Legal Commentary

End of the Graduate World as We've Known It

Posted on April 27, 2009
In a provocative Op-ed article in the New York Times, Mark C. Taylor, Chair of the Religion Department at Columbia University, calls for a fundamental rethinking of the place of departments and the preparation of both graduate and undergraduate students...

When Rights Die

Posted on November 06, 2008
Amid the near universal public euphoria we experienced yesterday over Barack Obama's election as President (at least here in Berkeley), a dark sense of dread and despair grew as it became clear that California voters had narrowly approved a constitutional ban on same sex marriage (52% approved)...

Which Way from the New Deal?

Posted on October 21, 2008
Both his fans and his critics often see Barack Obama as a political leader who could produce a new New Deal. One of those critics, economics and law professor Paul Rubin, who also serves as an adviser to the McCain campaign puts the negative case strongly in an oped in today's Wall Street Journal...

Realism Redux?

Posted on August 25, 2008
Legal Realism, the intellectual movement that arose in a few elite law schools at the turn of the 20th century, was often satirized as offering the view that the most important determinants of the outcome of a legal case was not the facts, or the law, but what the judge ate for breakfast (who came up with that particular metaphor anyway?)...

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Risking Rescue on K2

Posted on August 05, 2008
It looks like another epic mountaineering tragedy is coming to a close, this time on the fearsome peak of K2 (read the coverage by SALMAN MASOOD and TOM RACHMAN in today's NYTimes). While somewhat shorter than Mt. Everest, the Pakastani peak is considered by professional climbers to require far greater technical skill and to be far more dangerous...

"Civil" Wars

Posted on August 05, 2008
In a fascinating feature in today's NYTimes, Ethan Bronner succeeds in capturing the incredibly complex interplay of law and war, courts and gun battles, in the three-way civil war we usually abbreviate as the Israel-Palestine conflict. On the Palestinian side, the intermittent armed violence between Hamas and Fatah factions takes place on top of complex clan alliances...

(Our) Joy and (Their) Pain

Posted on July 18, 2008
The banners said it all. While the Lebanese terrorist organization and political party, Hezbollah, was celebrating the return of several prisoners long held by Israel in exchange for the bodies of two Israeli soldiers captured in the summer of 2006, a giant banner proclaimed: "Israel is shedding tears of pain...

Criminology and the War on Terror

Posted on July 02, 2008
Scott Shane reports in today's New York Times, that harsh interrogation techniques used by the US at Guantanamo and elsewhere during the war on terror, may have been derived from a 1957 article analyzing Chinese methods of inducing false confessions by US POWs in North Korea...

The high cost of complaining

Posted on July 01, 2008
Some say that government is remaking itself in manner of the private sector when it comes to being highly responsive to the citizen being "served". If so, the model clearly does not fit well in the criminal courts, at least not for the accused. In California this week a judge sentenced man to over a millenium in prison (1,330 years to be precise) for 11 felony counts of lewd acts with a child (he had molested several girls between 1999 and 2005)...

Empirical Lawyering: Community Values and Google Searches

Posted on June 24, 2008
Ever since the Supreme Court's landmark 1957 ruling in Roth v. United States, obscenity trials involve the question of "contemporary community standards." As Justice Brennan wrote in his majority decision: However, sex and obscenity are not synonymous...

Liberty and Security can be Reconciled

Posted on June 13, 2008
That is the best rhetorical take away point from Justice Anthony Kennedy's majority opinion in BOUMEDIENE v. BUSH No. 06?1195, decided yesterday 5-4. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law...

The Safety Net: Why are we still losing the strands?

Posted on June 10, 2008
One of the background themes in the 2008 Presidential (a theme providing significant help to the Democrats) is the growing national consciousness of how frail the metaphoric "safety net" is that protects ordinary Americans against both routine and extraordinary hazards...

Is it Multiculturalism or just Liberalism?

Posted on June 09, 2008
Elain Ganley of the AP reported last week on a controversy in France over a judge's decision to nullify a marriage base on the wife's lack of virginity. The bride said she was a virgin. When her new husband discovered that was a lie, he went to court to annul the marriage - and a French judge agreed...

Prop 13: From Public Wealth to Private Excess

Posted on June 06, 2008
When I arrived in California as an 18 year old "Cal" freshman, from my home in Chicago, I could not believe how prosperous and dynamic the state appeared. The landscape was cluttered with gems of the built (and unbuilt!). Situated in the urban metropolis created by San Francisco, San Jose, Oakland, and Berkeley (all of which seemed less tired then my hometown of Chicago), I saw amazing infrastructure, great universities, endless freeways, gleaming rapid transit systems...

"A New World of Law":JFK's Words in Context

Posted on May 24, 2008
The increasingly heated debate over foreign policy between John McCain and Barack Obama has refocused attention on a few words from JFK's inspiring inaugural address of January 20, 1961: "Let us never negotiate out of fear. But let us never fear to negotiate" [for the complete online text]...

Michael Rossman, FSM Hero dies at 68

Posted on May 21, 2008
Photo credit: Paul Fusco, 1964One of my personal heroes, Berkeley Free Speech Movement leader and lifetime community activist Michael Rossman died in Berkeley last week at the age of 68 from Leukemia (read the NYTimes obituary by Margalit Fox). The handsome and charismatic Berkeley graduate student looked a bit like Jack Kerouac...

Crime and Contracts Up, Debt, Property, Corporations, Public Law and Family Law Down, Torts Even

Posted on May 19, 2008
Thats the take away from a nice piece of empirical work conducted by Kritzer, Brace, Hall, and Boyea, "The Business of State Supreme Courts, Revisited," Journal of Empirical Legal Studies, Vol. 4, Issue 2, 427-439 (July 2007). The research updated work led by JSP's own Bob Kagan, specifically, "The Evolution of State Supreme Courts, 1870-1970," (with Bliss Cartwright, Lawrence M...

Less Torts, More Contracts and Crimes?

Posted on May 01, 2008
I'm not referring to actual events, but to the modes of legal governance we bring to the always complex stew of relationships and conflicts in American society. At a provocative lecture this week at Berkeley's Law and Economics workshop, legendary legal theorist and 2nd Circuit Judge, Guido Calabresi outlined an intriguing theory of how modes of legal governance (my term, not his) vary with the relative political economic organization of society...

From Gitmo to Mass Incarceration

Posted on April 26, 2008
In the latest example of the US media treating our war on terror practices as having no relationship to our routine penal policies, the New York Times carries an article by William Glaberson that powerfully describes the mental destruction of terror suspect (and famed litigant) Salim Hamdan:Next month, Salim Ahmed Hamdan, a Yemeni who was once a driver for Osama bin Laden, could become the first detainee to be tried for war crimes in Guantánamo Bay, Cuba...

Olympic Torch Farce: San Francisco joins the Culture of Control

Posted on April 10, 2008
Watching Tuesdays shameful display of police over-reaching by the San Francisco police and mayor in their effort to assure that that Olympic torch "run" would not be disrupted by protesters, I could not help but reflect back on the far more violent police overreaching in Chicago 40 years ago this summer at the Democratic National Convention in July of 1968...

The Law at the End of the Law

Posted on April 08, 2008
In Governing through Crime I trace the ways that the war on crime transformed American democracy long before 9/11 or George Bush's war on the Constitution, errr, I mean terror. With a vision of citizenship reduced to protection from violent crime, law makers in Congress and the state legislatures, have responded for thirty years with ever more generous helpings of executive discretion...

Courts and the Contours of Multicultural Societies

Posted on February 12, 2008
Steve Bell 2008 from the GuardianIn a remarkable speech last week to the Royal Courts of Justice in the UK, the Most Rev. Rowan Williams, the Archbishop of Canterbury suggested that British courts should suggest some aspects of Muslim Shariah law. The Archbishop's comments have spurred a wave of harsh criticism of the Most Rev...

Reflections in Gaza: The Contagion of Violence and Lawlessness

Posted on January 24, 2008
President Bush wasn't wrong to see the Middle-East as the place where a world hungering for the rule of law and enthralled with suffering and violence would decide its fate. Sadly his misguided Iraq adventure has done little to spread the rule of law while unleashing even more suffering and violence...

A Socio-Legal Road Map?

Posted on January 10, 2008
As President Bush visits Israel and Palestine this week, promoting his administration's late blooming peace initiative for that region, one cannot help but sigh at the lost possibilities. Had the President turned from his route of the Taliban in Afghanistan in 2002, to insist that the free world show how democracies can reconcile historically complex and ongoing tragedies like the 40 year old Palestinian refugee crisis,---he might be visiting Jerusalem to watch the swearing in of a sovereign Palestinian President...

Our Bodies, Our Laws

Posted on January 05, 2008
How does law grasp us as subjects, as bodies, as minds? Food critic and Berkeley journalism professor Michael Pollan provides us with a striking example in his brilliant new book on contemporary American food culture titled, In Defense of Food: An Eater's Manifesto (Penguin Press)...

What the World Needs Now, Is Law, Just Law

Posted on December 14, 2007
In the midst of this winter of our discontent from Iraq to the foreclosures it is heartening to see evidence in the midst of some of the world's most troubled spots of a strong and popular devotion to law. Consider the case of Pakistan, where a growing body of middle class citizens are taking the streets in defiance of the Musharraf regime and its state of emergency, to demand the restoration of an independent judiciary...

Supreme Court Watch: Empirical is the New Reasonable

Posted on December 12, 2007
This week's 7-2 decision by the United States Supreme Court marked another significant step in the Court's recent effort to remake federal criminal sentencing. At issue in Kimbrough v. United States, No. 06-6330, decided December 10, 2007,was whether a Federal District Court was "reasonable" in declining to apply the federal sentencing guideline's infamous 100-1 weight ratio of crack to powder cocaine in sentencing a drug trafficker dealing in crack...

Knowledge/Power: Empirical Research and the Challenge to Hierarchies in Law Schools and the Legal Profession

Posted on October 29, 2007
Adam Liptak's "Sidebar column" in the New York Times this morning (requires TimesSelect) provides a striking example of how the increasing integration of empirical research about the legal profession into law schools is reversing the flow of influence between students and the law firm world (at least at the high end of both)...

The Employment Non-Discrimination Act and the Age of identity Politics

Posted on October 12, 2007
The struggle around the Employment Non-Discrimination Act in Congress is fascinating. The Act, sponsored by Rep. Barney Frank and Speaker Nancy Pelosi (among others), the bill would create workplace protection against discrimination for the first time ever for gay men and lesbian women...

Lingering Summer Dreams: Berlin and the Future of Socio-Legal Studies

Posted on September 11, 2007
Its been more then a month since the close of the Joint Annual Meeting of the Law and Society Association (LSA) and the Research Committee on Sociology of Law (RCSL of ISA) at Humboldt University in Berlin but my imagination remains lingering on Unter des Lindens, the broad boulevard of 18th Century Berlin that was also the main street of the former Democratic Republic (East Germany)...

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