Brian D. Ginsberg

Senior Associate
Supreme Court and Appellate

Brian Ginsberg is an appellate litigator.  As a senior associate in Orrick’s Supreme Court and Appellate practice group, he handles a broad array of appeals and related matters.

Appellate Practice Overview

Brian's practice spans all phases of the appellate process.  He regularly represents clients in the U.S. Supreme Court and has played a key role in the briefing and argument of three merits cases in the Court during the past three Terms alone.  In one of those cases, Kirtsaeng v. John Wiley & Sons, Inc. (2013), his team’s victory helped rescue the estimated $60 billion domestic market of copyrighted goods manufactured abroad from the brink of potential disaster.  In addition to his work in the U.S. Supreme Court, Brian litigates regularly in the lower appellate courts, and in trial courts when critical motions arise.  He also provides strategic counseling in the pre-litigation context regarding potential appellate and other legal issues.

Brian’s practice covers an ever-increasing variety of subjects.  He has accumulated litigation experience in a wide array of civil and criminal fields, including constitutional law, copyright law, patent law, “white-collar” criminal law, “blue-collar” criminal law, business law, foreign and domestic sovereign immunity law, employment law, arbitration law, immigration law, healthcare law, anti-terrorism/national security law, personal-injury law, and landlord-tenant law--among others.  Accordingly, Brian works in close collaboration with attorneys throughout the firm’s many practice groups.

His appellate work has drawn public praise from a variety of sources.  For example, The New York Times called an amicus brief that Brian filed in a Supreme Court immigration matter, Demiraj v. Holder (2012)"the most interesting supporting brief" in the entire case.  And the New York State Association of Criminal Defense Lawyers has recognized Brian’s ability to prepare persuasive submissions "on very short notice."

Service in the Legal Community

Brian devotes a significant portion of his appellate work to pro bono efforts on behalf of those who cannot afford legal representation.  One notable example is New York v. McKinney (2011).  Brian briefed and argued that case at the request of a New York public defender’s office and persuaded a state appellate court to vacate his client's felony conviction.  Both the National and New York State Associations of Criminal Defense Lawyers have recognized Brian for his work on behalf of indigent criminal defendants.  And Orrick has repeatedly recognized Brian for his pro bono commitment.

Additionally, Brian is active in the appellate community.  Among other responsibilities, he serves as an invited moot court judge for the Georgetown University Law School Supreme Court Institute, which prepares advocates for their upcoming arguments in the Supreme Court of the United States.  Brian also regularly participates as an invited judge for appellate moot court competitions at some of the nation's leading law schools.

Brian is a dedicated mentor.  At Orrick, he functions as a mentor to junior associates in a variety of practice groups.  His efforts extend into the local community, as well.  He participates in Orrick’s Legal Outreach Internship Program which provides high-school students from under-served areas of New York City with college preparation and life skills training.

Clerkships and Legal Education

Prior to joining Orrick, Brian completed two federal judicial clerkships.  At the appellate level, he clerked for Judge Michael A. Chagares of the U.S. Court of Appeals for the Third Circuit.  He also clerked for Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania.

Brian graduated from Columbia Law School.  At Columbia, he was named a Harlan Fiske Stone Scholar every year, elected Articles Editor of the Columbia Human Rights Law Review, and honored for his outstanding pro bono commitment.  He also served as a research assistant to Professor Jack Greenberg.

Mathematics Experience

Before becoming a practicing lawyer, Brian was a “practicing mathematician.”  He completed simultaneous undergraduate and graduate degrees in mathematics at Yale University, where he was the recipient of numerous prizes, fellowships, and research grants.  While at Yale, he published multiple original mathematical proofs, including the first extension in 165 years of “Midy’s Theorem” in the field of number theory.  Brian’s scholarly paper announcing that result is still cited by mathematicians today, some of whom refer to the extension as "Ginsberg's Theorem."

Brian draws upon this experience in many facets of his appellate practice.  He brings to every case a combination of creativity and logical rigor honed from developing original mathematical results.  Additionally, his mathematics experience puts him in demand for matters involving complex technological subjects.  One recent example is CardSoft, LLC v. VeriFone, Inc. (2014), a case involving “virtual machine” patents from the field of computer science.  In that case, Brian played a key role in convincing the Federal Circuit not only to vacate a judgment of patent infringement against his client but to enter a judgment of non-infringement as well.

Brian Ginsberg
Select Publications
  • “Straight to the Supreme Court” Not Always Wise, Nat’l L.J., Mar. 24, 2014 (with E. Joshua Rosenkranz)
  • What Is “Arbitration”? The Supreme Court Refuses to Say, Law360, Nov. 13, 2013 (with Robert M. Loeb)
  • 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)
  • The Chemist Inorganical, 10 Today’s Chemist at Work 60 (2001)
Admitted In
  • New York
  • District of Columbia
Court Admissions
Supreme Court of the United States
    United States Courts of Appeals
    • First Circuit
    • Second Circuit
    • Third Circuit
    • Fourth Circuit
    • Fifth Circuit
    • Sixth Circuit
    • Seventh Circuit
    • Eighth Circuit
    • Ninth Circuit
    • Tenth Circuit
    • Eleventh Circuit
    • District of Columbia Circuit
    • Federal Circuit

    Education
    • J.D., Harlan Fiske Stone Scholar, Columbia Law School, 2007
    • M.S., Mathematics, Yale University, 2004
    • B.S., cum laude, Departmental Distinction, Mathematics, Yale University, 2004
    Honors
    • Certificate of Recognition for Exemplary Pro Bono Contribution, Orrick, Herrington & Sutcliffe LLP, 2012, 2013, 2014
    • Certificate of Appreciation for Supreme Court Amicus Brief in Southern Union Co. v. United States, National Association of Criminal Defense Lawyers Amicus Curiae Committee, 2012
    • Recognition for Multiple Amicus Briefs, New York State Association of Criminal Defense Lawyers Amicus Curiae Committee, 2012
    • Recognition for Outstanding Pro Bono Commitment, Columbia Law School, 2007
    • Honorable Mention in Mathematics, National Science Foundation Graduate Fellowship Competition, 2004
    • DeForest Prize in Mathematics, Yale University, 2004
    • Research Grant in Mathematics, Andrew W. Mellon Foundation, 2004
    • John Alan Lewis Prize in Mathematics, Yale University, 2003, 2004
    • Henry P. Wright Prize in English, Yale University, 2003
    • Fellowship in Mathematics, Paul K. and Evalyn E. Cook Richter Trust, 2003
    • Benjamin F. Barge Prize in Mathematics, Yale University, 2002
    Clerkships
    • Hon. Michael A. Chagares, U.S. Court of Appeals, Third Circuit, 2008-2009
    • Hon. Anita B. Brody, U.S. District Court, Eastern District of Pennsylvania, 2007-2008
    Memberships
    • Historical Society, U.S. Court of Appeals, Third Circuit
    • Mathematical Association of America
    • Yale Club of Chicago

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