SCOTUS
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Non-Sequiturs
Non-Sequiturs: 06.17.18
* Are you paying too much in mutual-fund fees? If you’re paying more than zero, then yes — or so argue Professors William Birdthistle and Daniel Hemel in this interesting and persuasive op-ed. [Wall Street Journal]
* James Comey, FBI director turned author (affiliate link), responds to the criticisms of him in the Inspector General’s report. [Althouse]
* It’s complicated — but just how complicated? Adam Feldman uses word counts and citations to measure opinion complexity during the current Term of the Supreme Court. [Empirical SCOTUS]
* Judge Alex Kozinski (Ret.) pays tribute to the memory of his late colleague on the Ninth Circuit, Judge Stephen Reinhardt. [Concurring Opinions]
* If you’re confused by why the latest Obamacare litigation over the individual mandate matters, since the mandate was rendered toothless by the recent tax reform, Professor Ilya Somin can help. [Volokh Conspiracy / Reason]
* Ethics expert Steven Lubet reviews Ryan Holiday’s book (affiliate link) about the Hulk Hogan/Gawker case — and argues that Peter Thiel’s financing of the litigation might have violated legal ethics. [American Prospect via PrawfsBlawg]
* Thomson Reuters, a leader in applying artificial intelligence in the law — we’re partnering with them on our Law2020 series, exploring how AI is affecting the legal profession — also utilizes machine learning to help people trade cryptocurrencies (among many other use cases). [Artificial Lawyer]
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Courts
Above The Law Goes To The Supreme Court
Check out this very interesting cert petition, just filed by Paul Clement. - Sponsored
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Non-Sequiturs
Non-Sequiturs: 06.10.18
* What changes might come to the Supreme Court if Justice Kennedy retires at the end of this Term? Adam Feldman scours the justices’ voting relationships for clues. [Empirical SCOTUS]
* Speaking of SCOTUS, when it comes to its recent ruling in Masterpiece Cakeshop, Andrew Siegel is not impressed. [PrawfsBlawg]
* Ilya Somin offers praise for legislation being co-sponsored by Senator Elizabeth Warren — but it will make sense to you once you see the subject matter (hint: her co-sponsor is Senator Cory Gardner of Colorado). [Volokh Conspiracy / Reason]
* Charles Glasser has no problem with people calling out or criticizing speech that they find offensive, but he argues — rightly so, in my view — that we’ve lost “a sense of proportion, a rational relationship between the speaker, their comments, and their role in society.” [Daily Caller]
* Ann Althouse’s take on Bill Clinton’s controversial #MeToo comments. [Althouse]
* Greg Lambert is absolutely right: “Sometimes the change you seek causes problems you didn’t foresee.” [3 Geeks and a Law Blog]
* Smart-contract checker Sagewise hooks up with Hedera Hashgraph, a “blazing fast” alternative to blockchain. [Artificial Lawyer]
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Non-Sequiturs
Non-Sequiturs: 06.03.18
* Which lawyers and law firms scored the most SCOTUS arguments this Term? Adam Feldman has the tally. [Empirical SCOTUS]
* And speaking of the Supreme Court, what can lawyers learn from linguists about Heller and the Second Amendment? [LAWnLinguistics]
* Adam Kolber discusses the phenomenon of “judicial bulls**t” — and wonders whether the justices would fail Philosophy 101. [Daily Journal via PrawfsBlawg]
* Are Justice Neil Gorsuch’s long-winded concurrences contributing to the Supreme Court slowdown this Term? Andrew Hamm crunches some numbers. [SCOTUSblog]
* Many of the major precedents in the school free-speech context feature liberal students — but conservative kids can play this game too. [Volokh Conspiracy / Reason]
* Lex Machina’s latest foray into litigation analytics covers the world of trade secrets. [Dewey B Strategic]
* Relativity: not just for ediscovery anymore. [Artificial Lawyer]
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Supreme Court
Neil Gorsuch Is A Cheap Knock-Off
Neil Gorsuch wants to be just like Antonin Scalia. He's not. -
Non-Sequiturs
Non-Sequiturs: 05.27.18
Ed. note: We will not be publishing on Monday, May 28, in observance of Memorial Day. We will return to our regular publication schedule on Tuesday, May 29.
* What is up with the lively Twitter feed of George T. Conway, former Wachtell Lipton partner and husband of top Trump adviser Kellyanne Conway? It’s not entirely clear — but if you’re not already following GTC, you should be. [Politico]
* Because Masterpiece Cakeshop isn’t the only cake controversy out there: mom tries to get “summa cum laude” written on her son’s graduation cake, hilarity sues. [Althouse]
* Over at the invaluable Take Care blog, you can now find an extensive database of articles addressing impeachment in the Age of Trump — to complement Laurence Tribe and Joshua Matz’s new book about impeachment (affiliate link). [Take Care]
* Is Justice Anthony M. Kennedy about to retire from the Supreme Court? Per Adam Feldman, “signs point to Justice Kennedy remaining on the Court past this term notwithstanding all of the discussion surrounding his retirement.” [Empirical SCOTUS]
* When #MeToo meets defamation claims: a court tosses Tavis Smiley’s libel claim against PBS. [Volokh Conspiracy / Reason]
* “Surprise! Your expert witness has a rap sheet.” And there’s no plug-and-play solution to vetting expert witnesses, as Jean O’Grady explains. [Dewey B Strategic]
* Saira Rao, who helped diversify the world of children’s books, hopes to do the same for politics — by becoming Colorado’s first woman of color elected to Congress. [Teen Vogue]
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Courts
Will He Stay Or Will He Go? On Justice Anthony M. Kennedy's Rumored Retirement From The Supreme Court
Do we know whether AMK is about to leave SCOTUS -- heck, does HE even know? -
Non-Sequiturs
Non-Sequiturs: 05.20.18
* After issuing a TRO to a block a political ad attacking his own allies and campaign donors — “almost certainly an unconstitutional prior restraint,” in the words of First Amendment guru Eugene Volokh — Judge Doug Martin of Arkansas (finally) recuses himself. [Daily Caller]
* Jim Comey’s bestselling book (affiliate link) could cause complications for Robert Mueller and his investigation, according to Joel Cohen. [Law and Crime]
* Which state solicitors general appear most frequently before the Supreme Court? Not surprisingly, Scott Keller of Texas leads the pack, but check out Adam Feldman’s list for other notable names. [Empirical SCOTUS]
* Jean O’Grady shares my admiration for the late Tom Wolfe — and even corresponded with the acclaimed author. [Dewey B Strategic]
* Too few people are willing to take ownership of change — and this is a big problem, as Greg Lambert explains. [3 Geeks and a Law Blog]
* John Fund asks: has the American Law Institute (ALI) strayed from its mission of describing the law and into advocating changes in the law instead? [National Review]
* What is “Old Tweet Syndrome,” and is there a cure for it? Charles Glasser makes a diagnosis. [Daily Caller]
* Adam J. White wonders: Does the Solicitor General’s request for more time to file its reply to Sierra Pacific’s cert petition in the “Moonlight Fire” case suggest that the Justice Department might confess error? [Weekly Standard]
* If you’ll be in Chicago on June 8, please consider coming to the twelfth annual dinner of the Richard Linn Inn of Court, where I’ll be speaking — hope to see you there! [Richard Linn American Inn of Court]
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Courts
Supreme Court Clerk Hiring Watch: Two Firsts At One First Street
Congratulations to all of these amazing young lawyers! -
Supreme Court, Trivia Question of the Day
The Most Inquiring Minds On The Supreme Court
Which three justices are supremely inquisitive from the bench? -
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Non-Sequiturs
Non-Sequiturs: 05.06.18
* Congratulations to Quinn Emanuel partner Alex Spiro and Jose Baez, of Casey Anthony fame, on a big win: a full acquittal in the securities-fraud trial of David Demos. [Bloomberg]
* Do you feel that the Supreme Court is taking its sweet time in releasing opinions this Term? Adam Feldman confirms that it’s not your imagination. [Empirical SCOTUS]
* Consovoy McCarthy Park, the elite litigation boutique led by a group of conservative former SCOTUS clerks, welcomes its newest partner: Jeffrey Harris, former associate administrator of the Office of Information and Regulatory Affairs and former law clerk to Chief Justice Roberts. [National Law Journal]
* Are law school graduates getting “good” jobs? Professor Derek Muller has a novel idea: why don’t we ask them? [PrawfsBlawg]
* The Colorado congressional race featuring two NYU Law alumnae, incumbent Diana DeGette and challenger Saira Rao, reflects a divide in the Democratic Party more broadly. [NBC News]
* Criminal defense lawyer Joel Cohen argues against reading too much into an individual’s invocation of the Fifth Amendment — even if the individual happens to be Donald Trump or someone connected to him. [The Hill]
* Criminal defense lawyer Elizabeth Kelley interviews Stanford law professor Paul Goldstein about his biting and funny law school satire, Legal Asylum (affiliate link). [AuthorChats]
* Speaking of books, if you’d like to support the Jersey City Free Public Library — and enjoy some delicious Filipino food by celebrity chef Dale Talde — please join me this Thursday, May 17, for what should be a great evening! [Jersey City Free Public Library]
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Non-Sequiturs
Non-Sequiturs: 04.29.18
* Kirkland & Ellis raiding Cravath is now officially “a thing”; it’s been covered in the newspaper of record. [New York Times]
* Extension requests: not just for law school papers, but for cert petitions too (and there’s no shame in seeking them; they’re often requested by prominent practitioners). [Empirical SCOTUS]
* Want to talk intelligently about the Michael Cohen
messcase with your friends? Start by reading this primer on “privileged” versus “confidential” client communications, by Joel Cohen (no relation) and Dale Degenshein. [Law and Crime]* Boycotts have a venerable history in terms of the law and the First Amendment — but they might be losing their effectiveness in the digital age, as noted media lawyer Charles Glasser explains. [Daily Caller]
* Eugene Volokh flags this interesting issue (and opinion): under what circumstances does denying a felon the right to own a gun violate the Second Amendment? [Reason / Volokh Conspiracy]
* Has the whole “emotional support animal” phenomenon gone too far at Yale? [Yale Daily News via Instapundit]
David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
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Non-Sequiturs
Non-Sequiturs: 04.22.18
* Joel Cohen makes the case for appointing a special master to review the attorney-client privilege claims in the case of Michael Cohen (no relation). [Law and Crime]
* A fun profile of Judge Kimba M. Wood (S.D.N.Y.), who’s presiding over the Cohen case — and who “doesn’t need to eat the whole barrel to know it’s not a pickle.” [Politico]
* Circuit judges can play it safe, in the hopes of making it to the Supreme Court someday, or they can be bold (which might help their SCOTUS chances, or might hurt them); Judge James Ho is going for the second approach. [U.S. Court of Appeals for the Fifth Circuit]
* Professor Eugene Volokh: “What is this, Mean Girls: Supreme Court Edition?” [Volokh Conspiracy / Reason]
* Still on SCOTUS, which leading appellate lawyers (according to Chambers & Partners) have the most active practices before the high court? [Empirical SCOTUS]
* What’s the best new legal-information product out there, and what’s the best new product feature or function? Survey says…. [Dewey B Strategic]
* Because having a law school named after him wasn’t enough, Philadelphia trial lawyer Thomas R. Kline is now honored by a giant marble statue. [Philly.com]
* The Wisconsin Supreme Court will decide an important case about academic freedom (and Above the Law gets cited in the amicus brief of the National Association of Scholars — see footnote 29). [Badger Pundit]
* Congratulations to former Miss America winner Deidre Downs Gunn and attorney and writer Abbott Jones on their recent nuptials! [People]
* And congratulations to the recipients of 2018’s Best LGBT Lawyers Under 40 Awards! [LGBT Bar]
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Courts
Justice Neil Gorsuch Hires First American Indian Law Clerk In SCOTUS History
Congratulations to Tobi Young as she makes history at the high court! -
Non-Sequiturs
Non-Sequiturs: 04.15.18
* Has it really come to this? Protesting a nice, nerdy, thoughtful law professor, simply because he questions the constitutionality of DACA (while supporting the DREAM Act)? [Josh Blackman]
* How much should we read into Team Mueller’s reassurance to President Trump that he is a subject rather than a target of its investigation? Not much, according to veteran criminal defense lawyer Joel Cohen. [The Hill]
* How would William Howard Taft have responded to attacks on judges? The POTUS turned SCOTUS chief was quite prescient about judicial independence — as explained by Jeff Rosen, author of a new Taft biography (affiliate link). [Volokh Conspiracy / Reason]
* Speaking of SCOTUS, what’s it like to work in the Solicitor General’s Office? One of the OSG’s newest members, former SCOTUS clerk Jonathan Ellis, pulls back the curtain. [Penn Law via How Appealing]
* How does Justice Gorsuch compare to Justice Scalia — not just in terms of personality, but also in terms of jurisprudence? [Empirical SCOTUS]
* And speaking of Justice Gorsuch, congratulations to Tobi Young, who will be clerking for NMG in October Term 2018 — and who is believed to be the first enrolled citizen of a Native American tribe to clerk for the Court. (By the way, I have another SCOTUS clerk hiring roundup in the works, so please send me your hiring news.) [Chickasaw Nation]
* Are you a healthcare lawyer? You might be interested in this new tool from Bloomberg Law. [Dewey B Strategic]
* Friendly reminder: the Global Legal Hackathon is entering its final stage, and you’re invited — hope to see you on April 21! [Artificial Lawyer]
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Non-Sequiturs
Non-Sequiturs: 04.08.18
* Remember the “revealed preferences” law school rankings that debuted last year? Christopher Ryan and Brian Frye have issued the 2018 edition. [SSRN]
* And C.J. Ryan offers yet another set of law school rankings, this time focused on “value added” (similar in philosophy to the ATL rankings, but Ryan’s top ten is very different from ours). [SSRN]
* If brevity is the soul of wit, then Supreme Court opinions are getting less and less witty; Adam Feldman has the data to prove it. [Empirical SCOTUS]
* A serious threat to political speech and election integrity, according to media law expert Charles Glasser: the weaponization of copyright law. [Daily Caller]
* Andy Oldham, President Trump’s latest Fifth Circuit nominee, is very, very smart — and very, very conservative. [Texas Tribune]
* The latest headline-making case handled by legendary litigator Ed Hayes is a doozy — involving a former beauty queen, a hedge-fund magnate, an ostrich farm, and… an STD. [New York Post]
* Interested in constitutional law and possessed of a progressive perspective? Here’s a great job opportunity you should check out. [Constitutional Accountability Center]
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Non-Sequiturs
Non-Sequiturs: 04.01.18
* Should a robot run the Federal Reserve? Passive monetary policy has its virtues, according to law professor Max Raskin. [Wall Street Journal]
* Which methods of statutory interpretation are most popular the Supreme Court these days? Adam Feldman breaks it down. [Empirical SCOTUS]
* Recalling judges just because we don’t like their decisions? Joel Cohen has some serious concerns. [The Hill]
* New at business development and seeking to grow your business? Deborah Farone, former chief marketing officer at Cravath and Debevoise, offers these insights. [The Current]
* “What Happens When the Government Lies About You in Court? Spoiler alert: Absolutely nothing.” [Weekly Standard]
* Prosecutorial perk: a free gym membership? Maybe if you work for South Carolina prosecutor Dan Johnson. [The State]
* Quite possibly the largest list of DWI facts on the planet. [Versus Texas]
* Saira Rao, former Cleary Gottlieb associate and author of the clerkship novel Chambermaid (affiliate link), is running for Congress — and coming to New York this month, for an event with actress Jill Kargman of Odd Mom Out. [Saira for Congress]
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Non-Sequiturs
Non-Sequiturs: 03.25.18
* Brad Karp and Christopher Boehning of Paul, Weiss make the case in favor of stripping gun manufacturers and sellers of their statutory immunity from suit in most negligence and product liability actions. [New York Times]
* Remember the Moonlight Fire case? Ten state AGs have filed an amicus brief in support of the cert petition. [U.S. Supreme Court]
* It’s almost time to file your taxes — and the Supreme Court just made it a little bit easier to cheat on them. [Volokh Conspiracy / Reason]
* In other SCOTUS news, the Court is taking its sweet time in handing down opinions this Term, as Adam Feldman observes. [Empirical SCOTUS]
* And speaking of Adam Feldman, he’s now working with SCOTUSblog — congratulations to both parties! [SCOTUSblog]
* Leading media lawyer Charles Glasser looks at the challenges that corrections pose to the media (both print and digital). [Daily Caller]
* Vineeta Vijayaraghavan points out that gun violence doesn’t spare the elite, noting that firearms killed three of her Harvard classmates (including Professor Dan Markel). [USA Today]
* Cambridge Analytica, a data analytics consulting firm, has been widely condemned for its work on the 2016 Trump election campaign — but it’s not clear that its conduct violated data-protection laws or even Facebook policies, according to Tim Pullan of ThoughtRiver. [Artificial Lawyer]
* Professor Michael Dorf remembers lawyer, author, and editor Julie Hilden, who passed away earlier this month. [Dorf on Law]
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Non-Sequiturs
Non-Sequiturs: 03.18.18
* Adam Feldman uses BriefCatch, a powerful new tool from legal writing guru Ross Guberman, to find the best writers in the Supreme Court bar — and some of the top advocates might surprise you. [Empirical SCOTUS]
* Prominent First Amendment litigator Charles Glasser makes the (compelling) case in favor of a federal anti-SLAPP statute. [Daily Caller]
* Jeff Hauser, executive director of the Revolving Door Project, argues that the Trump Justice Department’s installation of Trump allies as interim U.S. attorneys “represent[s] a test of civil society’s ability to fight back against threats to the rule of law” — and so far, “the test is going poorly.” [Slate]
* Speaking of the Trump DOJ, Ben Adlin breaks down the latest federal-state fight — and explains why it’s not as simple as just citing the Supremacy Clause. [Leafly]
* “Bring me a case!” Reflections from Joel Cohen and Bennett L. Gershman on using litigation to bring about social change. [Law.com]
* What can legal marketers learn from… a man using a cat as his hat? [Shana Douglas]