Author: TSA Press

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

[My
work]
opens
doors
for
me
because
of
the
morbid,
because
of
people’s
curiosity
…
They
want
to
understand
this.
I’ve
always
told
people
that
Mariel
is
a
singer
who
became
a
lawyer.

[People
ask]
how
I
can
do
this
job,
that
I’m
part
of
the
mafia,
how
can
I
sleep
at
night?
I
don’t
care
what
they
say
about
me.
I
sleep
very
well
at
night.

—

Mariel
Colón,
defense
lawyer
to
drug
kingpin

Joaquín
“El
Chapo”
Guzmán,
in
comments
given
to
the

Associated
Press,
on
her
budding
music
career
under
the
stage
name
of
“Mariel
La
Abogada”
(Mariel,
the
Lawyer).
Colón
told
the
AP
that
while
she
wanted
to
be
a
singer,
her
family
insisted
that
she
become
a
lawyer.

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

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

On
Friday,
Special
Counsel
Jack
Smith

moved
to
file
a
document
under
seal
in
the
election
interference
case
in
DC.
This
motion
was
consistent
with
—
in
fact
mandated
by!
—
the

protective
order
signed
by
the
court
back
in
August
of
2023
and
Local
Rule
of
Criminal
Procedure
49(f)(6)(i).
If
either
party
includes
sensitive
discovery
material
in
a
filing,
it

must
file
the
document
under
seal
along
with
a
redacted
version
for
the
public
docket.

And
yet
Donald
Trump’s
lawyers
have
seized
upon
this
mundane
occasion
to
throw
a

shrieking
tantrum,
accusing
the
Special
Counsel
of
deliberately
putting
protected
information
on
the
public
docket
in
advance
of
the
election.

“The
true
motivation
driving
the
efforts
by
the
Special
Counsel’s
Office
to
disseminate
witness
statements
that
they
previously
sought
to
lock
down
is
as
obvious
as
it
is
inappropriate,”
they
fulminate.
“The
Office
wants
their
politically
motivated
manifesto
to
be
public,
contrary
to
the
Justice
Manual
and
longstanding
DOJ
norms
in
cases
not
involving
President
Trump,
in
the
final
weeks
of
the
2024
Presidential
election
while
early
voting
has
already
begun
throughout
the
United
States.”

The
issue
here
is
that,
after
giving
Trump
every
little
thing
his
heart
could
desire
with
respect
to
presidential
immunity,
the
Supreme
Court
remanded
the
case
to
Judge
Tanya
Chutkan
to
determine
what
to
do
in
light
of
its
ruling
that
presidents
can
do
crimes
now.
The
trial
judge
asked
the
parties
for

their
thoughts
on
how
to
proceed,
and
Trump
said
he’d
like
to
do
functionally
nothing
until
2025.
The
Special
Counsel
responded
that
his
office
was
prepared
to
immediately
defend
its
newly
procured
superseding
indictment,
particularly
the
decision
to
include
the
pressure
campaign
to
convince
Vice
President
Pence
to
accept
fraudulent
swing
state
ballots
on
January
6.
And
given
the
choice
between
NEVER
and
NOW,
the
court
chose
to
get
on
with
the
matter.

Perhaps
realizing
their
strategic
error
(or
maybe
because
flopping
is
their
favorite
tactic)
Trump’s
lawyers
responded
with
multiple
motions
demanding
that
the
court
reconsider
its
order
that
the
special
counsel
defend
his
charging
decisions,
although
none
of
these
protests
has
actually
been
denominated
as
a
motion
to
reconsider.
Instead
Trump’s
counsel
just

screamed
bloody
murder
about
it
in
a

response
to
a
motion
to
exceed
page
length
and
a

motion
to
compel.
And
now
they’re
yelling
because
Jack
Smith
didn’t
redact enough,
and
Donald
Trump
is
still
under
a
gag
order,
and
that
is
NO
FAIR!

President
Trump
has
abided
by
these
restrictions
for
over
a
year.
Yet
now,
in
advance
of
predictable
national
news
coverage,
the
Office
seeks
to
disseminate
protected
content
of
Sensitive
Materials,
including
direct
quotations
and
summaries,
while
the
gag
order
restricts
President
Trump’s
ability
to
fully
address
the
details
of
the
filing
on
the
campaign
trail.

They
whine
that
the
Special
Counsel
objected
to
putting
unredacted
grand
jury
material
on
the
public
docket
in
Florida,
even
going
so
far
as
to

school
Judge
Aileen
Cannon
on
the
difference
between
protected
discovery
materials
(presumptively
not
public)
and
evidence
at
trial
(presumptively
public).
And
boy
did
she
ever
show
them!

“The
Office
believes
President
Trump’s
Constitutional
rights
to
impartial
jurors
and
fair
proceedings—to
say
nothing
of
witness
privacy
and
even
safety—all
take
a
back
seat
to
the
Office’s
political
goals,”
they
fume,
seemingly
impervious
to
the
irony
of
arguing
that
Trump
has
a
constitutional
right
to
attack
witnesses
at
a
campaign
rally
while
simultaneously
accusing
the
prosecution
of
poisoning
the
jury
with
“impotent”
redactions
that
fail
to
anonymize
job
titles.

And
although
the
brief
only
spanned
seven
pages,
Trump’s
lawyers
still
managed
to
squeeze
in
an
ad
hominem
attack
on
his
enemies.

“While
the
Presidential
immunity
filing
contains
few,
if
any,
new
allegations
not
already
covered
in
other
politically
motivated
and
inaccurate
lawfare
efforts
that
President
Trump’s
opponents
have
improperly
funded
and
disseminated,
it
is
irresponsible
for
the
prosecutors
to
so
quickly
abandon
the
safety
and
privacy
interests
that
they
previously
assigned
great
weight
in
this
case
and
in
the
Southern
District
of
Florida,”
they
whine,
while
demanding
to
chew
more
clock
with
another
round
of
briefing
on
the
proposed
redactions.
“Accordingly,
the
Court
should
require
the
Office
to
make
consistent
redactions
regarding
identity-related
information
and
to
show
cause
why
their
proposed
public
disclosure
of
voluminous
purportedly
sensitive
witness
statements
will
not
pose
risks
to
potential
witnesses
and
unfairly
prejudice
the
adjudication
of
this
case.”

It’s
a
lot.
And
considering
Judge
Chutkan’s

irritation
the
last
time
they
tried
this,
it
seems
unlikely
to
succeed.

US
v.
Trump [Docket
via
Court
Listener]

Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.

Thanks
to
the
lack
of
response
to
a
recent
USPTO
petition,
what
term
lost
its
longstanding
trademark
protection
last
week?

Hint:
The
trademark
had
been
held
jointly
by
a
pair
of
market
competitors
dating
back
to
1967.

See the
answer
on
the
next
page.

A
federal
judge
in
Delaware
has
dismissed
the
claim
by

now-shuttered
legal
research
startup
ROSS
Intelligence
that
Thomson
Reuters
violated
federal
antitrust
law
by
unlawfully
tying
its
search
tool
to
its
public
law
database
in
order
to
maintain
its
dominance
in
the
overall
market
for
legal
search
platforms.

The
ruling
brings
an
end
to
ROSS’s
counterclaims
against
Thomson
Reuters
(TR)
in
the continuing
federal
court
litigation between
the
two
parties.
Still
to
be
decided
in
the
case
are
TR’s
claims
that
ROSS
violated
its
copyrights
by
unlawfully
copying
TR’s
legal
materials
in
order
to
use
them
to
train
its
own
AI-driven
legal
research
platform.

Those
claims
were
scheduled
to
have
gone
to
trial
last
month,
but
the
trial

was
continued
at
the
eleventh hour,
leaving
the
copyright
issues
yet
to
be
decided.

After
TR

first
brought
its
copyright
lawsuit
against
ROSS
in
May
2020,
ROSS
filed
a
counterclaim

asserting
that
TR
was
violating
federal
antitrust
law by
maintaining
monopolistic
and
anticompetitive
control
over
the
legal
research
market.

In
2022,
Judge
Leonard
P.
Stark
—
who
previously
presided
over
the
case
as
a
U.S.
district
judge
in
Delaware
before
becoming
a
judge
of
the
Court
of
Appeals
for
the
Federal
Circuit–
dismissed
a
portion
of
ROSS’s
antitrust
claims,
but
he

allowed
the
tying
claim
to
move
forward.

That
claim
alleged
that
TR
violated
Section
2
of
the
Sherman
Antitrust
Act
by
unlawfully
tying
its
search
tool
to
its
public
law
database
in
order
to
maintain
its
dominance
in
the
overall
market
for
legal
search
platforms.

See
all
my
stories
about
this
lawsuit.

Tying
occurs
when
a
seller
exploits
its
control
of
a
product
to
condition
the
sale
of
that
product
on
the
buyer’s
promise
to
also
purchase
a
different
product.

But
that
earlier
ruling
came
before
the
parties
had
been
able
to
flesh
out
the
evidence
in
the
case
through
discovery
and
depositions
and
was
based
on
ROSS’s
allegations
in
its
counterclaim.

No
Proof
of
Tying

In
the

ruling
issued
Friday,
the
judge
who
replaced
Judge
Stark
in
the
case,

3rd
U.S.
Circuit
Court
of
Appeals Judge
Stephanos
Bibas,
sitting
by
designation
in
the
U.S.
District
Court
in
Delaware,
granted
TR’s
motion
for
summary
judgment
on
the
tying
claim,
concluding
that
ROSS
had
failed
to
back
up
its
allegations
with
sufficient
evidence.

ROSS’s
theory
was
that
the
Westlaw
caselaw
database
is
a
standalone
product
that
many
consumers
want
to
buy,
but
that
TR
will
sell
it
only
when
it
is
packaged
with
Westlaw’s
search
tools,
which
ROSS
alleged
was
a
separate
product.

“In
other
words,
Ross
claims
that
Thomson
Reuters
forces
people
to
buy
its
Westlaw
search
tools
if
they
want
to
use
its
caselaw
database,”
Judge
Bibas
explained.

To
establish
an
unlawful
tying
arrangement,
Judge
Bibas
said,
ROSS
would
have
to
show
that
the
products
are,
in
fact,
separate,
and
then
would
have
to
define
the
relevant
market
for
those
products
in
order
to
show
an
improper
use
of
power
in
that
market.

ROSS
failed
to
establish
either
of
these
facts,
Judge
Bibas
ruled.

On
the
issue
of
separate
products,
ROSS
failed
to
show
that
there
is
sufficient
consumer
demand
in
the
market
to
purchase
these
products
separately,
insofar
as
it
failed
to
show
that
consumers
had
in
fact
bought
the
products
separately,
had
wanted
to
buy
the
products
separately,
or
would
have
wanted
to
buy
the
products
separately
had
TR
not
intimidated
them
from
doing
so.

A
key
to
ROSS’s
argument
was
that
the
case
law
TR
now
sells
online
was
once
sold
in
books,
as
a
product
separate
and
distinct
from
Westlaw’s
search
tools.
That
proved
that
the
caselaw
database
was
a
separate
product,
ROSS
asserted.

But
the
judge
concluded
that
the
analogy
to
books
suffered
from
two
flaws.

“First,
Ross
is
wrong
that
books
were
sold
without
search
tools,”
Judge
Bibas
wrote.
“True,
books
were
sold
without
Westlaw’s
current
technological
capacity.
But
if
we
can
analogize
online
legal
databases
to
printed
legal
databases,
we
can
also
analogize
online
search
tools
to
printed
search
tools:
tables
of
contents,
indices,
and
page
numbers.
So
its
database
was
not
sold
unbundled
from
search
tools.”

Second,
 Judge
Bibas
continued,
“the
evolution
from
book
search
tools
(say,
a
table
of
contents)
to
Westlaw’s
digital
search
tools
(say,
Boolean
search
terms)
is
like
how
the
horse-drawn
carriage
market
evolved
into
the
car
market.
Just
as
we
no
longer
use
horse-drawn
carriages
for
transportation
(except
for
fun),
few
consumers
want
caselaw
separated
from
the
sophisticated
search
tools
that
make
it
digestible.
A
market
for
public
law
in
book
form
used
to
exist,
but
that
does
not
mean
that
a
market
for
separate
caselaw
still
exists
in
a
world
with
more
sophisticated
search
tools.”

The
opinion
goes
on
to
discuss
–
and
dismiss
–
other
arguments
ROSS
raised
to
establish
its
tying
argument,
but
the
bottom
line
is
that
the
judge
found
insufficient
evidence
to
establish
any
of
them.

Even
if
ROSS
had
established
tying,
the
judge
said
that
its
claim
would
still
fail
because
it
had
failed
to
establish
evidence
that
would
define
the
market
that
would
be
harmed
by
any
tying
arrangement.

ROSS
attempted
to
do
that,
the
judge
said,
through
the
opinion
of
an
expert
witness,

James
Ratliff,
an
economist
who
specializes
in
antitrust
matters.
But
the
judge
said
that
Ratliff’s
expert
opinion
devoted
only
a
few
paragraphs
to
this
issue
and
was
so
lacking
that
it
failed
to
meet
the
standards
for
the
admissibility
of
an
expert
opinion
under
under
Federal
Rule
of
Evidence
702
and

Daubert
v.
Merrell
Dow
Pharms.,
Inc.,
509
U.S.
579,
592–93
(1993).

“Dr.
Ratliff
essentially
has
no
methodology
for
defining
the
relevant
markets,”
Judge
Bibas
said.
“He
includes
no
math
or
economic
modeling.
He
never
analyzes
potential
competitors
in
any
depth.
All
he
does
is
make
brief,
conclusory
assertions.
That
is
not
enough.”

Read
the
full
memorandum
opinion.

Seasoned
snowmobilers
have
a
couple
of
items
they
usually
hit
the
snow
with.
Helmet?
Check.
Weather
appropriate
clothing?
Check.
Camoflaged
Black
Hawk
helicopter
detector?
Not
so
much.
After
Jeffrey
Smith
crashed
into
the
unexpected
helicopter
that
was
plopped
down
on
a
snowmobile
trail
by
the
U.S.
Army,
he
sued
the
government
for
negligence.
His
case
was
recently
decided,
and
the

ABA
Journal
has
coverage:

A
federal
judge
in
Massachusetts
has
awarded
$3.3
million
in
damages
to
a
lawyer
for
injuries
suffered
when
he
crashed
his
snowmobile
into
a
camouflaged
U.S.
Army
Black
Hawk
helicopter
parked
on
a
snowmobile
trail
at
dusk.
…
[Judge]
Mastroianni
found
that
the
government
was
60%
responsible
for
the
2019
incident
because
it
failed
“to
take
any
steps
to
protect
against
the
obvious
risk”
that
it
created
from
parking
the
helicopter
in
the
spot.
Smith
was
40%
responsible
for
speeding
and
wearing
tinted
goggles
at
night,
the
judge
said.

This
is
a
bit
shy
of
his

original
$9.5M
asking
price,
but
hopefully
it
is
enough
to
put
a
serious
dent
in
his
medical
bills
and
compensate
him
for
his
suffering.
Smith,
a
lawyer,
continued
with
his
law
practice
after
the
accident.
We
wish
him
and
his
practice
the
best.

Lawyer
Awarded
$3.3M
After
Crashing
Snowmobile
Into
Negligently
Parked
Army
Helicopter
[ABA
Journal]

Earlier:

Lawyer
Sues
Government
For
Treating
Snowmobile
Trail
Like
A
Helicopter
Parking
Lot

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

Ed.
note:
This
is
the
latest
in
the
article
series,


Cybersecurity:
Tips
From
the
Trenches,
by
our
friends
at

Sensei
Enterprises,
a
boutique
provider
of
IT,
cybersecurity,
and
digital
forensics
services.

How
Happy
is
Your
Law
Firm
with
the
Current
Password
Requirements?

The
usual
answer
is
“we’re
not
happy,
not
at
all
happy.”

Anyone
who
understands
passwords
has
bemoaned
the
current
state
of
law
firm
passwords
which
make
no
sense
and
cause
more
harm
than
good.
The
National
Institute
of
Standards
and
Technology
(NIST)
is
preparing
to
change
that.
Who
would
believe
that
a
federal
agency
got
it
right?

Amazingly,
NIST
has
come
out
with
a
well
thought
out
set
of
changes,
released
in
August
2024,
which
is
very
likely
to
be
adopted
with
little
modification
sometime
after
the
deadline
for
responding
to
public
comment
on
its
second
draft
(via
email


[email protected])
which
is
open
until
11:59
p.m.
Eastern
Time
on
October
7,
2024.

Can
You
Make
the
Commonsense
New
Rules
Effective
Now?

Sure
you
can. 
As
a
Managed
Service
Provider
(MSP),
which
provides
cybersecurity
for
many
law
firms,
we
distributed
the
late
September
NIST
proposed
rules
to
our
cybersecurity
staff.
They
breathed
a
sigh
of
relief
that
we
are
contemplating
adopting
some
of
the
rules
soon,
after
we’ve
had
a
chance
to
sit
down
around
a
conference
table
and
evaluate
each
new
rule
and
its
suitability
for
law
firms
and
other
clients.

We
were
heartened
when
cybersecurity
specialist
Bruce
Schneier,
famous
in
our
world,
reviewed
the
proposed
rules
and
gave
them
a
rousing
“Hooray!”

Bruce
may
have
been
as
surprised
as
we
were
when
he
titled
his

post,
“NIST
Recommends
Some
Common-Sense
Password
Rules.”

You
can
almost
hear
his
oft-repeated
criticism
of
the
old
rules
when
his
first
sentence
says,
“NIST’s
second
draft
of
its
“SP
800-63-4“—its
digital
identify
guidelines—finally
contains
some
really
good
rules
about
passwords.”

So,
What
are
the
New
Rules?

NIST
will
no
longer
recommend
using
a
mixture
of
character
types
in
passwords
or
regularly
changing
passwords.
Do
we
hear
lawyers
shouting
“Hooray”?
We
sure
do.

NIST
sets
forth
technical
requirements
as
well
as
recommended
best
practices
for
password
management
and
authentication.
The
latest
guidelines
instruct
credential
service
providers
(CSP)
to
stop
requiring
users
to
set
passwords
that
use
specific
types
of
characters
or
mandating
periodic
password
changes
(commonly
every
60
or
90
days).
Also,
CSPs
are
instructed
to
cease
using
knowledge-based
authentication
or
security
questions
when
selecting
passwords.

When
NIST first
introduced
its
password
recommendations
(NIST
800-63B)
in
2017,
it
recommended
complexity:
passwords
made
of
a
mix
of
uppercase
and
lowercase
letters,
numbers,
and
special
characters.
However,
complex
passwords
aren’t
always
strong
(i.e.,
the
famous
“Password123!”).
And
complexity
led
to
users
making
their
passwords
predictable
and
easy
to
guess,
writing
them
down
in
easy-to-find
places,
or
reusing
them
across
accounts.
We
can’t
recount
the
huge
number
of
those
mistakes
that
we
encounter
regularly
with
new
clients.
The
NIST
focus
is
on
longer
passwords
which
are
harder
to
crack
with
brute-force
attacks
and
are
easier
for
users
to
remember
without
being
predictable.

NIST
is
now
recommending
password
resets
only
when
there’s
a
credential
breach.
Making
people
change
passwords
frequently
means
they
tend
to
choose
weaker
passwords.
When
passwords
are
sufficiently
long
and
random,
and
there’s
no
evidence
of
a
breach,
making
users
change
passwords
could
potentially
lead
to
weaker
security.

Previous
versions
used
the
words
“should
not”
while
this
draft
says
“shall
not,”
which
means
the
rule
has
moved
from
a
suggestion
to
an
actual
requirement.
Yay!

What
Lawyers
Should
Do
Sooner
Rather
Than
Later

Be
open
to
changing
the
way
you
protect
your
data.
The
advice
from
NIST
is
very
sound
and
changes
made
after
the
October
input
are
likely
to
be
minor.
Be
wary
of
MSPs
that
want
to
keep
things
just
as
they
are.
“Just
as
they
are”
will
not
properly
protect
you.

Our
guess
is
that
the
cyberinsurance
folks
will
start
requiring
compliance
with
the
new
NIST
guidelines,
likely
in
2025.
Get
ahead
of
the
curve.
Be
safer
sooner!

Final
Thought

One
more
quote
from
cybersecurity
specialist
Bruce
Schneier:
“Complexity
is
the
worst
enemy
of
security,
and
our
systems
are
getting
more
complex
all
the
time.”

Sharon
D.
Nelson
([email protected])
is
a
practicing
attorney
and
the
president
of
Sensei
Enterprises,
Inc.
She
is
a
past
president
of
the
Virginia
State
Bar,
the
Fairfax
Bar
Association,
and
the
Fairfax
Law
Foundation.
She
is
a
co-author
of
18
books
published
by
the
ABA.

John
W.
Simek
([email protected])
is
vice
president
of
Sensei
Enterprises,
Inc.
He
is
a
Certified
Information
Systems
Security
Professional
(CISSP),
Certified
Ethical
Hacker
(CEH),
and
a
nationally
known
expert
in
the
area
of
digital
forensics.
He
and
Sharon
provide
legal
technology,
cybersecurity,
and
digital
forensics
services
from
their
Fairfax,
Virginia
firm.

Michael
C.
Maschke
([email protected])
is
the
CEO/Director
of
Cybersecurity
and
Digital
Forensics
of
Sensei
Enterprises,
Inc.
He
is
an
EnCase
Certified
Examiner,
a
Certified
Computer
Examiner
(CCE
#744),
a
Certified
Ethical
Hacker,
and
an
AccessData
Certified
Examiner.
He
is
also
a
Certified
Information
Systems
Security
Professional.

Kathryn
Mizelle
was

barely
removed
from
her
clerkship
when
Donald
Trump
tapped
her
for
the
federal
bench
in
the
waning
days
of
his
administration.
The
Trump
White
House
had
already
plucked
the
low-hanging
fruit
from
the
ranks
of
the
Federalist
Society.
By
the
end
of
the
administration,
the
remaining
smart
conservative
lawyers
were
happily
building
multimillion-dollar
books
of
business
trying
to
build
a
case
that
it’s
unconstitutional
for
women
to
vote
in
Pennsylvania
(which
they
will
probably
bring

in
the
Northern
District
of
Texas).

Besides,
Mizelle
was
33
years
old
and
could
extend
the
deadhand
influence
of
a
one-term
popular
vote
loser
for
50
years!
So
Mizelle
landed
a
district
court
nomination
while
still
serving
as
a
Biglaw
associate.
The
ABA
pointed
out
that
she
was
wholly
unqualified
for
the
job,
but
as
this
was
a
feature
rather
than
a
bug
for
Trump
nominees
down
the
stretch,
the
Republican
Senate
approved
her
anyway.

But
when
we
say
Mizelle
is
one
of
the
least
capable
judges
in
America,
it’s
imperative
that
we
come
with
receipts.
It’s
not
enough
to
cite
the
circumstances
of
her
nomination
or
the
expert
opinion
of
the
ABA,
we
need
to
carefully
consider
the
quality
of
her
work.

Friends,
it’s
real
bad.

Yesterday,
she
declared
the
False
Claims
Act

qui
tam
provision
unconstitutional.
The
law
has
been
on
the
books
since

ABRAHAM
LINCOLN
signed
it
into
law
and
existed
as
a
concept

dating
back
to
the
Middle
Ages
as
described
in
the
English
common
law
treatises
that
conservative
judges
usually
love
to
cite.
It
enjoys
a
long
history
in
the
Anglo-American
legal
canon
as
a
necessary
tool
allowing
private
citizens
to
recover
damages
owed
to
the
United
States
government
that
might
otherwise
go
unclaimed.
For
this,
she
ginned
up
an
Article
II
theory
not
unlike
the
one
Judge
Mizelle’s
counterpart

Aileen
Cannon
recently
used
to
conclude
that
Special
Counsel
Jack
Smith
violated
the
Constitution
by
existing
based
on
a
Clarence
Thomas
opinion
(writing
for
himself
alone!)
where
he
complained
that
no
one
else
on
the
Supreme
Court
agreed
with
him.
Essentially,
claiming
that
the
Constitution
forbids
anyone
from
acting
for
the
benefit
of
the
United
States
unless
they’re
appointed
by
the
president.

Given
the
mandate
of
the
conservative
Supreme
Court
majority
in

Dobbs
that
laws
only
count
if
they’re
“deeply
rooted
in
this
Nation’s
history
and
tradition,”
one
might
not
expect
a
right-wing
judge
to
throw
out
a
law
with
nearly
200
years
of
unquestioned
validity.
But
that
presumes
that
“history
and
tradition”
amount
to
anything
more
than
an
empty
marketing
slogan
that
these
folks
drag
out
whenever
they
want
to
say
that
the
Framers
may
have
had
robust
gun
control
laws
but
they
never
SPECIFICALLY
said

you
couldn’t
bring
an
assault
rifle
on
an
electric
train.

Today’s
frequent
use
of
the
FCA’s
qui
tam
provision
emerged
relatively
recently.
Although
the
FCA
as
enacted
in
1863
permitted
relator
suits,
it
took
a
package
of
prorelator
amendments
in
1986
to
elevate
the
device
from
obscurity.
At
least
one
study
found
that
the
DOJ’s
records
reveal
only
three
qui
tam
actions
in
the
four
decades
between
1943
and
1986,
see
WILLIAM
L.
STRINGER,
THE
FALSE
CLAIMS
ACT
AMENDMENTS:
AN
ASSESSMENT
OF
ECONOMIC
IMPACT
23
(1996)
(admitting
that
the
records
are
incomplete
but
concluding
that
qui
tam
actions
were
“undoubtedly
very
few”),
while
others
estimate
that
the
“DOJ
used
to
receive
about
six
qui
tam
cases
a
year”
before
the
1986
amendments,
Steve
France,
The
Private
War
on
Pentagon
Fraud,
76
A.B.A.
J.
46,
48
(1990).
Whatever
the
precise
figure,
the
relator
amendments
triggered
an
explosion
of
qui
tam
lawsuits.
See
2023
FCA
Stats
at
1–2
(showing
31
new
FCA
qui
tam
matters
in
fiscal
year
1987
rising
to
712
new
qui
tam
matters
in
2023).

Credit
where
it’s
due,
Mizelle
didn’t
have
to
include
the
parenthetical
admitting
that
her
primary
source
admitted
he
was
basically
making
it
up
based
on
incomplete
records.
On
the
other
hand,
it’s
the
sort
of
addition
that
should’ve
kept
the
cite
out
of
the
opinion
entirely.
But
this
again
gives
us
occasion
to
remember
the
risks
posed
by
the
cottage
industry
of

building
a
body
of
“History-ish”
publications
for
judges
to
cite
whenever
the
actual
record
can’t
back
it
up.
It’s
an
accelerating
problem
with
student
journals
publishing
historical
claims
that
could
not
pass
scholarly
peer
review,
but
provide
Federalist
Society
judges
historical
sounding
factoids
to
insert
into
string
cites.
Indeed,
one
of
the
authors
at
the
heart
of
the
recent
controversy
over
flimsy
academic
claims
is
right
there
in
this
opinion!

And
while
it’s
plausible
that
the
number
of
claims
about
Pentagon
fraud
expanded
during
the
80s,
this
has
more
to
do
with
the
unprecedented
military
buildup
over
those
years
that
sparked
non-stop
coverage
of
defense
contractor
overcharges
and
“$1000
toilet
seats,”
than
the
idea
that

qui
tam
had
been
quietly
unconstitutional
all
that
time.
But
Mizelle
wasn’t
born
by
1986,
so
she
might
not
remember
the
fiscal
environment
when
we
openly
talked
about
building
magic
satellites
to
shoot
down
Soviet
nukes.

As
for
the
long
English
tradition
of
these
laws,
Mizelle
declares
their
application
in
the
United
States
to
be
not
“a
course
of
deliberate
practice.”
For
those
playing
along
at
home,
a
“course
of
deliberate
practice”
means
“at
least
pre-dating
Abraham
Lincoln.”

And
so
history
and
tradition
are
kicked
to
the
curb.

And
although
the
Supreme
Court
and
the
Eleventh
Circuit
have
reserved
the
Article
II
issue,
my
conclusion
that
an
FCA
relator
is
an
officer
of
the
United
States
is
neither
novel
nor
surprising.

Before
we
get
to
her
support
(such
as
it
is)
for
this
claim,
take
a
second
to
absorb
this
sentence.
She
says
“although”
the
Supreme
Court
and
her
circuit
have

explicitly
not
declared
the
over
160-year-old
law
unconstitutional,
she
is
going
to
decide
“what
if
it
is?”

A
more
conscientious
and
good
faith
DISTRICT
JUDGE
would
apply
the
law
as
it
presently
exists,
leaving
it
to
higher
courts
to
decide
if
they
want
to
stop
reserving
this
cockamamie
Article
II
theory.
An
envelope-pushing
trial
judge
could
apply
existing
law
and
bloviate
for
53
pages
about
how
much
they
disagree
with
it,
hoping
to
catch
a
stray
nod
from
a
future
controlling
opinion.
It’s
not
particularly
professional,
but
at
least
it
preserves
the
role
of
a
district
judge.
Mizelle
will
eschew
these
options.

Anyway,
let’s
see
how
she
justifies
the
above
claim:

See
Polansky,
599
U.S.
at
442
(Kavanaugh,
J.,
concurring,
joined
by
Barrett,
J.)
(urging
the
Court
to
consider
in
an
appropriate
case
the
“substantial
arguments”
that
qui
tam
is
inconsistent
with
Article
II);
id.
at
449
(Thomas,
J.,
dissenting)
(same);
Taxpayers
Against
Fraud,
41
F.3d
at
1050
(Nelson,
J.,
concurring
in
part
and
in
the
judgment)
(declining
to
concur
in
“Part
II
of
the
court’s
opinion,
where
the
constitutionality
of
the
qui
tam
provisions
of
the
False
Claims
Act
is
upheld”);
Riley,
252
F.3d
at
758–75
(Smith,
J.,
dissenting)
(identifying
“the
FCA’s
violation
of
the
Appointments
Clause”);
Constitutionality
of
the
Qui
Tam
Provisions
of
the
False
Claims
Act,
13
Op.
O.L.C.
at
221
(William
Barr,
Ass’t
Att’y
Gen.)
(arguing
that
“qui
tam
suits
brought
by
private
parties
to
enforce
the
claims
of
the
United
States
plainly
violate
the
Appointments
Clause
of
the
Constitution”).

One
thing
you
might
notice
here
is
the
lack
of
even
A
SINGLE
CITE
TO
RELEVANT
AUTHORITY.
Zilch.
Nada.
Concurrences,
dissents,
a
fart-sniffing
internal
Bill
Barr
statement.
No
majority
Supreme
Court,
Eleventh
Circuit,
sibling
circuit
opinion.
Not
even
a
stray
district
court
opinion
from
some
far-flung
district.
She
couldn’t
even
get
ChatGPT
to
make
up
some
fake
cites
for
good
measure.
There’s
just
nothing
here!

Rendering
it
all
the
more
tragio-comic
when
Mizelle
addresses
the
on
point
authority
cited
by
the
plaintiff
by
noting
—
literally
—
“[plaintiff]
resists
this
conclusion
primarily
by
citing
non-binding
decisions
that
held
otherwise.”
At
least
the
plaintiff
found
SOME
circuits
to
opine
on
the
question
presented
instead
of
playing
Mad
Libs
with
a
bunch
of
dissents.

Earlier
in
the
opinion,
Mizelle
attempts
to
“square
peg
round
hole”
other
federal
officers
cases
into
her
analysis,
suggesting
that
because
some
entities
who
can
sue
on behalf
of
the
United
States
are
officers,
then
anyone
who
files
a
suit
where
the
recovery
would

benefit
the
United
States
must
be
an
officer
too.
That
the
DOJ
can
walk
in
and
shut
down
a

qui
tam
action
on
behalf
of
the
United
States
would
seem
significant
on
this
count,
but
it’s
just
handwaved
away
without
caselaw
citation
except
for
a
“see
also”
that
suggested
it
was
“close”
before
concluding
the
other
way
anyway.

As
legal
analysis
goes,
this
is
all
reminiscent
of
when
she
struck
down
CDC
mask
mandates
on
the
grounds
that
“sanitation”
can’t
include
“sanitary
masks”
because

she
found
a
1940s
dictionary
that
used
the
word
sanitation
when
talking
about
trash
collection.
I’m
sure
her

all-expense
luxury
trip
to
hang
out
with
conservative
dictionary
dorks
before
that
opinion
didn’t
impact
that
one
at
all!
But,
hey,
“all-expense”
suggests
maybe
she
did
learn
a
thing
or
two
from
her
time
working
for
Clarence
Thomas!

This
is
all
significant
for
reasons
that
transcend
the
substantive
policy
involved.

It
is
obviously
stupid
to
practically
hamstring
the
federal
government
from
recovering
when
it
suffers
actual
fraud.
The
government
is
incapable
of
prosecuting
every
valid
claim,
making
this
decision
an
open
invitation
to
defraud
the
government
to
any
bad
actor
capable
of
keeping
it
below
the
DOJ’s
threshold
to
stop
going
after
drug
lords
to

chase
down
the
63
percent
of
the
Pentagon
budget
that
they
can’t
find.
To
this,
Mizelle
notes
that
several
years
ago,
the
DOJ
complained
that
merely
monitoring

qui
tam
actions
can
stress
their
resources
too,
except
then
admits
that
the
government
has
since
agreed
to
intervene
and
dismiss
unnecessary

qui
tam
actions,
which
obviates
the
concern
she
tried
to
bring
up.

Of
note,
the
government

specifically
did
not
intervene
to
toss
the
FCA
claim
in
this
case.

But
it’s
actually
a
much
bigger
—
and
apolitical
—
deal
to
have
bottom
rung
trial
judges
running
around
inventing
new
constitutional
law
“although”
higher
courts
have
refused.
The
judiciary
is
tiered
for
a
reason.
Forcing
trial
judges
to
apply
existing
law,
even
if
they
don’t
like
it,
discourages
litigants
from
pursuing
costly
and
frivolous
challenges
to
the
status
quo.
It
also
prevents
the
appellate
courts
from
having
to
run
constant
clean
up
on
rogue
district
court
opinions
when
there
is
a
presumption
in
favor
of
maintaining
existing
law.
A
predictable
business
litigation
environment
relies
on
stacking
the
deck
against
judges
making
radical
changes
to
the
law
willy-nilly
just
to
impress
their
friends.

One
might
even
call
this
approach
“little-c
conservative.”

Given
the
makeup
of
the
Eleventh
Circuit
and
the
Supreme
Court,
Mizelle
might
be
correctly
reading
the
tea
leaves
and
those
bodies
—
despite
not
having
the
votes
to
strike
down
Lincoln’s
Law
previously
—
may
be
on
the
verge
of
taking
a
sledgehammer
to
precedent.
But
that
shouldn’t
matter…
it’s
not
HER
job
to
do
that.
It’s
her
job
to
preside
over
this
case
and
let
the
appellate
process
play
out.

Which
might
go
a
long
way
to
explaining
why
the
ABA
didn’t
think
she
was
capable
of
doing
this
job.

(Opinion
on
the
next
page…)

Earlier:

Mask
Mandate
Struck
Down
Because
‘Sanitation’
Doesn’t
Mean
‘Keeping
Things
Clean’
For…
Reasons

Shocking
No
One,
ABA
Thinks
Biglaw
ASSOCIATE
Not
Ready
For
Federal
Bench

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or

Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

As
a
judge,
you
likely
know
that
it’s
not
a
good
idea
to
attend
an
insurrection.
But
what
about
a
political
rally
that
served
as
a
precursor
to
an
insurrection?
One
recently
retired
New
York
judge
did
just
that,
and
he
seems
to
have
absolutely
no
regrets
about
doing
so.

Donald
Spaccio,
a
non-attorney
judge
in
central
New
York,
was
facing
an
investigation
into
his
attendance
at
former
president
Donald
Trump’s
political
rally
that
foreshadowed
the
January
6,
2021,
coup
attempt
at
the
U.S.
Capitol,
when
he
suddenly
resigned
from
his
position.
Per
the

New
York
Law
Journal,
the
former
Montour
Falls
Village
Court
Justice
and
Montour
Town
Court
Justice,
who
clarifies
that
he
did
not
participate
in
the
insurrection,
had
this
to
say:

Also
the
longtime
owner
of
a
printing
press
business,
Spaccio
told
the
Law
Journal:
“Yeah,
I
went
to
Trump’s
rally.
There’s
a
lot
of
things
that
are
wrong
with
our
country
right
now,
so
that’s
why
I
felt
I
needed
to
be
there.”

Spaccio,
who
represented
himself
in
the
state
investigation,
added
that
he
doesn’t
regret
his
actions.

“I
would
do
it
over
again.
We
lose
our
rights
when
we
go
on
the
bench,
and
it’s
not
right,”
he
said.

Spaccio
has
served
as
the
Montour
Falls
justice
since
November
2001,
and
as
the
Montour
Town
justice
since
January
2005.
According
to
the
New
York
State
Commission
on
Judicial
Conduct,
he
has
agreed
never
to
seek
or
accept
judicial
office
again
in
the
future.

Central
NY
Judge
Who
Resigned
Amid
Scrutiny
for
Attending
Jan.
6
Capitol
Rally
Says
He’d
Do
It
Again
[New
York
Law
Journal]

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

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

October
is
Domestic
Violence
Awareness
Month.
PLI
is
proud
to
stand
with
the
legal
community
in
support
of
survivors
of
intimate
partner
violence,
by
offering
a
variety
of
programs
to
enhance
your
knowledge
and
hone
your
advocacy
skills.

Survivors
of
intimate
partner
violence
often
require
pro
bono
legal
assistance
when
facing
critical
concerns
such
as
child
custody
disputes,
orders
of
protection,
divorce
proceedings,
housing
issues,
immigration
needs,
and
employment
disputes.
There’s
also
a
need
for
lawyers
who
are
sensitive
to
the
trauma
and
related
challenges
that
come
with
these
difficult
situations
and
their
healing
process.

To
help
practitioners
meet
these
needs,
PLI
is
committed
to
providing
timely,
relevant
education
and
training,
with
a
range
of
programs
and
resources
available
in
person,
via
live
webcast,
or
on-demand
from
your
computer
or
PLI’s
mobile
app.

Our
programs
provide
in-depth
examinations
of
the
legal
issues
surrounding
intimate
partner
violence,
including
the
intersection
of
domestic
violence
with
immigration,
child
custody,
and
criminal
justice.
These
programs
are
led
by
expert
faculty,
who
share
practical
strategies
and
techniques
for
lawyers
working
with
survivors.

Enhance
your
advocacy
with
sessions
on
lawyering
from
a
trauma-informed
perspective,
ethics
for
lawyers
working
with
domestic
violence
survivors,
working
with
immigrant
survivors,
and
much
more.
You
can
also
sharpen
your
skills
with
award-winning
programs
from
PLI’s
Interactive
Learning
Center,
which
allow
you
to
consider
and
practice
your
responses
to
real-world
scenarios
at
your
own
pace.
These
programs
include

Interviewing
Pro
Bono
Clients,

Working
with
Domestic
Violence
Survivors,
and

Representing
Domestic
Violence
Survivors
in
Court.

PLI
also
informs
the
legal
community
through
podcasts,
including
Pursuing
Justice:
The
Pro
Bono
Files,
which
has
covered
“Practicing
Trauma-Informed
Lawyering”
and
“Appellate
Justice
for
Domestic
Violence
Survivors,”
among
other
topics.

This
October
—
and
throughout
the
year
—
PLI
is
here
to
support
your
pro
bono
advocacy
and
empower
you
to
stand
with
domestic
violence
survivors.
Learn
more
at

www.pli.edu/probono.