The evisceration of Dahlia Lithwick

Scott Greenfield

Scott Greenfield

If you want to read a great piece of critical legal writing, page through Scott Greenfield’s piece Horse-Trading Constitutional Rights. Scott incisively dissects a poorly reasoned article written by the very bright Dahlia Lithwick for Slate entitled The Courts’ Baffling New Math.

Dahlia Lithwick

Dahlia Lithwick

To be clear, I pimp Scott’s piece primarily because it is an example of excellent legal writing. Moreover, but less importantly, I agree with his point. Finally, Lithwick can be a tiresome scold. Taking her down several begs is a good thing if you care about intellectual rigor and the national legal commentariat.


On Going to Omaha with a bloody nose

Got up at 4:00 AM this morning. Had another bloody nose and I am still having trouble getting it stopped as I pen this piece. My legs and feet are swollen up again.

I have to leave early to drive the 60 miles between Lincoln and Omaha. I have a judges’ meeting in Omaha that will burn up the morning. After our big meeting, I will also visit with Chief Judge Smith-Camp and Judge Gerrard, my colleague in Lincoln, about getting back into the case assignment wheel on December 1, assuming that bloody noses and leg and feet swelling are not a harbinger of bad things to come when I undergo my late November PET scan.

Photo credit:  Don't you love the British tabloids?

Photo credit: Don’t you love the British tabloids?

This afternoon, I will meet with the head drug prosecutor for the district, a senior probation officer and a federal defender to fine tune our handling of sentence reduction matters due to the retroactive amendment to the drug tables. In our little district, we have about 700 of those sentence reduction matters.

I feel foolish as I type this with a long piece of twisted Kleenex sticking out of my left nostril. Just for fun, when I get to Omaha, I think I will tell my colleagues: “Don’t worry, UNMC thinks there’s only a small chance of Ebola.”

I feel better already.


Counsel table or podium?

courtroomThis may seem insignificant. If so, forgive me. But, I have a question addressed to experienced trial lawyers who try cases to juries.

If you had your druthers, would you sit at counsel table or use a podium to question a witness?

Let me know and tell me why. Young’uns who want to try cases to juries need to know.  So, I hope the old hands fire away and share their views on this seemingly small matter.


“Tea in the Crimea,” a novel by David Kopf

 “Yesterday, President Vladimir Putin authorized the use of Russian troops in Ukraine in defiance of American and international warnings against Russia intervention in Ukraine. By the end of the day, unmarked Russian forces and pro-Russian Ukrainians took control of large parts of Crimea, igniting an international crisis.” Adam Chandler, Russia Prepares for Occupation After Winning Control of Crimea, The Wire, News from the Atlantic (March 2, 2014).

Image credit:  Maximilian Dörrbecker (Chumwa). Used pursuant to Creative Commons Attribution-Share Alike 2.0 Generic license.

Image credit: Maximilian Dörrbecker (Chumwa). Used pursuant to Creative Commons Attribution-Share Alike 2.0 Generic license.


I have written before about my cousin George, the fellow who retired from the State Department and then wrote a book about our grandmother. Today, I am pleased to write about his much, much younger brother, David. Cousin David has been an editor and a journalist during his relatively short adult life. Like his brother George, David is a gifted writer.

David has just completed his first novel entitled Tea in the Crimea. In my hopelessly biased opinion, it is excellent.

He began the novel in March of this year with the Russian invasion. According to David, the novel “tells the story of how everyday people react when 30,000 Russian soldiers pretending not to be 30,000 Russian soldiers invade their country.”  Like his father, David has a wry sense of humor. Tea in the Crimea is the “unfolding story of everyone’s favorite Black Sea peninsula.”

Interestingly, the book is published by David using the internet and in a serial form. You can access the piece and the hyperlinked table of contents here. The novel is entirely free. In an e-mail, David explained, “My whole editorial career — 22 years so far — I stuck to the old Samuel Johnson line about writing for money*, but I decided to take a chance on myself. I thought, ‘If not now, when? Get writing on spec, big dummy.’ . . . It feels great.”


Congratulations David!


*“No man but a blockhead ever wrote, except for money.” The Samuel Johnson Sound Bite Page, No. 203.

PS I am far older than David. Until the death of his father, my Uncle George (revered by me despite time and distance), I had not seen David since he was a small boy. The California funeral gave me the opportunity to reconnect with David and also to meet his beautiful family.

The huge Social Security scandal

I have written before on the troubled situation with Social Security appeals. Richard G. Kopf, The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013). As an introduction to this post, I urge the reader to take another look at that earlier post.

Now, the Washington Post has done the research and has produced a terrific in-depth article detailing that the Social Security Appeal process has a backlog of 990,399 cases. David A. Fahrenthold, The biggest backlog in the federal government, Washington Post (October 18, 2014). The situation is outrageous. It is a scandal of monumental proportions. Something must be done, and now, to relieve the many dedicated Administrative Law Judges, and other similarly dedicated SSA employees, who confront this mountain of work every day under impossible conditions. Claimants who are not entitled to benefits receive them because the ALJs don’t have time to do it right. Claimants who are entitled to benefits wait in the wings despite the fact that many of them are the most vulnerable among us.

To fix the problem will take a lot of money and the will of Congress to get it right. Until then, the Social Security appeal process will continue to operate, if that’s what you call it, like a Bangladeshi bureaucracy instead of an American legal system worthy of respect. The President and Congress should be embarrassed. Said to say, that’s not news.



Marc Bookman and “The pot calling the kettle black”

Marc Bookman was the moving force behind the ethics complaint against Judge Jones. A friend of this blog and a civil litigator, who has no interest in the Jones dispute, brought to my attention that the United States Supreme Court has recently referred to disciplinary authorities alleged misconduct of Mr. Bookman in a death penalty case.

The venerable Lyle Denniston wrote about Mr. Bookman’s problem in August of this year. See Lyle Denniston, Court hands off feud about murder appeal (August 11th, 2014) (discussing allegation that defendant facing the death penalty did not authorize Bookman to file petition with the Supreme Court and the order the Court entered dismissing the petition but referring the claim against Mr. Bookman to state disciplinary authorities).

I stress that I have no idea whether Mr. Bookman did anything wrong. But, adages abound, among them: “What goes around comes around.”



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