By Riley Del Rey, Staff Writer
Photo courtesy of Professor Lauren Gailey
It’s been said that a man can’t step in the same river twice for it’s a different river and he’s a different man. Pittsburgh native, 2014 Summa Cum Laude graduate of the Thomas R. Kline School of Law at Duquesne University and former Juris, Supreme Court Reporter and Associate Editor Lauren Gailey, returns to familiar waters at the Thomas R. Kline School of Law at Duquesne University.
Her home turf changed now in namesake and herself by a career as a high-stakes litigator and an appellate attorney in Washington, D.C. Gailey has returned to extend the ladder down to the next generation as a Visiting Assistant Professor of Law.
Juris Staff writer Riley Del Rey sat with Professor Gailey in the jury box of the McArdle Courtroom[1] for a Juris exclusive and homecoming profile.
Professor Lauren Gailey: I’m Lauren Gailey. I’m a writer, a lawyer, a teacher and a scholar. I started out my career as a TV producer. Then, I went to law school here at Duquesne. After serving as a law clerk to three of the best federal judges around I achieved my dream of working as an appellate lawyer in Washington, D.C. Now it’s time to come home and give back to the school that’s given so much to me.
Riley Del Rey: Hello, Prof. Gailey thanks for sitting down with us. We’re going to ask you 27of our favorite questions here at Duquesne. We know you’re a Pittsburgh native, so we’re going to start out by asking, “What’s your favorite Pittsburgh phrase?”
LG: Well, that’s a trick question. Because I’m generally anti-Pittsburghese, but there are a couple exceptions. One is the word “Jumbo”. It’s a much better word than “Baloney.” I also think “Nebby” is a great word for somebody who’s in other people’s business, but in like a gossipy way specifically. I also like dropping infinitives, for example, if something needs to be cleaned, why are you bothering with the “to be” just get that out of there. It needs cleaned!
RDR: What do you love about your hometown of Pittsburgh?
LG: Well, I think that it has all the amenities of a world class city in terms of the sports, the culture, the universities, the corporations. At the same time, it’s easy to navigate. You can find a place to park, the traffic’s not too bad, and it’s super cheap. But most importantly, the people are down to earth, sensible kind people. That’s my favorite thing about it.
RDR: Pittsburgh is one of the greatest cities in the world! What would you tell new students to Pittsburgh to check out?
LG: First, I would say the museums. We have great art, especially the Andy Warhol Museum. We have great dinosaurs at the Museum of Natural History.
RDR: What was the moment that made you want to be a lawyer?
LG: I didn’t have one. So, any day now! I was working in TV, and the Great Recession made it impossible to get a job. So, I was thinking, what else could I do? I had been producing a talk show and a lot of the issues we covered were political or legal type issues. I was always interested in that, and I thought maybe I could do that. So, I went to law school, and I excelled, and I especially excelled in writing. That’s why I decided to be an appellate lawyer.
RDR: Can you give me three super specific tips for excelling in law school?
LG: Three super specific tips. Okay. First, go to class, and don’t just physically go to class. You should prepare. Go through the reading quickly to make sure you get it done and you at least know what’s going to be talked about and then go back and you can read in greater detail later. Number two don’t take classes with finals on back-to-back days. You need that extra day to decompress and to frankly, cram for the next final. Third, play to your strengths. If you are a nervous test taker, but a good writer, maybe take more paper courses. If you’re the opposite, if writing’s not your thing, take classes that are graded in other ways.
RDR: What is your favorite classic old timey law school case?
LG: My favorites are “The Black Banana Skin” cases. There’s something so absurd and hilarious about Oliver Wendell Holmes, who later became one of the greatest Supreme Court Justices ever, talking about people falling on banana peels.
RDR: What is your #1 Civ Pro classroom tip?
LG: Stay present. Whenever you’re in class, be in class. You know, it’s tempting to look at our phones, we text people, we do our homework for the next class. The more you’re engaged and listening to the questions your fellow students ask and the answers that are given, you can learn from them. You can also ask your own questions and they can benefit from what you need to know.
RDR: If you could go back and talk to your 1L version, what would you say?
LG: I would say burn the ships. I was a career changer, and I didn’t know I was doing the right thing. I missed my old job. I missed my old friends, and I didn’t know how I would fare in this new profession, but it turned out to be absolutely the right choice.
I would say move forward, jump in with both feet. You’ll be okay.
RDR: What is the most valuable thing you’ve learned from your time at the Thomas R. Kline School of Law at Duquesne University?
LG: I would say that it takes a village. I was always one of those people who thought that I could make my way on my own and do everything alone and it’s just not possible. The law is too hard. The profession is too complicated. You need people to help you and to introduce you and help you navigate. That’s what I learned here. Those people are here to help you, and that’s what they love to do.
RDR: What is your favorite Supreme Court case?
LG: Yes, Obergefell vs. Hodges. In 2015, it was the case that legalized same sex marriage throughout the country, and at the end of the case, Justice Kennedy wrote this beautiful line-
“They asked for equal dignity in the eyes of the law. The Constitution grants them that right.”
RDR: Is there one legal principle you hope gets reevaluated?
LG: Yes. Substantive Due Process, but not for the reasons you might think. Right now, it gets a bad name because it was used to prop up various fundamental rights rulings. Now, I believe in those rights. I don’t think that our rights are limited to just what you see on the face of the Constitution, but I don’t think they live in the Due Process Clause. I think that they live in the Privileges and Immunities Clause. Those rights, things that you think to yourself, the government can’t possibly do this to us. I think that those are the privileges and immunities of being a U.S. citizen. In the Slaughterhouse cases, during the Reconstruction era, the Supreme Court gave their very limited, constricted reading. I think it should re-evaluate its reading of that clause.
RDR: Is there a procedural or evidentiary rule you hope gets re-evaluated?
LG: Yes, The Third Circuit has recently moved back its filing deadline from midnight to 5 p.m., ostensibly for purposes of attorney well-being and work life balance. I’m having a hard time seeing how less filing time is helpful to either of those things.
RDR: Why were these issues of concern to you?
LG: So, you might think that privileges and immunities, and a filing deadline have nothing in common. But they really do. It goes back to one of my core values that was best said by Justice Brandeis a long time ago. And he’s he called it The Right to be Let Alone, the right to make our own choices, and live our lives free of constraint. That really goes to the core of what I believe. I believe that’s what the rule of law is all about.
RDR: How have your interests changed over the years since law school?
LG: Well, when I was in law school, the world was different, and I was different. At the time I was really interested in topics like electronic surveillance and freedom of religion. Which I wrote about from the perspective that Justice Stevens would have called irreligious. And I still think that those topics are important, but they don’t seem as timely now. I’m more interested in freedom of expression and the rule of Law.
RDR: What made you want to get involved as a lawyer on HIV impact?
LG: It was always my dream to do LGBT rights, but by the time I’d finished law school and got into practice, the marriage battle had largely been won. The question became “what’s next”? Whenever I got to Winston & Strawn, which is where I went to work after I finished clerking, they were doing, in conjunction with a couple of NGOs, this impact litigation against the U.S. military, where people living with HIV who were serving, were being told despite all the technological and medical advances in treatment for HIV, that they could no longer deploy worldwide. Which basically meant that they couldn’t commission and that some would even be discharged. We sued the Department of Defense, and the branches of the military.
We got an injunction, went up to The Fourth Circuit, we won there, and then came back and got a permanent injunction. It’s one of those rare occasions where a federal court enjoined the Department of Defense. Then to top it off, we ended up winning one of the biggest awards of attorney’s fees in the history of LGBT rights litigation. We got the government to pay us for the privilege of suing them, $1.3 million. I got my picture in The Advocate, which for any ally is the height of success.
RDR: That’s incredible. I applaud you for that. Thank you for doing that. What was your best case when you look back on your career?
LG: The HIV impact litigation against military was an important case and an inspiring victory, but I think that my crowning achievement was getting the US Supreme Court to grant cert in my securities case. That case will be argued coming up later this year.
RDR: Are you arguing that case?
LG: No, but I’ll be sitting in the chamber.
RDR: Amazing that you made it all the way to the Supreme Court and had cert granted.
LG: I’ll be safely at counsel table.
RDR: What was your best moot court or line you used in the courtroom?
LG: I am lucky to get out of there alive. In oral argument anything can happen. I’m always like Will Ferrell in Old School, where he’s debating Jim Carville and he comes out, he says, “What just happened? What just happened?” I’m so completely in the moment. I couldn’t possibly remember, and I wouldn’t dare watch any of my videos, or listen to any of my old arguments. You can if you want. They’re available for public consumption, but I wouldn’t look.
RDR: What law school experiences did you have that you find are most relevant to you today?
LG: The most relevant class-wise is LRW, being an appellate lawyer is basically one extended LRW class, and there were also the contacts I made with then Dean Gormley and Judge Hardiman, who opened more doors for me than I can imagine. We come to law school to learn about the law, and how to think like a lawyer. But we also come here to meet people and make friends.
RDR: Absolutely. Did you have a favorite pre courtroom advocacy motto or song?
LG: Yes. So, when I when I was preparing for my first oral argument, I was very nervous about It. And my boss, who’s a wonderful oral advocate, is a fan of Brené Brown.
And she told me to check out Brené Brown’s In the Arena speech. What Brené was quoting was Theodore Roosevelt, and he had a speech that he gave, and he said this-
“It is not the critic who counts, the credit belongs to the man who is in the arena. Who, at the worst if he fails, at least fails, while daring greatly.” And so Brené says that that basically means if you’re not in the arena getting your butt kicked, who cares what anybody else thinks? So, I found that very inspiring.
RDR: If you could give your litigation style a name, what would it be?
LG: I would say accessible. When I write, I want anybody to be able to understand the most complicated concepts. It’s my job to take them and simplify them and present them in a way that’s engaging and tells a good story.
RDR: What has been a sliding door moment in your life?
LG: When I came out of law school, I thought that I wanted to follow the typical progression and I would clerk and then I would become a lawyer, and then I would become a professor and it all had to happen a certain timeline. When I applied for clerkships, it’s almost like musical chairs and there wasn’t a chair available, so then I was left without anything. It worked out better because I got some litigation experience and then ended up getting far better clerkship opportunities then I would have before. I was a better law clerk because I already had some work experience. Then my life pretty much got back on the track that I wanted it to initially, only with more opportunities. They say you can’t always get what you want, but if you try, sometimes you might find you get what you need.
RDR: Can you make a prediction about yourself one year from today?
LG: I would not dare to do so. Life is unpredictable and I find that being open minded to opportunities that come in is better than laying it out in your mind and setting up arbitrary targets that you may or may not hit. It may or may not be for the best.
RDR: What advice have you been given that you still live by?
LG: The best advice I ever heard from anybody was from Marcus Aurelius, the Roman emperor and Stoic philosopher, and he said, “This world is change, this life opinion.” And it’s true. Change is the norm. To expect otherwise is just to set yourself up for disappointment. When things happen, we can control how we react to them. That’s the name of the game. It’s almost like a non-attachment principle that you would hear in Daoism or Buddhism or some forms of Christianity, even just that you don’t get too attached to a particular outcome or a particular thing being a certain way or a particular piece of property. Which takes me to another piece of advice that I’ve got that maybe is the best piece of advice I’ve ever got from a non-Roman emperor, was from a coworker at the TV station, who he once said, “You get too invested in choices that other people are making, you can’t care more than they do, as this creates frustration for you and annoyance for them.” Try to think of one walk of life in which that’s not true. So non-attachment works in many different ways.
RDR: What is a Supreme Court case, you would love to argue one day.
LG: I would not love to argue any Supreme Court case. If you’ve ever been in the chamber, it’s terrifying. You’re very close to the bench and kind of looking up at these towering figures. I would prefer to take on more of a Cyrano de Bergerac role and sit at counsel table and help to formulate the arguments. Leave the argument itself to the pros.
RDR: How do you deal with criticism from judges, clients, supervisors, the media?
LG: Dealing with criticism is the same no matter who it comes from, and we all do the same thing every single time. Which is first, we get mad, and we get defensive and then eventually we calm down and we wonder where there’s not a kernel of truth to it. And then we learn from what we can, and we discard what’s unhelpful or unfair. But, in the end, no matter who’s doing the criticizing, this too shall pass.
RDR: What was your goal in coming back to the Thomas R. Kline School of Law at Duquesne University?
LG: To extend a ladder down to the next generation to give back. I received so much from this school and still to this day I do. But it’s time to, instead of glorifying my own ego with accomplishments and achievements to put it into service to others.
RDR: What are you most excited about in the law right now?
LG: Well, in general, it looks like this term the Supreme Court is finally going to deal with the confluence between the First Amendment on one hand and the Internet on the other. There are some exciting cases about whether public officials can block access to their social media pages. Or whether content moderation can be prevented by the government. On a more personal level, I’m most excited about the Supreme Court taking up my securities case.
RDR: Is there anything else you’d like to share with Thomas R. Kline School of Law at Duquesne University students as they begin their 1L journey or graduating from Thomas R. Kline School of Law at Duquesne University and making their way into a law firm now?
LG: I would say to 1L’s, it will be okay, and it will get easier, and it will get better. Then, for folks who are graduating and are striking out on their own, I would say there are many ways to be a great lawyer even if you weren’t a top student, you can find ways to excel that work better with your own personal strengths and attributes and interests. Sometimes in law school there’s a certain right way to do things versus when you get out into the profession, you can really play to your own strengths in a way that was not necessarily possible in the school setting.
RDR: Thank you very much.
[1] Courtroom dedicated to James P. McArdle, Class of 1931, Distinguished lawyer, and advocate, rededicated in 2014 by then law school dean and professor of law, Ken Gormley. In 2012, Lauren Gailey received the James P. McArdle Memorial Scholarship full-tuition award for highest 1L GPA.
