Brian D. Ginsberg

Senior Associate
Supreme Court and Appellate

Brian Ginsberg is an appellate litigator in Orrick's New York office.  He handles matters in the Supreme Court of the United States and other appellate courts.  He also counsels clients at earlier stages of litigation to identify and evaluate potential appellate issues.  Prior to joining Orrick, Brian was an associate in the Supreme Court and appellate litigation practice group of Covington & Burling LLP.

Brian's appellate experience spans a wide range of subject areas.  He has contributed to cases involving patents, copyrights, immigration, white-collar crime, healthcare, financial institutions, anti-terrorism, and many other subjects.  He recently second-chaired a billion-dollar copyright case in the Supreme Court of the United States.  And he has personally argued multiple appeals in the lower courts dealing with the law of criminal procedure.

Brian also focuses his energy on improving the legal profession.  He maintains a substantial pro bono practice, providing appellate representation to individuals unable to afford legal services.  And he regularly serves as a moot court judge at some of the nation's leading law schools, helping to train the next generation of appellate advocates.

Brian clerked for Judge Michael A. Chagares of the U.S. Court of Appeals for the Third Circuit and for Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania.

Before becoming a lawyer, Brian was a mathematician.  He focused on the field of number theory and published multiple scholarly articles, including one solving a 165-year-old problem.

Recent Engagements

Brian's recent Supreme Court matters have included:

Kirtsaeng v. John Wiley & Sons Publishing (pending).  Brian second-chaired a copyright case concerning the scope of the "first-sale" doctrine, the rule that permits people to buy copyrighted goods and re-sell them without obtaining permission from the copyright owner.

Southern Union Co. v. United States
(2012).  Brian co-authored a joint amicus brief on behalf of the U.S. Chamber of Commerce and the National Association of Criminal Defense Attorneys urging the Court to overturn a criminal fine imposed on a corporation on the ground that the fine violated the Sixth Amendment.  The Court agreed and invalidated the fine, favorably citing the amicus brief.

Demiraj v. Holder (2012).  Brian co-authored an amicus brief on behalf of more than 40 former federal law-enforcement officers -- including a former Attorney General of the United States and a former Director of the FBI -- urging the Court to reverse a decision denying asylum to the wife and daughter of an immigrant who agreed to help the federal government prosecute a notorious Albanian criminal.  After the brief was filed, the federal government voluntarily granted asylum, favorably ending the case.  The New York Times called the brief the "most interesting" of all the amicus submissions in the case.

Other recent appellate matters have included:

McKinney v. New York (N.Y. App. Div. 4th Dep't 2012).  Brian briefed and argued an appeal of a criminal conviction for felony fatal hit-and-run on the ground that the conviction violated the New York state constitution.  The court agreed and held the conviction unconstitutional.

MySpace, Inc. v. GraphOn Corp. (Fed. Cir. 2012).  After a major social media company won a favorable patent claim construction ruling from an appellate panel, the loser petitioned for further review by the full court.  Brian co-authored a brief in opposition, and the court ultimately denied the rehearing petition. 

Hall v. Warden (6th Cir. 2011).  Brian briefed and argued an appeal of a decision dismissing a petition for writ of habeas corpus as barred by the statute of limitations.

Hill v. Coates (N.Y. App. Div. 1st Dep't 2010).  Brian co-authored an appellate brief for an artist/philanthropist engaged in a dispute with a third-generation oilman over the right to manage a substantial portfolio of assets held in a trust.  The court agreed with the artist/philanthropist's argument and declared her the rightful manager.  When the oilman made a motion for further appellate review in a higher court, Brian filed a brief in opposition, and the higher court denied the motion.

Brian Ginsberg
Select Publications
  • Always Be Disclosing: The Prosecutor's Constitutional Duty to Divulge Inadmissible Evidence, 110 W. Va. L. Rev. 611 (2008)
  • Therapists Behaving Badly: Why the Tarasoff Duty Is Not Always Economically Efficient, 43 Willamette L. Rev. 31 (2007)
  • A "Base" Count of the Rationals, 78 Mathematics Mag. 227 (2005)
  • Tarasoff at Thirty: Victim's Knowledge Shrinks the Psychotherapist's Duty to Warn and Protect, 21 J. Contemp. Health L. & Pol'y 1 (2004)
  • Midy's (Nearly) Secret Theorem: An Extension after 165 Years, 35 C. Mathematics J. 26 (2004)
Admitted In
  • New York
  • District of Columbia
Court Admissions
Supreme Court of the United States
    United States Courts of Appeals
    • Second Circuit
    • Third Circuit
    • Sixth Circuit
    • Seventh Circuit
    • Ninth Circuit
    • Tenth Circuit
    • Eleventh Circuit
    • Federal Circuit

    Education
    • J.D., Columbia Law School, 2007
    • M.S., Mathematics, Yale University, 2004
    • B.S., cum laude, with departmental distinction, Mathematics, Yale University, 2004
    Honors
    • Harlan Fiske Stone Scholar, Columbia Law School
    • Articles Editor, Columbia Human Rights Law Review
    • DeForest Prize in Mathematics, Yale University
    • John Alan Lewis Prize in Mathematics, Yale University
    • Benjamin F. Barge Prize in Mathematics, Yale University
    • Henry P. Wright Prize in English, Yale University
    Clerkships
    • Hon. Michael A. Chagares, U.S. Court of Appeals, Third Circuit, 2008-09
    • Hon. Anita B. Brody, U.S. District Court, Eastern District of Pennsylvania, 2007-08
    Memberships
    • Pro Bono Panel, U.S. Court of Appeals, Seventh Circuit
    • Pro Bono Panel, U.S. Court of Appeals, Ninth Circuit
    • Pro Bono Panel, U.S. Court of Appeals, Tenth Circuit
    • Historical Society, U.S. Court of Appeals, Third Circuit
    • Mathematical Association of America
    • Yale Club of Chicago

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