Joel Cohen

Non Sequiturs: 05.05.19

* If you shared my skepticism that the murder trial in the Dan Markel case will actually start next month, almost five long years after Markel's murder, then you won't be surprised by this latest development -- Saam Zangeneh, counsel to Sigfredo Garcia, has moved for a continuance. [Tallahassee Democrat] * As predicted, President Donald Trump just had his 100th Article III federal judge confirmed by the U.S. Senate; he's now up to 102 judicial appointees, as noted by Carrie Severino. [Bench Memos / National Review] * If my writeup of Preet Bharara's recent event at Cleary Gottlieb left you wanting more, check out Randy Maniloff's wide-ranging interview with the former U.S. attorney (including advice on how not to get hired at the S.D.N.Y.). [Coverage Opinions] * Jonathan Adler flags a thoughtful debate between Michael McConnell and Josh Chafetz on the battle over subpoenas between President Trump and Congressional Democrats. [Volokh Conspiracy / Reason] * Howard Wasserman identifies an interesting argument against police officers using body-worn cameras aka bodycams -- but as he also observes, we don't really have a better solution yet to the abuse of police discretion. [PrawfsBlawg] * My money's on Capital Loss Carryover in the Preakness Stakes. [TaxProf Blog] * Of course "real lawyers" take notes -- but there are some nuances here, which Joel Cohen explores. [New York Law Journal] * Frank Cross, a longtime professor of law at the University of Texas School of Law, rest in peace. [Balkinization]

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: 04.07.19

* Where does Justice Brett Kavanaugh fit along the ideological spectrum at the Supreme Court? Adam Feldman evaluates the evidence thus far. [Empirical SCOTUS] * Speaking of SCOTUS, Frank Pasquale takes Neal Devins and Lawrence Baum's new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (affiliate link), as a jumping-off point for exploring the political polarization of SCOTUS. [Balkinization] * Texas v. Azar, the Obamacare case now pending before the Fifth Circuit, makes for unusual alliances -- how often do you see Jonathan Adler, Nick Bagley, Abbe Gluck, and Ilya Somin on the same amicus brief? [Take Care] * David Bernstein offers some thoughtful reflections -- with which I happen to agree -- on how some conservatives responded to the nominations of Neomi Rao and Jessie Liu. [Volokh Conspiracy / Reason] * Joel Cohen has a question about Robert Mueller: “What did he know, and when did he know it?” [The Hill] * And Cohen also has this interesting interview with Justice David Wecht of the Pennsylvania Supreme Court, about an important (and disturbing) subject: the recent rise in anti-Semitism, in America and abroad. [Tablet] * If you share my interest in litigation finance, then you might be interested in this great new resource: a comprehensive digital library of documents relating to the litigation-funding industry. [Litigation Finance Journal] * What trends and technology will shape the future of the legal profession? Jean O'Grady discusses highlights from a new report by Wolters Kluwer. [Dewey B Strategic]

Non Sequiturs: 03.17.19

* With Justice Anthony M. Kennedy off the Supreme Court, who has replaced him as the justice most often in the majority? The answer might surprise you (but note that this is based on only part of the Term). [Empirical SCOTUS] * Speaking of SCOTUS, what does its recent copyright ruling in Fourth Estate v. Wall-Street.com mean for creators? Here's a clear and concise breakdown. [All Rights Reserved] * In the wake of the giant college admissions scandal, is it time to rethink how elite institutions admit their students? David Orentlicher offers this proposal for reform. [PrawfsBlawg] * Joel Cohen suggests that perhaps Ty Cobb should have kept his praise of Robert Mueller to himself. [The Hill] * What's the state of U.S. Philippines relations, including the 1951 Mutual Defense Treaty, in light of expanding Chinese influence in southeast Asia? It's complicated, according to Mark Nevitt. [Just Security] * How has the judicial confirmation process changed under President Donald Trump? Pretty significantly, as Thomas Jipping explains. [Bench Memos / National Review] * Congratulations to the latest winner of the Joseph Story Award, Professor Samuel Bray -- who delivered an acceptance speech that's well worth your time. [Volokh Conspiracy / Reason] * Is a federal law that prohibits federal agencies from using equipment from the controversial Chinese company Huawei an unconstitutional Bill of Attainder? Easha Anand, Charlie Gerstein, and Jason Harrow tackle this question, and more, in the latest episode of Versus Trump. [Versus Trump via Take Care]

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: 02.03.19

* 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: 01.20.19

* 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: 01.06.19

* 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: 12.23.18

* 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: 12.09.18

* 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: 10.21.18

* Orin Kerr offers his thoughts on the Allison Jones Rushing controversy (aka how young is too young to be a federal judge). [Reason / Volokh Conspiracy] * If President Trump and Senate Republicans are packing the courts with conservatives, then it's time for Democrats to pack back, according to Michael Klarman. [Take Care] * Howard Wasserman offers some insights into the recent dismissal of Stormy Daniels's defamation lawsuit against Trump. [PrawfsBlawg] * And while we're on the subject of media law, Gerard Magliocca has an interesting observation about Justice Ruth Bader Ginsburg and the right of publicity. [Concurring Opinions] * Speaking of RBG, Jonathan Adler argues that she could learn a thing or two from her newest colleague, Justice Brett Kavanaugh, when it comes to hiring law clerks. [Bench Memos / National Review] * Joel Cohen raises an intriguing question about prosecutors: to what degree are they required to fight their own biases? [New York Law Journal]

Non-Sequiturs: 10.14.18

* Adam Feldman examines the historical record to look at how Justice Brett Kavanaugh's brutal confirmation process could affect his jurisprudence. [Empirical SCOTUS] * And Joel Cohen looks at how Justice Kavanaugh's confirmation fight might affect his judging of the accused. [Law and Crime] * Meanwhile, David Oscar Markus argues that criminal defendants in federal court get treated much worse than Justice Kavanaugh. [The Hill] * Jemele Hill points out the support and sympathy for Justice Kavanaugh from a possibly surprising quarter: African-American men. [The Atlantic] * Packing the Supreme Court? There ought to be a constitutional amendment about that, Jim Lindgren says. [Volokh Conspiracy / Reason] * In fact, is it time for progressives to fight against, rather than within, the courts? Howard Wasserman offers thoughts on the recent Slate debate between Daniel Hemel and Christopher Jon Sprigman. [PrawfsBlawg] * Patrick Gregory reports on the latest controversy in the world of lower-court nominations: the ABA's "not qualified" rating of Eighth Circuit nominee Jonathan Kobes. [Big Law Business] * Edmund Zagorski has multiple legal challenges to his execution (which is now on hold); former federal defender Stephen Cooper looks at the one based on the method of execution. [Tennessean] * Congratulations to Pedro Hernandez on the dismissal of his case -- and to his counsel, Alex Spiro of Quinn Emanuel, on the great result. https://www.youtube.com/watch?v=-2YPLmtwkug

Non-Sequiturs: 09.09.18

* Here's the truth behind what some saw as Zina Bash making a "white power" sign at the confirmation hearings of her former boss, Judge Brett Kavanaugh. [Washington Post] * With the Kavanaugh confirmation hearings in the rearview mirror, now is a good time to look back at the last four Supreme Court confirmation hearings. [Empirical SCOTUS] * Thomas Jipping summarizes research showing that the American Bar Association does tilt leftward in rating judicial nominees -- which is why its unanimous "well qualified" rating for Judge Brett Kavanaugh is especially impressive. [Bench Memos / National Review] * Jonathan Adler argues that claims of a Justice Kavanaugh threatening the Affordable Care Act aka Obamacare have been greatly exaggerated. [Volokh Conspiracy / Reason] * But a Justice Kavanaugh likely would affect the Supreme Court's jurisprudence on presidential authority and the separation of powers. [Instapundit] * Speaking of the Supreme Court, conservative (and tiny) Hillsdale College punches above its weight in producing SCOTUS clerks -- so Paul Rahe wants to know, why can't his school get any love from the U.S. News Wall Street Journal rankings? [Ricochet] * President Donald Trump's "radically direct" tweets about pending prosecutions threaten the rule of law, according to Gerald Lefcourt and Joel Cohen. [Law & Crime] * Legal research smackdown: Lexis v. Casetext! [Dewey B Strategic] * And in other notable news from the world of legal tech, iManage just acquired business-process company Elegrity, which works in the risk and compliance management space. [Artificial Lawyer]

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]