A Lesson in History: The Origins of the Federal Constitution
The Religious Accommodation Claim in Groff v. DeJoy What the Bill of Rights Means to Me 75th Annual Harvest Celebration Underwriters 2024 Law Day Contest Winners
THE COVER (fROm TOp L):
HBA Welcomes Vinh Ho as New Executive Director
Thank You From Mindy G. Davidson
A Lesson in History: The Origins of the Federal Constitution
A Conversation with Judge ChArles r. eskridge and PAige sCobee Fish
The Religious Accommodation Claim in Groff v. DeJoy: Arguing to Change the Standard
What the Bill of Rights Means to Me introduction by rAChAel ThomPson
• The Singularity of the American Experience by Jill YAziJi
• The U.S. Bill of Rights: A Story of a Ukrainian-Born Attorney by AnnA demAggio
• In the Greatest Nation of Immigrants, Civility Must Reign Supreme! by John ngunJiri
• A New Citizen’s Oath: The Bill of Rights Through Immigrant Eyes by shAnnon QuAdros
• Commissioner Lesley Briones, HBA Gender Fairness Committee Co-Chair Judge Cheryl Elliott Thornton, HBA President Diana Gomez, HBA Gender Fairness Committee Co-Chair Stephanie Noble, Former HBA Executive Director Mindy G. Davidson, HBA Associate Executive Director Ashley Gagnon Steininger, HBA Marketing and Communications Director and Houston Lawyer Managing Editor Maggie Martin.
• Cater Dugan, Norton Rose Fulbright US LLP and Gender Fairness Committee Co-Chair; 2023-2024 HBA President Diana Gomez; Judge Cheryl Elliott Thornton, 164th District Court and Gender Fairness Committee Co-Chair; and Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair.
• 2023-2024 HBA President Diana Gomez; Harris County Precinct 4 Commissioner Lesley Briones; Houston Bar Foundation Chair Linda Hester; Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair; and former HBA Executive Director Mindy G. Davidson.
• Judge Cheryl Elliott Thornton, 164th District Court and Gender Fairness Committee Co-Chair; Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair; Harris County Precinct 4 Commissioner Lesley Briones; Judge Ravi K. Sandill, 127th District Court; Judge Latosha Lewis Payne, 55th District Court; and 2023-2024 HBA President Diana Gomez.
• Alistair Dawson, Past HBA President and Beck Redden LLP, and William Hagans, Hagans Law, from the 2023-2024 Texas Bar Foundation Board of Trustees pose with Harris County Precinct 4 Commissioner Lesley Briones.
Photography: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones.
PresidenT’s messAge
In Appreciation to Our Bar by diAnA gomez
From The ediTor Bill of Rights by liz mAlPAss
lAwYers giVing bACk HBA Lactation Pod Initiative
lAw in The FAmilY
The Sorrels Family
oFF The reCord
Hee-Jin Chang: On Your Mark, Get Set, Litigate by CiArA PerriTAno
A ProFile in ProFessionAlism
The Honorable Keith P. Ellison u.s. district Judge for the southern district of Texas
A ProFile in ProFessionAlism
Christopher L. Tritico Tritico rainey, PllC
CommiTTee sPoTlighT
The Law Week Committee: Engaging the Bar with Houston’s Youths by Chris AinsworTh
seCTion sPoTlighT
The Commercial and Consumer Law Section: Renewing its Commitment to Engagement and Education by briAn sTAleY
legAl Trends
Hold Your Horses: The Fifth Circuit Amends Its Mandate Internal Operating Procedures by lAne morrison
New Constitutional Challenges Piling Up for the NLRB by PAul m. kneTTel
mediA reViews
The Original Meaning of the 14th Amendment: Its Letter and Spirit reviewed by dAVid T. lóPez
liTigATion mArkeTPlACe
Behind the Lines: The Houston Lawyer Podcast
Behind the Lines: The Houston Lawyer Podcast features in-depth conversations with Houston attorneys and judges, providing insight about the latest legal developments, as well as personal stories of the opportunities and challenges of serving the law. The podcast is the companion to The Houston Lawyer, where each episode focuses on the same themes as the magazine.
Learn more about the podcast and how you can subscribe by visiting hba.org/thehoustonlawyer
By Diana Gomez Chamberlain Hrdlicka
In Appreciation to Our Bar
Iam writing my final message just a couple of weeks after I passed the HBA president’s gavel to my good friend, David Harrell, at the HBA Annual Dinner. It was a wonderful evening, filled with celebration, gratitude, and excitement for the coming Bar year. I dedicate my last column to recognizing just a few of our major accomplishments this past year, since it is impossible to enumerate all the outstanding partners who worked alongside us on one page. I invite you to visit hba.org to read more about these superb individuals.
First, I’m happy to say the HBA surpassed a membership of 11,000 strong this year, especially through the addition of attorneys five to 10 years into their practice and law school students. I am gratified to see a new generation join our longtime members in service and collegiality. The 74th Annual Harvest Celebration in November was a record-breaking fundraiser with nearly $1.1 million raised for Houston Volunteer Lawyers—one of the largest providers of pro bono services in Texas. And the 39th Annual HBA Eikenburg 8K Fun Run, which benefits The Center for Pursuit, raised over $96,000—the highest sponsorship amount in the event’s history.
I had three focus areas as HBA president: community service; attorney engagement; and pipeline programs. Through the efforts of so many, the HBA was able to make great strides in all three areas.
First, I am incredibly proud to report the first lactation pod was installed on May 8 at the Harris County Civil Courthouse. You can read more about this important access to justice initiative, and the outstanding partners and donors who helped make it possible on page 32 of this issue. We also unveiled the first LAWPod (Legal Access Workspace) on April 9, expanding law library services and access beyond downtown to residents throughout Harris County. Additionally, we worked closely with several members of our federal judiciary in naturalization ceremonies of our new citizens. It was a joy for me to take part in five naturalization ceremonies as HBA president, and for my children, Matthew and Elina, to lead the Pledge of Allegiance in one ceremony with new citizens originating from over 130 countries.
As part of attorney engagement, the HBA held its firstever multi-practice Bench Bar Conference on April 12, followed by our inaugural “Bites & Beverages for the Bar” at Hotel ZaZa. At both events, we brought together attorneys
and judiciary from all of Houston’s legal community–civil, criminal, state, federal, and all practice areas–for a full day of breakout discussions and collaboration. We also worked closely with the Houston Bar Association Auxiliary to prepare and stock Attorney Ready Rooms to support attorneys at the Harris County courthouses.
Finally, the HBA identified leaders who could help foster a stronger bond between the HBA and affinity bar associations. To that end, the HBA appointed 11 Ambassadors, including individuals from our ancillary bars–the Hispanic Bar Association of Houston, the Mexican American Bar Association, the Houston Lawyers Association, the Houston Young Lawyers Association, the Asian American Bar Association, and the South Asian Bar Association. We have seen unprecedented support from our ancillary bars this year, and I would especially like to thank HisBA, MABAH, HLA, HYLA, AABA, SABA, and MBA for your support. A special thanks to HisBA and HYLA for becoming the first and second board of directors to join the HBA’s 100 Club. The HBA also promoted employment opportunities at Houston law firms for high school students from historically underserved communities. Thanks to our efforts, we saw an increase in law firm work-study program partners.
None of these initiatives would have been possible without the support of so many wonderful people. I want to thank Mindy G. Davidson, who has led the HBA with unwavering dedication and enthusiasm for the past five years. I look forward to seeing the HBA continue to grow with our new executive director, Vinh Ho. I’d also like to thank Chamberlain Hrdlicka for their support and encouragement throughout this year. Thank you to my very dear friend and colleague, Leslie Tan, and the rest of our team, Nora De La Garza, Rosa Reyes, and Lucas Meng. I’d also like to thank my wonderful family, especially my Mom and Dad, Cecilia and Juan Perez, my sister and brother-in-law, Melisa and Jose Luis Arajuo, and my brother and soon-to-be-brotherin-law, Javier Perez and Tu Lamb. Finally, I’d like to thank our wonderful children, Matthew and Elina, and the love of my life and my very best friend, Judge Michael Gomez. I can never thank you enough for your support.
We have accomplished so much this past year, and I look forward to working alongside David, the HBA Board of Directors, and HBA staff as we continue this good work in service of our profession and community.
BOARD OF DIRECTORS
President Diana Gomez
President-elect David Harrell
First Vice President Kaylan Dunn
second Vice President Greg Ulmer
secretary Collin Cox
Treasurer Daniella Landers
immediate Past
President
Christopher V. Popov
DIRECTORS (2023-2025)
Carter Dugan Greg Moore
Jeff Oldham Colin Pogge
DIRECTORS (2022-2024)
Keri Brown Robert Painter
Samantha Torres
DIRECTORS (2023-2024)
Seepan V. Parseghian
EDITORIAL STAFF
editor in Chief Liz Malpass
Associate editors
Anna M. Archer Sydney Huber Bateman
Nikki Morris Lane Morrison
Andrew Pearce Braden Riley
editorial board
Anietie Akpan Jaclyn Barbosa
Nicholas Beekhuizen Natasha Breaux
Hon. Kyle Carter Dasha K. Hodge
Teresa Hudson Kristen Lee
Harrison Long David T. Lopez
Dave Louie Eli Medina
Raymond Panneton Ciara Perritano
Hon. Josefina Rendón Jennifer Smith
Kyle Steingreaber Rachael Thompson
Mark Yablon
managing editor Maggie Martin
HBA OFFICE STAFF
executive director Vinh Ho
Associate executive director Ashley G. Steininger
executive Assistant and director of board Affairs Gina Pendleton
Controller Sarah Kole
director, marketing and Communications Maggie Martin
Communications specialist Briana Ramirez
education Coordinator Alli Hessel
director, Projects and events Bonnie Simmons
Projects and events Assistant Georgina Peña
director, membership and Technology services Ron Riojas
ADVERTISING SALES DESIGN & PRODuCTION
QuAnTum/sur 10306 Olympia Dr., Houston, TX 77042
281.955.2449 • www.quantumsur.com
Publisher
Leonel E. Mejía
Production manager Advertising
Marta M. Mejía Mary Chavoustie
By Liz m a L pass Baker Botts L.L.p.
AssoCiATe
IBill of Rights
n a 2005 commencement address to Kenyon College, author David Foster Wallace began his speech with a parable about fish. An old fish swims past two young fish one morning, and as he passes, he says, “Morning boys, how’s the water?” The two young fish turn to each other, bewildered. They have no idea what water is. Wallace used the story to make the point that “the most obvious, important realities are often the ones that are hardest to see and talk about.”
In this final issue of the Bar year, The Houston Lawyer covers one of the most foundational elements of American jurisprudence—the Bill of Rights. Even as attorneys, it is easy to take the Bill of Rights for granted.
been interviewed to discuss aspects of the first, second, fourth, and seventh amendments.
It is often only when those liberties are threatened—a kind of draining of the water from the fish tank—that we remember that those liberties exist and that their protection is vital to our understanding of our nation and ourselves. From the protection of free speech to the guarantee of a fair trial, the Bill of Rights serves as a testament to the enduring principles of individual liberty that are the hallmark of our nation.
This issue brings together a collection of personal stories about the Bill of Rights, all the more fitting because many of the rights protected by the first ten amendments are so very personal. Shannon Quadros, Anna DeMaggio, John Ngunjiri, and Jill Yaziji, naturalized citizens, describe their own personal histories and gratitude for these liberties. The Honorable Charles Eskridge and his judicial clerk, Paige Scobee Fish, discuss the illuminating origins of the Constitution. My Baker Botts colleague and friend, Christopher Tutunjian, is also featured in an interview describing his role in the religious liberties case Groff v. DeJoy, which was decided by the Supreme Court of the United States last session. Thank you to our guest editors, Lane Morrison and Harrison Long On the year’s final installment of the podcast, Behind the Lines, a full slate of attorneys and law professors have
As we bring The Houston Lawyer’s 60th year to a close, I am proud of all that we have accomplished this year. Though the contributions of our writers and editors speak for themselves, just before this final issue went to print, we learned that the State Bar of Texas had selected The Houston Lawyer as the “Best Overall Newsletter” for the 2024 SBOT Stars of Texas Bars Awards. The magazine also won for the following submissions: News Article (“A Deep Dive Into the CROWN Act: Stopping Hair Discrimination One Strand at a Time” by Megan Mitchell, July/August 2023); General Interest Story (“The Many Titles of Tasha Schwikert Moser” by Dave Louie, January/February 2024); Publications—Series of Articles, Substantive Law (J. Vance Lewis and Houston’s First African American Attorneys, by George “Trey” Gifford III; Ryan A. Cunningham; Charles L. Sharman; and R. Michelle Boldon, January/February 2024).
I am immensely grateful for the support and contributions of our talented editors and contributors, and to 2023-2024 HBA President Diana Gomez, who has guided the themes of these issues throughout the year. Looking ahead, I am excited to announce that Andrew Pearce, who served as this year’s articles editor, will be next year’s editor in chief. Andrew is a tremendous force of enthusiasm and I look forward to watching the magazine thrive under his leadership.
Finally, the magazine would not be possible without Maggie Martin, our managing editor, yet her incredible contributions to the magazine only represent a small portion of her responsibilities as the director of marketing and communications for the HBA. I cannot state enough how grateful we all are for her.
As always, thank you for reading The Houston Lawyer, this year and in the years to come.
Nikki Morris BakerHostetler
Andrew Pearce BoyarMiller
Lane Morrison Bush Seyferth
Anna M. Archer U.S. District Court
Braden Riley Marrow & Sheppard
Sydney Huber Bateman Horne Rota Moos
members of the 2023-2024 Houston Lawyer editorial board at the final meeting of the bar year.
HBA Welcomes Vinh Ho as New Executive Director, Thank You to Mindy G. Davidson for Dedicated Service to the Bar
After an extensive nationwide search, Houston attorney Vinh Ho joined the Houston Bar Association as its new executive director on May 13. Ho is an attorney with over 16 years of experience in immigration and family law, civil matters, and nonprofit leadership. He succeeds Executive Director Mindy G. Davidson, who retired in June after an orderly transition.
Ho was the senior director of legal services at the Randall O. Sorrels Legal Clinics at South Texas College of Law Houston. Ho also served as executive director of the Houston chapter of Boat People SOS, Inc., a nonprofit primarily serving the Vietnamese and Asian community, with branches across the United States and Southeast Asia. He has served on numerous nonprofit boards and numerous State Bar of Texas committees, including Legal Services to the Poor in Civil Matters and Laws Relating to Immigration and Nationality. Ho earned his joint J.D./MBA from Texas Tech University and graduated magna cum laude from the University of Houston with a BBA in Management Information Systems and a B.S. in Biology.
Ho. “I have dedicated my career to public service and look forward to serving Houston lawyers in furtherance of our profession and the administration of justice.”
Ho succeeded Davidson, who served the HBA as its executive director since 2019 after a more than 30-year legal career in Houston, focused on fiduciary responsibility and corporate governance.
“It has been a tremendous honor to serve as the HBA’s executive director and I am proud of all that our team has accomplished over the past five years. Vinh brings fresh perspective and I believe the future of the HBA will be very bright under his leadership,” said Davidson.
HBA President Diana Gomez said Ho’s experience and expertise will serve as a valuable resource as the organization continues to grow.
“We greatly appreciate Mindy Davidson’s contributions and are very excited to have Vinh Ho join us as executive director at such an important time for the organization,” said HBA President Gomez. “Vinh’s background and experience will be pivotal as we continue to expand the HBA’s impact.”
“I am thrilled to join the Houston Bar Association,” said
mindy G. Davidson and Vinh Ho pose at the HBA Annual Dinner on may 14, 2024.
FThank You From Mindy G. Davidson
ive years went by in a flash. I am sincerely grateful for the incomparable HBA Team:
• Associate Executive Director Ashley Gagnon Steininger and Education Coordinator Alli Hessel;
• Marketing & Communications Director (and Managing Editor of The Houston Lawyer) Maggie Martin, and Communications Specialist Briana Ramirez;
• Controller Sarah Kole;
• Membership & Technology Director Ron Riojas;
• Executive Assistant and Director of Board Affairs Gina Pendleton;
ciously supporting me for three years before her retirement. I also want to thank Anne Chandler (former ED of Houston Volunteer Lawyers), Jessica Howton Stool (HVL ED), Karen Ramsey (Houston Lawyer Referral Service ED) and Nick Hall (Dispute Resolution Center ED) for collaborating with me to move our collective group of organizations ever forward.
• Projects & Events Director Bonnie Simmons and Projects & Events Assistant Georgina Peña; and
• Executive Director Vinh Ho (as of May 13, 2024).
To say that we are a lean and mean team does not do us justice. Each and every one gives their all, whether by sharing vital historical knowledge about the Houston Bar or enthusiastically embracing the role they have to play; and that is even when we don’t know what that role needs to be and have to figure it out together. It is impossible to describe the amount of work and dedication that this wonderful group of humans gives all day, every day, and from that the magic that is produced. In this, I want to acknowledge former associate executive director, Tara Shockley, and thank her for so gra-
It was an honor to have been a thought partner for seven HBA presidents and six HBF chairs. I have personally benefitted greatly from their wisdom and guidance and look forward to their lasting friendships. Heartfelt thanks to Warren Harris, Benny Agosto, Jr., Bill Kroger, Jennifer Hasley, Chris Popov, Diana Gomez, and David Harrell, as well as to Travis Torrence, Susan Bickley, Polly Fohn, Christian Garza, Monica Karuturi, and Linda Hester
There are many more who provided mentorship, support, learning moments, sympathetic ears, and friendship. I am grateful for you all.
To Vinh, congratulations on your new position! This is a terrific job, and you have a fantastic Team. I am excited to see where you will take the Houston Bar next.
Onward.
With every good wish,
Mindy G. Davidson, Former Executive Director, Houston Bar Association
mindy poses with HBA past presidents at a reception honoring mindy and HBA president Diana Gomez. (L to R): Benny Agosto, Jr., Diana Gomez, Tommy proctor, mindy G. Davidson, Alistair Dawson, Warren W. Harris, Travis J. Sales, and Bill Kroger.
former HBA Executive Director mindy G. Davidson (fourth from the right) poses with the HBA team, (L to R) HBA Executive Director Vinh Ho, maggie martin, Briana Ramirez, Bonnie Simmons, Georgina peña, HBA president Diana Gomez, Gina pendleton, Ashley Gagnon Steininger, Sarah Kole, and Ron Riojas.
Judge ChArles r. eskridge and PAige sCobee Fish
A LESSON iN HiSTORy: The Origins of the Federal Constitution
Judge Charles R. Eskridge, United States district judge for the Southern District of Texas, teaches a course of his own design called Origins of the Federal Constitution as an adjunct professor at the University of Texas School of Law and the University of Houston Law Center. His course materials are currently in the editorial process for publication by the Texas Review of Law & Politics (“TROLP”).
One of his current law clerks, Paige Scobee Fish, was his student during her 2L year at the University of Texas School of Law while also an editor for TROLP. The Houston Lawyer sat down with Judge Eskridge and Scobee Fish to ask a few questions about their experiences with the class.
HBA : Can you give us an overview of the class?
Judge Eskridge: Well, it covers a lot of ground. Origins of the Federal Constitution presents an intensive introduction to the historical sources of the Constitution. With select readings of original source documents, we consider the common law and other influences on early American government and justice, such as Locke, Montesquieu, and Blackstone’s Commentaries; the colonial experience leading to and immediately following the American Revolution; documents and debate directly relevant to formation of individual constitutional provisions and amendments; and the initial experience and understanding of the Constitution, through to Justice Joseph Story’s Commentaries, in addition to later amendments. And while not the main focus, the class also considers the influence and use of this material on modern
understanding of the Constitution.
HBA : Why was it important to you to take Judge Eskridge’s class?
Scobee fish: Origins was one of the few classes in law school that actually dug deeply into the historical materials that underpin the Constitution. Part of what drew me to law school was my interest in government and constitutional law, so it was important to take advantage of this unique chance to dive into its history. I wanted to take a class where I could learn from firsthand sources how our framers developed our unique blend of democracy, republicanism, and federalism. And it was just an amazing opportunity to have Judge Eskridge as my professor, along with Judge Brantley Starr of the Northern District of Texas, who co-taught the class that year.
HBA : What first got you interested in this topic?
Judge Eskridge: It actually traces way back for me. I quickly became aware of a gap in my legal education when I clerked for Justice Byron White just after law school. An extract in some prior opinion from The Federalist, or a quote from Blackstone’s Commentaries in a brief, would seem on its face fairly dispositive. But I had no broad understanding of its place in the development of an issue, beyond what the opinions themselves said. Law school depends a great deal on historical reference, but it isn’t designed as an advanced history class. And that always nagged at me a bit, until Fall 2008, when Justice Clarence Thomas gave the endowed lecture at my alma mater, Pepperdine University School of Law. He delivered it as a fireside chat of sorts, and I was fortunate to be one of three on a panel posing questions to him. He was asked about his interpretive philosophy and what he uses as guideposts when deciding difficult cases. In answering, he first paused to note that the classes on constitutional law are case-driven, typically focusing on the most recent cases that articulate current doctrine. And he said that he wished law schools had started first with a course called something like “The Formation of Our Constitution,” so that a broader view of history
could illuminate the various provisions and amendments, along with the problems and issues that the framers had under review in the early days of the Republic. I jotted that down, and it became my class, which I taught for the first time at the University of Houston Law Center in Spring 2010.
HBA : What was your biggest takeaway from the class?
Scobee fish: The readings in Origins changed my perspective on the Constitution. As Judge Eskridge often pointed out in class, it is amazing to consider how studied and prolific our founders were, as a generation. The hundreds of pages of documents that he selected for the class syllabus are only a sliver of the total writings published during the drafting and ratification of the Constitution. Alexander Hamilton himself wrote over 50 essays in the Federalist Papers in less than a year. Reading this vast [number] of primary sources showed me that, even if the framers didn’t agree on everything, and even if their decisions didn’t turn out perfectly, they put
an amount of thought and effort into reaching compromise that is almost unfathomable today. I took away from the class a new understanding and gratitude for their efforts and the constitutional system they designed.
HBA : How did you select the documents to include?
Judge Eskridge: In the main, the documents are distilled and edited from a truly remarkable five-volume compendium of original documents called The Founders’ Constitution The University of Chicago Press published this in conjunction with the 200th anniversary of the Constitution in 1987. All in, it’s about 7,000 pages of reference material. That is a monumental achievement, from which I selected a “greatest hits” that total approximately 1,000 pages, so the class covers about 70 pages each week. A note that the University of Chicago Press also performs a real public service in keeping a free, online, searchable version. The Press has also recently published a similar, two-volume treatise devoted to the Thirteenth, Fourteenth, and
Fifteenth Amendments, from which I’ve since designated further materials. And the research librarians at Pepperdine University School of Law assisted me when I taught my class there in Fall 2011, pulling legislative and background documents for the Sixteenth through Twenty-Seventh Amendments.
HBA : Why did TROLP decide to edit and publish these materials?
Scobee fish: A number of my fellow classmates that semester were also editors at the journal. We all thought Origins was a unique and rare reading into primary sources and constitutional history and we wanted to share that opportunity with law students around the country. By editing Judge Eskridge’s collection of documents into an accessible format, we are hopeful that professors or judges will teach the class at other law schools. And consistent with TROLP’s mission to provide a forum for the discussion and debate of issues like federalism, originalism, constitutional history, and con-
temporary constitutional law, it is also our hope that the Origins of the Federal Constitution textbook will provide legal scholars a helpful introductory guide for research and study of the Constitution.
HBA : Does this course and these documents influence your role as a judge?
Judge Eskridge: It does in some ways, although a district court judge doesn’t often have occasion to decide constitutional issues as an “original” matter. But it has definitely instilled in me the importance of understanding the exact text of any legal document and its meaning and context as written. And I guess as to the bigger picture—after gathering and sequencing the documents and having now taught the class ten times—I see the various provisions spread across the Constitution in a different way, as part of a seamless whole. And that’s true as to the responsibilities shared across many articles to the legislative, executive, and judicial branches, as well as the balance of powers between the federal and state governments. For any power granted by the people to the government, there is a further connection to rights that specifically check and balance those powers.
HBA : How do you anticipate using what you learned in your legal career?
Scobee fish: I’d echo what Judge Eskridge said. Learning to critically read the text of the Constitution taught me the importance of critically reading any legal text. And familiarizing myself with the vast array of primary sources in the course has made me much better prepared to research and make legal arguments bolstered by history. Plus, many of the documents themselves provide excellent examples of persuasive legal writing. Take Alexander Hamilton’s pithy phrase from Federalist 78, the judiciary as the “least dangerous branch,”—that argument won the day at ratification, and almost every American lawyer today still knows it by heart. I think everyone who takes the class walks away with the goal to be as incisive a lawyer as Hamilton was—or Madison or Jay or Wilson or [the] many, many others that we read!
HBA : If you had to pick a single, favorite document, which would it be?
Judge Eskridge: James Madison recorded in his notes from the Convention the speech that Benjamin Franklin, at age 82, gave on the last day of their proceedings, September 17, 1787. His was a call to reach across lingering differences, and to put aside vanity and personal preference in favor of the continued strength and security of a nation whose future was still very much in doubt. If I can just quote a short passage: “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others…I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility—and to make manifest our unanimity, put his name to this instrument.” We cover this speech as the fifth document in our first class, and I come back to it again and again throughout the course. I think it really stands alone in its time for his wisdom, and it certainly stands apart from political speeches and discourse of the present day.
HBA : Same question to you. What was your single favorite document?
Scobee fish: Judge Eskridge stole my favorite document! But if I had to choose a runner-up, it would be George Washington’s Farewell Address, which he gave as he left the presidency in 1796. It is one of the last documents we read for the last day of class. And each time I read it again, I’m struck first by President Washington’s humility—he begins with a “deep acknowledgment of that debt of gratitude which I owe to my beloved country.” And then by his realism as he acknowledges the fragility of the new Constitution and uncertainty as to whether it will possibly last. He warns solemnly about the
dangers of disunity and the fragility of the newly ratified Constitution. But most importantly, I am struck by his optimism— that such uncertainty can be addressed by adhering faithfully to the Constitution, “by respecting all the words the framers wrote, by facing facts, and by seeking to understand their meaning for living people.” And if we do so, he says, despite differences, the American people can again fight a common cause and “triumph[] together.” His words always remind us that maintaining the Constitution is hard and never-ending work, but, as long as we do that work—and remain unified in that goal—our country will continue to prosper even in challenging times.
The Honorable Judge Charles R. Eskridge, United States district court judge for the Southern District of Texas, received his J.D. from Pepperdine University School of Law and went to college at Trinity University. He served as a law clerk to the Honorable Chief Judge Charles Clark of the United States Court of Appeals for the Fifth Circuit, as a law clerk to Justice Byron White of the Supreme Court of the United States, and as a special assistant to the Honorable Howard Holtzmann of the Iran/U.S. Claims Tribunal in The Hague. Before appointment to the bench, he was in private practice in Houston, litigating complex commercial disputes.
Paige Scobee Fish is a law clerk for the Honorable Charles R. Eskridge. She received her J.D. from the University of Texas in 2023 and went to college at the University of Wisconsin. Before law school, she worked as a government relations associate at a lobbying firm in Madison, Wisconsin. Following her clerkship with Judge Eskridge, she will clerk for the Honorable Judge Don Willett on the United States Court of Appeals for the Fifth Circuit.
by AnnA ArCher
THE RELiGiOuS
ACCOmmODATiON CLAim iN
Groff v. DeJoy:
Arguing to Change the Standard
(An Interview from Behind the Lines, The Houston Lawyer Podcast, Season 4, Episode 2)
Behind the Lines: The Houston Lawyer Podcast debuted on October 30, 2020, as a companion to The Houston Lawyer magazine. The theme of each episode is based on the topic of the current issue of The Houston Lawyer. The podcast is available on every major podcast platform. Most listeners are from the Houston area, but there are regular listen-
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ers from all over the world. Most episodes are accredited for Texas CLE credit.1
In October 2023, Behind the Lines Host Anna Archer (AA) interviewed Baker Botts Associate Christopher Tutunjian (CT) about his work on the Groff v. DeJoy2 case, in which the firm represented the plaintiff, Gerald Groff, pro bono. This interview exemplifies the significant learning opportunity the podcast provides.
The editorial board of The Houston Lawyer and the Podcast Subcommittee strive to ensure the podcast content is relevant and interesting to people practicing law in the greater Houston area and that the guests are people a wide variety of Houston lawyers would like to hear from. Tutunjian, a Houston-based associate who had the opportunity to play a major role in a First Amendment case that went all the way to the U.S. Supreme Court, is one such guest. The following transcription of the interview has been condensed and amended for print:
AA : Can you start out by telling us a little bit about how Baker Botts got involved in this case?
CT: Yes, absolutely. We were retained after the district court granted summary judgment in favor of Louis DeJoy, the postmaster general. The trial counsel knew they wanted to appeal to the Third Circuit, and they got in touch with First Liberty Institute. First Liberty Institute
reached out to Aaron Streett here at Baker Botts and asked if Baker Botts was interested in taking on this case. We very much were, and so we were the lead appellate counsel throughout the proceedings in the Third Circuit, and we took it all the way up to the U.S. Supreme Court.
AA : So, you guys started out doing the appeals rather than the basic litigation at district court, and the plaintiff had lost in the district court?
CT: That’s right. After First Liberty reached out to us, Aaron asked me if I was interested in working on this case, and I definitely was. That was back in May of 2021. We’ve been working on this for a long time.
AA : It sounds like it was a great opportunity for you to get to work on such an interesting case. Could you tell the listeners, keeping in mind that some of our listeners may be law students, or even non-lawyers, a little bit about the facts of the case?
‘‘
...[employers] have to accommodate employees’ religious practices unless the employer can demonstrate that the accommodation would impose an undue hardship on the conduct of the employer’s business.”
CT: So, our client—Gerald Groff—is an evangelical Christian from Lancaster, Pennsylvania. He believes that the Sunday Sabbath should be a day of worship and rest and that he should abstain from secular work on that day. He was a mailman for the U.S. Postal Service. Ordinarily, you would think if your religious beliefs prevent you from working on Sundays, being a mailman is a pretty good job for you. But, when the Postal Service signed a contract with Amazon to deliver packages on Sundays, Mr. Groff was forced to work on Sundays. He offered to pick up extra shifts on Saturdays and throughout the week to make up for missing work on Sunday. But the postmaster at Mr. Groff’s mail station said, “No, you’re going to have to work. I’ll try to find a replacement for you, but if that doesn’t work, and no one volunteers,
you’ll have to show up like everyone else.” Well, Mr. Groff stuck by his convictions and did not show up to work. He received progressive discipline over the course of about two years. And then, eventually, knowing termination was around the corner, he resigned and brought a lawsuit under Title VII of the Civil Rights Act. I will provide some background on Mr. Groff’s claim. He brought a religious accommodation claim. Under the Civil Rights Act, employers cannot discriminate on the basis of religion. And they have to accommodate employees’ religious practices unless the employer can demonstrate that the accommodation would impose an undue hardship on the conduct of the employer’s business. And in a 1977 opinion of the case titled Trans World Airlines vs. Hardison3 , the U.S. Supreme Court held that an employer’s business suffers an “undue hardship” whenever accommodating an employee’s religious exercise would require the employer to bear more than a de minimis cost. So, the Court equated undue hardship with anything more than a de minimis cost.
Hardison absolutely gutted Title VII’s accommodation provision. Lower courts embraced the de minimus cost language and virtually always sided with employers at the summary judgment stage. Courts regularly held that any cost, any loss of efficiency, anything that the employer could point to, would be enough to get the employer off the hook. And so, for the last 47 years since Hardison was decided, Title VII’s accommodation provision has been something of a dead letter in the law.
Attempts were made over the last few years to get the U.S. Supreme Court to revisit Hardison and overrule it, but the
Court denied review. However, a couple justices issued dissents from denial of certiorari, and they all pointed out that they were ready and willing to revisit Hardison in an appropriate case. And then in 2023, our case caught the Court’s eyes, and the Court granted review to revisit Hardison
AA : Whenever you were first approached to do this case, were you thinking about those dissents and how it might be time and this might be the case?
CT: Yes, we definitely were. We read those dissents from denial of certiorari, and we read the opinions in those cases to get a sense of, okay, what was the problem with those cases? Were there vehicle issues? What can we do in the chance we lose at the Third Circuit to preserve a good record for getting the Supreme Court’s attention?
We had a really good record in the trial court and felt that even under Hardison’s de minimis standard, summary judgment should have been granted in our favor, or at a minimum remanded for a trial. So, we were optimistic that we could win at the Third Circuit. But we also planned for the contingency or possibility that we were going to lose in the Third Circuit, and we would be ready to petition the Court for cert at that point.
AA : That was a really good summary of everything about the case. What was your role throughout that process?
CT: I took the first cut at drafting all the briefs in the Third Circuit and the Supreme Court. It was a great experience to work on a very interesting and very important case and to do brainstorming and outlining and figure out how we were going to structure our arguments. So, that was a lot of fun. I also got to argue the case in the Third Circuit, which was my first appellate argument. I’m so very thankful to have had that opportunity through this case.
When we got to the Supreme Court, I kept leading with the brief writing, but Aaron argued at that level. A big part of
the job was getting him ready for the arguments. I was doing a lot of research and coming up with ways to craft answers to questions that we knew we were going to get. So, I wrote additional research memos so that Aaron could review them and be ready to tackle those issues at the argument.
And then during the argument itself, I was present and second chaired. I sat next to Aaron and passed him notes. And when the solicitor general was arguing, we conferred together and with the other two members of our team who were seated at our table to make sure that we hit all the points that we wanted to in our rebuttal period.
We waited a few months after the argument, and we got the decision at the end of June. And it was a very good decision. The case was remanded to the district court to apply the new standard in the first instance. The district court has asked us to file renewed motions for summary judgment in light of the Su-
preme Court’s decision.
AA : So, did the Supreme Court do exactly what you’d asked it to do? Or did the justices modify their ruling in some way differently than you expected?
CT: It was a little different than what we expected, but we got very close to everything that we wanted. The Court had granted review on two issues (1) whether the Court should overrule Hardison’s de minimis standard; and (2) whether undue hardship can be demonstrated by merely showing that an accommodation burdens coworkers rather than the business itself.
On the first question, we asked the Court to just do away with Hardison overrule it and interpret it in line with every other civil rights statute that has an accommodation provision and uses the term “undue hardship.” The Americans with Disabilities Act is a good example of that. It defines “undue hardship” to mean “significant difficulty or expense”
in light of the conduct of the employer’s operations.4 And so we asked the Court to follow the plain meaning of “undue hardship.”
The solicitor general took an interesting approach and argued that Hardison shouldn’t be overruled and instead just needed to be clarified. Her position was that the de minimis language was “loose language” and the true holding of Hardison was that employers are not obligated to bear substantial costs when accommodating employees. She pointed to footnote 14 in the Hardison opinion, where the Court seems to have suggested the true governing standard was substantial costs and not de minimis costs. We responded that in a vacuum substantial cost sounds pretty good. It doesn’t seem that different from significant difficulty or expense. The issue was the solicitor general wanted to keep some bright-line per se rules, if you will, that an employer never has to pay overtime to find a replacement worker, never has to involun-
tarily swap the shifts of employees, and other things like that, which would really undercut a substantial cost test and make her formulation a bit hollow.
When we got to the argument, it was very clear that the Court was done with the de minimis standard. It was just a question of what the new standard would be. And when the opinion came down, it was a unanimous 9-0 opinion, and the Court’s holding was that undue hardship means substantial increased costs in relation to the conduct of the employer’s particular business, which sounds a bit like the solicitor general’s formulation. But, the Court makes very clear that this is a context-dependent inquiry. It’s going to be very fact dependent, and you have to consider every possible accommodation—nothing is out of the realm of possibility. So, involuntary shift swaps, the payment of overtime, anything. The Court said “substantial costs,” which kind of sounds like the solicitor general’s position. But in rejecting her bright-line, hard-and-fast rules and making clear that it’s context dependent, it’s very close to the context-dependent significant difficulty or expense tests that we asked for.
The Court didn’t formally overrule Hardison because the justices said that Hardison actually embraced a substantialcost test and that if you look at footnote 14 and some other features of the opinion, you can see that. That was an interesting rereading of Hardison. For the last 50 years, everyone has understood Hardison to be a de minimis cost test—lower courts, practitioners, academics, professors, everybody, but I guess we all just missed it. We just didn’t read the opinion close enough.
But they found a way to get to the right answer without having to overrule Hardison, and they were able to do it with keeping all nine justices together. I think when they can do that, they’re happy to get everybody on board.
AA : So, they elected to clarify, as opposed to overruling. But they’ve been overruling so much lately, maybe that might have
played into the decision to phase it that way a little bit?
CT: Yeah, it’s interesting because they haven’t shied away from overruling big precedents. I think, though, that, you know, a couple of things in this kind of new Court over the last few years, they have found ways on big issues that are not necessarily hot button attention grabbing issues, to keep together and rule 9-0 and kind of get to the right outcome. And I think in these days, they’re very happy to do that.
I think just from how argument went, all the justices agreed that there was a better formulation and a right formulation out there for undue hardship. It’s just when it comes to using the word “overrule” some justices would prefer not to do that. And they were able to accommodate everyone’s views and get it all into a 9-0 opinion.
Another interesting kind of feature is that this was an April case, and the opinions for April cases have to be written very quickly and finalized quickly to get things out the door by the end of June when the term ends. And so sometimes that can impact how the Court tackles cases since they are running low on time.
AA : That’s really nice, though, that they can all kind of get together and figure out a way to make it work that everyone agreed with. I just feel like that’s sometimes rare.
CT: An interesting feature of this term, even though there were some very big split decisions, 6-3 and 5-4, the number of cases that were unanimous was actually higher than usual the last few years. Also, the Court took less than 60 cases. I think I read somewhere that’s the least amount of cases like since the Civil War. So, it’s just all very interesting.
AA : I’ve heard that, too. That’s interesting that there actually are more cases that were unanimous than usual, because what we tend to hear about are always the cases where it’s a divided court. So, I guess you just don’t hear about the
ones that have outcomes that everyone agrees on.
CT: Yeah, this Court’s at an interesting time. And so, you know, I think it’s good that for an issue like this—religious liberty—it’s good to have a unanimous Court and to show that all nine justices are behind it. It just goes to show how wrong the decision in Hardison was. The justices all recognized it and cleared it up.
AA : It seems like it will just be a stronger case for the future because it’s unanimous. So, I just commend you for being able to have a major influence on the law as such a young associate, and I want to thank you for taking the time to be on Behind the Lines.
CT: My pleasure. Thank you.
Anna Archer serves as an associate editor on The Houston Lawyer editorial board, and she is the host of Behind the Lines: The Houston Lawyer Podcast. She started hosting the podcast in October 2021. Brooksie Boutet was the original host of the podcast.
Christopher Tutunjian is a litigation senior associate in the Houston office of Baker Botts L.L.P. As a member of the firm’s Appellate Practice Group, he represents clients in federal and state courts of appeals, including the Supreme Court of the United States and the Supreme Court of Texas. Prior to joining Baker Botts, Christopher served as a law clerk to the Honorable Daniel P. Collins of the United States Court of Appeals for the Ninth Circuit.
Endnotes
1. Access to and recent CLE course numbers for recent episodes of Behind the Lines may be found at: https://www.hba. org/?pg=The-Houston-Lawyer-CMTE.
2. 600 U.S. 447 (2023).
3. 432 U.S. 63 (1977).
4. 42 U.S.C. § 12111(10).
What the Bill of Rights Means to Me
i ntroduction by Ra CH ae L T H ompson
For those of us who have grown up as citizens in the United States, it can be easy to take for granted the freedoms and rights enumerated in the Bill of Rights. We have always lived under the umbrella of freedom and liberty provided by these important rights. But for those naturalized citizens who came to the United States from countries without such guaranteed rights and protections, the Bill of Rights takes on a heightened meaning and importance that we can all learn from and appreciate. The following reflections
from a few of our colleagues who are naturalized citizens provide some valuable perspective on just what the Bill of Rights truly means.
Rachael Thompson is an associate at Winston & Strawn LLP, focusing on complex commercial litigation, energy and environmental matters, and international arbitration. She has served on the editorial board of The Houston Lawyer since 2022.
The Singularity of the American Experience
By Ji LL Yazi J i
My naturalization ceremony of February 1996 ushered in a desire to study law. I already had a Ph.D. from the University of Texas at Austin, but I wanted to do more than teach literature. I had come from a country of men without laws, and now I had become part of a country of “laws, not men.”1 Having been born and raised in Syria, a country often on the precipice of political turmoil and war, my perspective was different than that of my American friends. I did not take the rule of law for granted and I felt that much could be done in a democratic system of governance. Law school offered a path into that experience.
When I became a citizen, I had no legal training. I embraced the greatness of my adopted country, but I did not quite understand the singularity of American constitutionalism. The Constitution of the United States and the Bill of Rights were concepts I studied to pass the citizenship test. It would be years before I came to grasp how the rights of American citizens were so ingrained in the American psyche. In early 1947, Eleanor Roosevelt chaired the committee on drafting the Universal Declaration of Human Rights (“UDHR”), aided by P. C. Chang of China and Charles Malik of Lebanon.2 I wondered why the UDHR, proclaimed by the United Nations General Assembly in Paris in 1948,3 remained an unrealized model of the Bill of Rights, enumerated
in the United States almost one and a half centuries earlier.
Both the Bill of Rights and the UDHR were envisioned in the aftermath of wars and great internal strife. Both intended to establish basic inalienable rights for citizens that no government or police force could take away. Both sought to guarantee the freedom of speech, conscience, religion, and equal protection regardless of race, sex, religion, or ethnicity. Yet, while these rights have become enshrined, exercised, and protected in the United
States, they remain far-fetched, fragile, and fleeting for people around the globe.
So, what were the crucial differences between the Bill of Rights and the UDHR? Why did the former develop into a solid political experience and the latter remain mere concepts in need of realization? I pondered this question, especially in the wake of the strife in Syria—where 50% of the population was in the grip of hunger in 2023.4
The answer is multifaceted, with cultural, regional, and politi-
cal nuances. But it fundamentally lies in how conflicts are framed and resolved. The difference lies in the ability of the United States to resolve conflict in a legal manner and the empowerment of an independent judiciary to interpret the law of the land. The Bill of Rights was only a set of principles, until, years later, Marbury v. Madison established that the Court had the power to invalidate acts of Congress that violated the U.S. Constitution. With Marbury v. Madison, judicial review was born, and with it came the many protections that Americans enjoy today.
Laws are only words on the page in the absence of an independent judiciary to interpret them and a legal system to enforce them. This is the singularity of the American experience.
Jill Yaziji is the principal of Yaziji Law Firm, PLLC and former board member and editor in chief of The Houston Lawyer
THE u.S. BiLL Of RiGHTS :
A Story of a Ukrainian-Born Attorney
By a nna De m a GG io
This article reflects on the meaning of the U.S. Bill of Rights to an immigrant, who is a Ukrainian-trained and U.S.-licensed attorney.
Like most immigrants arriving in the U.S., I have been fascinated by this country’s freedoms.
Eastern Europe’s law is based on the civil code, which leaves less room for economic analysis of the laws. The Soviet regime enhanced the rigidity of the legal system and created draconian penalties and institutions that make the government seem more important than its people. Nevertheless, to this date, Ukrainians continue to fight for their freedoms.
I am a Zaporizhzhya native,5 and freedom is fundamental to me by way of the region’s history.6 Both historic and current events have led Ukrainians to value human rights and freedom, and to not take them lightly. Pylyp Orlyk, a Ukrainian, drafted the first European Constitution in 1710;7 his constitution contains the first mention of an independent jury trial. Ukrainian lands (and people coming with them) were torn between contiguous countries through centuries, though Kyiv was the first and largest settlement of the Slavic tribes and a successful governmental entity for a time.8 Kyiv still boasts the magnificent architecture and art of those times.9 At the turn of the 20th century, Ukrainian
historian and statesman Mykhailo Hrushevsky10 and the dissidents fought for Ukrainian freedom.11 Ukraine was also one of the main forces in the WWII oppression of Nazism.12 The book Red Famine: Stalin’s War on Ukraine by Anne Applebaum also explains why human rights are vital to Ukrainians.13
In the United States, human rights and freedoms are essential to the legal system. The American legal system places human life above all other values. The Preamble of the Constitution says, “We the People.” Diversity is encouraged in all areas of life. This is why professionals from all over the world enjoy the benefits premised on the freedoms of religion, assembly, speech, press, bearing of arms, the right to a speedy impartial trial and jury trial, and to be secure in one’s home, person, and belongings. To me, this means collaborating within the community ethically and based on good faith and equity.
I cherish the hope that someday, the freedoms contained in the Bill of Rights will be available to Ukrainians. In the meantime, I am forever grateful for being a licensed attorney in the U.S. with an opportunity to serve others.
Anna DeMaggio is a Texas- and New Yorkbarred attorney who works as counsel at Orion, where she is responsible for the company’s concrete division. Prior to receiving her Master of Laws degree from the University of Chicago Law School as a Turk’s Fellow, she obtained her Bachelor’s and Master of International Law (equivalent of college and Juris Doctor degrees, respectively) in Kyiv University, Ukraine.
Jill yaziji just after being sworn in.
Anna Demaggio being sworn in during a naturalization ceremony.
In the Greatest Nation of Immigrants, Civility Must Reign Supreme!
By Jo H n nG un J i R i
Of the original 12 proposed articles of amendment submitted to Congress in September 1789, only 10 (Articles 3 through 12) made that initial cut and were ratified into the Constitution on December 15, 1791. These ten amendments became what we know today as the Bill of Rights.14
Among the axioms guiding this land of the free towards becoming a stronger union is the rule of law under a government of integrity, with a passion of patriotism. The law generally reflects and promotes a society’s core values. Traditional norms and ideals influence and inform the law with regard to what is right and just and what is wrong and unjust. Laws promote society’s goals of protecting basic human rights, fairness in resolving conflicts, enhancing stability and order, encouraging desired social and economic behavior, and representing the will of the majority (i.e., democracy) while preserving the rights of the minority. Respecting and abiding by the law enable liberty and life to coexist in harmony and, as is often the case, disregarding the law results in the actor’s and their victim’s inability to enjoy life or liberty.
‘‘
Greatness is not given—it must be earned; yet, like human life, it is fleeting and must be nourished with care and protection of the tenets that led to earning it.”
tion of the tenets that led to earning it. The United States of America is great, and we must ensure it remains so by doing our part in promoting civility, tolerance, and the rule of law. The Bill of Rights are part of the living Constitution, as they embody the freedoms of speech, press, worship, assembly, redress of grievances; the freedom from unreasonable searches and seizure; the right to a fair and speedy trial by an impartial jury of our peers; the freedom from excessive bail or cruel and unusual punishment; and the preservation of power of government in, to, for, and by the People. Our founding fathers, in their own wisdom and judgment, found it so imperative to bake these rights into the supreme law of the land in order to form a more perfect union. For the rule of law to prevail, civility must remain supreme, and we must unwaveringly defend its operating manual—the U.S. Constitution.
The inalienable rights afforded by the Bill of Rights apply to every person—regardless of their nationality, country of origin, race, color, ethnicity, creed, religion, gender, sex, sexual orientation, sexual identity, education, age, disability, or any other distinguishing characteristic or trait—and must be jealously protected and never be abused. And thus, patriotism calls us to participate in ensuring equal opportunity, tolerance in the face of distinguishing characteristics or traits, and civility and good will for others whose opinions may vary from our own.
The most powerful and natural resource in any undertaking is the human beings themselves, yet as any resource that has been at humanity’s disposal, people continue to be abused and shredded by our selfish and greedy nature. The tapestry of our differences is what makes us unique beings, and it is sheer arrogance to ignore such differences. As a first-generation American, a philosopher, and as an attorney of color, it is not lost to me the toil, unselfish sacrifice, and unbraced courage that the giants before me have endured to pave way for my generation and those to come.
Greatness is not given—it must be earned; yet, like human life, it is fleeting and must be nourished with care and protec-
John Ngunjiri is an energy and infrastructure M&A attorney with Norton Rose Fulbright US LLP at its Houston office. Prior to joining the firm in 2022, John worked as an engineer and capital projects professional for Exxon Mobil Corporation’s Global Projects Company. He graduated from the University of Houston Law Center with a J.D. and LL.M (Energy, Environ. & Natural Resources) in 2021.
A NEW CiTizEN’S OATH :
The Bill of Rights Through Immigrant Eyes
By sH annon Qua DR os
For all but four of the first 40 years of my life, I have been an immigrant. For most of my life, I never had the right to vote, the general freedom to say things that might challenge the social or political status quo, or the unqualified right to petition the government of the countries I lived in, and I certainly did not have the right to keep and bear arms.15
In the summer of 2017, in North Houston, I took the solemn oath that marked the culmination of my journey to American citizenship. This moment was not merely a formal ceremony, but a profound pledge of allegiance to the ideals, Constitution, and laws of the United States, including the revered Bill of Rights.16 Having already been a practicing attorney by then, I had made my allegiance known when I swore to uphold the Constitution of the United States and the State of Texas as part of the New Lawyer Oath.17 In 2018, I had the great privilege of speaking to new citizens at the Houston naturalization ceremony at the invitation of the Honorable Gray H. Miller, U.S. district judge for the Southern District of Texas. There, I was able to reflect, as I do here, on a few provisions of the Bill of Rights, both as a new citizen and as a guardian of the laws that define them.
Whether we are advocating for a client’s right to free speech, defending against unreasonable searches and seizures, or ensuring a fair jury trial, the first 10 amendments are both our shield and our guide as attorneys. While these are the tools we use to protect our clients, they are also a sobering reminder of the fragile nature of liberty and the perpetual need to protect it.
The First Amendment’s guarantees of freedom of speech, religion, and assembly are particularly poignant to me. I went to a Catholic school in an Islamic kingdom. My school was full of students who did not share my Catholic faith. I went from being in a religious minority to being in the majority just by taking a school bus. That change came twice a day. It made me acutely aware of how a minority group could feel under the weight of a majority. It also taught me that the fabric of a stable civil society can be woven out of different yarn.
Here in the United States, I believe we take for granted that we can peaceably assemble and petition our government for redress of grievances. I have witnessed and been pricked by the lingering sting of tear gas in places where citizens do not have such guarantees, and are compelled to accept, without question, what their unelected rulers require.
The Bill of Rights informs every aspect of law practice.
Words and ideas transform societies, but they do not develop in the dark. I see my role, as a civil litigator, to serve as a conduit for my clients to seek legal redress and make case law, which is law nonetheless, by bringing their words and ideas to light. For it is the words and ideas of ordinary citizens that animate the law and spark change.
Since many immigrants come from countries where government interference into private life is commonplace, the Fourth Amendment’s protection against unjustified searches and seizures is important to them. Especially because in many cases it was easy for the military, police, or paramilitary to seize them or their belongings without even acknowledging what was happening. For the longest time, I could not fathom growing up in a country where I could have the power to say “no” to someone with a badge or where those figures with a badge were obligated to respect that refusal. Now, I find I cannot settle for anything less.
Trial attorneys, whether criminal or civil, find great comfort
Shannon Quadros (left) poses with the Honorable Gray H. miller and Harris County District Clerk Chris Daniel after speaking at a naturalization ceremony in 2018.
in Amendments VI through VIII of the Constitution. The right to speedy trial, assistance of counsel, jury trial, and the prohibition on cruel and unusual punishment, seem like nothing but common sense to me now. However, even a cursory comparative legal class would show that these rights are often the exception rather than the norm around the world.
The Bill of Rights is more than just an abstract legal document to me. It exemplifies the best of what America stands for: a dedication to liberty, equality, and justice. As a naturalized citizen and attorney, I am aware of both the benefits and duties that come with American citizenship. Every day in my law practice, and as one of the directors representing Harris County on the Board of the State Bar of Texas, I work to protect the ideals inherent in the Bill of Rights, ensuring that they are not merely words on a page, but are embodied in the lives of the clients I represent.
Shannon Quadros is the managing shareholder of Quadros, Migl & Crosby PLLC. His practice focuses on construction and real estate litigation and arbitration. He also regularly serves as a panel mediator and arbitrator with the American Arbitration Association and the BBB. He currently serves as a Director—Place 6 (Harris County) on the Board of Directors for the State Bar of Texas.
Endnotes
1. JOHN ADAMS, PAPERS OF JOHN ADAMS, Volume 4, 1776.
2. Universal Declaration of Human Rights (1948), Drafting History, United Nations, Last Updated on May 24, 2024, https://research.un.org/en/undhr/draftingcommittee.
3. Universal Declaration of Human Rights, United Nations, available at: https://www.un.org/en/ about-us/universal-declaration-of-human-rights.
4. Half of Syria’s population faces hunger as conflict passes 12-year milestone and earthquakes deepen economic woes, World Food Programme, March 14, 2023, https://www.wfp.org/news/half-syrias-population-faces-hunger-conflict-passes-12-year-milestone-and-earthquakes-deepen.
5. Zaporizhya is a city in southeast Ukraine situated on the banks of the Dnieper River.
8. Kievan Rus, BRITTANICA, https://www.britannica.com/topic/Kyivan-Rus/ (last visited on April 18, 2024).
9. Ukraine Summary, BRITTANICA, https://www.britannica.com/summary/Ukraine/ (last visited on April 18, 2024).
10. Heiko Muhr, The Man who Anchored Ukraine in the West: Mykhailo Hrushevsky and the Historical Geography of Eastern Europe, BERKELEY LIBRARY UPDATE (Mar. 13, 2022) https://update.lib. berkeley.edu/2022/03/13/the-man-who-anchored-ukraine-in-the-west-mykhailo-hrushevskyand-the-historical-geography-of-eastern-europe/.
11. John (Ivan) Jaworsky, How Important Were the Soviet Dissidents: The Case of Ukraine, ACADEMIA (2020) https://www.academia.edu/43483331/How_Important_Were_the_Soviet_Dissidents_ The_Case_of_Ukraine/.
12. Katya Cengel, The 20th-Century History Behind Russia’s Invasion of Ukraine, SMITHSONIAN MAGAZINE (Mar. 4, 2022), https://www.smithsonianmag.com/history/the-20th-centuryhistory-behind-russias-invasion-of-ukraine-180979672/.
13. ANNE APPELBAUM, RED FAMINE: STALIN’S WAR ON UKRAINE (2017).
14. Congress Submits the First Constitutional Amendments to the States, United States Senate, https:// www.senate.gov/about/origins-foundations/senate-and-constitution/congress-submits-firstamendments-to-states.htm.
15. U.S. Constitution, Amend. I-X.
16. Jessie Kratz, The First Amendments to the U.S. Constitution, NATIONAL ARCHIVES (Sept. 25, 2019), https://prologue.blogs.archives.gov/2019/09/25/the-first-amendments-to-the-u-sconstitution/.
17. New Lawyer Oath, State Bar of Texas, https://www.texasbar.com/AM/Template.cfm? Section=New_Lawyer_Forms_and_Fees1&Template=/CM/ContentDisplay. cfm&ContentID=29062.
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Sharon M. Beausoleil
Susan L. Bickley & Bob Scott
Bragg Law PC
Hon. Harvey Brown
The Buck Family Fund
Hon. Brett & Erin Busby
Bush Seyferth PLLC
BWA Video, Inc.
David Toy Law Firm
Mindy & Joshua Davidson
Wendy & Alistair Dawson
Amy Catherine Dinn
Emma Doineau
Eric & Kami D’Olive
Kaylan & John Dunn
Ali Foyt
Lynn & Stewart W. Gagnon
Roland Garcia
Harris Hoss Mediations & Arbitrations
David T. Harvin
Gregory & Jennifer A. Hasley
HBA Juvenile Law Section
Jim & Cisselon Nichols Hurd
IMS Legal Strategies | Juris Medicus
Shae Keefe & Mark Jacobs
Sara & Jason Keith
Daniella D. Landers
Elizabeth & Russell Lewis
Tim & Ginnie McConn
MehaffyWeber PC
Hon. Margaret Mirabal
Hon. Daryl L. Moore
Nathan Sommers Gibson Dillon PC
Christopher Northcutt
Jeff & Melissa Oldham
Olson & Olson, LLP
Connie H. Pfeiffer
Hon. Margaret Poissant
Quadros Migl & Crosby PLLC
Hon. Frank Rynd
Travis & Sandy Sales
Quentin & Aerin Smith
Brooks & Jacquelyn Tobin
Samantha Torres & Jimmy Hollowell
Hilary Tyson
Sandy & Greg Ulmer
Roy & Dominique Varner
Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP
Krisina Zuñiga & Rick Houghton
Friend Sponsors
Hon. Terry Adams
Hon. Julie Countiss
Sylvia Mayer with S. Mayer Law
Hon. Veronica Rivas-Molloy & David Molloy
Jane Langdell Robinson
Hon. Robert Schaffer
Hon. Charles Spain & John Adcock
Travis Torrence
Other Sponsors
Anthony & Antoinette Franklyn
In honor of Vinh Ho
In-Kind Sponsors
Innovative Legal Solutions
Equal Access Champions
The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.
abraham, Watkins, nichols, agosto, aziz & stogner
akin gump strauss hauer & feld LLp
angela solice, attorney at Law
archie Law pLLC
Baker Botts L.L.p.
Bakerhostetler LLp
Balch & Bingham LLp
Beck redden LLp
Blank rome LLp
Bracewell LLp
Centerpoint energy, inc.
Chamberlain hrdlicka
Chevron Usa
Coane & associates
dentons Us LLp
elizabeth s. pagel, pLLC
eversheds sutherland Us LLp
exxon mobil Corporation
fleurinord Law pLLC
foley & Lardner LLp
frye and Benavidez, pLLC
fuqua & associates, p.C.
gibbs & Bruns LLp
gibson, dunn & Crutcher LLp
gray reed
greenberg traurig, LLp
halliburton
hasley scarano, L.L.p.
haynes and Boone, LLp
hunton andrews Kurth LLp
Jackson Walker, LLp
Jenkins & Kamin, LLp
Jeremy northum, attorney at Law
King & spalding LLp
Kirkland & ellis LLp
Law Office of Cindi L. Rickman
Law Office of Norma Levine Trusch
Law Office of Robert E. Price
Law Offices of Omonzusi Imobioh
Limbaga Law
Locke Lord LLp
LyondellBasell industries
Martin R.G. Marasigan Law Offices
mcdowell & hetherington LLp
mcgarvey pLLC
morgan, Lewis & Bockius LLp
norton rose fulbright
o’melveny & myers LLp
painter Law firm pLLC reed smith LLp
royston, rayzor, Vickery & Williams, LLp
sanchez Law firm
shell Usa, inc.
shipley snell montgomery LLp
shortt & nguyen, p.C.
sidley austin LLp
sorrels Law
squire patton Boggs the ericksen Law firm
the Jurek Law group, pLLC
travis Bryan Law group, pLLC
Vinson & elkins LLp
Weycer, Kaplan, pulaski & Zuber, p.C.
Wilson, Cribbs, & goren, p.C.
Winstead pC
Winston & strawn LLp
Yetter Coleman LLp
Voices of Democracy
The first place winners of this year’s HBA Law Day Contest were recognized during the 2024 HBA Diversity, Equity and Inclusion Summer Associate Luncheon, held on June 6, 2024 in downtown Houston. Read more about Law Day and the contest on page 40.
HBA L AW DAy CONTEST fiRST pLACE WiNNERS
pHOTOGRA pHy CONTEST (GRADES 9-12)
One Person, One Vote
Blanson
High School
Thank you to our volunteers, participants, and partners who helped make our programming possible. Learn more about this year’s HBA’s Law Day activities at hba.org/lawday
HBA Law Day Contest Winner Lynneah Baldwin poses next to her winning entry with her parents, Lizanne Douglas and Desmond Baldwin, at the HBA Diversity, Equity and Inclusion Summer Associate Luncheon on June 6. Lynneah also took first place in the statewide contest. Lynneah Baldwin, Palmer Elementary (Fort Bend ISD), Teacher: Danielle Johnson
SpECiAL NEEDS pOSTER CONTEST (GRADES 9-12)
3RD -5TH GRADE pOSTER CONTEST
Cruzvania Torres,
CTE
(Aldine ISD), Teacher: Vanessa Guerra (Second place in the statewide contest)
K-2ND GRADE pOSTER CONTEST itzel Ortega, Patterson Elementary (Houston ISD), Teacher: Deborah Coats (Second place in the statewide contest)
SpECiAL NEEDS pHOTOGRA pHy CONTEST (AGES 12-22)
A Jury is a Team
Jonathan Tejada, Carl Wunsche Sr. High School (Spring ISD), Teacher: Lucas Lytle
Corey Brown, Jr., Carl Wunsche Sr. High School (Spring ISD), Teacher: Kevin Jukkola
First Place: Houston Bar Association Law Day Essay Contest Legos and Democracy
By Nathan Giang DeBakey High School, Houston ISD
The first place winner of this year’s essay contest was Nathan Giang, a student at DeBakey High School for Health Professions (Houston ISD). Nathan’s teacher was Qian Zhang. Read his essay below. Nathan also placed third in the statewide contest.
Legos are the building block of our democratic system. Just as Lego bricks come in different colors and shapes, our political opinions are diverse, shaped by our lived experiences. When we snap these lego bricks together—these diverse political opinions—we create a mosaic of voices that collectively produce the beauty in our democratic system. Expressing political views and voting are integral in our democracy because they allow this beautiful mosaic of Legos to come together, creating more refined political policies, sparking creativity, and forging unity—not division—among the American people.
From the very beginning of our country, a mosaic of contrasting opinions led to more refined political policies. During the Constitutional Convention of 1787, delegates from different states gathered to develop a new framework for the United States government. There were differing opinions on the balance of power between the federal government and the states and the rights of individuals. Despite these differences in political opinions, the delegates discussed their issues in a civil manner and resorted to compromise in constructing a new form of government for the United States. Ultimately, the convention drafted and ratified the Constitution—the very document that our government is based on—and the Bill of Rights—the document that gives us the right to vote. The Constitutional Convention illustrates how diverse political opinions can come together to refine the political policies, demonstrating the beauty that is created from a mosaic of distinct voices. Furthermore, the expression of political opinion spawns creativity. Upton Sinclair was a writer who
centered his career around political critique. After witnessing the squalid conditions in Chicago’s 20th century meatpacking industry, Sinclair wrote The Jungle, a novel criticizing a lack of oversight and regulation from the federal government. Sinclair’s political opinions ignited his own creative expression. In turn, his creative expression spawned advocacy movements for cleaner meatpacking standards across the country. This encouraged more voters to vote for political officials who would enact legislation that put cleaner meat on their dinner tables. In essence, creativity spawns from the expression of political thought, creating political advocacy movements and encouraging citizens to vote.
When people are united among a common political cause or motivation to vote, the American people become more united. At first, this seems contradictory: how do differing political opinions lead to unity? In recent years, the exact opposite seems to be true—political polarization seems to be increasing. However, it’s not the political polarization that matters; it’s the fact that political polarization actually leads to unity. Recent polling data shows that more and more Americans are showing up to vote, most notably, in the 2020 presidential election. The motivating factor behind these Americans is that they care about their issues so much, they are more compelled to vote. This strengthens the value that unites all Americans: democracy. The beauty of democracy lies in disagreement—that when we have differing opinions with each other, we push one another to enact more refined policies, more creative thought, and more unity in our shared support for democracy.
HBA Lactation Pod Initiative
As one of the HBA’s key initiatives during the 2023-2024 Bar Year, President Diana Gomez partnered with the Harris County District Courts, led by Judge Latosha Lewis Payne, Judge Ravi K. Sandill, Judge Michael Gomez, and Judge Cheryl Elliott Thornton, as well as the Harris County Commissioners Court, led by Commissioner Lesley Briones, the Administrative Office of the District Courts of Harris County, and the Office of the County Engineer to install lactation pods in the Harris County Court Complex. The first lactation pod opened at the Harris County Civil Courthouse on May 8, 2024.
The HBA led the fundraising efforts to purchase the lactation pods. These efforts were spearheaded by the HBA’s Gender Fairness Committee.
HBA President Diana Gomez said this is a crucial access to justice initiative that will make a material difference in the daily lives of many young mothers in the legal profession and greater Houston community.
“As a mother, an attorney, and president of the Houston Bar Association, I am incredibly proud to join our partners in unveiling the very first lactation pod at the Harris County Civil Courthouse,” said Gomez. “These lactation pods underscore the importance of women in the legal profession and sends the message that women are welcome and belong in the courthouse.”
In addition to the funds raised for the pod being installed at the Harris County Civil Courthouse, the Houston Bar Association obtained funding for lactation pods to be installed in the Harris County Crimi-
nal Justice Center, Harris County Jury Assembly Room, and the Harris County Robert W. Hainsworth Law Library.
(L to R) Judge Cheryl Elliott Thornton, HBA Gender fairness Committee Co-chair and judge of the 164th District Court; Stephanie Noble, HBA Gender fairness Committee Co-chair and partner at Vinson & Elkins LLp; Harris County Commissioner Lesley Briones, precinct 4; Judge Ravi K. Sandill, judge of the 127th District Court; Judge Latosha Lewis payne, judge of the 55th District Court; and 2023-2024 HBA president Diana Gomez, pose as they are about to cut the ribbon to officially open the mamava XL Lactation pod at the Harris County Civil Courthouse.
Gender fairness Committee co-chairs Carter Dugan, Judge Cheryl Elliott Thornton, and Stephanie Noble pose with 2023-2024 HBA president Diana Gomez in front of the lactation pod in the Harris County Civil Courthouse on may 8, 2024.
Harris County Commissioner Lesley Briones presents a certificate to members of the HBA. (L to R: Harris County Commissioner Lesley Briones, HBA Gender fairness Committee Co-chair Judge Cheryl Elliott Thornton, 2023-2024 HBA president Diana Gomez, HBA Gender fairness Committee Co-chair Stephanie Noble, former HBA Executive Director mindy G. Davidson, HBA Associate Executive Director Ashley Gagnon Steinger, and HBA marketing and Communications Director maggie martin).
The lactation pod for the County Law Library is funded by a $24,500 grant from the Texas Bar Foundation. The lactation pod for the Criminal Justice Center is funded by a $30,000 grant from the Houston Bar Foundation, which is the charitable arm of the HBA.*
“The Houston Bar Foundation is proud to support such an important access to justice initiative,” said HBF Chair Linda Hester. “We are thrilled to support this lactation pod with funds from the Foundation’s new annual grant program, established to broaden the Foundation’s impact, which is dedicated to the Houston community.”
Stephanie Noble is a co-chair of the HBA Gender Fairness Committee and a partner at Vinson & Elkins, which generously donated funds for the initiative.
“This is a meaningful milestone for our legal community, not only because mothers now have much needed access to lactation spaces in our courthouses, but also because the Houston Bar came together to identify and address a need. Support came from everywhere, through firms, local groups, and individuals. It’s lovely to see our legal community banding together to make lasting change.”
The HBA’s partnership with Harris County entities to bring the lactation pod initiative to fruition was recently recognized by the 2024 State Bar of Texas Stars of Texas Bars Award for Outstanding Partnership.
*All HBA members are members of the Houston Bar Foundation. Support the Foundation by joining our Fellows program today at hba.org
HBA
Photo credit: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones
LaWYers giVing BaCK
Thank you!
The Houston Bar Association would like to recognize the following firms, groups, and individuals who donated to this important access to justice initiative.
$30,000 AND ABOVE
Houston Bar Foundation
$20,000 AND ABOVE
Texas Bar Foundation
$15,000 AND ABOVE
Vinson & Elkins LLP
$5,000 and above
Beck Redden LLP
Mindy and Joshua Davidson
Haynes & Boone LLP
$2,500 AND ABOVE
Baker Botts L.L.P.
Chamberlain Hrdlicka
Pillsbury Winthrop Shaw Pittman LLP
Susman Godfrey LLP
Winston Strawn LLP
$1,000 AND ABOVE
Andrews Myers
BakerHostetler LLP
Harris County Public Defender’s Office
HBA Gender Fairness Committee
Hughes Watters & Askanase, LLP
Lynne Liberato
Kristin Kruse Lotz
LyondellBasell
Porter Hedges LLP
Brooks Tobin and Jacquelyn
Rex Tobin
Yetter Coleman LLP
$500 AND ABOVE
AZA: Ahmad, Zavitsanos & Mensing
Gregory Cokinos/Cokinos Young
Judge Tanya Garrison
Harris County Attorney
Christian D. Menefee
Catherine Hounfodji
Attorney Stefanie M. Gonzalez
Quintero
Quadros Migl & Crosby PLLC
OTHER
Amar Raval P.C.
Anna Archer
Valisa Berber-Thayer
Brooksie Bonvillain Boutet
Melanie Bragg, Bragg Law
Natasha Breaux
Lauren Brogdon
Ellen Conley
Kate David - Husch Blackwell
Kaitlyn Dawson
Attorney Donald Wyatt PC
Judge Keith P. Ellison
Caite Irene Evans
Polly Fohn
Laura Gibson
Diana Gomez
Morgan Haenchen
Kelly E. Hanen
Jennifer A. Hasley
Laura Leckman Hedge
Fraser Holmes
Richard T. Howell, Jr.
Phillip R. Livingston
Stephanie Lucie
Kim Phuong Mai
Brittny Curry Mandarino
McCarthy Arntz ADR
Shayne and Hon. David Newell
Stephanie L. Noble
Kelli Norfleet
Courtney Palm
Julie and Tom Pradel
The Greenwood Prather Law Firm PC
Robin Raasch
Emery Richards
Denise Scofield
Re’Necia Sherald
Ashley Gagnon Steininger
Jessica Hart Steinmann
Kaylen Strench
Amy Dunn Taylor
Donna Thomisee
Judge Cheryl Elliott Thornton, 164th Civil District Court
Samantha Torres
Monica Uddin
Roy and Dominique Varner
Vasquez Waite PLLC
Brittany Ringel Walton
Jordan Warshauer
Tiffany Santhavi Watts
Krisina Zuñiga
It is particularly special to recognize that all of the current and former women presidents of the HBA and HYLA came together to support this project.
Photo credit: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones
The Sorrels Family
Randy Sorrels and Alexandra Farias-Sorrels, both first-generation lawyers, are the husband/wife founders of Sorrels Law. At six years old, Alex set her sights on attending law school. Alex’s parents encouraged her to be either “a lawyer or a doctor,” because in their eyes, those careers were the epitome of success. Alex’s education was heavily influenced by her paternal grandmother, who was Alex’s elementary school principal at HISD’s Thomas Jefferson Elementary.
Alex’s maternal grandmother, a migrant farm worker from Mexico, was a single mother of eight children. Although not traditionally educated, Alex’s grandmother taught her invaluable principles and lessons about honesty, work ethic, sacrifice, family, and the Christian faith. She did not speak English, which is how Alex learned to speak Spanish fluently.
Alex graduated with honors from the University of Miami for her undergraduate degree, and with honors from the University of Miami School of Law. She worked at the Supreme Court of Texas as a briefing attorney, clerking for the Honorable David Medina, before going into Big Law at Morgan Lewis & Bockius in Houston.
Randy’s father was in the U.S. Army. His parents encouraged Randy to chase his dreams, and by high school he focused on becoming a lawyer. Randy went to Houston Christian University on a soccer scholarship and graduated with honors. After graduating from South Texas College of Law Houston (with honors), Randy started his career at Fulbright & Jaworski as a defense lawyer. Three years later, he switched sides of the docket. In 2021, he and Alex started Sorrels Law. The firm specializes in plaintiffs’ personal injury and business litigation. Now, with over 20 lawyers, Sorrels Law has offices in Houston, Austin, and Dallas.
The Sorrels have six children–with many connections to the legal field–with the two youngest (ages five and one-year-old) still undecided.
Darby Sorrels decided to become a lawyer while attending St. Agnes Academy. After completing her degree at Baylor University (Honors College), Darby attended the University of Texas School of Law, where she was the managing editor of the Texas Journal of Oil, Gas and Energy Law. Today, Darby is an energy transactions associate at Haynes and Boone in Houston.
Garrett Sorrels–Darby’s twin brother–focused in on law while on the debate team at St. Thomas High School. He also attended Baylor University and the University of Texas School of Law, where he decided to take the transactional law route in the practice. He met his fiancé, Kamryn McPike, at UT, and they now live in Houston where Garrett is the associate general counsel for Advanced Diagnostics, handling commercial matters in the healthcare and hospitality fields. Kam and Garrett will be married in November 2024.
Logan Burke married Randy’s oldest daughter, Ashley. He quickly knew he wanted to become an attorney while double majoring in business and history at Baylor University. Logan graduated from South Texas College of Law Houston and went to work at Kane Russell Coleman Logan. Today, he is a senior director in the Houston office, where he defends and prosecutes a wide variety of civil lawsuits, including catastrophic personal injury, commercial, and business torts cases.
Kam McPike realized she wanted to be a lawyer while working with FTI Consulting in Chicago. Her father, an appellate attorney in Chicago, was thrilled. Kam’s undergraduate degree is from Washington and Lee University, and she graduated from the University of Texas School of Law–where she met Garrett during their 1L orientation. Kam is an associate at Akin Gump Strauss Hauer & Feld, where she specializes in energy transition projects and climate policy/regulatory compliance.
Join the HBA 100 Club!
the Houston Bar association 100 club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. the following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 club by enrolling 100 percent of their attorneys as members of the HBa.
firms of 5-24 Attorneys
Abraham, Watkins, Nichols, Agosto, Aziz & Stogner
Ajamie LLP
Alvarez Stauffer Bremer PLLC
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Buck Keenan LLP
Christian Levine Law Group, LLC
Coats | Rose
Crady, Jewett, McCulley & Houren, LLP
De Lange Hudspeth McConnell & Tibbets LLP
Dentons US LLP
Dobrowski Stafford LLP
Doyle Restrepo Harvin & Robbins LLP
Ewing & Jones, PLLC
Fisher & Phillips LLP
Fizer Beck Webster Bentley & Scroggins
Fogler, Brar, O’Neil & Gray LLP
Frank, Elmore, Lievens, Slaughter & Turet, L.L.P.
Funderburk Funderburk Courtois, LLP
Germer PLLC
Gordon Rees Scully & Mansukhani, LLP
Hagans
Henke, Williams & Boll, LLP
Hirsch & Westheimer, P.C.
Holm | Bambace LLP
Horne Rota Moos LLP
Hughes, Watters & Askanase, L.L.P.
Husch Blackwell LLP
Jackson Lewis P.C.
Jenkins & Kamin, LLP
Johnson DeLuca Kurisky & Gould, P.C.
Jordan, Lynch & Cancienne
Kean Miller
Kilpatrick Townsend & Stockton LLP
Law Feehan Adams LLP
Linebarger Goggan Blair & Sampson, LLP
Liskow
McGinnis Lochridge
McGuireWoods LLP
McKool Smith
MehaffyWeber PC
Morris Lendais Hollrah & Snowden
Murrah & Killough, PLLC
Nathan Sommers Jacobs
Ogletree Deakins Nash Smoak & Stewart, P.C.
Paranjpe Mahadass Ruemke LLP
Peckar & Abramson, P.C.
Phelps Dunbar LLP
Pillsbury Winthrop Shaw Pittman LLP
Ramey, Chandler, Quinn & Zito, P.C.
Rapp & Krock PC
Reynolds Frizzell LLP
Roach & Newton, L.L.P.
Ross Banks May Cron & Cavin PC
Royston, Rayzor, Vickery & Williams, L.L.P.
Rusty Hardin & Associates, LLP
Schirrmeister Diaz-Arrastia Brem LLP
Schwartz, Page & Harding, L.L.P.
Scott, Clawater & Houston, L.L.P.
Shannon Martin Finkelstein
Alvarado & Dunne, P.C.
Shearman & Sterling
Shellist | Lazarz | Slobin LLP
Shipley Snell Montgomery LLP
Smith Murdaugh Little & Bonham LLP
Sorrels Law
Spencer Fane
Sponsel Miller Greenberg PLLC
Stuart PC
Taunton Snyder & Parish
Thompson & Horton LLP
Tindall England PC
Tracey & Fox Law Firm
Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP
West Mermis
Weycer, Kaplan, Pulaski & Zuber, PC
Williams Hart & Boundas, LLP
Wright Abshire, Attorneys, PC
Wright Close & Barger, LLP
Ytterberg Deery Knull LLP
Zukowski, Bresenhan & Piazza L.L.P.
firms of 25-49 Attorneys
Adams and Reese LLP
Andrews Myers, P.C.
Beck Redden LLP
BoyarMiller
Bradley Arant Boult Cummings LLP
Bush & Ramirez, PLLC
Cokinos | Young
Gibbs & Bruns LLP
Hogan Lovells US LLP
Kane Russell Coleman & Logan PC
Littler Mendelson P.C.
Martin, Disiere, Jefferson & Wisdom LLP
McDowell & Hetherington LLP
Wilson Cribbs & Goren PC
Yetter Coleman LLP
firms of 50-99 Attorneys
AZA Law
BakerHostetler LLP
Brown Sims, P.C.
Chamberlain Hrdlicka
Greenberg Traurig, LLP
Haynes and Boone, LLP
Jackson Walker
Morgan, Lewis & Bockius LLP
Susman Godfrey L.L.P.
Winstead PC
firms of 100+ Attorneys
Baker Botts L.L.P.
Bracewell LLP
Hunton Andrews Kurth LLP
Locke Lord LLP
Norton Rose Fulbright
Porter Hedges LLP
Vinson & Elkins LLP
Corporate Legal Departments
CenterPoint Energy, Inc.
EOG Resources, Inc.
MAXXAM, Inc.
Plains All American Pipeline, L.P.
Quantlab Financial, LLC
Rice University
S & B Engineers and Constructors, Ltd.
Law School faculty
South Texas College of Law Houston
Thurgood Marshall School of Law
University of Houston Law Center
Government Agencies
Harris County Attorney’s Office
Harris County District Attorney’s Office
Harris County Domestic Relations Office
Lone Star Legal Aid
Metropolitan Transit Authority of Harris County, Texas
Port of Houston Authority of Harris County, Texas
1st Court of Appeals
14th Court of Appeals
Local Bar Association Boards of Directors
Hispanic Bar Association of Houston
Houston Young Lawyers Association
HEE-JiN CHANG :
On Your Mark, Get Set, Litigate
by CiArA PerriTAno
Atwo-time Olympian, former Texas Longhorn swimmer (or “swammer,” as they call themselves), toddlermom, and litigator, Hee-Jin Chang is no stranger to a high-pressure environment. As the Paris 2024 Olympics commence, I took the opportunity to speak with Chang about her impressive Olympic past, life, and litigation career.
Chang’s swimming career began when her mom enrolled her in swimming at about six years old. Chang needed an outlet for her abundance of energy. Although Chang expressed interest in trying something more daring, like rock climbing, her mom opted for a safer, non-contact sport—in hindsight, her mom was onto something.
When asked when she realized she was “good” at swimming, Chang modestly answered, “probably when I made the Olympic team.” I laughed at this response, as surely she knew she was good at the sport prior to appearing at the Olympics. She explained that she just loved the sport and always wanted to be in the pool. She recalled a childhood story when she demanded to compete at a swim meet despite having a high fever. Her parents told her she needed to rest, but she insisted on racing. She excelled at the meet despite the fever. She would soon realize that her love for the sport would lead to Olympic-qualifying times.
lic policy in 2013. Chang rounded out her academic career at the University of Houston School of Law and graduated with her J.D. in 2016. She is currently a litigator at Spence, Desenberg & Lee, PLLC.
At just 13 years old, Chang qualified for her first Olympics, representing South Korea in the 2000 Sydney Olympics. She competed in the 50-meter freestyle, 100-meter freestyle, and 4x100-meter medley relay. Chang returned to the 2008 Olympics in Beijing and competed again in the 50-meter freestyle and 100-meter freestyle.
Despite Chang’s extraordinary athletic career, a future in advocacy was always in the back of her mind. Chang swam professionally after graduating from the University of Texas at Austin in 2009. In 2011, she set aside the goggles and attended Georgetown University, where she received her master’s in pub -
How does the world’s biggest stage compare to the courtroom? Litigation provides Chang with the adrenaline rush of competing in the pool while simultaneously allowing her to advocate for her clients. Chang attributed many of her academic and professional successes to her athletic habits. For Chang, entering the courtroom is similar to lining up behind the pool blocks. She compared trial strategy to that of preparing for a big meet. The key to success both in the courtroom and in the pool? Preparation, preparation, preparation.
Above all, however, Chang believes that her biggest and most rewarding challenge has been her newest role: working mom. Even Olympic-level training does not compare to practicing law with a toddler. Chang wants attorney moms to know that working and being a mother is doable, but as cliché as it is, it takes a(n) (Olympic) village.
An Olympian’s advice to moms...don’t be afraid to ask for help at work and at home. Although you can’t do it all, you can absolutely do it.
Ciara Perritano is currently a business litigation associate at Winstead PC and enjoys highlighting the accomplishments of her talented friends. She is on the editorial board of The Houston Lawyer
A Profile
in p R o F ession A lism
Ilearned the meaning of professionalism before I even knew of the word. When I was quite young, I heard an old-time Washingtonian speak of the last days on the Supreme Court of justices John Marshall Harlan II and Hugo Lafayette Black. The year was 1971 and, by then, both men were having more bad days than good days.
Justice Harlan was almost completely blind, though he remained strong of frame. Justice Black, by contrast, had eyesight that was true, but had grown quite feeble. Each evening around 6:30, these two old soldiers—veterans of the First World War—could be seen making their way through the marbled corridors of the Court toward their waiting rides. Justice Harlan’s strong right arm was a crutch for Justice Black. Justice Black’s bright blue eyes served also for his unsighted brother.
They waved aside the many proffers of help from law clerks and court security officers. They wanted to make it on their own. Their day’s work was done. Their life’s work was almost done. And they were together. They were together not because they had been in constant agreement on the work of the Court. In truth, they had seldom agreed. They disagreed throughout the 1950s and 1960s on the long-running incorporation debate. And, they had disagreed that very summer on the Pentagon Papers case. They were together because each had a granite commitment to the rule of law, and abiding respect for one another’s conscientious, though conflicting, interpretation of it. Each man died before the year was out. They are buried near one another in Arlington National Cemetery.
But their final days provided the template for professionalism. After the last brief has been filed, after the last argument has been heard, we must come together as colleagues. Our relationship not only undiminished, but actually enhanced by, the process we have been through.
This goal becomes increasingly important as hard feelings and even enmity dominate so much of public life. To provide an exemplar of professionalism becomes our challenge and our mission.
The honorAble keiTh P. ellison U.S. District Judge for the Southern District of Texas Recipient of the 2024 Justice Eugene A. Cook Professionalism Award
A Profile
in p R o F ession A lism
When I was a young boy and extending through my entire life, my dad always said be nice to everyone you come across. He exemplified this throughout his life. Dad lived 92 years with a smile on his face. I never once heard him say a negative word to anyone, even to those who were being negative to him. It is with this backdrop that I started my career.
My first teacher termination hearing was against Kelly Frels and Janet Horton. At that time, I had been a lawyer for just over a year. I had no earthly idea what I was doing or what the process was, I had never been to a school board meeting. Kelly saw that look of utter terror in my eyes. He pulled me aside and explained the process to me. He was kind and friendly…then they kicked my butt.
I believe like those who showed me, that we can get so much more for our clients by being the biggest professional in every room we are in. It means being nice to everyone, even those who are unkind to you. It means helping those who can’t help themselves. It means giving back.
Professionalism means helping a young lawyer struggling through their first trial or deposition. Sitting with them afterwards and telling them what they can do better. It means reaching out to a friend who is struggling and in need of assistance.
It means standing up for that which you believe in, all the time, every time.
It has been my privilege for 36 years to stand up for our Constitution. I have spent every day of my career proud of what I do and how I do it.
ChrisToPher l. TriTiCo
Tritico Rainey, PLLC
Recipient of the 2024 Justice Eugene A. Cook Professionalism Award
THE L AW WEEK COmmiTTEE : Engaging the Bar with Houston’s Youths
By cHris ainswortH
Law Day is a designated national holiday that occurs annually on May 1. Since 1958, Law Day has been sponsored and promoted by the American Bar Association and the Houston Bar Association. The HBA’s Law Week Committee works to sponsor activities for Law Day by engaging youths in the values of the legal profession through a series of contests and by fostering dialogues between legal professionals and youths.
One of the cornerstone initiatives of the Law Week Committee is its annual Law Day Contest, which invites students to express their creativity and engage with important legal and civic themes through art, photography, and editorial writing. This year’s theme, “Voices of Democracy,” prompts students to explain or depict the value of voting and of expressing political views within our democratic system. Previous themes have included “Civics, Civility, and Collaboration” and “The Constitution in Times of Change.”
Members of the Law Week Committee promote these contests among parents and educators. Members of the committee are also asked to help recruit judges for the contests and to serve as judges themselves.
Divided into different age brackets, with special categories for students with special needs, the contests offer cash prizes to winners and their teachers. The top entries are entered into the State Bar of Texas’ Law Day Contest, where they have achieved significant success. Last year, HBA-sponsored entries placed in four of the seven statewide competitions, winning first place in three categories. Those participants won scholarships in addition to the cash prizes awarded in the local competition.
This year’s awards were presented at the HBA’s Diversity, Equity and Inclusion Summer Association Luncheon on June 6. Photos of this year’s winners and the winning essay are published in this issue on pages 30-31.
In addition to the Law Day Contest, the Law Week Committee has organized a dialogue program that brings judges and attorneys into schools to explain the role of judges and the rules by which judges are bound—all to hopefully demystify the legal system. The American Bar Association helpfully provides lesson plans on various topics, such as freedom of speech, which can be adapted for use in these dialogues. Participants in these dialogues have remarked that the teachers and students have been very receptive and have engaged in lively discussion, with one such session even resembling a law school class.
Beyond its specific programs, the Law Week Committee serves as a reminder to its members of the broader purpose and values of their profession. Committee members witness youth engaging with concepts such as democracy, freedom of speech, and the rule of law. In the midst of the day-to-day minutiae of law practice, service in the Law Week Committee affords members a reminder of the role we play in society and an opportunity to ground ourselves in the values of our profession.
Chris Ainsworth is an assistant district attorney in the Grand Jury Division of the Harris County District Attorney’s Office. He is a 2023-2024 co-chair of the Law Week Committee, along with Simone Bray of the Harris County Public Defender’s Office, and Nicole Su of Cozen O’Connor.
THE COmmERCiAL AND CONSumER L AW SECTiON : Renewing its Commitment to Engagement and Education
By Brian staley
The Houston Bar Association’s Commercial and Consumer Law Section is made up of hundreds of members from state government agencies to large firms and solo practitioners. Our members come from a wide range of backgrounds and practice in a variety of subjects ranging from creditor’s rights, consumer defense, financial regulation, business litigation, commercial collections, community association law, landlord-tenant law, commercial leasing, and more. The broad and varied background and practice areas always makes for lively and informative discussions at our luncheons.
The section hosts a monthly in-person CLE lunch featuring a variety of informed and experienced practitioners presenting on a topic in their area of expertise, followed by a question and discussion format. Our speakers over the past year have covered various topics of interest to our members, including:
• “I Need to Investigate What?! That’s Gross (and Other Legal Developments Regarding FCRA Investigations)” presented by Sabrina Neff, equity partner at Husch Blackwell, LLP; and
• “Residential Evictions” presented by Brian Cweren, of Cweren Law Firm.
• “Homeowners Associations: Consumer Protections & Current Trends” presented by Jonathan Clark of Hoover Slovacek LLP;
• “Civil Procedure in Justice Courts” presented by David Patronella, retired justice of the peace, Precinct 1, Place 2;
• “The Debtor Perspective on Judgment Collection” presented by attorney Rich Tomlinson;
• “All About the Harris County Civil Courts at Law” presented by Judge Jim Kovach, presiding judge of Harris County Civil Court at Law No. 2;
Personally, I would like to thank our officers, Vice Chair Jonathan Clark of Hoover Slovacek LLP and Secretary-Treasurer Don Turbyfill of Devlin, Naylor & Turbyfill, PLLC, for supporting me over the past year in returning the section to activity after the hiatus caused by the pandemic. Our incoming officers for 2024-2025 are Chair Peter Newman of Midland Credit Management, Inc., Vice Chair Elias Yazbeck of McGinnis Lochridge, and Secretary-Treasurer Benjamin Sanchez of Sanchez Law Firm. I look forward to another great year for the section under their leadership. Next year, the section plans to continue its CLE lunches, but is also planning a social event for its members and a joint CLE event with the Texas Creditors Bar Association.
Brian Staley is senior staff counsel at the Houston office of Midland Credit Management, Inc, an Encore Capital Group company. Licensed in Texas, Arizona, and Colorado, he practices in the area of creditor’s rights, collections, and civil litigation. Brian is the 2023-2024 chair of the Commercial and Consumer Law Section, a fellow of the Texas Bar Foundation, and a member of the Texas Creditor’s Bar Association.
(L to R) Secretary-Treasurer Don Turbyfill, incoming Vice Chair Elias yazbeck, attorney Sabrina Neff, Chair Brian Staley, and incoming Chair peter Newman.
Hold Your Horses: The Fifth Circuit Amends Its Mandate Internal Operating Procedures
by lAne morrison
On February 5, 2024, the Fifth Circuit amended its Internal Operating Procedures (“IOP”) to make a little clearer one of its biggest open secrets. For some time, there has been an unwritten (at least to the public) rule that any sitting Fifth Circuit judge could place an internal, confidential hold on the mandate following the panel’s opinion and judgment issuance, even if no party had requested rehearing or a motion to stay the mandate. Notably, under the Federal Rules of Appellate Procedure, the circuit court must issue its mandate seven days “after the time to file a petition for rehearing expires, or [seven] days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later” and the court “may shorten or extend the time by order.”1 So, if a Fifth Circuit judge requested that the mandate be held, affected litigants were often left to wonder—when weeks and even months passed after the court’s opinion and judgment with no mandate—what was the reason for the delay?
In 2023, Judge Smith became one of the few (if not only) judges to ever write about the practice. In United States v. Ramirez, in dissenting from a denial of a rehearing en banc, Judge Smith highlighted that the court’s mandate did not issue for more than four months after the original majority opinion and dissent.2 He noted the “considerable confusion”
the delay caused, but shed some light on its nature:
Especially where no petition for rehearing has been filed, the attorneys and the public have no way of knowing why a case is lingering or whether the absence of a mandate is intentional or a clerical oversight. A judge may place an internal, confidential hold on the mandate (which is never shown on the public docket), either with or without a rehearing petition. A matter can linger in seeming inaction for weeks or months until the court resolves it either by an en banc poll or the judge’s withdrawal of his or her hold on the mandate.3
The court has long acknowledged its inherent ability to “shorten or enlarge the specified period” in which it must issue a mandate and that there is no requirement in Rule 41 that such a decision “be formal, written, or that the parties be given notice of it, though this might be desirable.”4 And Judge Smith noted in Ramirez that the practice reflects “the fact that this court takes its work seriously and carefully scrutinizes panel opinions, irrespective of whether the losing side seeks rehearing.”5 But the court has decided to make the practice a bit more transparent.
Despite the absence of any requirement in Rule 41 to do so, the court has decided to at least notify the parties of when an internal mandate hold has occurred. The court’s amended Rule 41 IOP now briefly explains a judges’ ability to hold mandates in certain situations: “Any active Fifth Circuit Judge may request that the court withhold issuance of its mandate. This is often done to resolve differences between the judge who requests that the mandate be withheld and the panel or to request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party.”6 Under the court’s new IOP, “if a mandate is withheld, the [withholding] judge shall notify the clerk to withhold
the mandate, and the clerk will enter an order withholding the mandate,” but “the identity of the judge will not be disclosed in the order.”7
Though this revised IOP will not eliminate the secrecy shielding which judge has requested the hold or for what reason, it should at least provide some comfort to involved litigants in knowing why there has been an unexpected delay between the court’s judgment and order and its mandate.
Lane Morrison is a senior litigation associate at Bush Seyferth PLLC. He focuses his practice on product liability and class action defense and is heavily involved in drafting and arguing critical trial motions and appeals. He is the committee and section spotlight editor for The Houston Lawyer
4. Sparks v. Duval Cnty. Ranch Co., Inc., 604 F.2d 976, 979 (5th Cir. 1979), aff’d sub nom. Dennis v. Sparks, 449 U.S. 24 (1980).
5. 82 F.4th at 386 n.3.
6. Rules and Internal Operating Procedures of the United States Court of Appeals for the Fifth Circuit, at 38. 7. Id
New Constitutional Challenges Piling
Up for the NLRB
by PAul m. kneTTel
Anovel strategy has emerged in response to complaints of unfair labor practices by the National Labor Relations Board (“NLRB”)—challenging the constitutional authority of the NLRB itself.
The NLRB was created in 1935 and enforces the National Labor Relations Act (“NLRA”), which generally protects em-
ployees’ ability to organize labor unions, collectively bargain with their employers, and engage in other protected concerted activity relating to their working conditions. The NLRA also limits practices by labor organizations and their members that obstruct commerce and lead to industrial unrest.1 The NLRB generally consists of a five-person board and a general counsel, the members of which are appointed by the U.S. president with the consent of the senate. The board is a quasi-judicial body that reviews decisions of the agency’s administrative law judges (“ALJs”) relating to unfair labor practice charges—claims that either employers or labor unions have violated the NLRA—and petitions for elections related to union representation. The board also engages in rulemaking to interpret and carry out the NLRA. The general counsel is responsible for the investigation and prosecution of unfair labor practice charges.2
Recently, in response to unfair labor practice charges filed against them, companies are challenging the NLRB’s constitutionality and authority. Specifically, companies have argued that the NLRB’s structure is unconstitutional because it places limits on the president’s ability to fire its board members and ALJs. According to the challengers, these limits violate the U.S. Constitution’s separation of powers doctrine, as the board members and ALJs exercise substantial executive branch powers in carrying out the NLRA but are not sufficiently accountable to the head of that branch, the president.3
Another challenge being lodged against the NLRB is that its proceedings violate companies’ rights to due process under the Constitution. The due process arguments stem from allegations that NLRB’s board members both approve agency litigators’ requests to seek injunctive relief for alleged unfair labor practices (known as Section 10(j) relief), and also preside over board proceedings
related to the same alleged unfair labor practices. The challengers argue that this means the board acts as both prosecutor and adjudicator in the same case, which the Supreme Court has held violates the Constitution’s due process guarantee.4
Additionally, companies have challenged the NLRB’s authority as a quasijudicial body that makes decisions about whether unfair labor practices have occurred and, if so, determines what the remedies for such unfair labor practices should be—arguing that this authority violates the right to a trial by jury under the Seventh Amendment to the Constitution. Although the right to a jury trial does not generally apply to suits seeking equitable relief, the companies argue that the NLRB has inappropriately expanded the remedies that may be awarded in unfair labor practice cases to include monetary damages that, therefore, trigger their rights to a jury trial.5
Finally, a challenge has been lodged that the NLRB general counsel’s interpretation of the NLRA and requests to the board violate the Constitution under the major questions doctrine and associated principles of non-delegation. These doctrines essentially require Congress to speak clearly before federal agencies are allowed to make decisions that have significant economic or political impacts.6
The NLRB has been around for a long time, and the Supreme Court previously upheld the NLRA’s constitutionality in its 1937 NLRB v. Jones & Laughlin Steel Corporation decision. But it is still not overly surprising to see these recent challenges to the agency’s authority. The NLRB under the Biden administration has been quite assertive, issuing thousands of unfair labor practice complaints,7 and overturning several of its own precedents in favor of much more employee- and union-friendly standards.8 Additionally, the Supreme Court currently has a conservative majority that has been willing to curtail
federal agency powers, likely emboldening companies to challenge longstanding institutions and processes.9 Of course, the current challenges to the NLRB’s authority have not yet been decided by the Supreme Court, so whether any of these arguments will be ultimately successful remains to be seen.
Paul M. Knettel is a labor and employment attorney at BakerHostetler LLP.
endnotes
1. 29 U.S.C. § 151.
2. NATIONAL LABOR RELATIONS BOARD, Who We Are, https://www.nlrb.gov/about-nlrb/who-we-are.
3. Complaint for Declaratory and Injunctive Relief, Space Exploration Technologies Corp. v. Nat’l Lab. Rel. Bd., et al., in the U.S. District Court for the Western District of Texas, Waco, Civ. No. 24-421, available at https://s3.documentcloud.org/documents/24438708/ space_exploration_technologies_v_national_labor_ relations_board__txsdce-24-00001__00010.pdf.
4. Id
5. Id
6. Amazon.com Services LLC’s Answer to Second Amended Consolidated Complaint, National Labor Relations Board, available at https://aboutblaw.com/ bcMF.
7. NATIONAL LABOR RELATIONS BOARD, Unfair Labor Practice Charges Filed Each Year, https://www. nlrb.gov/reports/nlrb-case-activity-reports/unfairlabor-practice-cases/intake/unfair-labor-practicecharges.
8. Braden Campbell, Biden-Era NLRB Faces Make-OrBreak Year In 2024, LAW360 (Jan. 1, 2024), https:// www.law360.com/employment-authority/articles/ 1779201.
9. John Kruzel, Explainer: How is the ‘war on the administrative state’ faring at the Supreme Court?, REUTERS (Jan. 19, 2024), https://www.reuters.com/ legal/how-is-war-administrative-state-faring-supremecourt-2024-01-19/.
The Original Meaning of the 14th Amendment: Its Letter and Spirit
by evan d. bernick and randy e. barnett
Published by belknap Press:
An imprint of harvard university Press reviewed by dAVid
T. lóPez
Adopted three years after the end of the Civil War, the Fourteenth Amendment has been, and continues to be, vitally significant in our time. It has been applied or interpreted in issues as diverse as determining rights to samesex marriage and abortion, as well as the pending potential disqualification of a presidential candidate.
Constitutional law professors Randy E. Barnett and Evan Bernick posit that such application and interpretation must give due consideration to the origin of the amendment in the context of debates and arguments about the Constitution before the Civil War’s abolishment of slavery.
a plethora of important rights, including the well-known rights to citizenship, voting, due process, and equal protection, as well as lesser emphasized rights, such as the right to regulate representation and the disqualification from public office of individuals who foster or participate in an insurrection against the nation.
The book has merited praise from national publications, legal scholars, and historians. In particular, it has been recognized for its even-handed exploration of the principles undergirding the amendment, suggesting instances in which the Supreme Court did not appear to fully consider the letter and intent of the language, and proposing practical doctrines for implementing key provisions.
Barnett is the Patrick Hotung Professor of Constitutional Law at Georgetown University Law Center and director of the Georgetown Center for the Constitution, while Bernick is an assistant professor at Northern Illinois University.
With fair and objective reliance on primary sources, Barnett and Bernick trace the history of the amendment from the original arguments against slavery to the Declaration of Independence and the common law. After the abolition of slavery failed to end repression and inequality in the South, the amendment sought to enshrine in the Constitution
The authors suggest that substantive due process should be interpreted to protect fundamental rights beyond mere procedural fairness, balancing individual rights and government interests, and preventing state law from infringing on privacy, liberty, and property.
originated in the writings of radical antislavery scholars about citizenship and was subsequently adopted by activists. Accordingly, they suggest judges should interpret its provisions with reference to the Civil Rights Act of 1866 and the postwar provisions in the Constitution.
‘‘The authors suggest that substantive due process should be interpreted to protect fundamental rights beyond mere procedural fairness, balancing individual rights and government interests, and preventing state law from infringing on privacy, liberty, and property.”
To properly apply the due process clause legislation, the authors suggest, one must establish laws that are necessary and proper and give full consideration to any deprivation of a person’s life, liberty, or property. They must ensure that such legislation’s application is consistent with constitutionally proper ends—that is, to congressional power that is limited to its few, specifically defined purposes.
The equal protection clause, although intended to address any denial by a state of the protection of its laws, also encompasses discrimination in the provision of such protection to some while denying it to others. Its application confronts the problem of generality, and it is suggested that its implementation must deal with “antisubjugation,” that is, application that by its generality encompasses prior generalization.
To fully understand the original meaning of the Fourteenth Amendment, they insist, one must necessarily interpret constitutional provisions based on the framers’ purposes, debates, and historical context in light of contemporary issues. To promote such analysis, they separately and thoroughly examine each of the clauses and how they might be applied.
For example, according to the authors, the privileges and immunities clause
The book deals extensively with these concepts in proposing the spirit of the provisions of the amendment, with fair and objective description and reference to case law. It provides a firm basis for a better understanding and improved application of a key protector of human rights. It is well worth a careful read and utilization as a cogent and useful reference.
David T. López is a long-time litigator and domestic and international arbitrator and mediator. He is a member of The Houston Lawyer editorial board.
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