Sometimes You Need to Have a Knife Fight

Fractionally Legal Vol. 62 Looks at What it Takes to Win

The legal world runs on two tracks. Litigators resolve disputes, in court or in arbitration or just by grinding the other side down until they quit. Transactional attorneys make deals, paper them, and move on. I started on the first track, and I was good at it. My approach was simple: keep the other side off balance, contest everything, and request sanctions against the other side early and often, mostly just to make opposing counsel’s life miserable. I once had a judge chide me for running up 250 docket entries in a case I was going to win anyway. I wore it as a badge of honor.

I still litigate. I am litigating right now. But somewhere along the way I realized that the knife fight, as a way of life, was not for me.

Two things pushed me out. The first was cost. Scorched-earth litigation works fine when your client is a Fortune 500 company treating legal fees as a line item, or when you’re on contingency and nobody sees a bill until you win. It does not work for the other ninety percent of clients, the ones watching every invoice and wondering if the fight is worth it.

The second was simpler: it wore me down. Hard-nosed litigation is a full-contact sport. Your clients are stressed, the courts are overloaded, and opposing counsel’s entire job is to make your life as difficult as you are making theirs. Some lawyers thrive in that environment indefinitely, and I have enormous respect for them, especially the ones doing impact litigation, who take the knife fight because the cause demands it and because they are built for it. That combination of skill and conviction is genuinely rare.

I am just not one of them. Living at that level of acrimony, day in and day out, was not sustainable for me. I was lucky enough to have the standing and the freedom to make a different call, and I am also lucky enough to not particularly care what anyone thinks about it. I walked away from the fight, built something that suits me better, and have not looked back. Knowing your own highest and best use is its own kind of skill, and not as common as you might think.

So I transitioned into transactional work, went in-house with a client, and eventually built Your Fractional General Counsel into what it is today: an AI-augmented practice that I think is the best model for where the legal market is going. The collaborative, diverse and business-minded nature of the work suits me. This week alone we closed a seed round for a terrific client in the food space and filed a brief in an appeal where we had already won most of the underlying motions to dismiss. Old soldiers never die. I know how to win a knife fight. I just prefer not to live in one.

Which brings me to the news this week, and two examples of that same failure, writ large.

I’ve written about the mid-decade redistricting war before. https://fractionallyyours.substack.com/p/drawing-lines The short version: Republicans came into this cycle with a clear, coordinated plan to redraw congressional maps in every state they control, with the express goal of locking in a House majority before the 2026 midterms. Democrats hemmed and hawed, then reluctantly joined the fight in the states where they hold legislative power. The Republican effort has been a well-oiled machine, save for a few stumbles in places like Indiana and South Carolina where Republican legislators, to their credit, declined to play. The Democratic effort has been, to put it charitably, a disaster.

Last week’s casualty: Virginia. Democrats spent nearly $100 million and shepherded a redistricting amendment through the legislature, put it to a public referendum, and won — narrowly, at 52-48, but a win is a win. Voters approved a new congressional map that would have shifted Virginia from a 6-5 Democratic lean to a 10-1 Democratic advantage. Then the Virginia Supreme Court threw the whole thing out, 4-3, on a procedural technicality that, in retrospect, was entirely avoidable. The legislature gave the amendment its first approval in October 2025 — after early voting for the 2025 state elections had already begun. Under Virginia’s constitution, a redistricting amendment requires an “intervening general election” between the legislature’s first and second approvals. No intervening election, no valid amendment. The court reinstated the 2021 maps. Four potential seats, gone. Whoops.

Scoreboard, as of this writing: Republicans 12, Democrats 5.

And how did Virginia Democrats respond? They announced plans to appeal to the United States Supreme Court. Good luck with that. This is the same court that, also this week, cleared the way for Alabama to dismantle one of its two majority-Black congressional districts, following its late-April ruling in Louisiana v. Callais — a 6-3 decision that rendered the Voting Rights Act’s protections against racial gerrymanders functionally dead. The court that just gutted the primary legal tool protecting Black voters in the Deep South is going to rescue a Democratic partisan gerrymander in Virginia? On what theory, exactly?

Here is what a knife fight actually looks like. Louisiana received the Callais ruling on April 29. Governor Jeff Landry halted the state’s May 16 congressional primaries the next day, called the legislature back into session, and ordered new maps drawn before the election proceeds. Stop the clock, redraw, restart. Legal? Contested, certainly. But there was no federal court telling him he couldn’t, and the question of who would enforce an injunction against a sitting governor moving fast was genuinely murky.

Virginia could do the same thing. The Virginia Supreme Court’s ruling is a state-law decision. Federal jurisdiction is not obvious. If Virginia Democrats pushed a new map through the legislature tomorrow, the question of whether SCOTUS even has jurisdiction over a state constitutional procedural dispute is a real one. And even if a federal court ultimately weighed in, the ensuing chaos over which representatives are seated in January would create exactly the kind of leverage Democrats need to negotiate. That is what the fight looks like. You move the ball down the field. You force the other side to burn resources stopping you. You create facts on the ground. You keep pushing until you get what you want.

Democrats do not want to fight that way. That is a problem.

Underlying all of this is a structural reality that no amount of legal maneuvering can fully address. The states baking in conservative control — including, increasingly, with a thin veneer of legalized racial disenfranchisement — are, by and large, the fastest-growing states in the country. Texas. Florida. Georgia. The Sun Belt. People are moving there in enormous numbers, in part because those states build housing. They have built enough supply to keep costs relatively manageable, which attracts workers and families and, yes, people who lean progressive but will vote for whoever is on the ballot in the place they can actually afford to live.

I have been writing about supply-side housing policy for a long time. The argument has not changed. The places losing population — New York, California, Massachusetts, Illinois — are losing it because they do not build. Not because their governance is unpopular, but because NIMBYism and restrictive zoning have made it economically impossible for the people who would support progressive governance to afford to stay. This is not an abstract policy preference. It is an existential political problem.

I take it for granted that in 10 years, the country is going to be gerrymandered beyond recognition and most states will have either fully Democratic or fully Republican U.S. House delegations. If Democrats are serious about majority rule, they need a genuine, aggressive housing supply campaign between now and 2030. Build enough units in blue-state metros to attract and retain the tens of millions of people who want to live in well-governed, tolerant, high-opportunity cities. That means killing price controls that reduce supply, and bulldozing the local veto power of the homeowners who benefit most from keeping supply artificially scarce. It is a game of numbers. The maps are being redrawn everywhere, and the only long-term answer to a bad map is more people.

Pick up a weapon. Fight.

Another example of the left just not fighting happened this week, closer to home.

The New York state budget finally passed — six weeks late, because Albany — and yes, it included some provisions around ICE cooperation, and yes, there were press conferences. What it did not include was the New York Civil Rights Act, which is now quietly dying in committee while the problems it was designed to solve get worse by the week.

The New York Civil Rights Act is smart legislation that fills a real legal need. Right now, if a state trooper violates your constitutional rights, you can sue him under 42 U.S.C. § 1983. That statute has been on the books since 1871. It works. But § 1983 does not reach federal officials like ICE officers because it only waives the sovereign immunity of state officials (not federal officials). There was a work around, the so-called Bivens action that waives sovereign immunity for federal officials when they violate the constitution, but the Supreme Court has spent the last several years systematically dismantling it to the point where it’s almost impossible to win a Bivens action and hold Federal officials responsible for constitutional violations . The practical result is that an ICE agent can kick in your door, violate your Fourth Amendment rights, and walk away without any civil exposure whatsoever. The federal courthouse door is closed. SCOTUS closed it, deliberately and repeatedly.

The New York Civil Rights act is a straightforward solution: amend New York’s civil rights law to create a state-court cause of action against any official — federal, state, or local — who violates your constitutional rights under color of law. Damages, injunctive relief, attorney’s fees. The Westfall Act, a federal statute, explicitly carves constitutional violation claims out of the Federal Tort Claims Act’s exclusive remedy provision. In other words, Congress already left the door open for exactly this kind of state law. The theory is not exotic. The need is not debatable. The bill is sitting in committee.

I want to be precise about something, because the distinction matters to me as a lawyer. Resolutions condemning ICE are not law. Press conferences at 26 Federal Plaza are not law. A statute that gives a New Yorker the right to take a federal agent to state court and recover damages for violating the Constitution is law. One of those things actually costs the other side something. Why we don’t have the guts to pass it, I don’t understand.

No shortage of good ideas. No shortage of good lawyers or good-faith people. The Virginia map argument was legally defensible. The New York Civil Rights Act is genuinely excellent legislation. The supply-side housing case is correct and politically viable. Analysis is not the problem.

The willingness to use the tools is.

Politics is litigation. Adversarial by design. There is a place for consensus, but you negotiate from a position of strength, and strength requires that your opponent believes you will cost them something. Republicans have built that credibility. They stop elections, redraw maps mid-decade, pack courts, and hold the debt ceiling hostage. They are not confused about what game they are playing.

Most Democrats seem genuinely reluctant to play it. I understand the reluctance. I walked away from the knife fight myself. But I had the luxury of doing that. Liberal democracy does not.

Keep thinking, keep building,

Jesse

Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at Your Fractional GC and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substack here (follow me on notes), and follow me on LinkedIn here.