Brian P. Goldman

Justice Neil M. Gorsuch caught some off guard when he sided with the liberal wing of the U.S. Supreme Court in a highly watched immigration case this term.

“Vague laws invite arbitrary power,” he wrote in a concurrence, striking down a federal law defining violent felonies as removable offenses under immigration law. Sessions v. Dimaya, 584 U.S. ____ (2018).

Goldman, who headed Orrick’s briefing efforts on behalf of the immigrant involved in the case, wasn’t surprised by the conservative justice’s vote.

He and his team spent the summer before arguing the case studying the junior justice’s decisions on the 10th U.S. Circuit Court of Appeals to understand his views on due process and the way Congress writes laws.

“We were the least surprised,” Goldman said. “He has long held a real skepticism for unclear and overbroad laws, especially when something so significant in somebody’s life is at stake.”

Goldman is emerging as a leader of the elite West Coast federal appellate bar. With clerkships at the Supreme Court with Justice Sonia Sotomayor and 9th Circuit U.S. Circuit Court of Appeals with the late Judge Stephen Reinhardt under his belt, the former Justice Department lawyer has the perfect credentials for the role. And his results show.

In 2016, Goldman was part of an Orrick team that helped establish groundbreaking precedent in the evolving intersection of technology and the law. The case, in which Goldman represented Facebook Inc., asked whether an online company that scraped information from the social media giant’s website after being asked to stop violated the Computer Fraud and Abuse Act.

A unanimous panel of the 9th Circuit agreed that it did. Facebook, Inc. v. Power Ventures, Inc., 828 F. 3d 1068 (9th Cir. 2016).

The precedent has been cited in a number of high-profile Computer Fraud and Abuse Act cases since.

It’s cases like these that excite Goldman.

“There isn’t a perfect answer to how the law applies to the question,” Goldman said, noting the law was passed in 1986, a time when legislators could never contemplate the law’s implication on social media websites.

“That absence of a crystal clear answer…is the greatest opportunity for a really creative legal argument,” he continued. “To dig deeper in the historical research, and to flex all the muscles appellate lawyers like to flex.”

— Nicolas Sonnenburg