Author Archives: Hon. Richard G. Kopf

Kopf: Top Ten Reasons Why I Wish I Attended Georgetown Prep

  1. Beach week on the shores of Lake Erie was (and is) unthinkable.
  2. Our quarterback went to Cornell, and everyone knows that only assholes attend that backwater.
  3. We were forced to guzzle bottles of beer rather than kegs.
  4. Because the males in our high school were only horny, we never understood that misogyny cannot be fully embraced without reading the sacred texts.
  5. Unfortunately, our jocks were nice.
  6. We didn’t have a guy like Mr. Judge, even though we had a fellow who danced the jerk to the National Anthem.
  7. We settled things with fists rather than ice cubes.
  8. We were so poorly educated that we thought the “Ivy League” was a description of jock itch.
  9. We never learned to chant “Hoya Saxa” because Polish was the lingua franca of our school.
  10. Due to my public school education, I failed to fully grasp the fact that flatulence existed at the Founding.

All the best,

Kopf: E.A. Cook III

Edward Addison Cook III (Ed), 88, died Monday, Aug. 13, 2018. Ed was the best lawyer and the best person I have ever known. I loved Ed.

In 1884, Ed’s grandfather came out to Lexington, Nebraska,[i] from Illinois after reading law. He submitted to an examining panel before the District Court of Dawson County and was, that same day, admitted to practice. Later, Ed’s father took over. The Cook law firm celebrated 100 years of continuous practice in 1984, and I was privileged to attend the celebration as Ed’s law partner. Ed practiced law for five decades, and I was honored to have spent 13 of those years with him. Judge Jim Doyle later became our partner as well.[ii] Continue reading

Kopf: My Short Response To The Response

On July 19, 2018, seven young female lawyers, with impressive educational credentials but little practical experience, founded an organization called Law Clerks for Workplace Accountability (LCWA). All (but perhaps one) appear to have served a year or two as law clerks to federal judges and all apparently had wonderful experiences.

The foregoing is a screen capture from the LCWA web site.

On July 20, 2018, they submitted a response (hereinafter Response)[i] to the Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference[ii] of the United States (June 1, 2018) (hereinafter Report) (available here together with the executive summary).[iii] Continue reading

Kopf: Footnote 239

As I told SHG sometime back, there is nothing sadder than an old judge trying desperately to remain relevant.

I come out of retirement, briefly, not endeavoring to remain relevant, but rather to complain about the use and characterization of one my past posts by the NACDL in its breathless report entitled, The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It (Summer 2018).[i] I have no earthly understanding of why the NACDL ended with a footnote to one of my posts from Hercules and the umpire.

As I have written before on Simple Justice, I am not much concerned with the “vanishing federal criminal jury.” See Richard G. Kopf, Kopf: A Contrarian’s View of the Vanishing Federal Criminal Jury Trial (December 27, 2017). Indeed, I sometimes joke that jury trials are unconstitutional because no sane person would randomly select from the great unwashed 12 stiffs to make a decision that can significantly impact both the public and the defendant. Besides, criminal jury trials are almost always a waste of time. With few exceptions, federal criminal jury trials are the equivalent of one long guilty plea where the defendant has rightly calculated that he or she has nothing to lose and is hoping to win the lottery.  Continue reading

Kopf: Victim-Impact Statements and Judge Leben’s Appalling Promotion of Judge Aquilina’s Sentencing Circus

By all accounts, Judge Steve Leben is a highly respected state appellate judge in Kansas who also appears from his writings to be a kind and gentle person. The good judge wrote a January 24, 2018, post entitled Michigan judge provides clinic on showing compassion to crime victims at sentencing for a blog ironically labelled Procedural Fairness for Judges and Courts.

In his post, Leben asks judges to “[s]et the neutrality issue aside . . . .”[i] He wants judges to concentrate upon and emulate Judge Aquilina’s “demonstration clinic on how to show compassion to crime victims” during the sentencing of Dr. Lawrence G. Nassar.[ii]

Before I explain why Judge Leben is wrong and manifestly so, let’s get some basics out of the way: Continue reading

Kopf: An Old Male Judge’s Reflections On A Supposed #MeToo Moment

Ever since the Kozinski horror, I have been more intently reading[i] and listening[ii] to the stories of female lawyers who have suffered various kinds of abuse or disrespect from male lawyers because of their gender. I was, and am, not so much interested in assaults or explicit sexual harassment because it is obvious that no one should suffer such things.

I was, and am, more interested in the interactions (sometimes subtle) of male and female lawyers in the courtroom. Taxonomy is important. There is, at least to me, an important distinction between incivility writ large and sexism. In my view, it is important to distinguish between the two if only to avoid confusion, but as this post illustrates (I hope), that can be difficult. People of good will can easily conflate the two and the resulting uncertainty may cause us to talk past each other.

I stumbled across a twitter thread from a female lawyer, perhaps a CDL given her twitter handle (@CriminelleLaw), that I encourage you to read.[iii] I want you to assume, as I do, that CriminelleLaw and the lawyers who later responded in the twitter exchange are all well-intentioned. Continue reading

Kopf: A Contrarian’s View Of The Vanishing Federal Criminal Jury Trial

Over the last three decades, there has been a steady overall decline in federal criminal jury trials. For compelling proof and a penetrating explanation of why this decline has taken place, see Honorable Robert J. Conrad, Jr., United States District Judge for the Western District of North Carolina and Kathy Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judge, 86 GEO. WASH. L. REV. __ (forthcoming Mar. 2018). I can’t compliment these authors too much. Their work is superb.

Consider the following charts taken from The Vanishing Criminal Jury Trial for the period of 1980-1999[i] and 2000-2016[ii]:

Continue reading

Kopf: A Short Take On A Coincidence

Albert Einstein (just call him “Al”[i]) is reputed to have said a lot of catchy things. One of them is this:

Keeping in mind what Al said, I write about Senator Chuck Grassley and Judge Alex Kozinski. Because it tickles me, I refer to them as Chuck and Alex.

On December 6, 2017 (keep this date in mind), Chuck introduced Senate bill S. 2195 that would compel the Chief Justice to appoint an Inspector General for the federal judiciary after consultation with the leaders in the House and Senate. See here. Chuck wants an unrepentant Inspector Javert to “conduct investigations of alleged misconduct in the judicial branch . . . .” This is so despite that fact that Chuck’s branch does not have an Inspector General. Continue reading

Kopf: Can You Hear Me Now?

In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.

First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:

Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.

Continue reading

Kopf: Steven Calabresi Should Stop Pulling Imaginary Stuff From His Butt

Professor Steven G. Galabresi has an impressive resume. From the Northwestern School of Law website, consider the following:

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law.  He is also a Visiting Professor of Law at Yale Law School, Fall 2013-2016; a Visiting Professor of Political Theory at Brown University for 2016-2017; and the Chairman since 1986 of the Federalist Society’s Board of Directors. Professor Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a Special Assistant for Attorney General Edwin Meese III; and he clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals.

(Italics by Kopf.)

As SHG has written, Professor Calabresi[i] published a piece on the Social Science Research Network. It is entitled, Proposed Judgeship Bill, and it consists of a memorandum written November 7, 2017, and rather pompously addressed to the entire Senate and House of Representatives. (I refer to this article as “The Memo.[ii]) Continue reading