Non-Sequiturs

Non Sequiturs: 02.24.19

* You wouldn't want to be in the shoes of Jussie Smollett right now -- nor the shoes of his lawyers, according to Joel Cohen and Dale Degenshein. [Law and Crime] * And in other celebrity legal news, the new documentary about Drake has triggered a slew of copyright claims and takedown notices. [All Rights Reserved] * If you've been listening to the compelling new podcast from Wondery about the Dan Markel case, check out this interesting interview with host Matt Shaer. [Uproxx] * Speaking of podcasts, I recently appeared on Miranda Warnings, the popular podcast by former New York State Bar Association president David Miranda, to talk about Biglaw, legal education, and more. [Miranda Warnings] * And if you'll be in Nashville tomorrow or Tuesday, please feel free to stop by either or both of the talks I'll be giving at Vanderbilt -- one on judicial celebrity, and one on the state of legal education. [Vanderbilt Federalist Society / Vanderbilt Law School Library] * If you're a libertarian or otherwise concerned about excessive exercises of government power, you should be concerned about President Donald Trump's invocation of emergency powers, as Ilya Somin explains. [Volokh Conspiracy / Reason] * Will the Supreme Court ride to Trump's rescue if and when his national emergency declaration winds up before SCOTUS? Brianne Gorod has her doubts. [Take Care] * More excellent advice from expert courtroom lawyer David Berg -- think of this as "The Trial Lawyer: What It Takes To Lose." [YouTube]

Non Sequiturs: 02.17.19

* I share Allahpundit's take on the retirement buzz around Justice Clarence Thomas (recently discussed by Jeffrey Toobin, but also in the air at last November's Federalist Society conference): it's certainly possible, and if it happens, Judge Amy Coney Barrett and Judge Amul Thapar are the two top picks. [Hot Air] * And Judge Barrett is protecting her prospects for Supreme Court confirmation: she just joined the opinion of a fellow shortlister, Judge Diane Sykes, that dutifully applies Hill v. Colorado, the shaky but not-overruled Supreme Court precedent about free-speech rights outside abortion clinics. [Bench Memos / National Review] * Speaking of SCOTUS, which amici boast the best track recorders in filing certiorari-stage amicus briefs in business cases? Adam Feldman crunches the numbers -- and the dominance of the U.S. Chamber of Commerce should come as no surprise. [Empirical SCOTUS] * And speaking of the Chamber, it also seems to be making progress on its goal of forcing more disclosure of litigation-funding arrangements, with the reintroduction of the Litigation Funding Transparency Act (LFTA). [Institute for Legal Reform] * Litigation funders don't reflexively oppose any and all disclosure requirements; Michael German of Vannin Capital, for example, argues for a sensible and limited disclosure regime. [New York Law Journal] * If you're looking for an interesting new podcast (besides Wondery's exploration of the Dan Markel case), consider Bound by Oath from the Institute for Justice (Eugene Volokh is a fan). [Institute for Justice] * Should Roger Stone be gagged? Joel Cohen weighs the pros and cons. [The Hill] * Are you a lawyer who enjoys poker? Mark your calendar for February 23! [Attorney Poker Tour]

Non Sequiturs: 02.10.19

* Irina Manta, a recent addition to the roster of Volokh Conspirators, assesses some of the attacks leveled against D.C. Circuit nominee Neomi Rao. [Volokh Conspiracy / Reason] * In other nomination news, Thomas Jipping explains why conservatives should temper their excitement over those 44 judicial nominees who just got reported out of the Senate Judiciary Committee. [Bench Memos / National Review] * Michael Dorf's take on Chief Justice John Roberts joining the four liberals on the Supreme Court to put the Louisiana abortion law on hold: the right to an abortion is "not in quite as much immediate danger as one might have thought. And that's not nothing." [Take Care] * Lawyer to the stars Alex Spiro, partner at Quinn Emanuel, talks about how he's approaching the representation of his latest celebrity client, rapper 21 Savage. [Complex] * On the occasion of his 15th blogiversary (congratulations!), Rick Garnett reflects on the past and future of blogging. [Mirror of Justice via PrawfsBlawg] * Jean O'Grady chats with Pablo Arredondo of Casetext about the platform's newest features. [Dewey B Strategic] * And in other legal technology news, congrats to legal AI innovator Luminance on securing another $10 million in funding (reflecting a total valuation for the company of $100 million). [Artificial Lawyer] * Last Thursday, Alabama executed Domineque Hakim Marcelle Ray and did not allow his imam to be present (even though Christian inmates can have the prison chaplain present) -- a manifest injustice, according to Stephen Cooper. [Alabama Political Reporter] * In the latest installment of his ongoing series offering advice to trial lawyers, David Berg sets forth an essential rule of cross-examination. [YouTube]

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: 01.27.19

* Regarding the nomination of Patrick Bumatay to the Ninth Circuit, "Why are Democrats fighting the judicial nomination of a qualified gay minority?" Good question! [The Federalist] * Speaking of highly qualified minority nominees under attack, Carrie Severino argues that it's the critics of D.C. Circuit nominee Neomi Rao, not Rao herself, who are being inflammatory. [Bench Memos / National Review] * And KC Johnson, reviewing the collegiate writings by Rao that have generated the attacks against her, argues that Rao's views on campus sexual assault -- from 25 years ago, so who knows whether or not she still holds them -- are "align[ed] both with statute and today’s mainstream opinion." [City Journal] * Litigation over a watchdog commission for handling complaints of prosecutorial misconduct in New York State involves a lot of legal luminaries, including Jim Walden and Jacob Gardener of Walden Macht, Jim McGuire and Daniel Sullivan of Holwell Shuster & Goldberg, and Andrew Rossman, Kathleen Sullivan, and Alex Spiro of Quinn Emanuel. [New York Law Journal] * Could Nick Sandmann and the Covington boys file libel lawsuits over some of the commentary on their controversy? It could be an uphill climb, according to Eugene Volokh (a First Amendment expert, and hardly anyone's idea of a leftist). [Reason / Volokh Conspiracy] * But if Covington cases do get filed, they could give rise to some interesting issues of civil procedure, as Howard Wasserman notes. [PrawfsBlawg] * Many lessons can be learned from the Fyre Festival debacle -- and one of the legal ones is that FTC disclosures actually matter. [All Rights Reserved] * If you're a liberal or progressive appellate litigator interested in taking on the Trump Administration, check out this new job posting from the good folks at the CAC. [Constitutional Accountability Center]

Non Sequiturs: 01.20.19

* Adam Feldman explores the possible effect on the Supreme Court of replacing Justice Ruth Bader Ginsburg with a staunch conservative -- e.g., Judge Amy Coney Barrett. [Empirical SCOTUS] * Speaking of SCOTUS, here's Ilya Somin's read of the tea leaves in Knick v. Township of Scott, an important Takings Clause case.  [Volokh Conspiracy / Reason] * Stephen Embry disagrees with Joe Patrice's suggestion that junior lawyers are going extinct, but Embry acknowledges the major effect that technology is having, and will continue to have, on legal practice and employment. [TechLaw Crossroads] * Charles Glasser looks at what might have caused the political polarization of the modern media and its consumers. [Daily Caller] * The prospect of Michael Cohen testifying publicly before Congress is making some people giddy -- but it's not without its downsides, as Joel Cohen explains. [The Hill] * What can we learn from official Washington utterances about the shutdown? Here's some intel from VoxGov, via Jean O'Grady. [Dewey B Strategic] * Not all provisions of the Bill of Rights are created equal, according to Gerard Magliocca. [PrawfsBlawg] * David Berg draws lessons for trial lawyers from the genius of Joe Jamail's use of hypothetical questions. [YouTube]

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: 01.06.19

* It's baaack: partisan gerrymandering returns to the Supreme Court -- and in the view of veteran SCOTUS watcher Amy Howe, it's unlikely that the justices will duck the merits this time around. [SCOTUSblog] * Article III standing and the Stored Communications Act: Orin Kerr argues that it should be viewed through the lens of property rather than privacy. [Volokh Conspiracy / Reason] * Carrie Severino calls out Senate Democrats for their persistent -- and in her view, unjustified -- questioning of judicial nominees about their religious views and affiliations. [Bench Memos / National Review] * Joel Cohen identifies an interesting issue: should a defendant prejudiced by government misconduct in a case receive a break at sentencing? [Law & Crime] * Here are some highlights from Chief Justice John Roberts's year-end report on the federal judiciary, courtesy of Howard Wasserman. [PrawfsBlawg] * The new year is a time of beginnings -- and endings. Concurring Opinions, you will be missed. [Concurring Opinions]

Non Sequiturs: 12.30.18

* In 2018, what did Donald Trump talk about when he talked about the courts? Adam Feldman dives into the data to find out. [Empirical SCOTUS] * Speaking of President Trump and the judiciary, he continues to appoint federal judges at a record pace -- but the Democrats are doing everything they can to slow down his progress. [Bench Memos / National Review] * If you care at all about affordable housing, then you should be heartened by these developments in the fight against exclusionary zoning, as discussed by Ilya Somin. [Volokh Conspiracy / Reason] * Congratulations to the Department of Justice on its ninth consecutive year of civil health care fraud settlements and judgments exceeding $2 billion. [MedCity News] * If you're interested in the hot topics among law librarians, legal technologists, and others in the space, check out Jean O'Grady's most popular stories of 2018. [Dewey B Strategic] * And if you're interested in the year that was in artificial intelligence and the law, check out the Artificial Lawyer's roundup of notable news. [Artificial Lawyer] * Condolences to the friends, family, and colleagues of Bre Payton, who passed away last week at the age of 26. [The Federalist] * Veteran trial lawyer David Berg continues his series on "What It Takes To Win." [YouTube]

Non Sequiturs: 12.23.18

* Nancy Gertner and Laurence Tribe take Alan Dershowitz to task for his unorthodox analysis of the sentencing proceedings of General Michael Flynn. [Boston Globe] * In this elegant essay, Jane Chong uses two notable new books -- To End a Presidency: The Power of Impeachment, by Laurence Tribe and Joshua Matz, and the updated edition of Charles Black's classic, Impeachment: A Handbook, with a new preface and additional chapters by by Philip Bobbitt (affiliate links) -- as the jumping-off point for reflections on impeachment, law, and politics. [Los Angeles Review of Books] * Judges often struggle when it comes to sentencing -- and that's as it should be, according to veteran defense lawyer and former prosecutor Joel Cohen. [New York Law Journal] * Yes, more of President Donald Trump's judicial nominees have been rated "not qualified" by the American Bar Association compared to the nominees of his four most-recent predecessors -- but as Patrick Gregory explains, there are some reasons for this (most notably, the Trump Administration's decision to stop giving the ABA a sneak peek at nominees, which allowed past administrations to simply pull nominees the ABA deemed unqualified). [Big Law Business] * Jonathan Adler has many problems with the recent ruling by Judge Reed O'Connor (N.D. Tex.) on the constitutionality of the Affordable Care Act -- including the fact that Judge O'Connor ruled in the first place. [Volokh Conspiracy / Reason] * Former public defender Stephen Cooper flags an issue that many reporters probably haven't thought much about: "When Will Journalism Grapple With the Ethics of Interviewing Mentally Ill Arrestees?" [CounterPunch] * As 2018 draws to a close, the U.S. Chamber offers up its annual list of the year's Top 10 Most Ridiculous Lawsuits. [Faces of Lawsuit Abuse] * Looking ahead to 2019, the new year could ring in new legislation that could help lower drug prices by facilitating the timely entry of generics into the market, as Alaric DeArment reports. [MedCity News]

Non Sequiturs: 12.16.18

* In case you missed it (the news broke on Friday night), Judge Reed O’Connor (N.D. Tex.) held that the Affordable Care Act aka Obamacare is unconstitutional, in the wake of last year's tax reform that reduced the ACA's "shared responsibility payment" for lacking health-care coverage to zero. [MedCity News] * Josh Blackman agrees with Judge O'Connor the constitutionality of the individual mandate, but disagreed with his severability analysis. [Reason / Volokh Conspiracy] * Meanwhile, fellow Volokh Conspirator Samuel Bray is glad that the court didn't issue a national injunction. [Reason / Volokh Conspiracy] * Adam Feldman takes a closer look at the Federal Circuit's relationship to the Supreme Court -- including which members of the Federal Circuit are most frequently vindicated by SCOTUS. [Empirical SCOTUS] * Carrie Severino shares the disappointment of her former boss, Justice Thomas, in Chief Justice Roberts and Justice Kavanaugh voting against certiorari in Gee v. Planned Parenthood of Gulf Coast. [Bench Memos / National Review] * Eric Turkewitz calls out members of the media for misreporting on a routine trip-and-fall case because they don't like the plaintiff's famous father. [New York Personal Injury Law Blog] * Oakland is going on the offensive against the NFL, firing off a 49-page complaint signed by James Quinn of Berg & Androphy, among others. [The MMQB / Sports Illustrated] * Speaking of Berg & Androphy, name partner David Berg offers expert insights on what it takes to win as a trial lawyer. [YouTube]

Non Sequiturs: 12.09.18

* A fantasy from the fevered imagination of Lawprofblawg: playing the role of the Grinch who stole meetings. [Lawprofblawg] * Joel Cohen wonders: should jurors be instructed about the possible inaccuracy of descriptions of forensic evidence in "cop show" television programs? [Law and Crime] * David Oscar Markus isn't afraid to take on tough cases -- like defending embattled Secretary Alex Acosta in the court of public opinion. [Miami Herald via SDFLA Blog] * Former federal defender Stephen Cooper does not mince words: "The prospective gassing of human beings in Alabama is an abomination." [Alabama Political Reporter] * Jerry Goldfeder and Lincoln Mitchell offer up this hypothetical (which sounds far-fetched, but never say never given the times in which we live): "What if Trump loses but refuses to leave the White House?" [New York Daily News] * Looking for a special present for the legal nerd in your life? In addition to the items featured in the Above the Law holiday gift guide, check out the latest edition of the Solicitor General's Style Guide. [Amazon (affiliate link)] * Speaking of the Supreme Court, Adam Feldman takes a data-driven look at the recent spat between President Donald Trump and Chief Justice John Roberts over partisanship in the federal judiciary. [Empirical SCOTUS]

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: 11.18.18

* Walter Dellinger and Marty Lederman offer their analysis of the Office of Legal Counsel memo, written by Assistant Attorney General Steve Engel, on the appointment of Matthew Whitaker as Acting Attorney General. [Just Security] * WWRMD: What Would Robert Mueller Do, in the event that he's fired by Matt Whitaker? His options would be limited, according to Joel Cohen and Jennifer Rodgers. [The Hill] * As for who will become the next Senate-confirmed Attorney General, here are some possibilities -- including Glenn Reynolds's picks. [Instapundit] * Victoria Baranetsky, general counsel at the Center for Investigative Reporting, argues that the Jim Acosta case is about protecting press rights as well as due process. [Take Care] * Facebook friends aren't "real" friends -- at least according to this interesting new opinion from the Florida Supreme Court, highlighted by Eugene Volokh. [Reason / Volokh Conspiracy] * Managing partners don't get no respect at law firms -- and Bruce MacEwen thinks that's a problem. [Adam Smith Esq.] * Even though it has been out for just a few months, Westlaw Edge already has 1,500 subscribers -- and if you're thinking about getting it, tune in to this (sponsored) webinar to learn more. [Dewey B Strategic] * Yesterday I spoke at the Federalist Society National Lawyers Convention on a panel about technology, social media, and legal ethics, featuring Judge Don Willett (5th Cir.), Chief Judge Stephen Dillard (Ga. Ct. App.), Josh Blackman, and John Browning. Check it out!

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]