Ed Whelan

  • Non Sequiturs: 04.21.19
    Non-Sequiturs

    Non Sequiturs: 04.21.19

    * What’s the future of Elizabeth Prelogar, the beauty queen turned Harvard Law School grad turned Supreme Court clerk turned Team Mueller member? Not clear, except that it’s blindingly bright. [Ozy]

    * How often do you see this? A federal judge praises counsel — specifically, J. Christian Adams of the Election Law Center, Douglas R. Cox of Gibson Dunn, Michael E. Rosman of the Center for Individual Rights, and local counsel Mun Su Park — for their “conscientious billing practices.” [Volokh Conspiracy / Reason]

    * Another Lawyerly Lair of Jonathan Schiller, of Boies Schiller Flexner fame: a stunning modern retreat on Martha’s Vineyard, designed by his son, architect Aaron Schiller (whose firm also did the new BSF offices in Hudson Yards). [Martha’s Vineyard]

    * Amicus brief of the month: a compelling — and, sadly, entertaining (see the Appendix) — analysis of the U.S. Patent and Trademark Office’s utterly incoherent approach to supposedly “immoral or scandalous” trademarks, filed by William Jay and Goodwin Procter on behalf of law professors Barton Beebe and Jeanne Fromer. [Supreme Court of the United States]

    * Here’s a clear and concise explanation of the “Rule of 80,” taking “senior status” as a federal judge, and what this all means for the ideological balance of the judiciary, courtesy of Ed Whelan. [Bench Memos / National Review]

    * How should we think about President Donald Trump’s branding of the press as “the enemy of the people”? Negatively, to be sure — but let’s also keep in mind that the media is not a monolith, as First Amendment lawyer Charles Glasser helpfully reminds us. [Daily Caller]

    * Stephen Cooper survived a stabbing — then went on to defend violent criminals for many years as a federal public defender. [Alabama Political Reporter]

    * Cooper argues that we need to be less punitive and more thoughtful in our treatment of offenders — and Joel Cohen seems to agree, defending an unusual but wise sentence recently handed down by Judge Valerie Caproni (S.D.N.Y.). [New York Law Journal]

  • Non Sequiturs: 02.03.19
    Non-Sequiturs

    Non Sequiturs: 02.03.19

    * How have personnel changes at the Supreme Court affected the dynamics at oral argument? Adam Feldman offers this analysis. [Empirical SCOTUS]

    * Ed Whelan expresses relief over the White House’s new slate of Ninth Circuit nominations. [Bench Memos / National Review]

    * Can President Trump declare a “national emergency” in order to build his beloved wall? The National Emergencies Act is not a blank check, according to Brianne Gorod. [Take Care]

    * Should Congress pass a “deepfakes” law? Orin Kerr has some concerns. [Volokh Conspiracy / Reason]

    * What’s going on with Rudy Giuliani? Joel Cohen has a theory. [The Hill]

    * Jean O’Grady is pleased to see all the competition in the legal analytics space (with Precedent Analytics from Thomson Reuters as the newest entrant) — but she’d like to see more support for the competing claims of the different products. [Dewey B Strategic]

    * News organizations need stricter and better guidelines when interviewing mentally ill defendants, according to former public defender Stephen Cooper. [The Tennessean]

    * Have questions about the fast-approaching February bar exam? Ashley Heidemann has answers. [JD Advising]

  • Non Sequiturs: 01.13.19
    Non-Sequiturs

    Non Sequiturs: 01.13.19

    * A happy 200th birthday to Cravath, which celebrates its bicentennial in 2019 (and which has launched a sharp-looking, historically rich microsite for the occasion). [Cravath/200]

    * According to Dayvon Love, “the policy response from mainstream political institutions and the Democratic Leadership in Maryland to the issue of gun violence and homicide in the Black community is mired in racism.” [Leaders of a Beautiful Struggle]

    * The current Term of the Supreme Court doesn’t boast many blockbusters — but some cases are more interesting than others, as Adam Feldman points out. [Empirical SCOTUS]

    * Illegal aliens, guns, and strict liability, oh my! Eugene Volokh breaks down Rehaif v. United States, which SCOTUS just agreed to hear. [Volokh Conspiracy / Reason]

    * The Supreme Court has taken an increased interest in intellectual property in recent years — and if it wants to tackle issues of copyright infringement in the digital age, Capitol Records v. ReDigi could be a good vehicle. [All Rights Reserved]

    * Speaking of supreme courts, Florida’s is likely to shift rightward, as Ed Whelan explains. [Bench Memos / National Review]

    * If you’re getting lots of questions from friends and family about the constitutional law of shutdowns, check out this helpful explainer from Zachary Price. [Take Care]

    * And if you have thoughts on what legal publishers got right and wrong in 2018, Jean O’Grady would like to hear from you. [Dewey B Strategic]

  • Non Sequiturs: 12.02.18
    Non-Sequiturs

    Non Sequiturs: 12.02.18

    * What are expert advocates’ secrets to cert success? Adam Feldman’s very interesting analysis suggests that using certain buzzwords in a petition might help. [Empirical SCOTUS]

    * Ilya Somin points out this fun depressing fact: one of the plants that General Motors will be closing sits on land seized in a controversial taking that forcibly displaced more than 4,000 people. [Reason / Volokh Conspiracy]

    * The Third Circuit is poised to become the first (but probably not the last) circuit court to “flip” flip from a majority of Democratic appointees at the outset of the Trump administration to a majority of Republican appointees, as Ed Whelan notes. [National Review / Bench Memos]

    * A June 3 trial date has been set for Sigfredo Garcia and Katherine Magbanua in the Dan Markel case — almost five long years after Professor Markel’s murder. [Tallahassee Democrat]

    * In the wake of a recent tragedy, Neha Sampat offers some reflections on impostor syndrome in the legal profession. [ABA Journal]

    * If you’re a conservative or libertarian law student, you should consider attending the Federalist Society’s 2019 National Student Symposium, with “The Resurgence of Economic Liberty” as its theme. [Federalist Society]

    * Can the Supreme Court save our democracy? David Pozen opines (and he’s not optimistic).

  • Non Sequiturs: 11.11.18
    Non-Sequiturs

    Non Sequiturs: 11.11.18

    * The unstoppable Justice Ruth Bader Ginsburg maintains her three-Term streak as author of the Supreme Court’s first signed majority opinion — and, interestingly enough, it’s a unanimous affirmance of the Ninth Circuit (opinion by my former boss, Judge Diarmuid O’Scannlain). [Empirical SCOTUS]

    * When he’s not busy issuing landmark decisions (and feeding his clerks to SCOTUS), Judge Jed Rakoff (S.D.N.Y.) writes erudite essays for the New York Review of Books — like his latest, a review of Joel Richard Paul’s new biography of Chief Justice John Marshall (affiliate link). [New York Review of Books]

    * President Donald Trump is transforming the federal judiciary with his youthful and conservative appointments — but the extent of the transformation should not be exaggerated, for reasons identified by Ed Whelan. [Bench Memos / National Review]

    * Ann Althouse analyzes some of the juiciest passages in Michelle Obama’s new memoir (affiliate link). [Althouse]

    * It has been a long time — specifically, more than four years — since the Department of Justice has issued an opinion about the Foreign Corrupt Practices Act, as FCPA guru Mike Koehler points out. [FCPA Professor]

    * Peter Schuck responds, in thoughtful and civil fashion, to the (many) critics of his and Rogers Smith’s argument that the Fourteenth Amendment does not require birthright citizenship for the children of unlawfully present aliens. [PrawfsBlawg]

    * After last Tuesday’s elections, in which Louisiana approved a state constitutional amendment requiring a unanimous jury to convict in a criminal case, Oregon is the only state that allows conviction in some criminal cases without a unanimous jury — and Gerard Magliocca wonders if this is constitutional. [Concurring Opinions]

    * He’s no stranger to our pages, but Isaac Lidsky — the child actor (Saved By The Bell) turned first blind SCOTUS clerk turned successful entrepreneur — still has many insights to share, as he does in this wide-ranging podcast with Goli Kalkhoran. [Lessons From A Quitter]

  • Non-Sequiturs: 09.16.18
    Non-Sequiturs

    Non-Sequiturs: 09.16.18

    * Will Senator Susan Collins be persuaded by the campaign to get her to vote against Judge Brett Kavanaugh? Ed Whelan has his doubts. [Bench Memos / National Review]

    * Speaking of the Supreme Court, Adam Feldman identifies his “Supreme Court All-Stars” (2013-2017): the lawyers and law firms with the most arguments — and wins — before the high court. [Empirical SCOTUS]

    * Greg Lukianoff and Adam Goldstein offer tips for protecting freedom of speech on college campuses, inspired by a new book, The Coddling of the American Mind (affiliate link) by Greg Lukianoff and Jonathan Haidt. [Volokh Conspiracy / Reason]

    * Charles Glasser to news organizations, on the subject of self-policing: do better. [Daily Caller]

    * How should we evaluate the success of law firm mergers? Madhav Srinivasan of Hunton Andrews Kurth has some thoughts on methodology. [Law.com]

    * And Orin Kerr offers a proposal for applying the Fifth Amendment privilege against self-incrimination to compelled “decryption” of a locked phone, computer, or file. [SSRN]

    * Speaking of privacy, Google is taking some heat in Arizona over its alleged practice of recording location data of Android device owners even if they opted out of such tracking. [Washington Post]

    * When it comes to learning how to integrate technology into the delivery of legal services, American law firms can learn a thing or two from the Brits — as the latest move by CMS suggests. [Artificial Lawyer]

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  • Non-Sequiturs: 09.02.18
    Non-Sequiturs

    Non-Sequiturs: 09.02.18

    Ed. note: We will not be publishing on Monday, September 3, in observance of Labor Day.

    * Law librarian Jean O’Grady rounds up the many books written by or about the late Senator John McCain — and extends her “condolences to his families and friends on the passing of a remarkable man.” [Dewey B Strategic]

    * Getting Judge Brett Kavanaugh on the Supreme Court will become easier if Senator McCain’s successor is appointed before the confirmation vote — but as Adam Feldman explains, Judge Kavanaugh’s path to SCOTUS already looks quite clear. [Empirical SCOTUS]

    * And here’s more good news for Judge Kavanaugh: the American Bar Association just unanimously rated him “Well Qualified” for the Supreme Court, as Ed Whelan reports. [Bench Memos / National Review]

    * Would a Justice Kavanaugh come out in favor of the new Law Clerk Hiring Plan? As Will Baude notes, there does some to be an ideological aspect to this, with liberals more pro-Plan than conservatives. [Volokh Conspiracy / Reason]

    * Law prof Ann Althouse calls out the Washington Post for going after the Trump Administration regarding a policy that was in place under Presidents Obama and Bush as well. [Althouse]
    https://althouse.blogspot.com/2018/08/wapo-is-so-full-of-anti-trump-headlines.html

    * If you’ll be spending Labor Day at the beach, is it okay to take your top off? Here’s some guidance. [Seinfeld Law]

    * Joel Cohen acknowledges that Michael Cohen (no relation) has some incentive to tell prosecutors what they want to hear, but cautions that “we shouldn’t take this all too far.” [Law & Crime]

    * Shawn Gaines of Relativity outlines the ediscovery company’s ambitious plan to create a “legal tech app store.” [Artificial Lawyer]

  • Non-Sequiturs: 08.12.18
    Non-Sequiturs

    Non-Sequiturs: 08.12.18

    * Thanks to the not-so-orphaned Kennedy clerks, this Term could see a record number of clerks at the Supreme Court, as Tony Mauro reports. [National Law Journal]

    * Speaking of clerks, I talk quite a bit about them and their role in this interview with Kaley Pillinger about my writing career (from Underneath Their Robes to Above the Law to Supreme Ambitions (affiliate link)). [The Politic]

    * Speaking of SCOTUS, and more specifically of Judge Brett Kavanaugh’s nomination to the high court, Ed Whelan responds to the arguments of Senate Democrats against — yes, against — the prompt provision of records from Kavanaugh’s years as White House counsel. [Bench Memos / National Review]

    * If Judge Kavanaugh becomes Justice Kavanaugh, how will that affect the Court’s business jurisprudence? Adam Feldman has this analysis. [Empirical SCOTUS]

    * The failure of Ryan Bounds’s Ninth Circuit nomination could be a “teachable moment” for Senator Tim Scott (R-S.C.), according to Will Folks. [FITSNews]

    * Speaking of disappointing failures to confirm, Paul Mirengoff shares my frustration over the inexcusable delays in Department of Justice confirmations. [Power Line]

    * It’s unfair to dismiss Seinfeld as “a show about nothing”; episodes offer insight into numerous legal issues — for example, the law of conspiracy. [Seinfeld Law]

    * Kal Raustiala and Christopher Jon Sprigman offer interesting reflections on how data-driven authorship might affect the way we think about creativity and copyright. [Volokh Conspiracy / Reason]

    * If you’re interested in litigation finance, there’s a conference coming up next month here in New York that you might want to check out. [LF Dealmakers Forum]

  • Non-Sequiturs: 07.01.18
    Non-Sequiturs

    Non-Sequiturs: 07.01.18

    * Having placed Justice Anthony Kennedy’s Supreme Court retirement in political context, let’s now put it into historical context. [Retropolis / Washington Post]

    * This makes some folks quite upset, but there’s no denying it: the Roberts Court is now truly the Roberts Court (and he probably isn’t thrilled about it either). [Empirical SCOTUS]

    * Kathryn Haun — a former Kennedy clerk, by the way — has parlayed her expertise in Bitcoin, developed during her years as a federal prosecutor, into a new position leading Andreessen Horowitz’s $300 million fund focusing on cryptocurrency-related startups. Congrats, Katie! [Axios]

    * Let’s not forget about President Trump’s transformation of the lower federal courts — because it’s not just about SCOTUS. [The Takeaway / WNYC]

    * Check out Susman Godfrey’s new mandatory retirement policy — could this become the industry standard? [Texas Lawyer]

    * Yes, the First Amendment is awesome and all — but is it also encouraging errors in news reporting, as Charles Glasser suggests? [Daily Caller]

    * Speaking of mistakes, Ed Whelan sets Ben Shapiro straight on Judge Brett Kavanaugh, a leading contender to replace Justice Kennedy. [Bench Memos / National Review]

    * President Trump says he wants to pick a SCOTUS nominee who could serve on the Court for 40 years or more — and if you take the five youngest names on his list of 25, it’s entirely possible. [Althouse]

    * This should come as no surprise, but now law firms are joining the chase after data scientists. [Artificial Lawyer]

    * Congratulations to the Practising Law Institute (PLI) and Fastcase, innovators in their respective spaces, on their new alliance. [Dewey B Strategic]

  • Non-Sequiturs: 05.13.18
    Non-Sequiturs

    Non-Sequiturs: 05.13.18

    * An interesting (although depressing) factoid, courtesy of Ed Whelan: this former SCOTUS clerk and prominent Florida litigator has been nominated to the federal bench by three different presidents, but has yet to serve as a judge. [Bench Memos / National Review]

    * If you’re an older lawyer and “in transition,” you need to get yourself a “temporary identity,” as Jane Genova explains. [Law and More]

    * If you’re interested in the intersection of artificial intelligence and the law, Complex/vLex Canada’s CEO, Colin Lachance, provides a framework for understanding the world of legal AI. [3 Geeks and a Law Blog]

    * Jonathan Bernstein offers a rebuttal to my recent New York Times op-ed celebrating the demise of blue slips. [Bloomberg]

    * When can creators depict real people without risking liability? The ambiguity of the law on this question poses significant problems, according to Jennifer Rothman, author of a new book (affiliate link) about the right of publicity. [Volokh Conspiracy / Reason]

    * Noted media lawyer Charles Glasser wonders: when it comes to covering President Trump, are news editors “confusing the public interest with what is merely of interest to the public”? [Daily Caller]

    * Thomson Reuters gets in on the blockchain action, bringing a blockchain-based legal arbitration platform, Kleros, into its Incubator Labs start-up program. [Artificial Lawyer]

    * Final reminder: please support the Jersey City Free Public Library — and enjoy some delicious Filipino food by celebrity chef Dale Talde — by joining me on Thursday, May 17, for what should be a great evening! [Jersey City Free Public Library]

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