Interview with David Lat
David Lat is a writer and lawyer who publishes the newsletter Original Jurisdiction, and he is also the founding editor of Above the Law. He clerked for Judge Diarmuid O'Scannlain of the United States Court of Appeals for the Ninth Circuit.
AT-A-GLANCE
Contents
Max Raskin: You wrote recently that you’ve been approaching inbox zero, right?
David Lat: Yes. The closest I've been able to get is around inbox 100, but it drifted upward again to around 500. So I need to dig in and maybe I'll spend the rest of today trying to whittle it down again. I just get into these ruts where I feel almost paralyzed by email, and I just can't seem to respond.
[Phone alarm goes off]
MR: What’s that alarm for?
DL: That was to remind me of our call, which I'm now going to dismiss.
MR: Do you operate on alarms?
DL: Yes, because I find that I sometimes have a tendency to miss things, but I've gotten a lot better. I calendar things now. I have both an electronic calendar and a paper planner.
MR: Are you particular about what brand of planner you use?
DL: I get the exact same one every year. This one is from AT-A-GLANCE, and I've been using this type for probably a decade.
MR: Wow.
DL: I hope they never discontinue it because that will make me very sad.
MR: You handwrite your day?
DL: Yes. I also annotate it after the fact with updates. Sometimes I'll have notes about my mood or my health. Or if I did an event, how did it go. Or if I met somebody, maybe I'll jot down a word or two of impressions. It’s like a diary or a journal, although not a very detailed one.
MR: Do you have a particular pen you like to use?
DL: Oh, I usually just use a BiC or something like that. I have a fancy Montblanc that I received as a gift, but I don't use it much.
MR: You're not a stickler about a particular kind of pen or anything?
DL: No, I'm not an aficionado of writing instruments. I'm pretty basic.
MR: Do you collect anything?
DL: I guess you could say I collect art, but I would put that in scare quotes because when people think of collecting art, they think of gazillionaires with million-dollar pieces. But I have works that are just a few hundred or a few thousand dollars. They’re not expensive but they make me happy, and I like them.
MR: What's the first piece that's coming to mind right now?
DL: There's a photographer I like named Roe Ethridge, and I have two pieces of his. They're both very large photographs. One is of a rotting orange. The other is a photo of what I think is his rather messy studio, with a red plastic bag in the foreground.
I'm sometimes attracted to these things that are sort of pretty-slash-ugly…things that are not necessarily obvious. But then I also like things that are conventionally beautiful. I have a photograph by a filmmaker friend of mine, Joshua Z. Weinstein, of rice terraces in the Philippines, which is where my family is from. It's very beautiful. My taste is sort of eclectic.
David Lat (Yale 1999/Rakoff (S.D.N.Y.)/Millett/Kagan)
MR: Are you an aficionado of anything?
DL: Many things. I guess you could say federal courts. Can one be an aficionado of that? I don't know.
MR: If you were writing your own dream clerkship trajectory to the Supreme Court like you have on Original Jurisdiction, what would yours be – David Lat, OT 2022?
DL: There are a lot of fascinating judges out there these days. I'll start with the justices, maybe that's easier. It would be very interesting to clerk for Justice Kagan. I don't necessarily share her interpretive leanings – I tend to be more textualist and originalist. But she's so smart and such a great writer. And I think you often learn more from working for or with people who don't share your views.
MR: She's supposed to be a hard boss though.
DL: I've heard she's mellowed. But having never had a difficult boss and having been my own boss now for 15 years, I think it would actually be sort of interesting to have a challenging boss. That which does not kill you, makes you stronger.
MR: Would you do a district court clerkship?
DL: I would like to do a district court clerkship because I actually never did one. And back when I clerked, it was less common to do both district- and circuit-court clerkships. Now, everybody seems to do both.
And I would probably say somebody, again, not necessarily from my side of the aisle. Maybe somebody like Judge Rakoff. He's super-interesting and iconoclastic, one of the few remaining public intellectuals on the federal bench. He writes for The New York Review of Books. He writes books of his own. He enjoys Chinese food. I think he and I would be copacetic, and he would be somebody who would be fun to clerk for.
MR: And what about on the court of appeals?
DL: I like to do things I have not done before. I wish I could live 100 lives. I clerked for Judge O'Scannlain, who was a wonderful boss, and he’s on the Ninth Circuit, a regional court of appeals. So I think it would be interesting to clerk for somebody on the D.C. Circuit, which has a very different docket. I don't know that I would necessarily love all of it – a lot of it can be somewhat dry, record-intensive admin law stuff – but some of it could be interesting.
I think it might be interesting to clerk for a judge who isn't necessarily on my side of the aisle. Maybe somebody like Patricia Millett, who's supposed to be a great boss, or maybe Sri Srinivasan.
MR: What about the red-meat David Lat?
DL: On the lower courts, probably one of the powerhouse judges on the Sixth Circuit, which has emerged as this big circuit for generating Supreme Court clerks. Maybe somebody like Judge Sutton, for instance. I think he's somebody who's very intellectually engaged and likes to think about issues beyond just the cases in front of him; I interviewed him back in 2018 about his first book on state courts, and we had a great conversation. Or maybe somebody like Judge Kethledge, whom I also interviewed, when he wrote his book on leadership. Or Judge Thapar.
MR: And then which justice?
DL: Any of them would be amazing to clerk for. Maybe Justice Alito. We have several things in common. We're both alums of the U.S. Attorney's Office in New Jersey. We’re both from the Garden State. We’re both Yale Law alums. And I think he's just an extremely smart judge from whom I could learn a lot. He and Justice Kagan ask some of the best questions at oral argument – sometimes a little tricky, but very smart questions.
Cruel and Unusual Crime and Punishment
MR: What kind of microphone do you have?
DL: A Blue Yeti.
MR: I'm just curious what kind because I'm assuming you have to be on it a lot.
DL: I inherited this microphone from my husband because he did a podcast back in 2012 or something, which was way early in the podcasting craze.
MR: What was his podcast about?
DL: Crime and punishment. Before he went to law school, he got a PhD in criminology, and that was the subject of his podcast. It was called Cruel and Unusual: A Podcast About Punishment. He had some interesting guests and topics.
MR: Do you believe in God?
DL: Yes. I know you've talked about this topic with some of your other interviewees. I'm one of those people whose belief is not always as strong as maybe I would like it to be. But I do.
MR: Do you believe in an afterlife?
DL: Yes. I think that kind of goes along with my belief in God. I think my belief tends to be the strongest in times of crisis. I’m reminded of the saying about there being no atheists in foxholes.
Two years ago when I was in the hospital with COVID, I was praying a lot.
MR: What prayers did you say? Was it a set liturgy or more a subjective thing?
DL: Both. Certainly, in terms of the official or formal prayers, I like the Hail Mary. Filipinos are very devoted to Mother Mary. So that's my go-to prayer whenever I'm in a plane with turbulence or in any other situation where I'm nervous. And then, of course, just talking to God, free-form conversation in my head.
MR: You were a runner before going into the hospital – do you run now?
DL: Jogging. I haven't been the same since COVID.
MR: Really?
DL: Yeah. I'm definitely a lot better in terms of my day-to-day life, where I feel pretty recovered. But I can't run like I used to. Maybe some of it’s just aging, or maybe I need to train a little harder. I don't know.
MR: Have you done any other exercise other than jogging?
DL: Yes. I go to the gym for classes. Sometimes they're aerobics-based, or sometimes they're ballet-inspired, or sometimes they involve weight training.
On jogging, I've managed to work myself up to maybe being able to go three to four miles at maybe a 10-or-11-minute pace.
MR: Do you have an app that you like using to keep track of your running?
DL: I use Strava because it has GPS, which can tell you where exactly you went, and then it can chart your progress.
Original Jurisdiction
MR: Do you have any apps for organization?
DL: No. People have recommended this app called To Do, which I have downloaded but not used yet. I generally just use a lot of the Apple suite of apps.
MR: If you look on your phone right now, what are the apps that you use?
DL: The apps I use most often I put on the first page of my phone. I use a lot of the social media apps – Instagram, Twitter, Facebook. Facebook Messenger and Signal are all up there. Text messages, of course. I use the Notes app a lot just to jot down things to myself.
MR: What’s the last note that you jotted to yourself?
DL: For Original Jurisdiction, I write a weekly news roundup called Judicial Notice, which I publish over the weekend. I create a document in the Notes app for each installment of Judicial Notice, and throughout the week, I drop things into it that I find newsworthy. It looks like I just dropped some things in there that I will come back to when I write up Judicial Notice.
MR: What’s your daily average of Screen Time on the iPhone?
DL: It says 5:32.
MR: Do you want to see that number go down? How do you feel about that?
DL: I probably would like to see it go up, in the sense that I mentioned earlier about how I fall behind on email. If it were higher, maybe it would mean I was responding to email better.
MR: I feel like you're very savvy in the digital world. Were you always this way?
DL: No. I think it was mainly the blogging that made me more savvy. I'm not a STEM person. I was an English major in college.
MR: Did you play video games as a kid?
DL: Not much. Maybe the Atari? I guess I'm dating myself. But not a lot of the more advanced things like Xbox or what have you.
MR: Do you play any games now?
DL: Wordle.
MR: Do you do crossword puzzles or Sudoku or anything?
DL: I used to do Sudoku, but I haven't done it in years. There's a card game that my friends Jen and Ien introduced me to called Tichu, which is like a combination of Gin and Bridge. I have it on my phone, and I'll play it when I'm waiting at the doctor's or something like that, and I don't feel like checking the news.
MR: What time do you wake up in the morning?
DL: Usually around 8:00.
Justice Harlan
MR: What’s the first thing you do when you wake up?
DL: It depends on whether or not I’m in charge of looking after our son Harlan. Zach and I go back and forth over who has Harlan duty. If it's my day, I'll take him downstairs, give him some breakfast, and make a cup of coffee for myself.
MR: How do you take your coffee? How do you make your coffee?
DL: I use a Keurig – sorry, I know it's not environmentally friendly. Then I add some milk and artificial sweetener.
MR: What do you eat for breakfast?
DL: I actually am now experimenting with not eating breakfast – this whole intermittent fasting thing. I'm trying to make my first meal of the day lunch at noon.
MR: Are you looking at your phone at all at this time?
DL: I might check my email briefly to see if there's anything that's an emergency. And I might check the New York Times or the Washington Post website just to see what's going on in the world.
MR: What do you read in the morning in terms of news consumption?
DL: The standard things. I would say the trinity of the Times, the [Washington] Post, and the [Wall Street] Journal. I also will check legal publications, like How Appealing, SCOTUSblog, Law.com, Law360, The ABA Journal, Bloomberg Law, Reuters, all the usual suspects.
MR: Do you read anything surprising?
DL: There's an online magazine for the Filipino American community called Positively Filipino, which I read and enjoy.
MR: Do you speak Tagalog?
DL: I understand a little, and I can ask for very basic things, like, "Where's the bathroom?" But no, I'm not fluent.
MR: Are you teaching Harlan another language?
DL: We are trying to raise him somewhat bilingual – English and Spanish. He goes to a Spanish immersion school.
MR: Do you speak Spanish?
DL: A little, so I can practice with him. But his Spanish is already becoming better than mine. He corrected me the other day on a vocabulary word – “ala,” for “wing” – I thought it was “ola.”
MR: Wait till he starts correcting you on standards of review.
DL: Well, his math is already probably better than mine. The other day, we were talking about numbers and he asked, “Does 109 plus 8 equal 117?” And I said, "Yes. And I think 117 is a prime number." And he said, "No, it isn't." And I said, "Okay. Well, then how do you get to 117?" And he said, "9 times 13." I was like, "Wow. He's four." He schooled me on that.
MR: Was he named after Justice Harlan?
DL: Yes. Although Zach and I argue over whether it's mainly the first or the second Justice Harlan.
MR: What do you have for lunch?
DL: Often I will have leftovers from dinner the night before.
MR: Do you order in or cook?
DL: We've been starting to cook more now that we've moved to the suburbs, mainly Blue Apron. When we lived in Manhattan, we would order in constantly, which got expensive.
MR: Where was your favorite place to order in from in Manhattan?
DL: We lived not far from one of the big Indian neighborhoods in Manhattan, and there was this Indian place we liked a lot called Pippali, which was just a few blocks away from us. That's one thing I do miss being out here in Summit, New Jersey. The culinary options are good by suburban standards, but they're not Manhattan, and we haven’t found a go-to Indian place.
MR: What's your favorite restaurant in Summit?
DL: There's a Mexican place called Barbacoa that we like. We've never eaten in the restaurant; we just order out. In terms of nicer things, Summit House is solid. Common Lot in Millburn is my favorite area restaurant; it could hold its own in Manhattan.
MR: Do you have any judges you're friends with?
DL: Yes. They’re often judges I knew before they became judges. One thing that's challenging about being a judge is it can be a very isolating life, and sometimes lawyers or people in the legal community feel weird about becoming your buddy.
So my judge friends are mostly judges I knew before they took the bench, like Judge Paul Oetken, who officiated at our wedding, or Judges Patrick Bumatay and Ken Lee. I'm old enough now that a lot of people that I was contemporaries with are now judges.
[The] Yale Law [School]
MR: Do you feel any allegiance to Yale Law?
DL: Absolutely, which is one reason I write about it so much on my Substack. There are some recent developments at YLS that are a little distressing, but it's still a great school. I want it to be the best version of itself, so in my writing I offer my thoughts on how it can become an even stronger institution. I made some wonderful friends there.
MR: What charities do you like?
DL: There are definitely a bunch that I give regularly to. One of them here in the area is the Community Food Bank of New Jersey, which I've gotten to know. I participated in an event to help raise money for them. I give to my high school alma mater, Regis High School, which is an all-scholarship school for Catholic boys.
MR: How did that work? You grew up in Jersey, but you went to Regis?
DL: I commuted. I took the bus and the subway every day.
MR: How long of a commute was that?
DL: Probably about an hour and a half all in, each way.
MR: That's terrible.
DL: But it was a good experience in some ways. You learn how to be independent, and you learn how to manage your time. I would read and do homework on the bus.
LD and Extemp
MR: You did speech and debate?
DL: That's right.
MR: What kind of debate did you do?
DL: I did Lincoln–Douglas, but my main category was actually extemporaneous speaking.
MR: Do you have any moments of that that you remember that you're like, "That was a real crowning achievement?"
DL: It's funny, I don't really remember any individual speeches. But big tournaments like the national championships, of course I remember those.
MR: But do you remember any particular speech?
DL: No, but I can remember some of the things I used to do. I often tried to have a catchy intro – I don't have a great voice, but sometimes I would try and sing. One of the challenges in that event is making the judges remember you. If you can get them to remember you, that goes a long way.
MR: So, singing is one way you'd get people to remember you?
DL: Yes. Although I'm struggling to remember what types of things I would sing or what jokes I might tell. It’s probably for the best that I can’t remember, since sometimes the jokes were pretty terrible. But the bar was so low, so if you could tell a joke that wasn’t totally awful, you would get points for that.
From Cher to Ted Cruz
MR: I think one of the interesting things about you getting COVID was that you were fairly prominent pretty early on, right?
DL: That's right. I was one of the first – I got sick in early March of 2020.
MR: What was it like living your life as a public person when you were sick?
DL: I didn't mind it. I got used to it. And in some ways, I liked it – in the sense that one of the reasons I shared my experience with COVID was just to communicate to people what it's like and how seriously to take it. So I was happy to live-tweet my illness, which is what I did two years ago.
MR: Did getting likes and comments make you feel better?
DL: Absolutely. And that's one of the reasons I did it. It was partly self-interested, in the sense that it helped me get through that experience, to get all of this support, love, affection, and affirmation. I got get-well tweets from everyone from Cher to Ted Cruz. It was quite surreal. But I think it helped.
MR: Did any of the justices reach out to you?
DL: I'll respect their privacy, but two of them did, one by email and one with a handwritten note.
MR: That’s so kind of Justice Thomas – he’s such a sweet man.
What about having a beer with a justice – who would you want to have a beer with?
DL: Probably Justice Thomas – because, as you just said, he's such a personable individual.
MR: You tried your hand at legal recruiting – you’re not doing that anymore, are you?
DL: No. I did it for two years and there were some aspects I liked about it, like the compensation, and some aspects I didn't like.
MR: What did you not like about it?
DL: What can be very frustrating about life as a recruiter is you're so dependent on things that are totally beyond your control. You're dependent on the whims of both the candidate (the individual lawyer) and the employer (the law firm). Huge amounts of money ride on their choices, but you have very little control over them.
One thing I like about being a writer is that even if I don't make as much money as I did as a recruiter, I control what I write about and when I write about it. To be honest, there's also a status thing in the sense that when you're a writer, people are very nice to you. When you're a recruiter, it's not that people are mean to you, but at the end of the day, you're a service provider, and you’re treated as such.
Young Gunners
MR: Are there any young guns that come to mind right now as up-and-coming stars in the legal profession? I think of my friend Jack Millman, who also clerked for Judge O'Scannlain.
DL: Yep. Jack is brilliant.
MR: Who are some names of just young people that you just have your eye out for?
DL: Partly because Zach is eight years younger than I am and his friends are younger, and then partly because of my blogging and social media activity, I have a lot of younger friends, and many of them are rising stars.
MR: And they’re from across the political spectrum.
DL: Definitely. Which is nice, especially in this day and age.
MR: You’re not a sectarian.
DL: No, I'm not. I try not to be tribal in that way.
On your question about people who I keep an eye on, some of them are people who are already in the media, like Lina Khan of the FTC. She's a fellow Yale Law grad, but I've never met her. Obviously, for somebody so young, she's already in a significant policymaking role.
It's funny, I've been around so long that people I think of as prodigies are now established. For example, Elizabeth Prelogar, the U.S. Solicitor General, is someone I’ve known since she was a student at Harvard Law School, when she invited me to speak to a class that she was in. And so, in some ways, I think, "Oh, yeah. She's a young star." But her star has already risen. She's the Solicitor General.
Or take another legal prodigy, Joshua Matz, who's co-authored a few books with Laurence Tribe. Joshua just has this encyclopedic, Rain-Man-esque knowledge of the law. Again, I think of him as this young prodigy, but he's a partner now at Kaplan Hecker.
MR: Would you work at a bigger firm or a smaller firm if you were starting out?
DL: These days, I think I've come around to the boutiques, at least in litigation. They get to do more interesting work. They don't have to worry as much about firm politics. People get more responsibility at earlier stages.
MR: Is there a boutique that stands out for you that's doing interesting work?
DL: Certainly Cooper & Kirk, Chuck Cooper's place. I did an article about them for my Substack. MoloLamken, Steve Molo and Jeff Lamken's firm, is great. Susman Godfrey is fantastic. On the left side of the aisle, Kaplan Hecker & Fink is amazing.
MR: Do you floss?
DL: Yes, although I didn't always, but I've become a lot better. I have the world's worst teeth. You could buy a luxury automobile for the amount of money I've spent on dentistry over the years.
MR: Is it because of cavities?
DL: Part of it is I do have a sweet tooth, but honestly, a lot of this is genetic. My parents don't have great teeth. Zach has never had a cavity and his father has great teeth. He probably inherited that from his dad. His mother, not so much. But his brother does not have great teeth. A lot of this is genetic. Or so I tell myself when I get yet another cavity.
MR: Do you eat when you write?
DL: Not really. I'll often have coffee; I have a mug of coffee right here. I might read while I eat, but I guess everybody does.
MR: And then what's your sweet tooth?
DL: I like the classics, like chocolate chip cookies. I've started experimenting with baking now that we live out in the ‘burbs and I've become more domestic. I've tried all these different recipes for chocolate chip cookies to find my favorite one.
MR: Do you have one?
DL: Yes. It's by this place called The Food Lab by this fellow named J. Kenji López-Alt. It's kind of elaborate. You have to chill the dough. You have to brown the butter. There are all these extra steps. But I think they make a difference.
MR: Where would you get cookies in New York City?
DL: I like the ones from Levain. They also make pre-baked, frozen cookies that you can buy in your supermarket, which are actually very much like the ones you can get at the bakery. You heat them up for five to seven minutes. They're surprisingly good.