William Jay, a partner at Goodwin Procter LLP, was recently a featured speaker in the Section’s Supreme Court Series Teleconference entitled Perez v. Mortgage Bankers Association: The Supreme Court Considers the Limits on Notice-and-Comment Rulemaking Requirements. Notice and Comment had the opportunity to sit down with the Law360 2014 Rising Star and hear about his diverse career and advice for aspiring administrative lawyers.
Growing up on a horse and cattle farm, Jay did not always plan to pursue a legal career. He became interested in the law while attending Harvard College, where he had the opportunity to intern for a local member of Congress and the Chief Counsel of the Senate Republican Policy Committee. His experience working for the committee ultimately led him to apply to Harvard Law School.
Jay began his legal career as a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. It was an invaluable experience in light of the variety of cases that clerks can work on, ranging from criminal matters to contract interpretation. “I would recommend clerking to anyone who is interested in litigation because it gives you a perspective on how judges think and review legal issues,” he noted. Jay also had the opportunity to serve as a law clerk to Supreme Court Justice Antonin Scalia, an experience he described as unlike any other job a young lawyer can have. Although the Justices do a lot of their own work, it was an amazing opportunity just to be a “fly on the wall,” and an experience that would greatly inform his appellate litigation practice.
After clerking for Justice Scalia, Jay returned to the law firm of Gibson Dunn & Crutcher LLP where he worked for a total of four years. While at Gibson Dunn, he was a litigation associate with the firm’s Appellate and Constitutional Law practice group. He also worked on administrative law matters, ranging from an APA challenge to a Transportation Department rulemaking to advising clients on compliance with campaign finance regulations. The firm is known for its high profile appellate practice, but Jay was drawn to the opportunity to work with great people and mentors.
Even though he was very happy at Gibson Dunn, Jay’s career took another interesting turn when the Office of the Solicitor General at the U.S. Department of Justice posted several vacancies in 2007. The Solicitor General’s office represents federal agencies before the Supreme Court and also supervises the government’s appellate litigation and defense of federal statutes. This was only the second time in the previous three years the office was hiring, so Jay felt he would regret not pursuing such a rare opportunity. To his surprise he was hired to serve as an Assistant to the Solicitor General. In his nearly five years in the Solicitor General’s office, he argued 11 Supreme Court cases, wrote 20 Supreme Court merits briefs, worked on approximately 150 briefs in opposition to certiorari, argued cases in Courts of Appeals, and participated in other aspects of litigation.
Jay’s variety of experience greatly informs his current role as Co-Chair of Goodwin Procter’s Appellate Litigation group. He represents clients in Supreme Court cases like Perez v. Mortgage Bankers Association (in which he co-authored a brief for the National Mining Association); briefs and argues cases in appellate courts around the country; and handles a number of trial court matters, including administrative law cases for both plaintiffs and defendant-intervenors. Jay noted that he enjoys working on a mix of appellate and trial-court cases, and that it is important to understand how trial courts operate when handling appellate matters. Gaining that understanding is difficult to do if you haven’t experienced motion practice.
Jay recommended aspiring administrative lawyers consider diversifying their careers. In the rulemaking context, he said, “whether you are writing rules for an agency or comments for a client, it’s important to fully understand the opposing side’s perspective.” In order for an attorney to draft useful comments on an agency proposal, he stated, it helps to experience what it’s like for agency staff to read comments and write rules. He also noted that it helps to know how businesses think if you are drafting regulations for an agency. He offered a word of caution, however, noting that even recognized experts in a field cannot anticipate every possible scenario during a rulemaking, so even seemingly clear rules will end up needing interpretation as they are applied to unanticipated facts. What clients need most in that situation is not just experts in the subject matter, but counsel with good judgment.
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.