to add descriptions, enter billing codes, or combine entries, then just send it to the billing system without even having to open that program.

Privacy Is Paramount

Many people are understandably wary of “bossware” or any technology that essentially allows their managers to spy on their activities. WiseTime is the opposite of that — nothing you do in WiseTime is visible to anyone other than you until you choose to release it to the billing system.

WiseTime includes preference settings that elevate privacy even more. You can specify exclusions, meaning that you can exclude any app, window title, web page, or browser from being included in your timeline. You can tell WiseTime to exclude time you spend on sites like Facebook, or even all activity in a specific browser if, for example, you do your work in Chrome and your personal business in Safari. Do you have an ongoing personal spreadsheet for house renovations? You can exclude keywords so the time you spend in that spreadsheet won’t show up in your timeline. If something you meant to include manages to creep into your timeline, you can simply not release it or even permanently delete it.

We all know that when you work as many hours as the average lawyer does, you’re bound to deal with personal matters throughout your day. The work and personal lines are blurred even more these days with everyone working from home and using personal computers for work. WiseTime’s exclusion features are an incredible way to maintain your privacy and keep your personal life separate from your work life. 

The Future of Time Entry Is Here

You’d be hard-pressed to find an easier way to keep track of and enter your time than WiseTime. No more random post-its with time jotted down on them, no more timers that you forget to start and stop — WiseTime is truly autonomous and does the heavy lifting of time tracking while you focus on doing your work.

By keeping track of everything you do, WiseTime empowers lawyers to bill more and to bill fairly. It also makes it easy to submit your time every day rather than allowing it to snowball into a dreadful task at the end of the week or month. 

They even offer a 30-day free trial so you can see for yourself what a game changer this is. Give WiseTime a try, and you’ll never dread time entry again.

They also double as eyewear retainers.

Last summer, I chronicled the rise of sunglasses chains, noting that the eyewear retainers had lost their fratty origins and solidified themselves as cool outfit accents. A year later, and these necklace-like Croakies are still trending, but instead of serving as a  practical leash for your sunnies, they’re now being used to jazz up face masks.