Legal Commentary
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Friends argue about law and life.
Post Frequency: 8.4/day Last Entry: November 20, 2009 at 18:25:41 Recent Entries: 2645
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
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Work Email: "I Always Feel Like ... Somebody's Watching Me"
Posted on November 20, 2009No, this post is not about the singer Rockwell or that annoying Geico commercial, but about whether you should just assume that your boss monitors your email. A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates: Big Brother is watching...
Campaign Finance, Shareholders' Rights and the Chamber of Commerce
Posted on November 20, 2009It's an interesting coincidence that the Supreme Court is considering what to do about corporations' rights to engage in political speech just as one of the main justifications for such regulation is getting at least a limited empirical test. As most people here probably know, the Court heard oral argument last September in Citizens United v...
Ouch
Posted on November 20, 2009The University of California has put faculty and staff on furloughs amounting to an average 8 per cent pay cut, and yesterday voted to raise student by 32 per cent. That's a huge increase. It's worth noting that, even after the increase, UC tuition will still be a bargain at $10,302 -- my own university charges a whopping $41,610 for undergraduates -- but still, a 32 percent increase in any price has to cause some severe sticker shock...
Hope v. Fear
Posted on November 20, 2009Could there be any better index of the relative strength of hope and fear in a polity than spending on universities and prisons? For the American "states", who have no armies, universities and prisons are the most concentrated and material manifestations of state sovereignty itself (other than the cluster of buildings that stand in their capitals, usually ignored by the public)...
Best Practices for Appointments Committees
Posted on November 20, 2009Though it's been a few years since I had to go on the meat market, I'm still pretty keen to make the process for newbies as relatively painless as possible, and this blog has been one way to try to facilitate that goal. I know a number of my perma-prawf colleagues are either veterans of or currently sitting on their schools' appointments committees (appcomm); the same is true for many guest writers and readers of the blog...
For Whom Do We Teach?
Posted on November 20, 2009As the semester winds down and preparation for next semester gears up, I've had some thoughts about topic selection for my courses. For example, this year I cut "Defenses I" from the course - it was a survey of three really interesting defenses: reverse doctrine of equivalents, experimental use, and laches...
The Joy of Casebooks
Posted on November 19, 2009Marc's posting about legal textbooks resonates with me at this particular time because I'm hustling, with my co-authors, to finish the second edition of our First Amendment casebook. It's tough work, but exceptionally rewarding, and I find it unfortunate that writing casebooks seems to have fallen out of favor in the legal academy...
Hear the Health Bill
Posted on November 19, 2009Don't want to wade through the Senate's new 2,074 page health bill? Wait a few days and you can hear the whole thing online. It should be available at hearthebill.org , a website started in September by a group a voiceover professionals to lend their voice to health legislation -- literally...
Are (Catholic) law schools wise stewards of their students' debt?
Posted on November 19, 2009On the assumption that a cross-post is better than no post at all, I offer this short contribution from Mirror of Justice regarding Rick's concern about the move toward more practical/technical legal education. (Note to self: November is a bad month for hiring chairs to volunteer for Prawfs duty...
Fifth Avenue Freeze-Out
Posted on November 19, 2009The Second Circuit has upheld a NYC permit regulation that prohibits all parades on Fifth Avenue (15th to 114th Streets) "unless the parade was held at that location prior to the promulgation of these rules"[2001]. The case, which was decided by a two-judge panel (then-judge Sotomayor was the third judge on the original panel), is International Action Center v...
Voting your preferences in faculty governance contexts
Posted on November 19, 2009Say your faculty has only one appointment slot to fill and you see six candidates for call-backs. Imagine that five of the candidates are appointment-worthy but you can only afford to pay one of them because of budget constraints, so the faculty must order its preferences for extending the one offer you have to give...
Widespread Employer Under-Reporting to OSHA
Posted on November 19, 2009So finds a new astonishing and disturbing report released by the GAO this past Monday and reported on by the New York Times: Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday...
Haunted by Recidivists: Double Homicide in Berkeley Linked to Oakland Parolee
Posted on November 18, 2009Virtually everyone who studies prison agrees that states currently incarcerate too many people, too indiscriminately, and generally for too long. California is the poster child for this problem, with huge budget deficits and federal court orders to both reduce its prison population and improve the quality of medical care in its prisons...
Republic of Legal Letters
Posted on November 18, 2009What might legal academia become? The question is complicated and admits of many compossible answers. Dean John Garvey last year suggested just such a plurality of orientations ("models" is too rigid, I think), and it is fair to say that there are very different views in circulation about the direction that legal academia might take -- more "practical" or "responsive" to the stresses that economic difficulties have placed on the practice of law, or more interdisciplinary, or less so, or more "student-centered," and so on...
Should Law Students Get a ?Cross-Platform? Text on Legal Reasoning -- Good for Many Different Substantive Courses?
Posted on November 18, 2009Here?s a more longer, more elaborate version of the question: Right now, in most law schools, students have to buy a new, subject-specific casebook for each class. One for Contracts, one for Torts, another one for Evidence, yet another one for Constitutional Law, and so on...
Two and a half cheers for Judge Sykes
Posted on November 18, 2009Others have linked already to the Seventh Circuit's decision (per Judge Sykes) in United States v. Skoien, but it really bears close reading by anybody interested in substantive Second Amendment doctrine. The court determines that intermediate scrutiny applies, and then sends the whole case back to the district court for a second try, with a bit of a nudge: Intermediate scrutiny tolerates laws that are somewhat overinclusive...
Yes, Virginia, There is Law in Cyberspace
Posted on November 18, 2009One annoying feature of Internet law is "Internet exceptionalism" -- the assumption that everything must be different if it's on the Internet. For example, as CNN reports, Courtney Love is being sued for sending a defamatory tweet out on Twitter (she accused a clothing designer of being a drug dealer)...
"Legally Binding" versus "Politically Binding" Climate Deal
Posted on November 18, 2009The big news out of the APEC meeting in Singapore last weekend was the lowering of expectations for the upcoming climate change summit in Copenhagen. APEC leaders, including President Obama, endorsed the proposal by Danish Prime Minister Lars Lokke Rasmussen for a ?politically binding? agreement on major principles that would be finalized as a ?legally binding? treaty in 2010...
Research Grants for Legal Scholars
Posted on November 16, 2009Like many universities, my university is pushing to have more of its professors seek grant money to conduct research and support their positions. This is nothing new in social sciene, hard science, and engineering, but it has left some of us in the law school scratching our heads...
Philosophers Without Gods (and the First Amendment)
Posted on November 16, 2009Philosophers Without Gods: Meditations on Atheism and the Secular Life, a collection of essays on atheism by a number of leading philosophers, recently received some notice in legal circles, at least for those who were watching carefully, when Brian Leiter drew on one of the essays in the collection, Simon Blackburn's "Religion and Respect," in his provocative article Foundations of Religious Liberty: Toleration or Respect? It's an interesting collection and well worth your time if you're interested in these issues...
The Future of War
Posted on November 16, 2009Yesterday, I heard a RadioLab show featuring a survey question that journalist and teacher John Horgan has been asking people: will humans ever permanently stop fighting wars? Horgan believes the answer is yes, even though the great majority of his survey respondents disagree...
Horwitz on Schauer on Truth and the First Amendment
Posted on November 16, 2009Rick has already noted Fred Schauer's interesting new paper, Facts and the First Amendment. My "review" of Schauer's paper is now up at the wonderful new site Jotwell. Here's some of what I have to say about it: ?Facts,? the songwriter David Byrne once observed, ?all come with points of view...
Models for Review Sessions
Posted on November 16, 2009It's that time of year. I have considered the following options for conducting review sessions for the end of the semester for my students and identified potential "Pros and Cons." The options are not mutually exclusive. (Some are.) 1. Hold NO review session...
Free Speech and Civil Liability
Posted on November 16, 2009Dan Solove and Neil Richards have just published a terrific article, Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009) (SSRN version here). My response to the article has been posted at the Columbia Law Review Sidebar site...
Self-Promotion #5: Hodge Podge of Ideas
Posted on November 16, 2009In this last post on self-promotion, I just want to throw out some more ideas about how you can obtain a better platform for you and your scholarly work. If others have ideas that have worked in their own careers, it would be great if you would add them to the comments of this post...
Herbert "Jack" Miller, R.I.P.
Posted on November 16, 2009The summer after my third-year of law school, and then later for two years as an associate, I had the privilege and pleasure of working for an amazing lawyer, Jack Miller (founding partner of the D.C. law firm that become Miller, Cassidy, Larroca & Lewin)...
On "Reshaping the Federal Judiciary"
Posted on November 15, 2009The New York Times's Charlie Savage has a very Savagesque story today discussing the relative paucity of judicial nominations that have either been made by President Obama or made it through the process. Savage describes this as "deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments...
Caperton Capering
Posted on November 15, 2009Bill A's post below alerted me to the final resolution of this case -- a 4-1 vote exactly the same way that the (now) recused judge voted the first time around. In the Supreme Court case, a 5-4 decision that seems to break down along the usual ideological fault lines (with Justice Kennedy writing for the majority), the Court held that the due process clause is violated when a judge hears a case where he...
Law and the Little Guy
Posted on November 14, 2009In a comment to my earlier post on Kelo, Mike complained about the doctrinal protections available to officials (especially prosecutors) who commit major wrongs: Some would say that the Court should not concern itself with the real-world impact of its cases...
Caperton Decision Reaffirmed
Posted on November 14, 2009From How Appealing we learn that the West Virginia Supreme Court has reaffirmed its earlier decision in Caperton v. Massey Coal, the case in which the U.S. Supreme Court required the recusal of the Chief Justice of the state court for having taken a particularly large campaign contribution from one of the parties...
Why McCain was right about health care reform: Tax subsidies for employer-provided health benefits & corporate feudalism
Posted on November 14, 2009It is a familiar point that the keystone of America's corporate welfare state is the absurdity of employer-provided health care. The arrangement is absurd, because it ties health care to one's job, impeding the mobility of labor, forcing employers to delve into social controversies over (for instance) whether to provide same-sex health benefits, and leaving the unemployed, the under-employed, and those employed by small firms uninsured...
The "Death of 'Big Law School'"?
Posted on November 13, 2009"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model." I'm confident that this suggestion is correct. And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter : "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls...
Cross-Border Speech Conflicts
Posted on November 13, 2009According to this report, two German nationals who were convicted of murder and have served their prison terms have sued the Wikimedia Foundation to have their names expunged from the English language version of an article on Wikipedia relating to the victim...
First Amendment Institutions as Part of the "Unique National Institution" Canon?
Posted on November 13, 2009Anita S. Krisknakumar of St. John's has posted in interesting paper on SSRN called The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon. Here is an excerpt from the abstract: While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion, which declares that the "spirit" of a statute should trump its "letter" and relies on legislative history to help divine that spirit...
The Albatross of Self-Consciousness
Posted on November 13, 2009Today concluded a conference at Seton Hall Law School entitled Religious Legal Theory: State of the Field, defly organized by Professors David Opderbeck, Angela Carmella, and John Coverdale. It was a wonderful chance for a whelp like me to see what wise souls coming from traditions ranging from Christianity to Judaism, to Hinduism, to Buddhism, to Islam, all thought was the locus of 'the action' in this budding area...
Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools
Posted on November 13, 2009One of the things that I have always done with my law review articles when they were in the process of being written is to share them with as many other scholars in my field (and especially with experts on the topic of the paper) to get their insights...
Stupak Amendment and the Constitution
Posted on November 12, 2009Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment)...
False "Facts", Free Speech, the First Amendment
Posted on November 12, 2009Here's the abstract from Fred Schauer's recent Melville Nimmer lecture: A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology...
Catholic Bishops + Stupak Amendment = Iran?
Posted on November 12, 2009Michael Sean Winters writes, at America: Timothy Stoltzfust Jost, a professor of law at Washington and Lee University, thinks issues of Church and State are involved. He writes: "For Congress to have to look to a particular church for permission to move legislation is frightening...
The Pleasures and Perils of Classes on the Workshop Model: A reply to Noah Sachs
Posted on November 12, 2009In a very interesting post, Noah Sachs recently floated the idea of offering Law School Classes on a Workshop Model. The idea is that the class would work on actual projects of some kind, for a real client (or at least with the goal of some kind of public dissemination of work product)...
FTC tries to be funny, but regulation may prove more effective than humor
Posted on November 12, 2009The Federal Trade Commission has wrangled with companies like Experian for years. Experian owns freecreditreport.com. If you have turned on a television in the past half-decade, you have probably eyeballed an ad with a bunch of "slackers" singing the blues about identity theft ruining their lives...
Property As/And Constitutional Settlement
Posted on November 11, 2009I've posted a new paper with this title to SSRN. The article addresses the constitutionality and propriety of governments settling constitutional issues or claims by disposing of public properties through various forms of privatization or by taking the subject properties...
"Self-Promotion" and Institutional Promotion
Posted on November 11, 2009Paul Secunda's posts on self-promotion are very useful and I hope ambitious scholars, whether junior or senior, are taking a look at them. One point I want to emphasize, by way of friendly amendment rather than suggesting any tension with Paul's own posts, is that a focus on "self-promotion" should not obscure the value and necessity of institutional promotion...
Live the Fantasy
Posted on November 11, 2009One of my Brooklyn colleagues has alerted me to Fantasy SCOTUS, which bills itself as "The Premier Supreme Court Fantasy League." I don't know whether this is common knowledge, or one of a million such sites, but it sounds like fun for a rainy year. Good luck, Josh!
When Interviews Go Bad
Posted on November 11, 2009A few years ago I started getting calls for press interviews. I had some slight expertise on a couple of issues that were locally newsworthy, and got recommended to some press outlets by a colleague. I ended up developing something of a relationship with a couple of reporters, with them calling on me whenever these issues bubbled up again...
Self-Promotion #3: Writing Proposals for Conferences and Workshops
Posted on November 11, 2009Before turning to the topic of today's post, let me say that I very much appreciate Paul Horwitz's contribution with regards to Institutional Promotion. I may not have planned to mention institutional promotion as one of my self-promotion tips, but I think it goes without saying that promoting your institution is part and parcel to being well-known (and well-liked) in the legal academy...
Death Penalty
Posted on November 11, 2009John Allen Muhammad, also known as the D.C. Sniper, was executed yesterday. I have to say that I don't particularly care. On the one hand, there are certainly some good arguments against the death penalty. Most notably, there is the disturbing possibility that it results in the execution of the innocent...
Stanford Law Spouses: Sandra Day and John O'Connor
Posted on November 11, 2009John O?Connor, husband of Sandra Day O?Connor, died today at the age of 79. My condolences to the family. The couple met while at Stanford Law School (my alma mater) in the 1950s, where they both served as Law Review editors. "Beware of proofreading over a glass of beer," Mr...
52 Stat 351
Posted on November 11, 2009My old professor, Jacob Levy (old as in erstwhile, not as in elderly), has these thoughts on the holiday: There's commemorative cannon-fire outside my office right now, and I'm more disgusted than moved. Yet more artillery fire seems to me to miss what should be the point...
Practical Implications of Legal Scholarship
Posted on November 11, 2009Prison officials seized a copy of a prisoner's copy of the Georgetown Law Journal. The prisoner claimed that this confiscation denied him access to the courts and the Fifth Circuit affirmed the district court's conclusion that this claim was frivolous: An inmate alleging the denial of his right of access to the courts must demonstrate a relevant, actual injury stemming from the defendant?s unconstitutional conduct...
Ah, Sweet Mystery of Journalism
Posted on November 11, 2009The New York Times has an entertaining story about Justice Kennedy's recent appearance at the New York private school Dalton (think Gossip Girl with, hopefully, better music). The story reports that Justice Kennedy insisted on approving, in advance, any article in the school paper about his talk...
Democracy as the Rule of Law
Posted on November 10, 2009I have posted a new paper on SSRN, titled Democracy as the Rule of Law. Here's the abstract: This paper is a chapter for a forthcoming book, Prosecuting the Bush Administration: What Does the Rule of Law Require? The book does not debate whether the Bush administration violated the law in the course of the War on Terror and the wars in Afghanistan and Iraq through such actions as torture...
Bilski Argument: Substance and Procedure
Posted on November 10, 2009I attended the Bilski oral argument at the Supreme Court yesterday. Despite prognostications that it would be difficult to get in, I sat in the first row behind counsels' table. It was not really the first row, as there were four seats in front of us that were next to counsels' tables...
Help Wanted: Clearing the Troubled Assets of the Penal State
Posted on November 10, 2009I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home. The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution." I wanted to share a rough outline of what I would have said...
Self-Promotion #2: Twitter, Blogs, and Social Networking Sites
Posted on November 10, 2009Yesterday, I started this series of post with the thought of providing some ideas of how to engage in the art of self-promotion to get oneself better known through the academy so that one's work is read or perhaps to let potential lateral market suitors know that you are out there...
Judges, Boy Scouts, and Invidiousness
Posted on November 10, 2009One of the joys of teaching a brand new subject is that one comes into an existing field fresh as the driven snow and bursting with questions, blissfully unaware that others have probably been thinking about the very same things, in much deeper and more interesting ways, for eons...
No Virtue in a Rush to Judgment
Posted on November 10, 2009I was a bit taken aback by the conclusion to David Brooks' column this morning in the NYT. With respect to new reports suggesting Major Hasan's Fort Hood massacre was the product of religiously inspired violence, Brooks writes that: A shroud of political correctness settled over the conversation...
School Segregation, Originalism and the Lost Black Republic in the South
Posted on November 10, 2009Justices Breyer and Scalia recently spoke at the Rehnquist Center of the University of Arizona on their divergent views of legislative interpretation. (Video here). Adam Liptak in The New York Times reported that the debate revived a decades-old litmus test of legitimate constitutional theory: Whether it leads to Brown...
Course Evaluations
Posted on November 09, 2009My faculty voted on Friday to change the course evaluation form that we ask students to fill out. It's a small thing, but that didn't stop us from debating it for nearly two hours. The length of the debate partly reflects our idiosyncratic love of long meetings -- we seem to have a Law of Conservation of Meeting Length, so that we find something to discuss regardless of the actual magnitude of a proposal's importance -- but it also reflects the fact that, although a change in the course evaluation form may seem trivial, it can actually have subtle and...
Hello and Thanks
Posted on November 09, 2009Hello, everyone. I will be posting as a guest on Prawfs this months. Thanks to Dan Markel for the invitation -- I'm looking forward to it.
In Memoriam: Fred Zacharias
Posted on November 09, 2009I am heartbroken from the passing of my dear colleague Fred Zacharias. Fred has been bravely battling cancer this past year. This weekend he passed away surrounded by his loved ones. Fred was an important scholar in constitutional law and professional responsibility...
Too Late
Posted on November 09, 2009There is one more coda in what is probably the most-controversial-office-park-development in recent memory, the Pfizer facility that ousted Susette Kelo from her house in New London, Connecticut. The Hartford Courant reports: Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday...
Product Labeling: What's In Your Donut Today?
Posted on November 09, 2009Back in May, looking for a quick snack at a Dunkin? Donuts near Penn Station while in NYC for a conference, I saw something startling at the counter: calorie counts under each tray of donuts. My favorite donut, Apple Crumb, had 460 calories, almost as much as a McDonalds quarter-pounder with cheese...
The Subjective Experience of Punishing
Posted on November 09, 2009Criminal theorists are by now well acquainted with Professor Adam Kolber's provocative article dealing with the ways in which punishment, in order to be "proportionate," must account for the differences in which people feel the pain of punishment. The article is a challenge to retributivists -- those with the greatest theoretical interest in proportionality, the argument being that the objectivist advantages that retributivists claim over consequentialists are actually a mirage: unless retributivists can account in their sentencing schemes or decisions for the pain that Paris Hilton or Bernie Madoff will actually feel when sentenced to the same term as that...
Self-Promotion #1: Build a Blog-Built Conference
Posted on November 09, 2009I want to continue in a tradition I have had as a guest blogger at various blogs in the past: the serialization of posts on a topic of what is hopefully of mutual interest to a large segment of the blog readership. Last time I did this was almost two years ago on that other blog (with the initials C...
Free Speech and the Furrier
Posted on November 09, 2009A judge in Portland, Oregon has cited Oregon's elder abuse law as authority for restricting the ability of protesters to approach a 75-year-old furrier. The animal-rights activists, some of whom apparently shouted profanities at the businessman as he walked to his shop and his car, have been ordered to stay 50 feet from the furrier and 15 feet from his store...
You Know You're a Patent Law Geek When...
Posted on November 08, 2009You know you're a patent law geek when these are the things that get you jazzed at the Smithsonian.... Of course, I enjoyed many other things at all the museums, and I highly recommend that you visit them all if you haven't before. This one speaks for itself, complete with hand and cell phone camera reflection Wright Brothers' plane Telegraph equipment Edison's patents
Back from the hiring conference
Posted on November 08, 2009Well, that was interesting and at least somewhat enjoyable. Of course, I have the beneift of being a member of (according to one anonymous candidate commenting at Faculty Lounge) a unique committee. Needless to say, I am free-riding on my colleagues on this one...
Thinking about Maine
Posted on November 07, 2009The Maine result on Question 1 -- the same-sex marriage issue -- is of course dispiriting to same-sex marriage advocates. It also raises an interesting question about future strategy. Of course, one should be careful about drawing broad conclusions from individual election results...
A Law Conference Unlike Any Other
Posted on November 07, 2009Our appointments committee just finished an exhausting two days - back to back to back interviews. They were scheduled for 25 minutes and most went the full half hour. I met a lot of great candidates, and it is a shame that we won't be able to call many of them back due to limited options...
Friendless
Posted on November 07, 2009In an interesting legal development from my temporary home, Friends of the Everglades, a local environmental group with a self-evident mission, will be shutting its office. As the story notes, it can't help that the group's litigation has been protracted and only moderately successful, although the paper does not discuss Judge Carnes's recent opinion in Friends of the Everglades vs...
One of These Things is (Not) Like the Other?
Posted on November 06, 2009Via Legal Theory Blog, I see that Nelson Lund has posted a review of Philip Hamburger's magisterial (so to speak) book Law and Judicial Duty. His review can be found here; my own short review, published in Engage, is here. It's a good read, although I think that by emphasizing what he sees as the fixity of the concept of "judicial duty" rather than its development, Lund may overstate the degree to which we can leap from a conception of judicial duty in the Founding Era, which is where Hamburger's book more or less ends, to a conception of judicial...
A new version of the golden rule
Posted on November 06, 2009From Bloomberg: ?The injunction of Jesus to love others as ourselves is an endorsement of self-interest,? Goldman?s [international adviser Brian] Griffiths said Oct. 20, his voice echoing around the gold-mosaic walls of St. Paul?s Cathedral, whose 365-feet-high dome towers over the City, London?s financial district...
Catholic League v. San Francisco
Posted on November 06, 2009When the Thomas More Law Center sued the City of San Francisco for condemning a Catholic Church policy on adoption, I opined that "the case seems pretty unlikely to get off the ground." I was right and wrong, mostly wrong. The plaintiffs claim was dismissed at the 12(b)(6) stage and that dismissal was affirmed by a unanimous panel of the Ninth Circuit...
The Pontiac School District litigation: How the incoherence of doctrine breeds ideological division
Posted on November 06, 2009The Sixth Circuit's 8-8 en banc deadlock last month in the Pontiac School District case is a nice illustration of the confusion, both doctrinal and ideological, besetting the federal government's spending power. The (in)decision suggests the folly of using "plain statement" rules like Pennhurst to protect federalism when one lacks a coherent theory about what "federalism" is supposed to accomplish: Such theory-less federalism is a recipe for ideologically driven opinions...
Law School Hiring Thread, 2009-10, Thread Three: The Next Phase
Posted on November 06, 2009This thread will be moved to the front every ten days or so. Please add comments to this thread, not Threads One or Two (where comments are now closed). This thread is for both law professors and people who are on the market this coming year for becoming a law professor...
Fair Play and Rule 83
Posted on November 06, 2009It is a few months old, but I recently came across the Eleventh Circuit's attorney's fees opinion in Sahyers v. Prugh, Holliday, and Karatinos and it is troubling-- far more so than the Second Circuit opinion I blogged about earlier. The plaintiff worked as a paralegal and sued her old firm for violations of the Fair Labor Standards Act, especially not paying required overtime...
The fate of Jared the Subway guy and your law school's website
Posted on November 06, 2009Last month, the Federal Trade Commission revised the Guides Concerning the Use of Endorsements and Testimonials in Advertising. A cursory look at the media coverage of the revisions shows that the changes requiring bloggers to make disclosures when endorsing products generated the most noise...
The Vanity of Dogmatizing
Posted on November 05, 2009I am making my way through Brian Tamanaha's new book, ,''Beyond the Formalist-Realist Divide" a thoroughly enjoyable bouleversement of the standard account by which we explain and classify American legal history of the last century or so. The evidence that Brian has uncovered fills in many details in the pictures of the so-called formalists of the late 19th century, demonstrating that they were not 'mechanical' jurisprudes at all but keenly aware of the realities of indeterminacy, underdeterminacy, subjectivity, and so on...
Displacement
Posted on November 05, 2009As I emphasized in a recent piece, geography and territory are powerful regulatory tools. They are often relied upon to confine and control disfavored or dangerous populations. Racial-spatial segregation, Japanese internment, and Guantanamo Bay detentions are all examples of territorial regulation...
Questions about the Military Spouse Residency Relief Act
Posted on November 05, 2009Congress has passed a bill that would allow those married to members of the military to assert that they are residents of the same state as their spouse, regardless of the state they actually reside in. The first thing I found myself wondering is how this interacts with the Fourteenth Amendment's residency clause, which provides, that U...
Can the Rule of Law Exist in Virtual Worlds?
Posted on November 05, 2009I'm heading to Washington, D.C. in a few minutes, and will likely have little time to blog over the next three days. I thought I would fill the void with some shameless self-promotion about an article I recently published examining the rule of law in virtual worlds...
Guilt can be good
Posted on November 05, 2009It's nice to be back to the hospitable Prawfs world, though I have just a twinge of guilt for not jumping into the conversation earlier. It's only a twinge because I feel that Dan has provided me with a ready-made excuse for not posting given his omission of me from his monthly welcome...
Attending Hiring Conference
Posted on November 05, 2009I am off today to the AALS Hiring Conference, where I am on our appointments committee for the first time. I am anxious to experience things from the other side of the table. And I hope to meet some readers (prawfs and candidates) over the course of the three days...
Religiously Affiliated Law Schools reception at AALS
Posted on November 05, 2009If you plan to be at the hiring conference tonight, stop by the something-th annual reception of the Religiously Affiliated Law Schools (and AALS Section on Law and Religion), which will be from 7:30 - 9:00 in the Hoover room. Best wishes to all candidates!
Remember, remember, the Fifth of November (?)
Posted on November 05, 2009Today is "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, tonight is Bonfire Night), When I was in first grade, my public school celebrated Guy Fawkes Day. It did not strike me as strange at the time, though it certainly does now...
Buffers, Bubbles, and Abortion Speech
Posted on November 04, 2009In my recent book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places, I examine various restrictions on public assembly and expression including the phenomenon of expressive zoning. Although not a new tactic (the first speech zones appear to have been used against the Wobblies in the early twentieth century), carving public space into zones in an effort to regulate public speech and assembly has become increasingly common...
Southwestern College and Free Speech
Posted on November 04, 2009Turmoil at a community college in my very own backyard of San Diego -- if these facts are accurate, it is a very disturbing story: the suspension of three college professors for protesting university policies at a peaceful gathering with their students...
Law School Classes on a Workshop Model
Posted on November 04, 2009I'm thinking of teaching a future class on a workshop model, and I'm wondering if others have experience teaching a class like this. My idea is to have a small group of students write a report for an organization with legal/policy research needs, in a setting less intensive than a full clinic...
Does Wal-Mart Use of Check Cards for Pay Purposes Violate Wage Payment Laws?
Posted on November 04, 2009The Wall Street Journal reported two days ago: Wal-Mart Stores Inc., the nation's largest private employer, is eliminating paper payroll checks in the U.S., transferring workers' earnings to a debit card if they decline direct deposit to a bank. Wal-Mart is the biggest company yet to make the move that it said will save paper and money...
More on "Who Cares"
Posted on November 03, 2009Marc has written a typically thoughtful and lovely piece on the question of "Who Cares?" about legal scholarship. It's a question we've wrestled with here from time to time. I seem to recall a dialogue some time ago about "Why I Write." Let me take my own cut at the issues Marc has raised...
SSRN, Articles, and Books
Posted on November 03, 2009Here's an inquiry for the blog's knowledgeable readers. Suppose one has a book-length project that one would like (a) to abridge for a law review submission come spring; and (b) later, perhaps in the summer, to submit to book publishers. Does posting the thing now to SSRN hurt one's chances on either count? The reasons to post would be the usual ones to get feedback and mark off the territory, but these reasons would likely be overridden if posting would damage the chance of placement in a law review or book...
Markets vs. Hijackers
Posted on November 03, 2009This post by Orin Kerr about the history of airplane screening was interesting. Even more interesting, though, was the debate about hijacking and markets that opened up in the comments. In mockery (I think), one commenter wrote: You mean the market didn?t solve the hijacking problem, and that a (shudder) regulation was needed...
Scholarship in the Supreme Court: Free Enterprise Fund v. PCAOB
Posted on November 03, 2009Here's a shout out to my friend and former Cincinnati colleague Donna Nagy, now at Indiana. The Conglomerate Blog already reported on a Supreme Court amicus brief she co-authored in Free Enterprise Fund v. Public Company Accounting Oversight Board, No...
Employers Under Siege by the EEOC?
Posted on November 03, 2009Not so says the EEOC. From the National Law Journal: Many of Burwell's clients who attended the breakfast are facing EEOC charges, some for the first time. "A lot of people had questions" for the agency, said Josephine Avery, vice president of human resources of the Motor City Casino Hotel, who attended the breakfast...
More on Health-Care Reform and Innovation
Posted on November 03, 2009Last week, I posted on the issue of health-care reform and its effect on innovation, specifically that of drug manufacturers. As they face a potential drop in profits due to a reduction in price per unit sold, the result may be less spending on innovation...
Is Qualified Immunity Inequitable?
Posted on November 03, 2009It seems as though every time I guest-blog here I end up talking about fee- and cost- shifting in appellate litigation. Riveting as that topic is, I figure I should continue the streak. This time, the inspiration is a curious little opinion by the Second Circuit in Moore v...
A Fine Old Cannibal
Posted on November 03, 2009The New York Times tonight runs an obituary for Claude Levi-Strauss, the influential anthropologist and structuralist (although he was not totally crazy about the term, evidently) who died at 100. Mindful of last week's 30 Rock, I hope the intellectual version of the Rule of Threes doesn't kick in...
The Global Legal Education
Posted on November 03, 2009Much of my focus has shifted this year as I've moved into administration--specifically, working in international education and campus globalization. While my work is directed at serving the entire university, I'm curious as to what Prawfs readers think about the role of international education in the law school setting...
The NFL Commissioner Asks for Labor Law Reform?
Posted on November 03, 2009Who knew that the commissioner of the NFL was such a labor law aficionado? From Yahoo! News and the AP: Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help...
Law School in the Year of the Tablet
Posted on November 02, 2009Many thanks to Dan and Prawfsblawg for having me back! My main plan for my blogging stint this month is to write mostly about law teaching, especially (but not exclusively) teaching with technology, beginning with a post or two about how law teaching might benefit (or suffer) from the newer, more powerful, and user-friendly eReaders and/or tablet-style computing devices...
No More Excuses for Not Writing During The Semester
Posted on November 02, 2009This site, hosted at the prestigious University of Chicago, will help you git 'er done by writing sentences for you. Unfortunately, it is set to "interdisciplinary" at the moment. But it's a start.
A Final Word About Finality
Posted on November 02, 2009Due to some unexpected illnesses in the family, this post comes a few days later than I expected. In any case, thanks to Dan and Prawfs for having me. I'll close out my visit with a few final words about finality in bankruptcy. This week, the Supreme Court will hear oral arguments in Schwab v...
Televising Justice and 28 U.S.C. 332(d)(2)
Posted on November 02, 2009As most readers probably know, California's Proposition 8 is now the subject of a federal lawsuit that has recently survived a motion to dismiss. Adam Liptak's story about the suit also reported in passing that "[Chief] Judge Walker . . . has hinted that he may allow the proceedings to be televised...
Speech and the Identity Crisis
Posted on November 02, 2009In terms of assessing speech, it is often helpful for audiences to know who is relaying a message and what, or who, might be influencing the content of the message. But do audiences have a right to know who is sponsoring or otherwise influencing the information they are receiving? Put negatively,when does the First Amendment prohibit the state from forcing speakers to disclose their identities or the identities of those who may have influenced their messages? It may overstate matters to suggest that free speech has an "identity crisis...
More AALS Advice...
Posted on November 02, 2009Although this is my second year on the appointments committee, I am not ready to start dispensing advice on the meat market. However, I have gathered the best advice I found -- advice that I relied on while on the market -- in one place. It's been featured here before, but I thought I would re-point to it for nervous candidates...
Rotations, Jotwell, etc.
Posted on November 02, 2009Greetings from East Lansing, MI, where I'm hanging my hat for the night, en route from YUL to TLH via a workshop at MSU tomorrow. Per Tim Zick, I should not be apologizing for my absence or delay in getting this announcement up, but I'm feeling guilty all the same...
Thanks for a Wonderful Time....
Posted on November 02, 2009No last thoughts from me, except to say I had a blast and look forward to getting the chance to read all the new Prawfsblawgers! And I can't believe it's November! Best, Chris
Goodbye and a few final thoughts
Posted on November 02, 2009First, thanks to Dan for having me. It was fun. And a few unrelated notes: Although I never wrote it up as a blog post as I said I would (a month of sporadic posting has left me really impressed with those of you who do this regularly), here is my paper on why legal scholarship in local government law has many of the same odd assumptions about what makes cities great as magazines that put out rankings...
Redefining Marriage ... Really
Posted on November 02, 2009This story has been picked up by a number of national outlets, including USA Today and ABC News, so I assume a lot of people already know about the couple that had plans for their October 31 wedding thrown into disarray when the minister at the Old Dutch Church of Sleepy Hollow, NY refused to perform the service in the church when he heard of the couple's plans for a ceremony more Halloween camp than Dutch Reformed...
Student TAs for Grading Exams?
Posted on November 02, 2009I am going through my students' midterms, which naturally leads me to procrastinate and surf the blogs instead of working offline, which in turn led me to the question number 8 in this post. The Faculty Lounge asks the questions you would really like to ask this weekend at FAR and question 8 is: What role do your research assistants perform in grading final exams? I recently heard from friends at a first-tier law school that their dean has instituted student teaching assistants for large classes who will among other things help give feedback to students on their written exams...
Swine Flu and Climate ChangeEconomic Impacts of S. 1733:
Posted on November 02, 2009Economic Impacts of S. 1733: Many thanks to Dan and the PrawfsBlawg team for this opportunity to guest blog. I?m an Associate Professor at the University of Richmond School of Law, where I teach torts and environmental law courses, and I direct the Merhige Center for Environmental Studies...
Who Cares?
Posted on November 02, 2009During the Q&A of a recent session at which I presented a paper, a member of the faculty whose work I very much admire asked, ?Who cares?? The question was asked very graciously, and accompanied by a conciliatory addendum that sometimes the questioner struggles with it in her own work...
If you take no other AALS advice...
Posted on November 01, 2009If you happen not to have reserved your hotel by now, or find yourself without lodgings at this late date for some reason, or if you are thinking about your options for next year's conference... You must stay at the Omni. The Omni is close to the conference hotel, but not on top of it...
No apologies
Posted on November 01, 2009Since we all seem to be announcing our arrivals here, I guess I should follow suit. Thanks to Dan and my other hosts for agreeing to have me back for another tour of blogging duty. It has been a long time since I was a regular blogger, and an even longer time s ince my last visit here-- a little over three years, I think...
Lessons in Time
Posted on November 01, 2009A sincere thank you to Dan and the Prawfs crowd for the opportunity to inflict my thoughts on others through this forum. When I first decided to go into this privileged line of work, I had a long conversation with one of my mentors. When the conversation turned to the classroom, he told me that the old line about "students keeping you young" was misleading...
Hello Again (again) and Bilski Redux (Again)
Posted on November 01, 2009Thanks to the Prawfs folks for having me back (again). The timing is eerily coincidental again - when I guested the first time last October, the Federal Circuit's en banc decision on patentable subject matter issued just as I was blogging about Everything is Patentable, my patentable subject matter article...
Weekend Trivia Challenge: Island Law Schools
Posted on November 01, 2009Here's another geography-based question for you. The Question: Which ABA-accredited law schools are on islands? The Answer: [show] Oahu: University of Hawai?i at M?noa William S. Richardson School of Law Puerto Rico: Pontifical Catholic University of Puerto Rico School of Law University of Puerto Rico School of Law Manhattan: Benjamin N...
Blogging Etiquette: Blawpologies and Self-Promotion
Posted on November 01, 2009Thanks to Prawfsblawg, and especially Howard Wasserman, for the invitation to post some thoughts here. I am a regular reader of blogs, but thus far have been only an occasional contributor. So I thought I would begin with two curiosities, at least to me, that may relate to bloging etiquette...
Exams, Good and Bad
Posted on November 01, 2009I'm delighted to begin another month of blogging here at Prawfs; as always, I'm very grateful to Dan for providing a soapbox. I want to begin my stint with a reprise of a topic I blogged on some time ago: final exams. It's about that time of semester for profs and students both to start thinking about them; thus, it seems a good time to ask again for thoughts about good and bad exam drafting...
Respect Copyright Law: Don't Print Your Own Canadian Money
Posted on October 31, 2009Of all the reasons not to churn out banknotes in your own cellar, worries about liability for copyright infringement never occurred to me. Until my wife and I took our two boys up to Winnipeg for the weekend. Although we could probably have made it through the weekend on credit cards, I was super psyched about getting a wad of Canadian currency out of an ATM machine...
Congrats to Todd Henderson
Posted on October 31, 2009Brian Leiter is reporting that my friend Todd Henderson (Chicago) is this year's winner of the Federalist Society's Bator Award. Congratulations! Todd is joining an impressive group! Check out this list. (Especially, of course, the 2009 winner.).
Notes from the Aspiring Law Professor Conference at ASU
Posted on October 30, 2009Last week I attended a terrific conference organized by ASU. More than a general ?how to become a law professor?, the conference was aimed at how to make the transition from legal practice or other academic fields into legal academia with a target audience of visiting assistant professor (VAPs) and teaching fellows -- attendees are already well on their way to becoming law professors...
FAR and Away
Posted on October 30, 2009I couldn?t resist using this double entendre for the title of this post, considering that it concerns law faculty hiring and a bidding of farewell. Thanks so much to everyone at Prawfs for having me on for a second visit. It?s been fun, and an honor. Since CNN listed college professors as a top job earlier this year, I thought I would end my stint with another topic that?s tangentially related to faculty job searches ? the use of social media...
The Lawyer as Information Manager
Posted on October 30, 2009Steven Bennett (Jones Day - New York) has just published, at 37 Capital U. L. Rev. 729, his article The Lawyer as Information Manager. Bennett makes what I think is a perceptive observation about a major shift in how lawyers function as lawyers. Here are the first two paragraphs...
How Many Scintillas Does it Take to Win?
Posted on October 30, 2009One barrel of flour contains zero scintillas of evidence. Time is measured in minutes. Sugar, in spoonfuls. Rain, in inches. Evidence, of course, is denominated in scintillas. Whenever a lawyer or judge wants to emphasize the lack of evidence in favor of some party or proposition, we hear that familiar refrain, "There is not one scintilla of evidence...
Rand Without Tears
Posted on October 30, 2009Adam Hirsch has a well-written review in this Sunday's New York Times Book Review of Anne C. Heller's new biography, Ayn Rand and the World She Made. This is one of two recent bios of Rand. The review is worth a look (especially for those who, like Tom Townsend in Metropolitan, prefer literary criticism to novels and, presumably, book reviews to books)...
Is the death penalty a specific incentive to murder? The strange case of Billy Joe Johnson
Posted on October 30, 2009Billy Joe Johnson got his express wish yesterday, an Orange County jury sentenced him to death (reported in the AP on SFChron website). The twist is this, Johnson is already serving a forty year to life sentence in California's harsh Pelican Bay prison...
Is Scalia Out of any Gay Marriage Case?
Posted on October 29, 2009This week, Justices Breyer and Scalia came to the Rehnquist Center at the University of Arizona Rogers College of Law to debate statutory and constitutional interpretation. Justice Scalia said outright that the idea that gay marriage was somehow protected by the Constitution was absurd...
Lots of birther action
Posted on October 29, 2009A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen. First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit...
An Open Memo to President Obama: Get a Flu Shot
Posted on October 29, 2009If we were going to get jealous of you getting a flu shot, we probably would have gotten upset about the fact that you have your own personal 747.
Job Talks and Presentations on Film
Posted on October 29, 2009There are many great articles that offer advice for conducting job talks, but there are very few films that come to mind that include presentations to watch for entertaining guidance on what to emulate and what to avoid. Two of the better-known presentations in the movies are found in films featuring Michael Douglas ? Wall Street (1987) and Disclosure (1994)...
The Trials of Academe
Posted on October 28, 2009Rick commented the other day on a recent column by Stanley Fish about the death of academic abstention. The Fish column drew on a new book by Amy Gajda of the University of Illinois (Law/Journalism) called The Trials of Academe: The New Era of Campus Litigation, published by Harvard University Press...
Free Speech, Dirty Politics, Or Both?
Posted on October 28, 2009For those who are interested in issues of the use and abuse of the Internet, questions of anonymity, and so on, here's an interesting story from the Hartford Advocate about the use of Twitter accounts and web sites set up by state Republicans in the name of various Democratic representatives in the state...
Law School Hiring Thread, 2009-10, Thread Two
Posted on October 28, 2009This thread will be moved to the front every ten days or so. Please add comments to this thread, not Thread One (where comments are now closed). This thread is for both law professors and people who are on the market this coming year for becoming a law professor...
A Thread for Aspiring Prawfs and Current Prawfs.
Posted on October 28, 2009I've received a few requests by aspiring prawfs asking for a thread that's not related to the AALS meat market and the timing of callbacks, etc. This can be a thread in which candidates could ask questions about the conference, interviews, clothing protocol, questions to ask/not to ask, etc...
A Taxonomy of Apology...
Posted on October 28, 2009Today we have apologies from Larry Johnson (the Kansas City Chiefs running back) and Alan Grayson (the Democratic Congressman). I?ve attached links so you can see why they are apologizing?or really if they are apologizing at all. I?ve thought from time to time about the grammar of apology, and the ways that people (especially, especially lawyers) can so deftly apologize without ever really admitting fault...
Masterpieces of the Universe
Posted on October 27, 2009In my Art Law class, we cover a variety of issues related to fine art, including ownership and public access. Museums are the largest holders of collections that are accessible to the public, and they are publicly funded. Many also consider some of our largest banks to now fall into that category...
Puzzling Suppression Decision in Email Search Case
Posted on October 27, 2009I'm as happy as anyone to see Fourth Amendment violations redressed, but a recent decision of Judge Block of SDNY, reported in The New York Times, leaves me scratching my head. Based on undisputed probable cause, the FBI obtained a warrant for an email account in a fraud case...
Angels in the Backfield
Posted on October 27, 2009Here is an interesting story in the Times about a Georgia town in which a post-9/11 practice in which the cheerleading squad at a public high school "painted messages like ?Commit to the Lord? on giant paper banners that the [football] players charged through onto the field...
Law school on the "Block Plan"
Posted on October 27, 2009For no particular reason, I was thinking today about the "Block Plan" (or "One-Course-at-a-Time") approach used at liberal arts colleges such as Colorado College and Cornell (IA) College. As the name suggests, students take (and professors teach) one class in an intensive 3 1/2- or 4-week block, take one week off, then move on to another single class...
Scientology Faces Judgment in France...
Posted on October 27, 2009Here's a quote from an article in today's NY Times: The French branch of the Church of Scientology was convicted of fraud and fined nearly $900,000 on Tuesday by a Paris court. But the judges did not ban the church entirely, as the prosecution had demanded, saying that a change in the law prevented such an action for fraud ...
Making Legislative History for Law Review Purposes
Posted on October 26, 2009Use of legislative history is famously controversial for purposes of statutory interpretation. But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting. I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965...
Booker's Children: The Strange Segregationist Origins of Diversity?
Posted on October 26, 2009The title of this post was inspired by a conversation I had with Anders Walker (SLU), who appeared in our enrichment series at FSU this past Thursday; in truth, I hope something like it will be the title of his next book project. Anders gave a legal history talk discussing the range of responses to Brown v...
The Truth on the Merger Guidelines
Posted on October 26, 2009Our friends over at the Truth on the Market have organized an online symposium on the recent Department of Justice and Federal Trade Commission announcement that they will solicit public comment and hold joint workshops on the Horizontal Merger Guidelines (?HMG?)...
U.S. News Surveys Out; Info Available Here
Posted on October 26, 2009Late last week, law professors everywhere -- four at each school -- received the annual U.S. News survey asking them (as well as lawyers) to assess the quality of every JD program in the country on a scale of 1-5. In ranking law schools, U.S. News considers "input" measures like the LSAT score and GPA of incoming students, and "output" measures like bar passage and employment rates...
More on partisan media
Posted on October 26, 2009Jack Balkin has a great post linking the White House-Fox News feud to the rise (or re-rise) of the adversarial partisan press in the early 21st century. Fox, Balkin argues, is the heir to the party press of the late 19th-century, when newspapers were owned, operated, and controlled by the various political parties...
And Don't Forget About Neil Peart....
Posted on October 25, 2009At the Volokh blog, David Bernstein has a post about those "touchy Canadians." He writes: Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon...
Weekend Trivia Challenge: The Smallest Law School
Posted on October 24, 2009The Question: Which ABA-accredited law school is the smallest in terms of student population? The Answer: [show] The University of South Dakota School of Law. According to ABA official data posted by the school, there are only 199 students. In 2008-2009, there were 62 students in the 1L class...
The Original Documents by the Original Artists
Posted on October 23, 2009When it finally came in from the cold, the National Archives laid out the 27th Amendment with sumptuous typography on paper bedecked with a glorious gold seal and a generous length of dark red ribbon. The document is truly resplendent. It could make your law-school diploma turn green with envy
Teacher's Manuals
Posted on October 23, 2009As a group project in my Labor Law course this semester, my students are drafting a teacher's manual for the casebook (lest you think I'm expropriating their labor, they organized a union and bargained for this as a term and condition of employment). As a side benefit, they've come up with all kinds of creative ways to approach the cases that I never would have thought of...
MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?
Posted on October 23, 2009Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night...
Innovation and Healthcare Reform
Posted on October 23, 2009Earlier today I was part of a panel discussion on the topic of ?Health-care Reform and its Effect on Innovation.? I focused my talk on the effect on innovation in terms of pharmaceuticals (with a nod to medical devices). It?s an interesting issue, one that I?ll flesh out a bit over a couple of posts...
Issues in Placement Science: Journal Failure
Posted on October 23, 2009A perennial issue in the legal academy is the precise prestige relationship between main and specialty journals. As this Moneylaw post makes clear, specialty journals at name-brand schools are disproportionately influential. Although apparently no Harvard specialty journal has ever gone under, there was once something known as the Yale Journal of Law and Liberation, which evidently has not published recently...
Lawyer Wins ?Most Irritating TV Character? Nod
Posted on October 22, 2009It?s not who you think. Yes, Law & Order?s Jack McCoy is on the list, but this character made it to number one. I must admit, it?s not a choice most people would disagree with, and I agree that there is a fine line between being delightfully quirky and just plain annoying...
Responding to the Legal Marketplace
Posted on October 22, 2009How good are law schools at responding to the legal marketplace? In one sense, we are absolutely wretched. As law firms this year have shed lawyers like a dog sheds hair in summer, law schools continue to admit the same ? or more ? students into their programs...
What About the Wigs?
Posted on October 21, 2009Eric recently had a post on the new Supreme Court of the United Kingdom, which opened last Friday. But he misses the major point -- well, not really a major point -- which is that the wigs are apparently going away: For the official opening ceremony Friday morning, the 11 judges (one slot is vacant) shed their old red robes and the wigs worn by lords on formal occasions -- Lord Phillips calls it the "Father Christmas outfit" -- in favor of new ceremonial black robes, embellished with gold lace and thread...
Central States Law Association Conference...
Posted on October 21, 2009Just as Howard comes to Michigan for one conference, I leave it to go to another. I'm headed to the Central States Law Association Conference, which is being held Friday and Saturday in Columbus at Capital University Law School and put together by Professor Danshera Cords...
The CFPA and the Case for Conglomerate Regulators
Posted on October 21, 2009I?ve been watching the twists-and-turns of the debate over the proposed Consumer Financial Protection Agency (CFPA) with a great deal of interest. One reason this fight has been so fun to watch is the prominence of law profs on both sides of the debate...
Alito on the "Catholic" "Majority" "Issue"
Posted on October 21, 2009Here's a story on an issue we've written about quite often at Prawfsblawg. In it, Justice Samuel Alito complains about the recurring nature of "what he called persistent questions about the [Supreme Court's] Roman Catholic majority. He complains about "serious people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs...
Why is Pandora like Jack Black? Or The Moral Tyranny of the Blind Taste Test
Posted on October 21, 2009Something about this story in last Sunday?s New York Times annoyed me. It tells the tale of the popular music service, Pandora, which seeks to predict your preferences in music based purely on clues about your prior opinions about songs. (I?ve tried Pandora, but didn?t like it, finding it only so-so in predicting my tastes, probably for the reasons I?ll explain in a second)...
Junior Federal Courts Conference
Posted on October 21, 2009This Thursday and Friday, I will be at Michigan State College of Law for the second not-yet-annual) Junior Faculty Federal Courts Workshop, organized by MSU's Lumen Mulligan and UNC Visitor Philip Pucillo. It is organized as a true works-in-progress workshop, with each author having about 10 minutes to summarize and highlight and a senior scholar commenting for about 10 minutes, before opening the discussion up to the room...
Statutes of Limitation in Clergy Abuse Cases: An Update
Posted on October 21, 2009Religion Clause reported yesterday that the Catholic diocese of Wilmington declared Chapter 11. This apparently delays a clergy sex abuse case that was going to begin. The case apparently originated from Delaware?s 2007 law, 10 Del. Code Ann. § 8145, which gave sexual abuse victims a 2-year window to file suit, regardless of when the abuse happened or if the statute of limitations had run...
Remembering Judge Justice...
Posted on October 21, 2009Judge William Wayne Justice died last week at the age of 89. He had been a federal judge since 1968, spending most of that time in Tyler, Texas before moving to Austin. You may remember him as the district judge in Plyler v. Doe, where he struck down a Texas statute that excluded children of illegal immigrants from the public schools...
The Supreme Court of the United Kingdom
Posted on October 20, 2009This month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country...
Cruising the Classrooms
Posted on October 20, 2009Tom Cruise recently visited an Entertainment Law class at Harvard, and students were understandably excited. Although Cruise is known around the world, classroom guests who are not as famous can also add a boost of energy to an otherwise humdrum session...
Raich's revenge: How California's med marijuana triumph depends on Printz
Posted on October 20, 2009The New York Times reports that Eric Holder's Justice Department will no longer prosecute marijuana distributors who comply with California's system for distributing medical marijuana. This is an extraordinary victory for sensible federalism (not to mention for a sane drug policy), coming after the disaster of Gonzales v Raich, so it is useful to consider the legal foundations of the triumph of federalism...
The Social Costs of Juries
Posted on October 20, 2009Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box. Some excerpts and reactions after the jump. As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box...
My Daughter, the Terror Suspect
Posted on October 20, 2009Contrary to my parents' myopic assumptions, my daughters are not angels. They fuss. They whine. They have nuclear meltdowns in Target. And they destroy things (most recently, my wife's laptop). Color me surprised, however, when I learned that my 4-year-old is among the hundreds of thousands of Americans that are considered potential terrorists...
More on Choosing Among "Lower-Tier" Schools
Posted on October 19, 2009A commenter on Jack's first post on when and whether to accept offers from lower-ranked schools wrote that this is a question of some importance that he or she has not seen discussed elsewhere. I suspect there are other discussions out there, and that I have even contributed to them from time to time, but I agree that too little is said about this...
Who Killed Kennedy? Memories of a Unique Class and Teacher
Posted on October 19, 2009Scott Shane's story in last Saturday's NYTimes on the CIA's continuing resistance to disclosing its files on its relationship with anti-Castro Cuban militant groups, including some who clashed with Lee Harvey Oswald on the streets of New Orleans in the summer before the assassination, brought to mind my happy days in Miami and a remarkable class at UM Law taught be my friend, the late John Hart Ely...
Student Centered
Posted on October 19, 2009My University prides itself on being ?student centered?. For years, I taught here without giving much thought to the phrase. I thought it was pretty meaningless ? I mean, aren?t all schools student centered? Well, no. I learned, when I was participating in the University 10-year plan, that student centered meant, to our University anyway, (1) a commitment to small class sizes, and (2) in response to any issue, always asking first: ?what solution would most benefit students??...
Choosing from Among Lower Ranked Schools
Posted on October 19, 2009Some aspiring prawfs who commented on my Bird in the Hand post asked how to differentiate among lower ranked schools. A basic question can be largely answered by searching JLR on Westlaw for something like (professor /s "South Podunk" /s (college school) /s law) and dateafter(1998) which will pick up the first footnote of articles posted by that faculty in the last decade...
Random pop culture for a Sunday afternoon
Posted on October 18, 2009This is, to my mind, one of the best commercials of all time. Yet I saw it on TV exactly once, then it was gone. Anyone know why?
Weekend Trivia Challenge - Next-to-Last State Without an ABA-Approved Law School
Posted on October 17, 2009Of the 49 states with ABA-accredited law schools, which was the last state to get one?
The Bird in Hand Problem
Posted on October 16, 2009I'm in Phoenix preparing for ASU's conference for aspiring law professors, which promises to be terrific. I am going to discuss the bird in the hand problem. Assume an ambitious, qualified attorney committed to an academic career, who wrote a paper, consulted with mentors, and otherwise properly prepared, and gave the meat market and the callbacks their best effort...
Kolber Signs Off
Posted on October 16, 2009My guest blogging stint ends today. My thanks, as always, to Dan and the rest of the Prawfsblawg family for having me. And my thanks to the readership for their helpful comments! Until next time, I'll be here and here.
"This is Your Products Liability Restatement on Drugs"
Posted on October 16, 2009I noticed this piece by Lars Noah, and the title sure gave me a laugh. It just came out in the Brooklyn Law Review, and it's (unsurprisingly) about the sections of the Products Liability Restatement that relate to prescription drugs. It was a nice find in a stack of Westclip emails...
When Is "Discrimination" Discrimination?
Posted on October 16, 2009Rick has a good post below about the faith-based initiative involving "discrimination," in the sense of religious organizations receiving government money while still only hiring adherents of their religion. Rick suggests that we really shouldn't think of this as "discrimination," because the word has such bad connotations -- people instinctively think that whatever is discriminatory is unjust and, by extension, probably illegal...
When Ricci Met Iqbal
Posted on October 16, 2009Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit...
Academic Abstention
Posted on October 16, 2009I'd welcome Paul Horwitz's thoughts -- given, for example, his "Universities as First Amendment Institutions" work -- on Stanley Fish's recent op-ed, "The Rise and Fall of Academic Abstention." Commenting, for example, on the Grutter case, Fish writes: the majority and minority opinions in Grutter starkly present the opposing positions on the relationship between the academy and the law: ?respect for universities as uniquely public minded against a demand for unbridled public accountability through law...
"Faith-Based Discrimination"
Posted on October 16, 2009The New York Times waives the red flag, and I just can't help myself. Put aside, for now, the questions whether (i) policies like the Clinton / Bush / Obama "faith-based initiative" are good ideas for delivering social-welfare services in an efficient and effective way; (ii) the Constitution permits such policies, and (iii) faith-based social-welfare organizations that participate in such policies should be required, as a condition of participation, to serve clients without regard to religion, etc...
A Little Bankruptcy Karma?
Posted on October 16, 2009Back in 2005, a number of politicians patted themselves on the back for passing amendments to the Bankruptcy Code that, among other things, made it much harder for consumer debtors to get a fresh start through Chapter 7. One of those congratulating themselves was Rep...
Missing in Action: Innovation
Posted on October 16, 2009America used technological innovation to attain victory in World War II and the Cold War. Why haven't we done the same with the wars in Iraq and Afghanistan? Jet engines, nuclear weapons, satellites and stealth planes all were born of an innovative frenzy unleashed in our drive to beat the Axis and the Soviet Union...
Michael Jackson, Abuse, and the Experiential Future
Posted on October 16, 2009A fascinating study in Nature Neuroscience from earlier this year may have identified biological markers of childhood trauma in the brains of adults. Researchers examined brain tissue from three groups of people: (1) 12 suicide victims who had been abused as children; (2) 12 suicide victims who had no history of childhood abuse; and (3) 12 control subjects with no history of abuse who died from causes other than suicide...
Defensive Hiring
Posted on October 15, 2009A few months ago, Reed Albergotti wrote in the Wall Street Journal The Talent the NFL Turns Away. His point was that for a given position, there is an effective height, weight, speed, etc. measure that, if a college player doesn?t meet, he has little or no chance of making an NFL roster...
The role of lawyers in making the law
Posted on October 15, 2009Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great...
When Is Interrogation Torture?
Posted on October 15, 2009This post is adapted from my new draft article, The Experiential Future of the Law. Comments on the article are welcome at akolber ?at? sandiego.edu: Waterboarded interrogatees are strapped down on an incline, with their feet elevated above their heads, while water is poured over their faces to give the sensation of drowning...
A Personal Touch
Posted on October 14, 2009With all of the discussions about faculty recruitment, I started thinking about the documents that accompany the FAR and publications, particularly the C.V. Some candidates may have sections that highlight background information (i.e., marital status and children), while others list hobbies and personal interests...
Why The ?Best Places to Live? Are Often The Worst: The Law and Economics of Cities (Part 3)
Posted on October 14, 2009In my posts last week on the ?Best Places to Live? rankings generated by leading financial magazines, I argued that these lists have some weird features. They take the price of housing and treat it as a negative quality, instead of a sign of demand. They then include variables related to public policy and the general job market in the region, which affect housing values, offsetting part of the information they put in relating to housing prices...
A Nobel Prize that Federalism Lovers Can Applaud
Posted on October 14, 2009Lost in the media flurry over Obama's Nobel Prize is another Nobel award that is more unprecedented and (to federalism fans) more exciting: Elinor Ostrom's winning the Nobel for Economics. The award is unprecedented, not just because Professor Ostrom is the first woman to win the prize but also because she is not an economist but a political scientist...
I Am Available for Comment in the Legal Matters Concerning Jon and Kate...
Posted on October 14, 2009For those of you who have had better things to do and thus don't know (which should be everyone except me -- my wife makes me watch The Soup), developments in the Jon and Kate Gosselin saga have gone legal. Jon and Kate are fighting over unauthorized withdrawals from their joint bank account; yesterday Jon was ordered to pay $180,000 back to Kate by a Pennsylvania judge...
"Negotiating the New Political and Racial Environment"
Posted on October 14, 2009... was the title of Professor john a. powell's public lecture last night. He normally teaches at Ohio State, but this semester is here at Wayne State as the Damon J. Keith Distinguished Visiting Professor. The lecture was a generalized talk crafted for the public, and the public really came out for it...
da Vinci and Fingerprint Reliability
Posted on October 14, 2009An anonymous Swiss art collector may have recently made the investment of a lifetime. In 2007, he paid $19,000 for what may turn out to be a $150 million painting by Leonardo da Vinci. On what grounds do they assert that it's a da Vinci? Fingerprints! An excerpt from the AP: Biro said the print of an index or middle finger was found on the painting and that it matched a fingerprint from da Vinci's St Jerome in the Vatican...
School crime prevention strategies show the difference between governing crime and governing through crime
Posted on October 13, 2009Two excellent recent features in the NYTimes show case the subtle but important difference between what I call "governing crime," serious efforts to address real crime risks within one's actual domain, and "governing through crime," what amount to, at best, reactive responses to fear of crime that have little actual purchase on the actual risks within one's domain...
Passion, Justice Scalia, and the Establishment Clause
Posted on October 13, 2009Time has been escaping me, but I wanted to say something about Paul's earlier post about the cross case. Read the whole thing -- that's the first time I have said that on a blog! -- but a major point of his post is how Justice Scalia's passions about the Establishment Clause are coming out in these cases...
First World Series ? A Numbers Game
Posted on October 13, 2009My colleagues would be shocked to see me discuss anything related to baseball, but I found this bit of trivia (in contrast to baseball, generally) to be too fascinating to ignore. According to The New York Times, today is the 106th anniversary of the end of the first World Series...
Protecting Turf
Posted on October 13, 2009Shortly after I graduated from law school and while I was still in practice, I had the extraordinarily good fortune to be seated next to Dennis Duffy (left) at a dinner for the Houston Law Review. Dennis at the time was a professor at the University of Houston Law Center (he now chairs the labor/employment practice of Baker Botts, at which, ironically, I was then an associate)...
Baseballs in the stands: End of the tradition?
Posted on October 12, 2009In light of the controversy over Ryan Howard's home run ball, as well as past disputes over ownership of other record-setting and significant balls, I wonder if we are heading towards a change in how baseballs hit into the stands (at least fair balls) are treated...
Columbus Day Quiz
Posted on October 12, 2009Columbus Day means many things ? federal holiday, no postal mail, closed banks, etc. ? but, in many law schools, it?s business as usual. According to one site, ?Colorado was the first state to observe Columbus Day in 1905. Over 30 more years elapsed before President Roosevelt deemed that ?Columbus Day? would be a federal holiday held on the twelfth of October...
Thanks for the Opportunity to Visit
Posted on October 01, 2009Thanks to everyone at Prawfsblawg for allowing an opportunity to visit. It's been a great experiment for me, one that I recommend highly. I'm glad that I was part of this experience during September, which was otherwise a real adventure. I want to do a quick shout-out to my daughter Elizabeth, a legal studies major at Cal...
Trade in Services, Trade in Technology, and Labor Mobility
Posted on September 30, 2009It is hard to believe that the month of September is almost over. In blogging, as in academia in general, there are so many things we want to research and write about, and only a certain amount of time. It?s like the old joke about law practice: there are only 24 hours in a day, and you can only bill 36 of them...
Chinatown Part III: The Two Victims
Posted on September 30, 2009Look for the burgeoning international celebrity crime story of Roman Polanski?s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears...
Law and Intuitions
Posted on September 30, 2009Laypeople's intuitions about what the law should be sometimes factor into scholarly arguments about what the law should be. There are two principal ways in which such arguments are made. In the "predictive" mode, we seek to understand lay intuitions because we think that laypeople will be more compliant with laws that match their intuitions...
Oligarchy in a one-party town
Posted on September 30, 2009Yesterday, New York City held the only election that really matters for the only two city-wide offices that were genuinely up for grabs -- the comptroller and the public advocate. (I am assuming that Bloomberg will face little danger from his under-funded and mostly unknown Democratic opponent in the general election)...
Thanks to Prawfs
Posted on September 30, 2009A quick thanks is due to Dan & Co. at Prawfsblawg for inviting me to guest blog this month. It was my first time guesting on Prawfs, and I hope it won't be my last. It has been a great deal of fun, and the dialogue has been superb (no surprise there)...
The Constitution in 2020: Religion, Division, and Pluralism
Posted on September 29, 2009As Paul has mentioned, he and I (and Ethan) are participating in the "Constitution in 2020" conference and blog-conversation. My contributions on "The Infrastructure of Religious Freedom" and "Religion and Division" are available here and here. Here is a bit from the former: What The Constitution in 2020 calls a ?progressive vision of constitutional law in the years ahead? should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive ? because very old ? idea...
Toleration or Respect?
Posted on September 29, 2009Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty: Toleration or Respect?" Here is the abstract: Should we think of what I will refer to generically as ?the law of religious liberty? as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of ?respect? and ?toleration...
Facebook and crime
Posted on September 29, 2009Last week, a Pennsylvania home was burglarized and the thief was caught because he had used the homeowner's computer to check his facebook page. This is pretty much an example of sheer idiocy. However, Facebook does offer the possibility of actively aiding crime solvers...
Corfield v. Coryell and the Privileges and Immunities of Citizens in the Several States
Posted on September 29, 2009In a previous post, I explained how antebellum legal and political use of the paired terms ?privileges and immunities? generally involved a reference to a limited set of specially conferred rights. The phrase was used not as a reference to natural rights belonging to all, but instead referred to a limited set of rights conferred upon a particular person, group or institution...
When There's a Will, There's a Way...
Posted on September 28, 2009Thank you so very much to the Prawfsblawg gang, especially Dan, for the wonderful opportunity to guest blog. It was a blast! I'll make my final post a bit of a mea culpa. I've recently been motivated by the impending birth of our daughter (and sheer embarrassment) to actually sit my lawyerly self down and draft wills, health care proxies, powers of attorney, etc...
The First Amendment in 2020: An Institutional Perspective
Posted on September 28, 2009Here's a link to my second and final post on the Constitution in 2020 blog in advance of the conference later this week. This one is more directly related to the individual rights panel, on which Rick and I will both be speaking (and, I think, hitting some of the same themes)...
What did the Carnegie report say anyway?
Posted on September 27, 2009In the last few years, there's been a fair amount of talk in the legal academy about how legal education ought to change, in part in response to the 2007 Carnegie Foundation report. Many assume that the report is a repeat of the familiar "law school should be more practical," and to a certain extent that's true...
Extraterritoriality in Export Controls
Posted on September 26, 2009For more than sixty years, U.S. export controls have been a key U.S. national security tool for preventing undesirable exports of goods and technology. Although the overall structure of these controls has changed relatively little since the enactment of the Export Administration Act of 1979 (?EAA of 1979?), the United States? interpretation and application of its export control laws is in some ways radically different than upon the act?s passage...
The Constitution in 2030
Posted on September 25, 2009My contribution to the blog discussion of The Constitution in 2020 is up here, in advance of next week's conference, on which I'll be speaking on the individual rights panel along with Rick; I'll have another post in a few days specifically targeted to First Amendment questions raised by the book...
A Thread for Aspiring Prawfs and Current Prawfs.
Posted on September 25, 2009I've received a few requests by aspiring prawfs asking for a thread that's not related to the AALS meat market and the timing of callbacks, etc. This can be a thread in which candidates could ask questions about the conference, interviews, clothing protocol, questions to ask/not to ask, etc...
Learning from the P&T Process
Posted on September 24, 2009This year marks my first time on the other side of the promotion-and-tenure process, which means I have to visit and evaluate my junior colleagues' teaching. This has been educational in several respects. First, I am learning substantive law. After observing a contracts class, for the first time I understand Kirksey v...
Read the Bill! Or Read the Bill?
Posted on September 24, 2009At the Volokh blog, the conspirators have been having a very interesting conversation about whether legislators should be obliged to read the full text of every piece of legislation on which they vote. I won't provide all the links; you can surf on over and check it out...
What's happening in legal education?
Posted on September 24, 2009With the beginning of a new school year, and a new law professor hiring season, one might want to know the answer to this question. Specifically, I can imagine law-professor job candidates being asked the question: "Are you familiar with the Carnegie report on legal education, and how would it affect your approach to teaching?" So I'd recommend you at least read the executive summary...
GOP lawsuit to stop Senate appointment
Posted on September 24, 2009The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days...
Who's Your Mommy?
Posted on September 23, 2009Yesterday CNN posted a story about a couple who underwent IVF in order to conceive and mistakenly received another couple?s embryo. The couple have decided to carry the pregnancy to term and give the child to its biological parents upon birth. As IVF becomes more and more common it is reasonable to assume more mix-ups like this may occur in the future and such pregnancies raise interesting legal question...
Elyn Saks Wins MacArthur Genius Award
Posted on September 22, 2009USC law professor Elyn Saks has just won a $500,000 MacArthur "Genius" Award (see here). Saks writes about a variety of issues at the intersection of law and mental health, including her own struggles with schizophrenia and psychosis. Here is a link to her recent book, The Center Cannot Hold: My Journey Through Madness...
The Obama Administration's "A Strategy for American Innovation"
Posted on September 22, 2009Dennis Crouch's Patently O blog draws to the Obama administration's "A Strategy for American Innovation: Driving Toward Sustainable Growth and Quality Jobs." Although Dennis focuses on the patent aspects of the document, the 26-page document is sweeping in its scope, making it an interesting read for almost everyone...
More on Catholic Social Teaching and Crisis
Posted on September 22, 2009Further to my post last week on subsidiarity and the implications of Catholic Social Thought for responses to the economic crisis and the policy proposals of the new administration, I want to comment on a post by Rob Vischer (whose work I enjoy and admire) over at the most excellent Mirror of Justice, Rob reflects on the comments of Sioux City Bishop R...
MacArthur Grants: Rewards or Incentives for Creative Life on the Margins?
Posted on September 22, 2009Following up on Adam's earlier post and the comments therein about Elyn Saks' receipt today of a MacArthur genius grant, I was wondering about a larger issue: whether foundations really should be showering $$ on folks like the professors at Harvard (and USC Law), where these folks are already making a decent living for the work they do...
Foucault, Kristol, and the Arts of Government
Posted on September 22, 2009He believed that government programs that were not paternalistic, but merely provided social insurance, would ?engender larger loyalties,? which is ?precisely what the art of government, properly understood, is all about.? David Brooks, Three Cheers for Irving...
?Privileges and Immunities? in Antebellum America
Posted on September 22, 2009This is part of a series of posts which explores the historical roots of the Privileges or Immunities Clause of the Fourteenth Amendment. The full historical evidence is presented here. One of the most common approaches to studying the history behind the Privileges or Immunities Clause has been to seek out various historical documents which included the words ?privileges? or ?immunities...
What's in a name?
Posted on September 22, 2009This year I began my Federal Indian law class with a discussion of modern day perceptions regarding Indian people and I used the example of Indian based sports team names and logos. Is the name Redskins offensive? Is the logo for the Cleveland Indians racist? if they are, then how come they are still around? A petition for cert has just been filed with the Supreme Court pertaining to this issue...
Obama's Chinese Tire Decision and the Importance of Not Being Earnest About Campaign Promises
Posted on September 21, 2009I read with a sinking heart Gregory Bowman's post about the Obama Administration's September 11th decision to impose section 421 "safeguard" tariffs on Chinese tire imports. Gregory Bowman thought that the decision indicated that the Obama Administration has an interest in "regulation that achieves outcomes that are perceived of as 'fair' from some normative perspective other than efficiency...
Constitutional Conventions and the "C2020 Project"
Posted on September 21, 2009My contribution to the C2020 project's blog is now available at the dedicated blog for the book and at Balkinization. If you are in New Haven on October 3, you can hear the talk upon which the blog post is based. You can also hear my co-bloggers Paul and Rick: look out for their posts in due course.
Workplace Violence? Making Sense of Annie Le's Murder
Posted on September 19, 2009Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale? In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write: Chief James Lewis of the New Haven police would not speak about a possible motive, but said, ?It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country...
Happy Constitution Day!
Posted on September 18, 2009As Paul already mentioned, Yale is hosting a conference on "The Constitution in 2020." As it happens, yesterday was "Constitution Day",, and the 222nd birthday of the Constitution of 1787. Give it a read, if you haven't recently: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America...
Blogging on The Constitution in 2020
Posted on September 18, 2009Yale Law School is holding a conference next month to discuss the recent publication of a book spearheaded by Yale professors, The Constitution in 2020. Leading up to the conference, the organizers have set up a blog on which the conference participants (including at least three of the permanent Prawfsblawgers) will be commenting on the book...
Trade Remedies in North America
Posted on September 18, 2009Following up on my previous post on the U.S. safeguard action regarding Chinese tires, I would like to announce a forthcoming book, entitled Trade Remedies in North America, which will be published by Kluwer Law International and which I am co-authoring with Nick Covelli, David Gantz, and Ihn Ho Uhm...
The Impact of Failed Lethal Injections Upon Murder Victims' Family Members
Posted on September 18, 2009Most of you have probably heard by now about Ohio's attempted execution of Romell Broom on Tuesday (articles can be found here and here), where Broom received a one-week reprieve from Gov. Ted Strickland after the execution team tried unsuccessfully for more than two hours to locate a vein...
New Year's Thoughts
Posted on September 18, 2009The following comes from John Q. Barrett's (St. Johns) excellent Jackson List, dedicated to the work of Justice (and Nuremberg Prosecutor) Robert Jackson (Barrett is writing a biography of Jackson). I found it a very affecting story. To all our Prawfs readers and writers, celebrating, Happy New Year...
There Really IS a Public Domain
Posted on September 18, 2009The other day, I was researching several sources including Henri Poincaré, The Foundations of Science. Although this book, originally published in 1913, is part of the public domain, no copies were readily available in a nearby library. I anticipated pulling out a credit card to get an inexpensive, used copy from Alibris or half...
A good crisis and an opportunity: The lessons of Catholic Social Teaching
Posted on September 17, 2009In conjunction with some papers that I am completing, I have been thinking a lot about the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various "crises," e.g., the financial seizure, global warming and perceived flaws in the delivery of health care...
Expanding the Political Battleground ?
Posted on September 17, 2009There seems to be a growing tactic on the part of proponents of same sex marriage (or civil unions) to seek to "out" opponents.* Efforts to identify supporters of Prop 8 in California received a lot of attention and a similar effort is being made in Washington through two websites...
Prognostication About a Judicial Ethics Complaint
Posted on September 17, 2009Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Wisconsin Supreme Court Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there. There are two rules that are pertinent...
Fractional Parents
Posted on September 16, 2009Here is a picture of a very modern family: Alan and Brenda would like to raise a child but both are incapable of natural reproduction. So they find Carl to provide sperm, Deena to provide an egg, and Ellen to carry the fertilized egg in her uterus. Nine months later, Alan and Brenda are the child?s nurturing parents, Carl and Deena are the biological parents, and Ellen is the birth mother...
front-page news
Posted on September 16, 2009With my habit of glancing at the news online in the am, I didn't pick up on why exactly District Judge Jed Rakoff's rejection of the SEC-Bank of America settlement appeared on the front page of the New York Times, bumping little ol' President Obama's speech to Wall Street to the business pages...
Coaches teaching civ pro
Posted on September 16, 2009I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro...
Splitting Feathers
Posted on September 15, 2009In 2002, Samuel Wilgus, a non-Indian, was prosecuted for illegal possession of eagle feathers under the Migratory Bird Treaty Act and the Eagle Act. Wilgus received training in the Native American Church and was given the feathers as a gift. Eagle feathers are an important part of many native religions, but currently, only American Indians have the right to use and posses eagle feathers...
Judge Rakoff and Judicial Meddling
Posted on September 15, 2009Judge Jed Rakoff (SDNY) rejected the settlement proposed by the SEC and the Bank of America for allegations that the Bank of America lied to shareholders during its merger with Merrill Lynch. Specifically, the SEC claimed that Bank of America falsely told shareholders that Merrill would not be permitted to pay its executives year-end bonuses when, in fact, BoA had given Merrill approval to pay up to $5...
What the Chinese Tire Safeguards Suggest about the Obama Administration's Trade Policies
Posted on September 15, 2009On Friday, September 11, 2009, the Obama administration made an announcement that not only was a first for trade remedy law but also has become a fairly visible news media story: for the first time, the United States will impose ?market disruption? safeguards on imports from China...
Jonathan Simon Joins Prawfs
Posted on September 15, 2009I'm thrilled to announce that Jonathan Simon, who's been a regular guest blogger with us in the past, and who has been with us this past summer, will be joining Prawfs for the balance of the academic year. Welcome, Jonathan! For those of you wondering: Jonathan is Associate Dean for Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley; Faculty Co-Director, Berkeley Center for Criminal Justice; and author of Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007).
Fashion Week
Posted on September 14, 2009As so many professors do during Fashion Week, my thoughts turn to intellectual property protection for clothing design. As background, those asserting protection for fashion designs have an uphill battle under IP law. Under copyright law, clothing is generally considered functional and not protectable...
The debate about the debate
Posted on September 14, 2009Paul Horowitz' post about conservative protesters is consistent with a summer long theme on the political left. The point seems to be to talk about the nature of the debate rather than the issues being debated. There is no obvious inconsistency between supporting - or using - government provided infrastructure and concern over the administration's proposed increases in the role of the state...
Teaching pleading
Posted on September 14, 2009Jon Siegel (guesting at CoOp) has a couple good posts up about Iqbal, including the way it is seeping into very rudimentary tort claims (such as slip-and-fall) that really should be covered by Form 11. Jon makes the following point, which I think is true: The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that?s what we?ve been teaching the students for the last 70 years...
New U of Chicago Dean on Educating Lawyers
Posted on September 14, 2009In this op-ed for the National Law Journal last year, "Legal Education Must Look Beyond the First Year," UCLA Dean Michael Schill, soon to move to University of Chicago, talks about a theme I agree with: the consistency of schools doing sophisticated interdisciplinary research, and training lawyers in a rigorous way...
My Daughter Does Walk to School
Posted on September 14, 2009My twelve-year-old daughter will walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley. As Jan Hoffman reported in yesterday?s Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of...
A Crude Post
Posted on September 13, 2009In Friday's New York Times, movie critic A.O. Scott reviewed the new documentary film Crude, which opens next Wednesday in Manhattan. The review and trailer (see above link) started a train of thought that has stayed with me since then. Scott calls Crude a ?thorough and impassioned? film that ?focuses its gaze on [petroleum] production, rather than consumption...
Don't Tread On Me (Without a Permit)
Posted on September 13, 2009I found today?s New York Times story about the thousands of protestors who made their way to the streets of the nation?s capital to protest big government compelling and a veritable profile in courage. As they made their way ?by bus [on federally funded highways, carried in buses whose safety, licensing, and non-discrimination policies follow federal mandates], car [mostly those of the post-Pinto, NHTSA-approved, non-exploding variety], and airplane [under FAA supervision]? to the streets (road maintenance and sewer service permitting) of the District of Columbia (see, e...
The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...
Posted on September 12, 2009How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt...
Slaughterhouse and the Privileges or Immunities Clause
Posted on September 12, 2009Historical accounts of the Privileges or Immunities Clause of the Fourteenth Amendment generally assume that the author of the text, John Bingham, based the Clause on Article IV of the original Constitution. This view assumes that Bingham and the other Republican members of the Thirty-Ninth Congress embraced Justice Bushrod Washington?s opinion in Corfield v...
Prison Reform Lite: With Fiscal and Constitutional Alarms Ringing, Cal Legislature Hits the Snooze Button
Posted on September 12, 2009Staggering to the end of what Assembly Speaker Karen Bass called "a painful year for all of us", the California legislature passed and sent on to Governor Schwarzenegger a prison bill that will help the state save about a billion dollars (in a 26 billion deficit situation), about 200 million short of the governors announced goal (read Michael Rothfeld and Shane Goldmacher's reporting in the LATimes; and Kevin Yamamura, Steve Wiegand and Jim Sanders' reporting in the SacBee)...
Disneyland and property rights in tickets
Posted on September 11, 2009Due to a family matter, I had to head down to Los Angeles last week, so naturally my wife and I took our two little boys to Disneyland as well. While there, the following two possibly analogous incidents occurred that got me thinking about property rights in tickets...
More about the European Pharmaceutical Sector: Procedural Changes
Posted on September 11, 2009Earlier, I described the European Commission?s recent examination of the pharmaceutical sector. Part of the EC's inquiry focuses on procedural concerns. Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC?s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, ?[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 ? 2007, is estimated to exceed ? 420 million, of which a significant proportion could have been saved? if a...
Law School Hiring Thread, 2009-10, Thread Two
Posted on September 11, 2009This thread will be moved to the front every ten days or so. Please add comments to this thread, not Thread One (where comments are now closed). This thread is for both law professors and people who are on the market this coming year for becoming a law professor...
Export Controls, Proliferation, and Choke Points
Posted on September 10, 2009There was an article in the Times of India on Wednesday, reporting on assertions by Pakistani nuclear scientist A.Q. Khan that Pakistan had nuclear weapons capability as early as 1983. According to the article, Khan maintains that U.S. preoccupation with the Soviet invasion of Afghanistan gave him somewhat freer reign to pursue a nuclear program for Pakistan, which he was able to do in just six years...
Happy New Year
Posted on September 10, 2009Rosh Hashanah, the celebration of the Jewish New Year, begins at sunset next Friday. Far away, but I could not wait to post this. Because it falls on Shabbos this year, we do not blow the Shofar on the first day. We do, however, take the day to "recall" the blowing of the Shofar...
Catholic Social Thought and Legal Education
Posted on September 10, 2009I've imposed a few times on Prawfsblawg readers with posts about my experiences teaching a seminar -- both at the University of Chicago and at Notre Dame -- on "Catholic Social Thought and the Law." (Here, for example.) I am now upping the shamelessness ante by calling readers' attention to an upcoming conference, "Catholic Social Thought and Legal Education", to be held on Sept...
Pleading and al-Kidd
Posted on September 09, 2009Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal...
Babies and Cleaning Ladies
Posted on September 09, 2009Yesterday I posted about Japan's recent proposal to pay couples yearly bonuses for having children and I questioned whether such a plan could succeed without other substantial changes. I mentioned job flexibility and gender equality as potential solutions but I recently became aware of another solution, immigration...
On Not Gaming the System in Law School
Posted on September 09, 2009The other day the New York Times ran a set of op-eds from various well-known academics offering advice to students who are starting college. It's mostly boilerplate stuff, and in some cases the byline enables one to predict with high accuracy every word of the op-ed...
Policing Judicial Campaigns: A Story From Wisconsin
Posted on September 09, 2009Although my principal interest is in law and religion, one of my charges at Marquette is to stay engaged with local policy issues and, as part of that, I have followed the Wisconsin Supreme Court, developing a course on the Court and state constitutional law...
Official liability for abuse of material witness warrants
Posted on September 08, 2009Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities...
Why does not Obama promulgate new "don't ask, don't tell" regulations?
Posted on September 08, 2009President Obama has angered gay and lesbian supporters by delaying efforts to repeal Section 571 of the 1993 National Defense Authorization Act, 10 U.S.C. section 654, which codified the infamous "don't ask, don't tell" policy, requiring the discharge of service members from the armed forces who engaged in homosexual conduct or states that they are gay...
Staying Squarely within the Law, Part 2
Posted on September 08, 2009Earlier today I started blogging about a teaching technique for a Public International Law course: playing four square. The problem: student resistance to the idea that international law is law. The solution: the game of four square as a classroom exercise...
VC Blogger Ilya Somin Disagrees With the Vast Majority of VC Commenters
Posted on September 08, 2009At least that's how I read this (see the fourth full paragraph, beginning "To the extent that..."). Ilya, I feel safe in saying you've got a lot of company on this one.
Cash for Kids
Posted on September 08, 2009One of the first moves of Japan's new ruling party has been a proposal to pay Japanese families to have more children. The proposal would pay families approximately $3,400 per child per year, but it is unlikely to work. Although Japan's falling birthrate is one of the lowest in the world, 1...
Will the Senate Parliamentarian decide how to reform health care?
Posted on September 08, 2009I sort of hope so, just because it might persuade my students that I have not been wasting their time for the last three years: Since I joined the NYU faculty, I have included a couple of classes on the House and Senate procedural rules in my course on the Administrative & Regulatory State, including arcana like the "amendment tree," "Calendar Wednesdays," sequential referral to committees, etc...
A Truly Radical Idea: Van Jones and the Greening of Criminal Justice
Posted on September 07, 2009The midnight resignation of Obama environmental adviser Van Jones is being treated in the media and the blogosphere [read Fred Barbash and Harry Siegel's summary on Politico] as yet another turn in Washington's ideological gang war ("Washington's a tough place that way," noted Howard Dean in one of the more sympathetic comments)...
Interesting Times in the Pharmaceutical Industry
Posted on September 07, 2009With Pfizer's $2.3 billion payment last week to settle fraud charges for marketing practices relating to its drug Bextra, it must be an interesting time to be in the pharmaceutical industry. On the international front, last summer the European Commission completed a study of competition in the pharmaceutical sector in Europe...
Staying Squarely within the Law
Posted on September 07, 2009Although I am not teaching it this year, I have regularly taught Public International Law, which in my opinion is one of the most interesting and important courses in the law school curriculum. (Kudos to those law schools that require students to take at least one international or trans-national course in law school...
How We Decide What to Write About
Posted on September 07, 2009Many thanks to Dan for allowing me to stay on an extra week; a nasty bug plus the start of classes necessitated a rather extended absence from blogging during the last week of August. I've always been rather fascinated with exactly how (and why) we as prawfs decide to write about certain topics over others...
How Kurt Lash cured me of originalism
Posted on September 06, 2009I am a great admirer of Kurt Lash's work on the Ninth Amendment. His series of articles on the subject has convinced me that, if one focuses on its "original public meaning," the Ninth Amendment is best understood as a federalism-protecting measure -- that is, a rule requiring a narrow construction of Congress? powers to protect the right of the people to collective self-government through their state governments...
Law School Hiring Thread, 2009-10, Thread One
Posted on September 06, 2009NB: This thread will be moved to the front every ten days or so. This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding a range of things: a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked for a candidate's scholarship yet b) whether they have...
How I Cured Rick Hills of Original Intentions Originalism
Posted on September 06, 2009Rick Hills? recent post honored my work as providing an example of originalism ?in its best light? and providing an acid test regarding the originalism as a workable theory of constitutional interpretation. Given the outstanding nature of Rick?s own work, I?d hate to be the one responsible for his concluding that originalism is a ?dead end...
Another View on Obama's School Speech
Posted on September 05, 2009Thanks to Dan for another stint at Prawfs. Paul Horowitz raises the interesting question of the reaction to the President's upcoming speech to school children. I see it a bit differently. I am certainly a political conservative, but I have no objection to the President addressing school children and talking about the importance of education...
The Ninth Amendment and the Original Bill of Rights
Posted on September 05, 2009In my last post, I provided a brief sketch of original public meaning originalism. A number of scholars have contributed to the development of this more sophisticated form of originalism, but no one has done more work to explain the theory of originalism than Illinois law professor Lawrence Solum...
An Unusual (and Uncomfortable) Appointments Question
Posted on September 04, 2009One of the many joys of serving on a hiring committee (which I've been privileged enough to do three of my five years in the academy, including this year) is the chance to see familiar names (and, eventually, faces) among the massive stacks of resumes...
Pocahontas's Family Tree
Posted on September 04, 2009In my family law class yesterday, we began our discussion of the fundamental right to marry with the case of Loving v. Virginia, in which the Supreme Court struck down Virginia's anti miscegenation laws as unconstitutional. As an Indian law scholar, one of the things that has always struck me about the case is the footnote regarding the Pocahontas exception...
Garrido, Long Prison Sentences, and Parole
Posted on September 04, 2009The continuing media frenzy over the saga of kidnap victim Jaycee Dugard and repeat sex offender Philip Garrido is coming to focus heavily on the fact of Garrido's "early release" from his federal 50 year to life sentence for kidnapping and raping Katherine Calloway...
Obama's School Speech and the First Amendment
Posted on September 04, 2009I'm sorry more folks in the legal blogosphere haven't written more about some of the more perfervid reactions to President Obama's upcoming speech to school children, although Jim Lindgren has an oddly composed, if somewhat be-suspicious-but-verify in tone, post on it today...
Another (Slightly Less) Innocent Question for AALS Interviews
Posted on September 04, 2009So in my first installment in the gripping series "Innocent Questions in AALS Interviews," I suggested the question: "At [Your School], what percentage of the job are the different pillars of research, teaching, and service?" But the commenters were right that it's probably not the best question to ask...
Thank you for the welcome, Dan!
Posted on September 03, 2009This is my first blog post ever, anywhere, although blogs have been around for over ten years. I'd like to thank Dan and Prawfsblawg for generously allowing me this opportunity to experiment. This post arrives at an extremely busy time. I'm being considered for tenure at my home institution, Pacific McGeorge, as well as coming to closure on a book project for West's Global Issues Series (in my case, Global Issues in Intellectual Property Law) that I'm working on with co-authors Peter Yu, John Cross and Michael Mireles...
On Schauer on Brain-Based Lie Detection
Posted on September 03, 2009Over the last several years, researchers have been trying to develop brain-based methods of detecting lies. The overwhelming consensus among neuroscientists is that such techniques are unreliable, particularly in real-world settings. That hasn't stopped at least a couple of companies from marketing functional magnetic resonance imaging ("fMRI") lie detection services...
Another wrinkle in the vaccine debate
Posted on September 03, 2009Last week I took my daughter to the pediatrician to receive her MMR vaccine (measles, mumps, rubella). The trip to the doctor?s was spurred by two factors, the first was age, my daughter was now at the recommended age for receiving the vaccine but the second was the fact that she was about to enter daycare and state law requires the shot as a condition of enrollment...
Originalism and the Fourteenth Amendment
Posted on September 03, 2009Cases like D.C. v. Heller illustrate the importance of historical analysis and argumentation as legal skills for constitutional lawyers. Where Heller focused primarily on the original understanding of the Second Amendment, the anticipated follow-up case to Heller will inevitably focus on the original understanding of the Fourteenth Amendment?particularly the Privileges or Immunities Clause and the issue of whether that Clause incorporated some or all of the first eight amendments...
Simple Things
Posted on September 03, 2009I want to sign off on my guest stint (thanks PrawfsBlawg!) with a simple thing that could make a big difference to the classroom: looseleaf casebooks. One of the best pieces of advice I got as a beginning professor was to order a looseleaf copy of my casebook...
Innocent Questions for AALS Interviews
Posted on September 02, 2009Hello everyone -- good to be back for a guest stint, and thanks to Dan for inviting and the rest for tolerating. I'm going to mostly be posting about issues in legal education, but since everyone loves a good navel-gaze and people on the market are thirsty for anything related to hiring, let's start with a perennial favorite this time of year: what questions to ask interviewers at AALS or callback interviews? Here's one that I haven't seen so much, and is a moderately innocent, reasonable question to ask in a job interview, but also might tell you something about...
21st Century Pre-War Apartments
Posted on September 02, 2009I'm pleased to be guest blogging again at Prawfs. Since I was last here, I've added another blogging gig to my repertoire. In addition to running the Neuroethics & Law Blog, I'm now a contributor at the recently relaunched CrimProf Blog. I'll have some more substantive posts soon...
Greetings, and some thoughts on teaching at a new institution
Posted on September 02, 2009Hello, readers, and thanks to Dan and the gang at Prawfsblawg for the return visit. The last time I guest-blogged her, I was teaching at Iowa, but after seven years in the Midwest, I've just moved to Lewis & Clark Law School in Portland, Oregon. This was a straight lateral move, without a semester as a look-see visitor, so I really am moving into a new environment, which leads to my first post -- some thoughts about teaching at a new institution...
Goodbye!
Posted on September 02, 2009I suppose old guest bloggers never die, they just peter out, stop blogging for a while, and then sign off. Thanks to Dan and the others for letting me hang out here for the month of August.
More on the "Uncasebook Project"*
Posted on September 02, 2009* (H/T for the term: James Grimmelman and Hillel Levin) Some further thoughts on the idea of dumping the casebook for unedited or self-edited cases and a treatise, including responses to comments both here and in private e-mails. First, there are two separate components that must be made to work and they raise distinct issues...
Childhood Obesity is Child Abuse?
Posted on September 01, 2009First, I want to thank Dan Markel and everyone at Prawfsblawg for the opportunity to blog about family law and Indian law issues. Second, I want to jump right in with a case I have been thinking about. A few days ago, a student came to speak with me about supervising an independent research paper on the issue of childhood obesity and child abuse...
On the Pleasures of Guest Blogging
Posted on September 01, 2009I can think of three pleasures of guest blogging on Prawfsblawg: 1) One can say pretty much anything 2) People will respond 3) One's commitment lasts for just a month I'm sure there are other pleasures, and maybe a few readers will suggest some. Right now, I'm up to pleasure Number 3, so to borrow from The Sound of Music, so long, farewell, adieu, adieu to you and you and you.
American Privileges and Immunities
Posted on September 01, 2009I want to thank Dan Markel and the Prawfsblawg gang for inviting me to guest-blog this month about my work on the historical understanding of the Bill of Rights and the Fourteenth Amendment. It is likely that the Supreme Court will take up both issues when it considers whether to incorporate the Second Amendment...
Rotations
Posted on September 01, 2009Happy September! September 1 wasn't the happiest day in history, but as the kids song I hear every day now says, the rest of the day is whatever you make it... Anyway, with the new month we have some brand new voices to add to the conversation here at Prawfs...
Prof. Stone (again) on "our . . . Catholic justices"
Posted on September 01, 2009Prof. Geoffrey Stone returns, here, to the phenomenon of "our . . . Catholic justices." A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Prof. Stone caused some controversy with his assertion that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality", a distinction that "[t]o be sure, ...
The Pleasures of Guest Blogging, Part 2
Posted on September 01, 2009Let me just say how pleased I am to be guest blogging on Prawfsblawg--the blog with the best (if not the briefest) tag line in the blogosphere. In response to Bennett Capers' post earlier today, it can be argued that his guest blogging pleasure #3 ("One's commitment lasts for just a month") is also arguably a downside...
Confusing Fed Courts doctrine, same-sex marriage, and DOMA
Posted on August 31, 2009Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement. After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA")...
Garrido, Parole, and the Criminological Fallacy
Posted on August 29, 2009Police and parole authorities in Northern California are wracked with guilt and self doubt today as they struggle to understand and explain how a registered sex offender who had been on continuous federal and then state parole for decades could have kept a girl he kidnapped in 1991, and later the two daughters she bore him in captivity, undiscovered for 18 years...
Statistics Problems
Posted on August 27, 2009During my recent years back at Berkeley and especially the last five as Associate Dean for the Jurisprudence and Social Policy program, I have been struck by the surging interest in quantitative methods among the rising generation of sociolegal students...
The Libel Tourist is dead
Posted on August 27, 2009Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law). Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed ? and How to Stop It...
Managing the Busy Days
Posted on August 26, 2009Maybe because a busy fall approaches, two things struck me when I recently read a profile of Atul Gawande -- full-time surgeon, prolific writer, father of three. First, he "saves his writing" for the hours between 7 and 11am and 4 and 7 pm to "capitalize on the body's circadian rhythms...
More on the "Uncasebook Project"*
Posted on August 26, 2009* (H/T for the term: James Grimmelman and Hillel Levin) Some further thoughts on the idea of dumping the casebook for unedited or self-edited cases and a treatise, including responses to comments both here and in private e-mails. First, there are two separate components that must be made to work and they raise distinct issues...
More Iqbal: What's a plaintiff to do?
Posted on August 25, 2009I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service. The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police)...
Are Reprints a Sin of Self-Promotion?
Posted on August 25, 2009Throughout the summer, I have been considering the value of sending reprints to others whose scholarly interests align with my own. To be honest, I don't send out many reprints at all--perhaps 20 or 25. These sometimes generate nice e-mails, but rarely anything more...
Dorf welcomes 1Ls
Posted on August 24, 2009Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college...
The Meaning of Y
Posted on August 24, 2009Recently, I?ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa. In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field?s governing body has arranged tests to ascertain her sex...
Law as Undergrad Part II: A Partial Dissent
Posted on August 24, 2009I appreciate Howard's link below to my friend Mike Dorf's post talking about law school as a continuation of one's undergraduate degree. Mike writes that "Law students who regard their legal education as a continuation of their undergraduate (or in some cases, graduate) studies will be doubly rewarded...
Go Figure: How Pandora works
Posted on August 23, 2009When I was in high school, one of the New York radio stations had a program gimmick called "Go Figure," in which they would play three songs and callers had to guess the link among the three (which sometimes was pretty esoteric). I was reminded of this while using the Pandora app this morning...
Clothes Make the Man--Part Two
Posted on August 22, 2009It turns out that Ashby Jones of the Wall Street Journal's Law Blog is also weighing in on this important sartorial issue. (I know this because Ashby emailed me last night to find out my plan of dress.) His take on what a law professor should wear is here...
When the Messenger Shoots Himself
Posted on August 21, 2009Ok, I've been a one trick pony this summer, but come on, two years (20 months in real) in the slammer for former NY Giant Plaxico Burress in a plea bargain with NY prosecutors announced yesterday (read John Eligon's reporting in the NYTimes). Burress carried a concealed weapon into a New York city nightclub, with the knowledge of the club's security personnel, but in violation of NY law (it would have been legal in Florida where Burress lives most of the year had he not allowed his concealed carry license to lapse)...
Horwitz for School Board
Posted on August 21, 2009No, the other Horwitz. I'm very proud of my wife, Kelly Horwitz, who's running for the Tuscaloosa Board of Education in District 4. She is an incredibly talented, experienced, and dedicated person who will do a fantastic job representing the interests of all Tuscaloosans...
Except insofar as vandalism is a crime...
Posted on August 21, 2009...this has pretty much nothing to do with law. But how cool is this and this?
What's a Catholic judge to do?
Posted on August 20, 2009Prof. Alan Dershowitz accuses Justice Scalia of an "outrage against his church" for observing, earlier this week, that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ?actually? innocent...
Clothes Make the Man
Posted on August 20, 2009We?ve all heard the expression ?clothes make the man.? But do clothes also make the professor? Especially if the professor looks young enough to be a student, or is female, or a person of color, or LGBT, or some combination of the above? And am I the only one, at the start of yet another school year, thinking about this? One of my favorite quotes from an article I wrote about appearance and the law, Cross Dressing and the Criminal, comes from Allison Lurie...
Risinger vs Allen-Laudan
Posted on August 20, 2009As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L...
More on casebooks
Posted on August 19, 2009As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking. Suppose I taught Civ Pro as follows: 1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc...
Are There Constitutional Limits on the Extent to Which the State Can Give Parents Authority over Their Children?
Posted on August 19, 2009And if so, what are they? I have been thinking about this issue quite a bit lately. I am mainly interested in thinking about whether there are any constitutional limitations on states giving parents the ability to control their children's bodies - specifically in the contexts of medical treatment (therapeutic and non-therapeutic) and corporal punishment (or physical abuse)...
Michael Vick and Plaxico Burress, or, What Would Bentham Do?
Posted on August 19, 2009Perhaps it?s odd that I?m thinking about Michael Vick, Plaxico Burress, and Jeremy Bentham. After all, Vick, the NFL player who pleaded guilty to offenses arising from illegal dog fighting, finished his sentence of twenty-three months a while ago. (There?s been recent outrage, of course, over the NFL?s decision to reinstate Vick, and the Eagle?s decision to hire him)...
The Pleasure of Painful Scholarship
Posted on August 18, 2009In keeping with the legal academy's embrace of empiricism and original research, qualitative interviewing has become an increasingly popular methodology in legal scholarship. One of the most wonderful outcomes of qualitative research--the relationship that one develops with research participants--can also be the most terrifying...
Can More Police Equal Less Prisons?
Posted on August 18, 2009Eric Bailey reports on an intriguing conundrum in today's LATimes, will federal stimulus money channeled to state law enforcement frustrate the state's declared policy of reducing its prison population by sending yet more low level offenders to prison? Of course the law professor's answer is "it depends...
Beware of the Dolphins, My Friend
Posted on August 17, 2009After this post, Brian Leiter might want to avoid the beaches. Our mammalian counterparts may seek to test out his theory: "Indeed, as far as I can see, killing animals does not harm them at all, as long as it is done painlessly."
"Welcome to law school"
Posted on August 17, 2009One of the tasks / privileges that is attached to my new (temporary!) administrative designation is the "welcome, first-year students, to law school" talk at orientation. For my own first-year classmates and me, the "now you are off the treadmill" speech our Dean gave was, for better or worse, among the more memorable occasions of our law-school career...
"Jon & Kate (+ 8)" are great--at least for generating interesting legal questions
Posted on August 16, 2009There is no doubt that triplets, quadruplets, and other higher-order multiples (HOMs for short) attract attention. Taking our 23-month-old triplets out is always, well, a trip. People who venture out with us are always surprised by the attention that we draw, which runs the gamut from congratulatory to curious to downright rude...
How I spent my first day of the new semester?
Posted on August 16, 2009Sitting in the jury selection room at the United States District Court for the Southern District of Florida. I assume I will be cut loose after tomorrow once I explain the burden of showing up everyday for two weeks during an academic term. I also don't see either side putting me on a jury once they learn what I teach...
Is Mass Incarceration the New SUV?
Posted on August 15, 2009How fast things can change in American. One day you feel punked not to have an Expedition or Sequoia to drive to the mall in, and a couple of years later, you wonder who left that unsightly gas guzzler in your garage. Is mass incarceration about to flip? I've posted on its legal problems, but consider its cultural profile...
Is Using a Casebook Ever Justified?
Posted on August 15, 2009I have been teaching Civil Procedure for about five years now, and every time I begin prepping again, I am overcome by a distinct sense of discomfort with my casebook. Of course, I have looked at, and considered using, various civil procedure casebooks (and believe me, they are legion)...
Predicting Fraud
Posted on August 15, 2009Here's an interesting tidbit from this weekend's New York Times magazine profile of Bruce Bueno de Mesquita, a political scientist who uses game theory to predict political and corporate outcomes. The Times reports that Bueno de Mesquita offered to use his predictive software for Arthur Andersen "to predict which of Arthur Andersen's clients - including, at the time, Enron - were likely to engage in financial fraud...
Is Silence the Better Part of Valor?
Posted on August 14, 2009In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization: A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court...
Hiring Chairs for 2009-10: Announce Yourselves Here Please
Posted on August 14, 2009N.B. This has been bumped to the front, and will be every couple weeks or so. As is customary around this time of year, we are hoping law schools will use this space to share some relevant information regarding hiring for the coming year. Specifically, if you're a prawf, please share the following information related to the Fall 2009 and/or spring 2010 hiring season: a) your school, b) who's the chair and who are the members of your appointments committee (please also identify whether entry levels are separated from laterals, etc) and, c) if there are any special areas you're...
Text Book on Mass Incarceration: Coleman/Plata v. Schwarzenegger
Posted on August 14, 2009The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state?s counterproductive parole system...
No Causal Relation
Posted on August 14, 2009So, I leave Southwestern Law School in 2007. In 2009, actor Jerry O'Connell apparently decides to attend Southwestern as a student. I'm sorry to be deprived of the pleasure of teaching him. Although he still owes me for the four hours I just spent re-watching The 60s on VH1 over the last two nights, and a semester of my Legal Profession class would have more or less constituted a fair exchange.
Elgar Encyclopedia of Labor and Employment Law and Economics
Posted on August 14, 2009Fresh out of the oven, just got hold of the hard copy: Labor and Employment Law and Economic, Kenneth Dau-Schmit, Seth Harris and Orly Lobel. Elgar decided last year to transition its popular Encyclopedia of Law and Economics (Posner has a great forward in it) to specialized volumes, and the labor and employment law volume is one of the first of these subject-specific books...
The Lost Art of Dictation
Posted on August 13, 2009I have been interested in learning the lost art of dictation ever since I watched a judge dictate cogent and linear opinions, unscripted, from the bench. Clearly that requires impressive smarts, but I also think it has its roots in years of dictating memos, motions, etc...
On Crying Students
Posted on August 13, 2009At the Chronicle of Higher Education website, there is an interesting column titled "When Students Cry." Actually, scratch that. The column is reasonably interesting -- well-written, but you've probably seen it before. The responses to the column, on the other hand, are fascinating...
Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc
Posted on August 13, 2009Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs]...
Our duty to keep law schools amphibious...
Posted on August 13, 2009For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job...
The strange death of political sanity in America?
Posted on August 13, 2009Has there been a secular trend over the last fifteen years towards political hysteria on both Right and Left? Perhaps Richard Hofstadter was correct that we Americans have always been addicted to conspiracy theories and hyperventilated political hyperbole...
Yale Execs Nix Pix
Posted on August 13, 2009Here is an interesting reprise of the controversy over whether to publish parodic cartoons that depict Muhammad. The New York Times has this story about Yale University Press's decision not to publish those cartoons, and other images of Muhammad, in a forthcoming book called "The Cartoons That Shook the World," after consulting with the university and with several authorities on Islam and on counter-terrorism...
Recouping Bonuses From Innocent Executives
Posted on August 12, 2009This post, the second in a series about recouping executive compensation, looks at the SEC's recent action to recoup bonuses from an executive who was not charged with misconduct. This SEC action is the first to use the SOX 304 clawback provision this freestanding way...
Woodstock and the Legal Academy
Posted on August 12, 2009With the fortieth anniversary of Woodstock fast approaching, I've been getting nostalgic these last few days. Not nostalgic about the concert, since I wasn't there. But nostalgic about the music, which always takes me back to when I was first introduced to the music in college...
Shall we ever rid ourselves of bogus "town" meetings on national policies?
Posted on August 12, 2009The spectacle of President Obama's town meetings on healthcare reform inspires my question. President Obama did not invent this device -- it really hit its stride in the 1990s, when the Clintons discovered its potency as a stage for an empathetic politico -- but I wish that Obama would forego its use...
Evelyn Coke is dead. Long live Evelyn Coke.
Posted on August 11, 2009Having spent much of my blogging career obsessed with Coke v. Long Island Care at Home, I was sad to see that Evelyn Coke died. Her obituary was done very thoughtfully by the New York Times. Thanks to my boy T-Bone (aka T-Mac) for the pointer.
Fielding Commentary from "Concerned Citizens"
Posted on August 11, 2009As I enter my third year in what is pretty much the best job possible, it seems to me that, with the exception of publishing "hot topic" law review articles, being a law professor is most often a position where timing is not essential. One exception to that general rule, however, are those moments where we are called upon for media commentary in response to some pertinent news item...
Recouping Executive Bonuses
Posted on August 11, 2009Executive bonuses are in the news again, with the SEC complaint against Bank of America for allowing Merrill Lynch to pay up to $5.8 billion in discretionary bonuses, despite proxy statements suggesting that no bonuses would be paid. Bank of America and the SEC agreed to a settlement, but these settlements are subject to judicial approval for being "fair, reasonable and adequate...
John Brown, Dred Scott, Obama, and Citizenship--Part Two
Posted on August 11, 2009As I mentioned in an earlier post, last week I attended a talk about John Brown, and found myself thinking about Dred Scott, Obama, and citizenship. This post elaborates. The Supreme Court?s decision in Dred Scott incensed John Brown. Not only was there Chief Justice Taney?s statement that blacks were ?beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect...
Judicial Character (and Does it Matter)
Posted on August 10, 2009I'll have a few more posts about scholarship derived from my SEALS panel, but let me take a break and actually do something that was the subject of one of those panels: promote my scholarship. I have posted a new paper on SSRN titled Judicial Character (and Does it Matter)...
Marijuana Law
Posted on August 10, 2009There is something growing this summer in cities and counties across California. Its not as pungent as the cannabis being cultivated in the dry hills, but for socio-legal scholars it may be just as exciting; its marijuana law. In 1996 Californian's passed Proposition 215, the Compassionate Use Act, which exempted from existing state possession and use laws those who: "use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic...
Arthur and the Law
Posted on August 10, 2009As Dan adjusts to life with Cubby, the great question is how we balance scholarship with parenthood. One possible answer: You never know when legal scholarship will appear in unexpected places. Case in point: Today on Arthur (my daughter's post-nap show of choice), an expensive cake plate was broken in the living room and a video/audio recording seemed to show that the plate had broken while Arthur and his friend were throwing a baseball around on their way to play outside...
(In)Fertile Thoughts
Posted on August 09, 2009With all this talk of babies lately, the time seems optimal to describe my own article in progress, tentatively entitled "Common Misconceptions: Closing the Gap Between Legal Constructions of Women in the Infertility and Abortion Contexts." The idea for the article came to me as I was reading a law review article written in 2000 in which the author stated that infertile women, desperate to conceive, were basically prone to irrational decision making in opting to undergo fertility treatments, particularly in vitro fertilization, and thus may lack capacity for informed consent: Hungry for information, these patients are well-educated regarding the...
Does Legal Scholarship Have Any International Rock Stars?
Posted on August 07, 2009Occasionally in my research I happen upon a book or article written by a legal scholar from England, Australia, or Canada that is germane to my own research. The author is often someone I have never heard of and that I have not (that I remember) seen cited elsewhere on the topic...
Malcolm Gladwell and Atticus Finch: Neither Goes Far Enough
Posted on August 07, 2009I know I promised to continue my earlier post John Brown, Dred Scott, Obama, and Citizenship, but since I?m of the generation that?s easily distracted?actually I?m a bit older, but who?s counting??I?m claiming license to write about something entirely different: Malcolm Gladwell and Atticus Finch...
Scholarly "Dead Ends"
Posted on August 07, 2009Today, following up on my posts based on my SEALS panels on planning and promoting your scholarly career, I want to talk about a subject that most of us know something about but few of us discuss in the detail it deserves: the scholarly dead end. The thoughts here are my own, but they're inspired by the wonderful talk on this subject at SEALS by Prof...
Sotomayor Confirmed
Posted on August 06, 2009The vote was 68-31; nine Republicans joined 59 Democrats (Sen. Kennedy did not vote).
Cubby Markel's Got a Name! Or two... or three.
Posted on August 06, 2009The following is the text of some remarks shared at today's "Brisening" for Baby Boy Markel. Beloved family and friends, Rabbi Asa, thank you for joining us from far and near on this auspicious day! We extend to you our warmest greetings and heartfelt blessings...
Gedicks on Group Rights
Posted on August 06, 2009Via Larry Solum, I see that Fred Gedicks of BYU has posted an interesting new paper on SSRN called The Recurring Paradox of Groups in the Liberal State. It's an interesting read for those of us, including Rick and I, who have written on questions involving group rights, First Amendment institutionalism, religious group autonomy, and so on...
I bet you always wondered....
Posted on August 06, 2009I'm delighted to be invited back to PrawfsBlawg -- and very impressed that Dan has managed to stay on top of the monthly rotations, what with a newborn baby confiscating his sleep these days. Why, I believe Dan has even claimed to have an empty inbox at the moment...
On Writing "Small"
Posted on August 06, 2009Yesterday I posted about the SEALS panel I participated in on advancing your scholarly career. (Of course I claim no special qualifications in this regard.) I'd like to continue discussing these issues, and the other panel I participated in, on promoting your scholarship, over the next few posts...
Final Version of Executing Retributivism is Now Available
Posted on August 05, 2009Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009))...
First Assignments
Posted on August 05, 2009The first assignment I give in Civil Procedure is likely the first regular class assignment ever for the incoming 1Ls (one aspect of teaching an 8:30am Monday morning class!). Although we spend most of the first class on an problem/discussion that works well, for the last few years I have also assigned Marshall v...
John Brown, Dred Scott, Obama, and Citizenship
Posted on August 05, 2009There is very little to do in the small Connecticut village where my partner and I have a summer house, and when there is something on the local calendar, we treat it as an event. Yesterday's event was Tuesday's at Six, a weekly lecture, and yesterday's topic was John Brown, the abolitionist...
On SEALS and Strategy vs. Humility
Posted on August 05, 2009I'm back from one of those tough rigorous trips that characterize law prof conferences: the annual conference of SEALS, the Southeastern Association of Law Schools, at the Ritz in West Palm Beach. Naturally, given the name of the association, the attendees come from schools such as Indiana, Seattle, Hofstra, Brooklyn, and Windsor...
Fagundes & Masur on Costly Screens and the Creation of IP
Posted on August 05, 2009In the (self-ag-)grand(-izing) tradition of Prawfs visits, I wanted to use my last post here to mention an article I just posted to SSRN along with my co-author Jonathan Masur. Titled ?Costly Screens, Value Asymmetries, and the Creation of Intellectual Property?, the paper uses costly screen theory to push back against substantive critiques of the copyright and patent vesting systems, and to explain why positive law creates such different thresholds for vesting these exclusive rights in information...
A new Ten Commandments case
Posted on August 05, 2009A few days ago, the U.S. Court of Appeals for the Tenth Circuit denied an en banc rehearing in a Ten Commandments case. (A panel of that court had invalidated a courthouse-lawn display in Stigler, Oklahoma. (HT: Prof. Friedman). Several judges filed interesting dissents from the denial of rehearing (available here)...
At the Big 10 Aspiring Scholars Conference
Posted on August 04, 2009Thank you very much for the warm welcome, Dan. I'm very happy to be joining Prawfs for this month. I am writing tonight from Champaign, IL, where I attending the Big 10 Aspiring Scholars Conference, a very helpful gathering where untenured professors as well as VAPS, fellows, and others seeking to join the legal academy can share works in progress...
Law School Hiring Thread, 2009-10, Thread One
Posted on August 04, 2009NB: This thread will be moved to the front every ten days or so. (FAR forms are due soon; feel free to pose q/a's about it). While the first FAR form has not yet been circulated yet, this thread is for both law professors and people who are on the market this coming year for becoming a law professor...
Health-care protests and free-speech models
Posted on August 04, 2009Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense...
Federal Court Orders California to Reduce Its Prison Population to 110K
Posted on August 04, 2009In a historic ruling certain to move quickly to the Supreme Court, the 3 Judge court of the Northern and Eastern districts of California, operating under the Prison Litigation Reform Act in the consolidated cases of Coleman v. Schwarzenegger (NO. CIV S-90-0520 LKK JFM P) and Plata v...
Horne v. Flores: The Roberts Court Takes Aim at Institutional Reform Litigation
Posted on August 03, 2009In the rush of significant decisions handed down by the Supreme Court in the last week of June, little attention has been paid to Horne v. Flores (No. 08-829). It may be because the 36 page majority opinion by Justice Alito, and the 48 page (with appendices) dissenting opinion by Justice Breyer are a heavy schlog through a 17 year old litigaiton raising claims under the Equal Education Opportunity Act of 1974 and most recently involving application of Federal Rules of Civil Procedure 60(b)(5)...
Medical Versus Legal Education
Posted on August 03, 2009I'm going to sneak in here one last time (before Dan cuts off my access) to record some reactions to the University of Michigan Medical School White Coat Ceremony, which, as a commenter to my earlier post noted, was indeed quite moving. (If you hadn't guessed, that's Matthew the student-doctor in the middle, and Alene, on his left, is where he gets his good looks...
Rotations
Posted on August 03, 2009I've been a bit, um, occupied the last few days so I apologize for the delay in getting this up, but I wanted to use the occasion of the new month to thank all the wonderful guests we've had in the past month; some of them may linger as they get a few last things off their chest, and I think Jonathan Simon will be staying on the whole month...
IKEA Meditations
Posted on August 01, 2009One of the charms of being able not to retire and teach is being just a little unstuck in time with respect to my professional peers. While Dan and Wendi get ready for the bris of their little boy, I'm in Ann Arbor helping the boy through whose bris I kept my eyes tightly shut move into a new apartment as he prepares to start medical school on Monday, following his White Coat Ceremony tomorrow...
An argument for law school recruitment and hiring
Posted on July 31, 2009This is a joint post with Nelson Tebbe: As a matter of chance, we both have been guest-blogging this month, we have offices down the hall from each other, and we are both serving on our school?s entry-level appointments committee. So we thought we would join forces and dedicate our final post to a few reflections on the unusual market conditions this year...
System Externalities
Posted on July 31, 2009Traditional welfarist analysis considers whether a given change in law is optimal by considering the incentives and disincentives it will have on affected actors. Take cap and trade for example. If we give carbon emission credits to domestic industries and allow them to buy and sell them, we can limit emissions, efficiently distribute the production of those emissions, and generate revenue for low-pollution industries?apparently a Pareto-optimal move...
SEALS Panel: Enforcement of Foreign Defamation Judgments
Posted on July 31, 2009For those of you at SEALS and looking for something at 4:30 to build an appetite for dinner, there will be a very good panel on the enforcement of foreign defamation judgments, the anchor panel for the two-day First Amendment Workshop. Speakers will critique the pending Free Speech Protection Act of 2009 (a subject I have written about previously) and general principles of how the First Amendment should affect domestic enforcement of foreign judgments against speech, where that speech is fully protected under U...
Some Parting Thoughts on Research Assistants for Junior Profs
Posted on July 31, 2009Since beginning my law teaching career, I have had a number of research assistants, whom I have asked to perform a variety of types of projects for me. As I see it, an RA position should benefit both the prof and the student. Perhaps because these goals are at times in conflict, I have not yet hit upon an RA model that seems to work particularly well...
Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?
Posted on July 31, 2009By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?" The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme...
Results of laptop ban survey
Posted on July 30, 2009After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump: My apologies for the formatting; I could not get them to line up...
Planning and Promoting Your Scholarly Career
Posted on July 30, 2009Next week is the annual conference of the Southeastern Association of Law Schools, or SEALS, which will be held in lovely Palm Beach, Florida. I will be appearing on two panels. Sunday's panel is: ROUNDTABLE DISCUSSION: PLANNING YOUR SCHOLARLY CAREER This panel will examine ?scholarly paths,? and includes a variety of perspectives on that topic...
baby boy markel
Posted on July 30, 2009Wendi and I welcomed a little and delicious 7 lb 5 oz baby boy into the world last night at 1058 PM. Everyone is flourishing. The baby naming ceremony and bris will take place next week on Thursday in the Hassee. More details and pics to follow. With gratitude and blessings, Wendi Adelson and Danny Markel
Two Cheers for COPS
Posted on July 29, 2009Behind the scenes both the Obama Administration and Police Unions must have winced over last weekend as Gates-gate (as Thomas Frank among others dubs it) built, knowing that Tuesday would be "police day" in the national recovery program, with Vice President Biden and AG Holder headlining the roll-out (AP Coverage) of 1 Billion in "stimulus" funding for cities to hire or not-lay off police officers...
Law Schools, Law Firms and Skills
Posted on July 29, 2009The posts on legal education (both here and elsewhere) have been very interesting, particularly for a professor beginning her second year of tenure-track teaching. Like most people on the academic job market, my primary interests were theoretical, albeit with a practical bent...
Conference for Aspiring Law Profs
Posted on July 29, 2009The recent posts about the fall teaching market have reminded me about a conference for aspiring law professors that Arizona State will be hosting on October 17th. The conference is designed for people who are currently working as VAPs or Fellows, and who intend on going on the job market this fall...
Living Outside the Paradigms
Posted on July 29, 2009Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines. (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it...
The Benefits (and Costs?) of Inactivity
Posted on July 29, 2009I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don?t have to be a bar member to work as a law professor...
The law-jobs market: What is to be done?
Posted on July 28, 2009While I do not think there's any reason people should have noticed the absence, I regret being such a double-plus ungood Prawfsblawgger this summer and appreciate all the great stuff others have been writing. (Blame it on Arizona, and Jackson Hole, and the North Cascades...
Elmendorf and Leib on Citizens' Budgets
Posted on July 28, 2009We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes...
Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?
Posted on July 28, 2009This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation...
Law School Hiring Thread, 2009-10, Thread One
Posted on July 28, 2009NB: This thread will be moved to the front every few weeks. While the first FAR form has not yet been circulated yet, this thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding a range of things: a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked...
Late Summer Law Review Submissions
Posted on July 27, 2009I was speaking with a few colleagues recently about the late summer law review submission window, and it seemed that we each had different understandings about when exactly the window is. One of us thought it ran from the second week in August to the first week of September, another thought the window began in late July, and the third thought that the window opened a week before classes began and closed in late September...
Baseball, punishment, and Pete Rose
Posted on July 27, 2009Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year...
How Not to Be a Lawyer - Theatrical Version
Posted on July 26, 2009I'm immeasurably proud of all my children, including James, who comes home next week from his summer as a teaching assistant in the EPGY program at Stanford, and Matthew who starts med school at Michigan next week (where we'll be attending his White Coat Ceremony), but today we focus on my daughter, Arielle (Columbia, MFA, Dramaturgy, expected '10, pictured, in the middle between director Jeremiah Matthew Davis and playwright Daniella Shoshan), who combines an actor's creative instincts, leadership, and an amazing ability to organize things as the producer of Tell It to Me Slowly, one of the plays featured in...
Taxing Punitive Damages, etc.
Posted on July 26, 2009It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there...
Advice for Those Travelers with Bottles of Palinka or Other Souvenir Spirits, and Observations on the Endowment Effect
Posted on July 26, 2009You have already checked your bags and gone through security in an airport in Europe such as Budapest's Ferihegy Airport. You have 7,000 or so Hungarian forints ($35) just burning a hole in your pocket, so you decide to invest in a bottle of Zwack Sándor Nemes Pálinka (barack flavor - and that's not a tribute to our President - it's Hungarian for apricot, pronounced "bar-RATZK"), which you have sampled, and find to be a delightful way to anticipate your gulyas or your csirke paprikas...
President Obama and the Paradoxes of Police Power
Posted on July 25, 2009The end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper)...
More on the Gates Arrest
Posted on July 25, 2009Paul and Dave have both written very interesting posts on the Gates incident, and they have me wondering about policing and class. In particular, I'm interested in how police interact with middle and upper class citizens (and vice versa). My own interactions with police officers have sometimes been quite unpleasant --- not because the officers were wrong to stop me or because I had been subject to any sort of profiling --- but rather because the officers treated me with such a lack of respect that I felt angry and humiliated...
Concluding Thoughts on Teaching in a Summer LL.M. Program
Posted on July 24, 2009For the first time in two weeks, I've actually relaxed a little before class, in part because I know what I'm going to do today - the last of ten consecutive weekdays in which I've taught a two-hour long class in federal securities regulation to non-U...
Memo to the bond market
Posted on July 24, 2009Ok, I know nothing about bonds (its basically a loan, right?), but I have watched California prisons grow steadily over the second half of my now 50 years. While it looks certain that the California legislature will pass, and the governor sign, the complex budget compromise (read the SFChron coverage), if I were loaning money to the state on the basis of there budgetary projections, I would start worrying now...
What's in a (Jewish) name?
Posted on July 24, 2009Ron Rosenbaum at Slate pens an open letter to Jon Stewart, urging him to use his given surname of Leibowitz professionally (Stewart's given name is Jonathan Stuart Leibowitz). Rosenbaum's argument is that Stewart's decision early in his career to change his name reflects the remnants of the now-antiquated, 20th-century belief that Jewish performers needed less-identifiably Jewish names to gain acceptance from the (subtly anti-Semitic) mainstream American society...
Cambridge Police
Posted on July 23, 2009I have been thinking for a few days about the Gates incident, trying to decide if I wanted to comment. I am somewhat astounded at the number of people who are willing to be triers of fact on pretty sketchy evidence; my take on the world is more things like this arise out of fear, miscommunication, confusion, pride, and escalation than racism or bad intent...
Art, Licensing Markets, and the Limits of Unauthorized Appropriation
Posted on July 23, 2009Doug Lichtman?s IP Colloquium has already been mentioned on this site. It?s a great series of conversations about contemporary issues in intellectual property featuring guests from academia (including PrawfsBlawg?s own Dan ?Dan? Markel), law practice, and the entertainment and technology industries...
Establishment and Fairness
Posted on July 23, 2009I just received printed copies of pieces that arose out of a roundtable on Kent Greenawalt?s important book, Religion and the Constitution: Establishment and Fairness. Constitutional Commentary hasn?t yet posted the table of contents, but the pieces themselves are available on Westlaw if you search for ?Symposium: Establishment and Fairness? in the JLR database...
Trying Terrorism Suspects in Article III Courts
Posted on July 23, 2009In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere...
BlackBerry Fines
Posted on July 22, 2009Maureen Dowd has a column in the New York Times today criticizing the practice of using a cell phone while driving (regardless of whether it is hands-free). In fact, she begins the column by telling a personal story of how, driving home from visiting her mother in the hospital late at night, she checked her cellphone messages, ran a red light and caused a very minor accident...
Overturning Twombly and Iqbal
Posted on July 22, 2009Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard. This is a welcome move, even if I do not see it going anywhere...
"You have no idea who you're messing with": Another view
Posted on July 22, 2009I began to write a comment in response to Paul?s really interesting post about the Henry Louis Gates arrest, but it ended up growing a bit long, so I decided to develop it as a separate post. To begin, I share Paul?s general reaction to the phrase "You have no idea who you're messing with" (which Gates may or may not have said; the reports appear conflicting)...
Read my lips, "no early releases from prison"
Posted on July 22, 2009As day light breaks over the second day of California's epically ugly budget compromise there are signs the deal may yet fall apart on the way to a legislative vote later this week. The problem is not that draconian cuts in social services to the poor and disabled, the open thievery of county revenues, or the very obvious gimmicks like moving the dates of pay days from one fiscal year to another, its the possibility that some California prisoner, somewhere, may leave a prison early...
Welcome to the World, Military Commission Reporter
Posted on July 22, 2009Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction)...
The Shoes
Posted on July 21, 2009I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and teaching two hours a day in the heat of the afternoon just about did me in. My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend...
My God! It's Full of Stars!
Posted on July 21, 2009From the Times, here's the story of an amateur astronomer who discovered "a new hole the size of the Earth in Jupiter?s atmosphere, apparently showing that the planet was hit by something large in recent days." Here's a picture: The amateur astronomer is quoted as having said: ?If anything like that had hit the Earth it would have been curtains for us, so we can feel very happy that Jupiter is doing its vacuum-cleaner job and hoovering up all these large pieces before they come for us...
Monitoring External and Internal Corporate Security
Posted on July 21, 2009The WSJ law blog has a new story up about a corporate security scandal at Deutche Bank, wherein the Bank's private detectives engaged in a number of acts that, in retrospect, sound either loopy (sending a dead microphone hidden in flowers to the COO to see if he would notice it) or more serious (spying on a board member suspected of leaking information to a journalist)...
Review of Hamburger's Law and Judicial Duty
Posted on July 21, 2009Marc DeGirolami has already written on this page about Philip Hamburger's wonderful recent book Law and Judicial Duty. I've written a short (and favorable) review of that book for Engage: The Journal of the Federalist Society's Practice Groups. It can be found here...
On "You Have No Idea Who You're Messing With"
Posted on July 21, 2009On the basis of the police report, news accounts, and Henry Louis Gates's own account, I think the police were clearly wrong to arrest him, particularly once they confirmed that he was who he said he was and was where he was supposed to be. Whether it was a result of simple racism, or of taking unwarranted punitive action because the police found Gates difficult and arrogant, or abuse of authority, or some combination of all of these, I can't say...
Congress and Sports
Posted on July 21, 2009Over at my non-domicile home at Sports Law Blog, I have a post seeking a metric for when Congress or individual members ought to get involved in matters relating to sports. The trigger for my question is recent efforts by Rep. Steve Cohen to push the NBA to undo its 19-year age limit for entry into the league, which Cohen describes as "discriminatory...
Helter Skelter: The Truth Ain't All That's Out There
Posted on July 20, 2009The broad fear of "stranger danger" that has characterized American law and society since the late 1960s and the populist punitiveness that goes with it have many origins. Some of them are undoubtedly historical. The gated community may trace its DNA to the experience of European settlement of the continent in the face of often fierce resistance by Native Americans...
The Amazing Metrano, Family Guy, and Fair Use
Posted on July 20, 2009The acerbic animated show Family Guy often ridicules popular figures harshly and very specifically, so it?s unsurprising that the show has drawn the ire of the targets of its ridicule, sometimes in the form of copyright infringement suits aimed at its studio and creators...
Presidential Popular Constitutionalism
Posted on July 20, 2009I just received a copy of the March issue of the Fordham Law Review. Probably I was on the mailing list because it includes the proceedings of an interesting ethics symposium and a tribute to my former Dean Mary Daly. What I ended up reading, though, was an article by Jed Purdy, Presidential Popular Constitutionalism...
To Erie or Not To Erie?
Posted on July 19, 2009I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching. As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include? The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice...
Hiring Chairs for 2009-10: Announce Yourselves Here Please
Posted on July 17, 2009N.B. This has been bumped to the front, and will be every couple weeks or so. As is customary around this time of year, we are hoping law schools will use this space to share some relevant information regarding hiring for the coming year. Specifically, if you're a prawf, please share the following information related to the Fall 2009 and/or spring 2010 hiring season: a) your school, b) who's the chair and who are the members of your appointments committee (please also identify whether entry levels are separated from laterals, etc) and, c) if there are any special areas you're...
Final thoughts on the Sotomayor hearings
Posted on July 17, 2009In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes). First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This...
Private Law Transactions and Public Law Obligations
Posted on July 17, 2009When should we allow governments to deploy private law rules in order to circumvent public law obligations? Two cases this year call that question to mind: Summum v. Pleasant Grove and Salazar v. Buono. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment...
Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers
Posted on July 17, 2009Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump. The Duty to Rescue and the Registry for Caregivers: A Guest PostBy STEPHEN J. DUBNER We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties...
Misunderstanding Judging: Foreign Law
Posted on July 16, 2009There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point. At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law...
Should Parents Get Sentencing Discounts? Our Third Freaky Post
Posted on July 16, 2009Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there...
Summertime Interviews with SCOTUS Justices
Posted on July 16, 2009Update and moved to the front. There's now a new interview between Bob Cohn and Sandra Day O'Connor. I've put the video up after the jump. Perhaps the Justices are a bit sad that SS is getting all the attention at the hearings. How else to explain the spate of interviews with the normally reticent Court's members...
The Wise Prosecutor
Posted on July 16, 2009In chapter 2 of my book, Governing through Crime (OUP 2009 pap), I describe how the war on crime transformed the political significance of prosecutors: The prosecutor has long been a unique and important officeholder within the American systems of justice and government, with deep but limited powers and a special claim to represent the local community as a whole...
The First Day of an Upper-Level Elective
Posted on July 16, 2009It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions. I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to...
More news from the Ponzi-sphere
Posted on July 16, 2009Just when you thought you could forget about Bernard Madoff, the government announced yesterday that his accountant, David Friehling, has agreed to waive indictment and that the United States Attorney's Office in Manhattan will file a criminal information instead...
One More Thought About Conferences
Posted on July 16, 2009I got a lot of interesting feedback on my post last week about conferences. Last week I talked about formats. Recently, I've been thinking about conference audiences. Most of the conferences I've been to have been geared towards academics. To the extent that the audience is bigger than the conference participants (which is not the case at many of the conferences I have attended), the attendees tend to be other academics...
Notes on Teaching in a Overseas Summer LL.M. Program
Posted on July 15, 2009I realize, given my usual posting patterns, some may think that I have fallen into the Danube. Some may hope that I've fallen into the Danube. A bit of background. Suffolk offers a LL.M. in U.S. and Global Business Law that is obtainable in three years, with intensive two-week stints each summer in Budapest at the Eotvos Lorand University Faculty of Law, and intervening online courses...
On recusal
Posted on July 15, 2009One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v...
Summertime Interviews with SCOTUS Justices
Posted on July 15, 2009Perhaps the Justices are a bit sad that SS is getting all the attention at the hearings. How else to explain the spate of interviews with the normally reticent Court's members... On the heels of Emily Bazelon's interview with Justice Ginsburg in the NYT on Sunday, now we have Bob Cohn's video interview with Justice Breyer on the Atlantic's website.
Bork, Sotomayor, and the Double-Edged Sword of Empathy
Posted on July 15, 2009My official position toward the Sotomayor confirmation hearings (and all judicial confirmation hearings) is annoyed indifference. When family or friends ask my opinion of how they?re going, I tell them I?ve got no interest in listening to a bunch of senators bloviate self-importantly while a nominee recites painstakingly rehearsed catch phrases designed to communicate as little substance as possible...
Partners in the Law Firm Market Downturn
Posted on July 15, 2009If you read just about any law journal or Above the Law, you know that associates in big law firms have experienced the brunt of the downturn in the market for law firm services. Associates have been fired, suffered cuts in their compensation, and have seen their start dates deferred...
Full Professor, Without Tenure
Posted on July 14, 2009At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure. The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level...
Marc Dreier's Sentencing - 20 years
Posted on July 14, 2009Marc Dreier, the law firm partner who defrauded his hedge fund clients of hundreds of millions of dollars, was sentenced yesterday by Judge Rakoff in the Southern District of New York. Although Dreier's attorney had argued for a sentence of 12 and 1/2 years' imprisonment, the 20-year term that Judge Rakoff imposed was far less than the 145 year term that the government had sought in its filings (available here)...
Sessions on Sotomayor
Posted on July 14, 2009Jeff Sessions is one of my home-state senators. Never having met him, I have no reason to think he's a foolish man. But in my view, his opening statement at yesterday's Sotomayor hearings says some foolish things. The one that strikes me the most is this statement: Indeed, our legal system is based on a firm belief in an ordered universe and objective truth...
Barros on Advanced Placement for Law School
Posted on July 13, 2009Just to throw a little more spicy paprika into the "how should we re-engineer law school?" mix, Ben Barros from Widener (otherwise known as PropertyProf) has a post suggesting that basic doctrinal law courses be taught at the undergraduate level, and that students be offered the chance to place out of them when entering law school (akin to the Advanced Placement program that exists between colleges and high schools)...
Toobin Reference at the Sotomayor Hearing
Posted on July 13, 2009So I've spent most of the morning watching the Sotomayor hearing on CNN (and playing with my new iPhone, which allows me to voice-google factual statements I hear on TV --- how cool is that?!). Though many of the senators' statements are relatively boring, I was struck by Senator Sheldon Whitehouse's comments about Chief Justice Roberts...
Rex v. Djinn
Posted on July 13, 2009A couple years ago in this space, I wrote about the now-defunct historical practice of haling non-human animals into court for offenses as varied as destroying crops, attacking humans, and even (ew) adultery. This practice raised lots of interesting questions about legal status, but was mostly a historical footnote, and I figured that the practice of suing non-humans (aside from rights-bearing legal fictions like corporations) was more or less defunct...
The Rule of 10
Posted on July 13, 2009I started last week with the proposition that sentences for violent crime are too long and that overly long sentences for the violent anchors a system of mass imprisonment. I want to come back later to the dynamics that might explain how fear of violence generates support for incarcerating the disorderly, but for now I want to raise a more provocative point...
Levinson on the Vanishing Book Review
Posted on July 13, 2009Along with my friend Al Brophy (writing at the Faculty Lounge), I've beat the drum quite often here lamenting the relative paucity of book reviews in student-edited law reviews and arguing that student editors should be aware of and remedy this deficit...
Value in hearings after all?
Posted on July 13, 2009Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole...
Bye Bye (and a McSweeney's Piece for the Road)
Posted on July 13, 2009I just wanted to say farewell for now, as this will be my last Prawfs post for a long while, though I expect to be back for another guest stint in December. Thank you to Dan and all the Prawfsers for letting me hang out here long after I ran out of anything to say...
The Attorney-Client Privilege and the Collateral Order Doctrine
Posted on July 13, 2009It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far. Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term...
Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,
Posted on July 13, 2009Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there...
Dear Orin...I Mean, Sen. Cornyn
Posted on July 12, 2009Senator John Cornyn of Texas has very generously collected all of his daily questions for Judge Sotomayor on his web site in one place. Some of them are quite good, some not so good. Many of them are questions in the same way that "questions" at faculty workshops and public appearances (watch C-SPAN's book channel some time) are questions, which is to say, they consist of a number of controvertible premises and an over-simplification of the opponent's position, and then tail off into, "So, um, tell me what you think about all that...
Jo Reggelt from Budapest
Posted on July 12, 2009That's good morning. This is not a language for amateurs. A word on the danger of tight international connections. Northwest's first A330 in Detroit destined for Amsterdam on Friday night decided it was broken, so the company flew another one in from Minneapolis, which was fine, except that my Amsterdam connection to Budapest was one hour and twenty five minutes, and we left one hour and twenty minutes late...
Something else I wish I had written
Posted on July 11, 2009Dahlia Lithwick perfectly captures everything I think and believe about the Kabuki theatre that is the upcoming Sotomayor hearings before the Senate Judiciary Committee. Of course, I have agreed to be a guest commentator at ACSBlog this coming week, so I need to find something to say other than "this is a ridiculous charade...
CTA9 rejects pharmacists' religious-conscience claims
Posted on July 11, 2009The Los Angeles Times has the story, here, about the decision in Storman's v. Selecky: The right to freely exercise one's religion "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," the 9th Circuit panel wrote...
Sheila B. Scheuerman on Markel's "Retributive Damages"
Posted on July 10, 2009Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence...
In Defense of Law Schools, by JB Ruhl (FSU Law)
Posted on July 10, 2009N.B. This post is by JB Ruhl, a colleague of mine at FSU. There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty...
Beazer Homes and the skewed signals of deferred prosecution agreements
Posted on July 10, 2009Floyd Norris has an article in the New York Times today criticizing the Deferred Prosecution Agreement that the Department of Justice recently announced between Beazer Homes and the United States Attorney for the Western District of North Carolina. According to the Information filed by the government, Beazer Homes engaged in a number of accounting frauds, which of course hurt home buyers and shareholders alike...
Searle Young Legal Scholars Research Fellowships
Posted on July 10, 2009I thought this opportunity might be of interest to some Prawfs readers: The Federalist Society is pleased to invite applications for Searle Young Legal Scholars Research Fellowships. Up to two junior tenure-track faculty members will receive funding to take a semester-long research leave in order to make major progress on an important scholarly article...
Excluding Religion
Posted on July 10, 2009Should government be able to specifically exclude religious actors and entities from its support programs? I have argued that, to a greater degree than is commonly supposed, officials ought to have constitutional latitude to decline to support religion, even when they fund comparable activities...
Leib v. Gerken/Elmendorf on Electoral Reform Design: 4 years later
Posted on July 10, 2009About 4 years ago, I went back and forth here and on Balkinization with Heather Gerken (Yale) and Chris Elmendorf (UC Davis) about Canada's innovative approach to electoral reform: the Citizens' Assembly. Canada gathered together a group of lay citizens to deliberate about a new electoral system for British Columbia...
Walking the Fine Line Between "Wide-Ranging" and "Shallow"
Posted on July 10, 2009I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing. Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers)...
Court of appeals reverses injunction on pharmacist regs
Posted on July 10, 2009This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections...
Puzzles and Prescriptions
Posted on July 09, 2009When I was first preparing to go on the teaching market, a wise elder told me that all law papers had to answer the question ?what should I do?? In other words, she said, the sine qua non of a legal academic paper is that it must conclude by stating some normative prescription...
Our Intro Freaky Post
Posted on July 09, 2009Over at the NYTimes' Freakonomics Blog, Ethan, Jennifer Collins and I have an introductory post up discussing our new book, Privilege or Punish. A reminder: if you use the Promo Code 27878, you get the book at 20% off. And if that's still too much for you or your library -- which is understandable since the hardcover is still pricey -- just shoot me an email and I'll happily send you a free PDF of the book so long as you use/read it for personal use only...
Religion and the Politics of Eminent Domain
Posted on July 09, 2009Should religious landowners enjoy special protection from eminent domain? A controversial federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), already applies a presumption of illegality to all zoning and landmarking restrictions that substantially burden religious land use...
Reconsidering the Punishment of Violent Crime
Posted on July 09, 2009For those of us who believe that America imprisons too high a portion of its population, recent years have seen mixed progress. Many states have adopted measures that aim to move drug-addicted offenders involved in drug and property crime from jail or prison toward treatment under the threat of jail...
Responsive musings on conference formats
Posted on July 09, 2009Carissa raises some good points about the different types of conference formats. I wanted to add some comments here. First, another conference format to consider is the roundtable or moderated discussion, in which there are no prepared papers or remarks, but an open-ended (and hopefully freewheeling) conversation among the panelists, usually with a moderator guiding the proceedings...
Musing About Conference Formats
Posted on July 09, 2009Having spent part of the day planning a trip to DC for an upcoming conference, I?ve been thinking a bit about conference formats. Off the top of my head, I can think of four major conference formats: Half-Baked ideas ? presenters speak briefly (usually on a relatively general level) about a new project & then the attendees give feedback and/or advice Workshop ? presenters submit drafts, which everyone reads beforehand, and then the conference is largely devoted to their comments Commentor ? authors present a paper and the conference supplies a formal commentor, who has read the paper prior to...
Fun Civ Pro fact of the day
Posted on July 08, 2009So there is a reason to watch Jeopardy other than when Paul is on: You might learn things, even about civil procedure. Yesterday, I learned that Tennessee Williams (a St. Louis native) used to work at International Shoe--according to the question (answer?), it was while working there that Williams met a man named Stanley Kowalski...
Wargaming Iran
Posted on July 08, 2009My friend Peter Berkowitz has a fascinating piece in the July 13th issue of the Weekly Standard about the internal deliberations within Israel regarding a strike against Iran's nuclear facilities. Peter was just there for a few weeks schmoozing with a variety of high-level analysts and security officials; the report he offers of these conversations is quite interesting...
More on Brady violations
Posted on July 08, 2009Earlier in the week, I blogged about Brady violations and theorized that now might be the time to improve the DOJ's compliance on such matters by changing its Office of Professional Responsibility. In response, some commentators worried that I might be relying too much on internal mechanisms to do the job...
Yankee Stadium "God Bless America" lawsuit settles
Posted on July 08, 2009The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here. According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees...
Marc Dreier's Sentencing
Posted on July 08, 2009The WSJ law blog is reporting that lawyer-turned-fraudster Marc Dreier is scheduled to be sentenced Monday by Judge Jed Rakoff in Manhattan. After Madoff's sentencing, Dreier's own judgment day seems anti-climactic, and perhaps that is to his benefit...
Budapest
Posted on July 07, 2009Starting next week, I'll be reporting from Budapest, where I will be teaching U.S. Securities Law in 20 hours over two weeks at Eötvös Loránd Tudományegyetem (the Faculty of Law at Eötvös Loránd University), where Suffolk University Law School offers an LL...
Litigating the War on Terror # 1: Telecom Immunity
Posted on July 07, 2009Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week. Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No...
Are You a Lawyer?
Posted on July 07, 2009A couple years back in this very space, guest prawfsblawgger Liz Glazer invoked Bob Slydell?s immortal line from Office Space (?Just what would you say ? you do here??) to frame a discussion of the challenges of explaining to non-lawprofs ? well, just what it is we do here...
Future Dangerousness and Burdens of Proof
Posted on July 07, 2009I have been thinking recently about the role of punishment in preventing future crime. Criminal law theorists tend to express unease with the idea of punishing behavior that creates only a risk of harm rather than a harm itself (think drunk driving laws or laws prohibiting felons from owning firearms)...
Law Schools and the Freedom of the Church
Posted on July 06, 2009As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money...
Ricci Glitch
Posted on July 06, 2009The following post was written by my FIU colleague Kerri Stone, who writes on employment discrimination: In Ricci v. DeStefano, the Supreme Court held that ?under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action...
Brady and Prosecutorial Compliance
Posted on July 06, 2009Brady violations - failures by prosecutors to hand over exculpatory or impeaching evidence to the defense - have been surfacing in the news lately, particularly with regard to federal prosecutions. Ted Stevens' conviction was undone by Brady violations, and in this press release, the DOJ announced it was withdrawing its prosecution of two Alaska officials in a separate corruption prosecution due to Brady-related misconduct...
Symposium: Establishment and Fairness
Posted on July 06, 2009Last fall, Notre Dame Law School hosted a roundtable conference dedicated to a discussion of Kent Greenawalt's then-recently-published "Establishment and Fairness." (Here is Paul Horwitz's report.) The folks at Constitutional Commentary were kind enough to publish the (very) short "admission ticket" papers that the dozen-or-so participants submitted in the current (Summer 2008) issue (Vol...
Glad to be Back
Posted on July 06, 2009Thanks to Dan and the rest of the Prawfs for inviting me back this month. I'm spending this summer working on a few different projects --- the recent increase in federal and state sentencing ranges for the possession of child pornography, the constitutionality of various sentencing factors, and a more doctrinal paper on the Supreme Court's 2007 decision in Kimbrough v...
Mass Imprisonment: The Birth of a Social Problem
Posted on July 06, 2009Looking around for a dissertation topic in 1986, I followed the lead of my adviser, Sheldon Messinger, and began to look more closely at California's rapidly growing prison system. I came to focus in particular on the parole system that was supposed to guide prisoners back into society, but which instead seemed to keep them cycling back to prison (see my 1993 book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 for the details)...
And Frank Easterbrook Thought the "Law of the Horse" Wasn't Fascinating?
Posted on July 05, 2009Okay, campers. Somebody please explain this one to me. I decided I wanted to take at least one horseback riding lesson, because, well, I just want to. We'll see where it goes from there. I went up to the Bay Harbor Equestrian Club, where horses seem to live in nicer condos than most people, and I'm due to mount up this Thursday on "Nick," who is supposedly gentle on aging, "City Slicker" wannabe, never-been-on-a-horse-except-the-merry-go-round, where's the kickstand and the ignition key, what was that bubbeh said about Cossacks, rookie...
Quick thought on Sarah Palin
Posted on July 04, 2009This post is explicitly partisan-political, so I know it may be violating our motto. Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket)...
Happy Fourth of July!
Posted on July 04, 2009I have a British son-in-law, Simon, whom we all love very much, but it makes for a fun Independence Day. The call went like this: Jeff: "We were thinking of you, Simon, on this day on which we celebrate throwing off the yoke of tyranny." Simon: "Shut up and pay your taxes...
Independence day in our towns
Posted on July 04, 2009As Frank Capra taught us in movies like Its a Wonderful Life (1946), and Mister Smith Goes to Washington (1939), patriotism is as much about places, towns and cities, as it about the nation. Indeed, if nations are, as Benedict Anderson influentially dubbed them, "imagined communities," than towns are the real nodes from which that imaginary is projected; like Philadelphia and Boston, or Williamsburg, in 1776, or San Francisco in 1934 (July 5th marks the 75th anniversary of that city's famous general strike, read Carl Nolte's reporting on it in the SF Chron)...
Options, but not yet freedom: Happy 4th of July!
Posted on July 04, 2009As someone who received his green card in the mail literally yesterday, I just wanted to take a moment to note that auspicious arrival and wish all our readers a Happy Fourth of July. In three years or so, I should finally be well en route to citizenship (after almost 20 years of living in the US disenfranchised)...
Constitutional Borrowing
Posted on July 03, 2009Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more. Lately, I?ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain...
Haberman et al on Madoff
Posted on July 03, 2009Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor...
Limiting Online Provider Immunity
Posted on July 03, 2009My last post argued that Section 230 should be reinterpreted to immunize only content that comes from third parties via the interactive service offered by providers. This would clear up many of the conflicts in the law, though providers would still be immune from some reprehensible conduct of its users...
Thinking Like an Entrepreneur or a Lawyer?
Posted on July 03, 2009If you are interested in the intersection of entrepreneurship and the law, the Kauffman Foundation, the leading sponsor of entrepreneurship development in the country, has funded an Entrepreneurship Law resource on its website, www.entrepreneurship.org...
Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View
Posted on July 02, 2009At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis. Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i...
Theories of Corporate Compliance
Posted on July 02, 2009Before I entered academia, I was a compliance attorney at a large, public company. Prior to that, I was a federal prosecutor in Manhattan. It was no accident that the large, public company hired me to work on compliance matters. During my fifth year at the United States Attorney's Office (around 2003-2004), I received several calls from recruiters who were looking for prosecutors interested in taking in-house jobs in "compliance...
The Identity Trail: A Canada Day Book Recommendation
Posted on July 01, 2009Also by way of commemorating Canada Day (although I'm sufficiently assimilated that I'd forgotten it was taking place, which somehow seems both very American and totally typical of a Canadian holiday), let me recommend a book that has been out for a while but should be of strong interest to many of our readers...
Nice to visit
Posted on July 01, 2009Happy July, everyone. Thanks to Bernie Madoff, it's been an interesting week for those of us who think about white-collar crime. I can't possibly add to Jayne Barnard's play-by-play account of Bernard Madoff's sentencing proceeding, but I do have my own thoughts about the supposed deterrent value of his150 year term of imprisonment...
Durkheim?s Law and Order
Posted on July 01, 2009A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more residents on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live...
The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life
Posted on July 01, 2009Here we are, back for the fourth summer stint on PrawfsBlawg. It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.") Also, Twitter was unknown...
Thanks, Prawfs
Posted on July 01, 2009Well, June just flew by quicker than I had hoped. I apologize for the slow posting the last ten days or so. I've been drowning in preparations for argument of a summary judgment motion in a pro bono case I'm working on, representing a group of homeowners in a lawsuit against Norfolk Southern over a closed railroad crossing...
Rotations
Posted on July 01, 2009Happy Canada Day everyone (and particularly, Paul, Rob, Erik, Glenn, Trevor, Austen, and derivatively, Alice)! Here are some reflections on the holiday by notable expats. With the onset of the new month, it's time to thank our guests from June for their wonderful contributions...
Signing Off . . . .
Posted on July 01, 2009Thanks again to Dan for inviting me to blog here in June. Thanks also to everyone who commented on my posts, either on-line or off -- I'm grateful for the thoughtful feedback. Best wishes to all for a happy remainder of the summer.
Osborne and due process
Posted on June 30, 2009Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state. First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas...
Going from 'Us' to 'Them'
Posted on June 30, 2009A few years ago, Nancy Rappaport published a short essay in the University of Toledo Law Review, called "Going from 'Us' to 'Them' in 60 Seconds," in which she described her appointment, relatively early in her career, to an associate-dean post: Scarcely a half-hour after the official announcement had been made concerning my appointment, I was at the faculty copy machine, and one of my colleagues walked in...
Reinterpreting Section 230
Posted on June 30, 2009My last post identified several puzzling results of current Section 230 jurisprudence, such as immunity for articles written by freelancers, but not by employees. A common suggestion to remedy this and other conflicts is to withdraw immunity for any and all publication decisions by provider...
The ART of Michael Jackson
Posted on June 30, 2009I've just been talking to a tax colleague, Sarah L., about fascinating and topical legal issues -- no, not the Supreme Court's opinions in the firefighter or banking cases, or Justice Souter's retirement or the new consumer finance agency-- instead, we've been trying to get the full story on Michael Jackson's paternity and the custody of his three children...
Ricci Overturned by Scotus 5-4
Posted on June 29, 2009H/t to Scotusblog (via Adler), which is live-blogging. The opinion is here. Reactions?
Ricci and the appellate process
Posted on June 29, 2009Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler. First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review...
The Daily Show -- Stewart and Huckabee on Abortion
Posted on June 29, 2009This is a joint post with June Carbone In mid-June, Jon Stewart conducted another of The Daily Show?s multiple part interviews with former Governor Mike Huckabee. While the previous show had focused on gay marriage, Stewart asked Huckabee to choose a topic he?d like to discuss...
Sentence Explanations . . . and South Park
Posted on June 29, 2009I have a new paper on SSRN entitled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences." As I observed in an earlier post, I've become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences...
In praise of "The Wire"
Posted on June 28, 2009Sorry for the long blogging silence. I had promised myself that I would complete (fully sourced) the penultimate draft of my current article, so I have spent just about every working minute of the past couple weeks filling in footnotes. That fun now complete, I can return to some blogging...
A Real Thriller
Posted on June 27, 2009NB. Back to the front... I can?t think of any law school who could pull this off singlehandedly, but a group at the College of William and Mary managed quite a feat on April 19 ? a world-record number of people completed the infamous dance sequence en masse from Michael Jackson?s Thriller...
Progress on LGBT Issues?
Posted on June 26, 2009Like many, I was relieved when President Obama signed a memorandum last week that gives access to some benefits to the same-sex domestic partners of federal employees, and I?m pleased that the White House is drafting guidelines that would ban workplace discrimination for transgender employees of the federal government...
The Legal Blogosphere Falls Behind
Posted on June 26, 2009One of the supposed signal virtues of the legal blogosphere is that it can respond immediately to current events. And yet I am surprised to see that it has had virtually nothing to say about the recent and tragic death of Ed McMahon. Keep up, folks! UPDATE: I am now informed that, not only has Ed McMahon died, but apparently actress Farrah Fawcett has passed away too! Where are the media on this? I expect to hear about it when famous people die! Some people really don't keep up with the news.
New Symposium on Originalism in NW U. L. Rev.
Posted on June 26, 2009Via Tarlton, I just saw word of a great looking symposium on originalism in the Nw U L. Review. I've posted the Contents after the jump. Congrats to EIC Dave Baltmanis and his team on putting this together. NORTHWESTERN UNIVERSITY LAW REVIEW Volume 103 Number 2 Spring 2009 SYMPOSIUM ORIGINAL IDEAS ON ORIGINALISM FOREWARD: ORIGINAL IDEAS ON ORIGINALISM Brian A...
A Good Idea Gone Awry
Posted on June 25, 2009In my last post, I introduced Section 230 of the CDA, which immunizes online providers against suits based on the content of materials posted by another content provider. While I argued that the underlying policy behind the section is sound, I believe that there are some fundamental flaws with the way it has been applied in certain cases...
It's Never to Early to Start Thinking About Exam Questions . . . .
Posted on June 24, 2009Over at the Marquette Law School Faculty Blog, I've been tracking new criminal cases in the Seventh Circuit since October. This is the first time that I've ever systematically read a court's advance sheets. (As an aside, though, I was charmed by the story I heard in law school - perhaps apocryphal - that Arthur Corbin passed away at age 93 in the Yale Law Library while reading the latest contracts advance sheets; ever since, I've thought of that as the ideal way for a law professor to go...
U.S. News tomfoolery
Posted on June 24, 2009What can one say but "d'oh!" It appears the Gainesville Sun got hold of University of Florida's President J. Bernard Machen's U.S. News rankings form. According to the University of Florida's president, the country's "distinguished" undergraduate programs are Stanford, Cal-Berkeley, Yale, Harvard, MIT, Michigan, Princeton, Columbia ...
God, Philosophy, Universities
Posted on June 24, 2009A few times here at Prawfsblawg, the question of law schools' institutional character -- their "mission" -- has come up. I've had a few posts, for example, on what John Garvey has been calling "institutional pluralism", and on the contributions that (I think) meaningfully religious law schools can make, precisely by being distinctive, to the academy and to the profession...
Nazis, Highway Signs, and the Government
Posted on June 24, 2009If you spend much time in your car, you?re probably familiar with adopt-a-highway programs, in which states erect signs bearing the names of organizations that have agreed to pick up litter along particular stretches of road. As the New York Times this week reported here and here, certain groups? efforts to participate in those programs continue to generate controversy: a half-mile of Missouri highway, for example, is marked by a sign recognizing the clean-up efforts of a neo-Nazi group...
So Long, and Thanks....
Posted on June 23, 2009This is going to be my last post on Prawfsblawg for now. I just wanted to thank Dan and everyone else here at Prawfsblawg for this opportunity, and I'm looking forward to doing this again in the future. I also wanted to thank everyone who posted comments or sent me emails about my posts...
Apple News
Posted on June 23, 2009There?s been lots of Apple news over the past few days: Steve Jobs [probably] had a liver transplant a few months ago, at least according to the Wall Street Journal. Apple has sold more than a million of its newest Iphone within the first three days of making it available...
Sprawl and Climate Change
Posted on June 23, 2009Here's a fix for fellow land-use junkies. Kaid Benfield (of NRDC) has an interesting post up on the links between land use policy and carbon emissions. A taste: Smart growth and smart transportation choices can reduce the amount Americans need to drive - as measured in vehicle miles traveled (VMT) - by 10 percent per capita from 2005 levels...
I Do What I Want!
Posted on June 22, 2009One of my favorite refrains from South Park is Eric Cartman's declaration that "I do what I want!" on the Maury Povich show. The phrase reminds me a bit of Section 230 of the Communications Decency Act, which immunizes web sites and "interactive computer service" from liability stemming from content provided by "another information content provider...
Thoughts on Yeager: Role of Appellate Judges, Special Verdicts, and the Meaning of a Hung Jury
Posted on June 20, 2009Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel rule, which precludes relitigation of issues previously found in the defendant's favor, and the hung jury rule, which permits relitigation of charges as to which a jury does not reach agreement...
Beer Law
Posted on June 19, 2009My love of good beer (and my part-time gig as a home-brewer) means that every now and then I think about designing a course in Beer Law that would explore various beer-related cases and what they tell us about the law. Leading my draft syllabus so far are the following: In Craig v...
Justice at Guantanamo?
Posted on June 19, 2009I've just started reading Justice at Guantanamo: One Woman's Oddysey and Her Crusade for Human Rights, and it provides a wonderfully human?as well as legal ? approach to various detainee issues. It is written by Kristine Huskey, a friend and a clinical professor at UT-Austin, who has been to Guantanamo more than 15 times, and was one of the first attorneys to represent Guantanamo detainees...
DA's Office v. Osborne: Bad Facts Make Tough Cases
Posted on June 19, 2009I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here...
Voices from Iran
Posted on June 19, 2009My fellow Dorot alum, Bari Weiss, from the WSJ oped page was able to elicit some very interesting and powerful reflections from a panoply of voices inside Iran this week. These are on the WSJ oped page today. I should note parenthetically that while my sympathy lies with the challengers to Khamenei and Ahmadinejad, it's not entirely clear to me that Mousavi is a much better option...
The Soccer-Liking Lawprof
Posted on June 18, 2009I?m a fairly big sports fan, and my enthusiasm includes (though is by no means limited to) serious appreciation for soccer on both the club and international levels. Liking soccer is a bit of a rogue taste in the U.S., where all manner of critics from reasonably smart essayists like Chuck Klosterman to brain-dead blowhards like Jim Rome are eager to go on at tiresome length about why the sport is evil and awful...
Head Above Water
Posted on June 17, 2009Dear Friends, I am reappearing in the bloggosphere after a while of silence. Dan, Ethan and all our prawfs friends have been patient and kind enough to allow me a sort of leave (are there formal sabbaticals for bloggers?) in a year of baby, tenure, book, travels and a million other things that don't seem as significant right now...
Hiring Chairs for 2009-10: Announce Yourselves Here Please
Posted on June 17, 2009As is customary around this time of year, we are hoping law schools will use this space to share some relevant information regarding hiring for the coming year. Specifically, if you're a prawf, please share the following information related to the Fall 2009 and/or spring 2010 hiring season: a) your school, b) who's the chair and who are the members of your appointments committee (please also identify whether entry levels are separated from laterals, etc) and, c) if there are any special areas you're looking to fill...
French Fries
Posted on June 17, 2009Shorter MoDo: Obama should eat more steamed fish and organic vegetables so I can mock him for his effete eating habits.
How We React to Racism
Posted on June 17, 2009In discussing last week's shooting at the Holocaust Museum, Charles Blow's latest NYT column cites a recent study that deserves our attention if we, as a society, are truly committed to addressing racism. In this study, authors Kerry Kawakami, Elizabeth Dunn, Francine Karmali, and John Dovidio sought to examine the extent to which folks' attitudes about racism aligned with their actions...
Cognitive Bias and Innocence Commissions
Posted on June 17, 2009I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003...
NY Times on Sotomayor Property Rights Case
Posted on June 16, 2009Adam Liptak had a story in yesterday's Times on the Didden v. Port Chester case, in which the Second Circuit, by summary order (and with Judge Sotomayor on the panel), affirmed the district court's dismissal of a complaint brought by an aggrieved developer/landowner whose land was condemned as part of a redevelopment project in the Village of Port Chester...
Commenting on Commenting
Posted on June 15, 2009I was a commentator at a really great conference last week at GW law school. The conference explored a variety of issues relating to software and business methods patents, with wide variety of views. I commented on three interesting papers relating to whether business methods should be patentable subject matter - the papers approached the question from very different angles...
Supreme Prudes
Posted on June 15, 2009Remember back in the fall when the Supreme Court heard oral arguments in the so-called (by me, anyway) "fuck and shit case"? The case involved a challenge by various television broadcasters to the FCC's relatively new practice of fining "fleeting expletives," like when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple" at the Billboard Music Awards...
Who's afraid of offensive speech?
Posted on June 15, 2009The pre-argument gag rule that the Court imposed in FCC v. Fox Television earlier this term, as described in Jay's post is appalling. If the words "fuck" and "shit" (see, no euphemisms here) are too unseemly for the Court's "hallowed," doesn't that effectively prejudge the question of their constitutional and legal status? How can the Court genuinely evaluate the words as a legal matter if the Court cannot even utter them or hear them uttered? It would be as if the Court were deciding whether a movie is constitutionally protected without watching the movie or discussing what is going on...
Remembering Officer Johns
Posted on June 14, 2009In case you were wondering how to help the family of Officer Stephen Johns, who was murdered in the line of duty at the US Holocaust Museum earlier this week, the Museum has established a special fund for the benefit of Officer Johns? family. Make a contribution to the USHMM Officer Johns Family Fund...
Organizing Academic Conferences
Posted on June 14, 2009Sorry for a slow blogging week this week ? I?ve been totally preoccupied with the last-minute preparations for the Criminal Appeals Conference next week, which I?ve organized with my colleague Chad Oldfather. With a lull in the preparations today, though, I thought I would share some thoughts ? questions, really ? about when and how to organize academic conferences...
Introducing Tablet
Posted on June 14, 2009One of my favorite gateways to Jewish cultural and literary trends over the last few years has been via Nextbook, which I've linked to repeatedly here at Prawfs (and also on Facebook). Happily, Nextbook has been re-branded and re-launched as Tablet, edited by Alana Newhouse and assisted by a cast of wonderful, quirky, and thoughtful writers (including former Prawfs guest Jay Michaelson)...
Last Month's News?
Posted on June 14, 2009A friend of mine appears in the May issue of Playboy magazine (no, not in the way you might think!). I am not a regular consumer of Playboy; in fact, my comments from 30 years ago, when Playboy planned a special article (if that?s the right word) on ?Girls/Women of the Ivy League? were quite strong...
High School Graduation
Posted on June 12, 2009Not sure if he's the original Jay-Z, but Jonathan Zittrain posted his characteristically witty remarks at his alma mater's graduation ceremony over here. A taste: It?s fantastic to be back on campus. I confess that when I was a student here I had good days, bad days, and, well, surreal days...
Some Thoughts on the Book-Writing Sentence
Posted on June 12, 2009As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done. I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump...
Minow to be new dean at HLS
Posted on June 11, 2009Though there were many great finalists, it's really exciting to announce that Martha Minow, a beloved former teacher of mine, will now be the new dean at HLS. Here's President Drew Faust's announcement, after the jump. Dear Colleagues, Alumni and Friends, I am delighted to let you know that Martha Minow has agreed to serve as the next Dean of Harvard Law School...
Britney
Posted on June 11, 2009At the risk of playing into Spears' obvious marketing ploy, I thought I'd post a little question about her most recent single, which repeats over and over again the phrase "If you seek Amy" in various contexts where it makes no sense except as spelling out "F-U-C-K me...
Evidence Based Policy, Law, and Uncertainty
Posted on June 11, 2009In some cases, incorporating systematic reviews into legal proceedings will be relatively easy. When the review conclusively (according to some decision rule) establishes that causation either exists or does not exist (or, more precisely, conclusively establishes such a finding for now), then the judge's next step is straightforward...
Grouchy Justice(s): NRF's defense of judicial bad behavior...
Posted on June 11, 2009For those of you who missed it, Noah Feldman's got an unusually interesting take in this morning's NYT on the Sotomayor nomination and why judicial temperament is not a pre-req for being a great Justice. He examines why the "no asshole workplace" is not necessarily a desideratum if we're looking for great constitutional developments, whatever those are...
Research tools revisited
Posted on June 11, 2009Last October, I blogged about various ways I organize research: 1) emailing myself articles, 2) a spreadsheet, 3) a research database. Having used the latter two methods more in the last eight months, I thought I would update that post with new observations...
Jurisdiction in the Court
Posted on June 10, 2009While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits. The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue...
Principle, Politics, and Pharmacist Protection Laws
Posted on June 10, 2009In the past year or so, there?s been an increasing amount of chat on the law blogosphere and elsewhere about religious accommodation laws. President Obama called for a law that would protect doctors who declined to provide abortion services for religious reasons...
Don't Stare at the Marshmallow
Posted on June 10, 2009Among the interesting things I've read this summer is last month's New Yorker article by Jonah Lehrer, which tells the story of Stanford psychologists' study of four-year-olds and their self-control. In the study, each young subject was presented with a marshmallow and the choice between eating it right away or instead waiting while the researcher stepped out of the room for a few minutes -- in which case he or she would receive TWO marshmallows upon the researcher's return...
Facebook and More Network Economics
Posted on June 09, 2009After years of protests, I finally joined Facebook last week. Much to my surprise, I'm really digging it. I realize that I'm the last person on the planet to figure out how great Facebook is (except my wife, who is still a holdout), but that's kind of the point of this post...
The Chrysler Bailout: Who Wins with Failure?
Posted on June 09, 2009David Zaring offers up his as-always savvy analysis on the Supreme Court's grant of a stay in the Chrysler bailout. Here are some quick thoughts: Fiat can pull out if the deal is not wrapped up by June 15. Would Fiat pull out? It's unclear what has changed...
If they asked me, I could write a book...
Posted on June 09, 2009Check out the NYT article on Judge Urbina's unusual alternative sanction: the offender must write a book about his experience: Call him the homework judge, not the hanging judge. On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book...
Our Inquisitorial History
Posted on June 09, 2009My previous post provided a (cursory) glance at broad changes in legal procedure that came about in response to fundamental changes in epistemology. In this post I want to narrow my focus to transformations that have taken place within the United States...
Cord Blood Banking: Worth It?
Posted on June 08, 2009As I indicated in Eduardo's post the other day about paternity leave, I'm thrilled and a bit nervous about the prospect of becoming a dad later this summer--blogging has thus fallen a bit as I try to take care of a number of loose ends both in and outside my professional life, e...
Sentencing Judges, Explain Yourselves
Posted on June 08, 2009It's always interesting to see a topic one is writing about show up in the advance sheets. (I suppose "interesting" isn't quite the right word for it when a new case requires a massive rewrite -- as happened to me when the Supreme Court decided Blakely v...
How Do You Write and Publish an Op-Ed?
Posted on June 08, 2009One thing it seems that a good number of law prawfs do from time to time is to write op-ed pieces for newspapers. I've tried to do this a number of times. My attempts have always failed. Generally, some issue comes up that I think I could say something about, so I write 700 words about it and email it to the editors of some newspapers and then nothing at all happens...
Chaim Saiman (Villanova) on Caperton
Posted on June 08, 2009In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge?s election campaign...
Just in Case You're Collecting Fact Patterns for Next Year's Exams . . .
Posted on June 08, 2009Here in Colorado, the Boulder Daily Camera reports a new wrinkle on the meaning of nuisance that provides potential fodder for next year's tort and property exams. A local affordable housing program has warned two tenants that they need to reconsider their penchant for outdoor gardening while clad only in thongs (and, in the woman's case, pasties)...
Pure Social Norms and the Seinfeldian In-town Courtesy Call
Posted on June 08, 2009The funny thing about the cliché ?it?s funny because it?s true? is that it?s true. Take, for example, the TV show Seinfeld. I was never a huge fan, but what seemed to give the show such broad appeal was that it identified so many quirks of human behavior that persist as strong social norms despite their apparent irrationality (thus setting up the next generation of humor in Curb Your Enthusiasm, where Larry David created oodles of awkward-tainment by openly violating those norms)...
Federalism and Abortion
Posted on June 08, 2009Today?s Washington Post includes a depressing article for those of us who are pro-choice. The article documents how the abortion fight has moved to the state level, and details some of the means by which anti-abortion groups are chipping away at a woman?s right to choose...
Chaim Saiman (guest post) on Caperton
Posted on June 08, 2009In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge?s election campaign...
AALS Happy Hour with the Conglomerate & Workplace Prof Blog
Posted on June 06, 2009Fresh off the Law & Society festivities comes another happy hour opportunity for those of you in Long Beach next week for the AALS Mid-Year Meeting or otherwise: Mai Tai Bar Long Beach, Wednesday, June 10, at 8:15 Here are walking directions from the Westin...
Baseball Stories in Search of a Good Legal Analogy
Posted on June 05, 2009There?s a Supreme Court confirmation hearing on the way and that probably means we?ll be hearing some more baseball analogies. At Chief Justice Roberts? hearing four years ago, we heard him compare judges to umpires calling balls and strikes as they see them...
June Wedding Announcements
Posted on June 05, 2009Gay marriage is, once again, in the news. As of Wednesday, New Hampshire became the 6th state to allow same-sex marriage, and gay marriages can be officiated there as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay marriage is something the states should work out; and some 18,000 same-sex California marriages are legal, even though same-sex marriage is otherwise illegal in the state...
Questionnaire Answers from Judge Sotomayor
Posted on June 05, 2009Judge Sotomayor's answers to the Senate Judiciary Committee's questionnaire are available here.
Signing Off
Posted on June 05, 2009Many thanks to Dan and the Prawfsblawg crew for hosting me in the past month. As always, it?s been a very enjoyable stay. I?d hoped to write primarily on law teaching and technology but things don?t always go as planned, and I found I had more to say about music and baseball...
Is "Fine-Grained" Always Better?
Posted on June 04, 2009A couple of days ago -- it feels like light-years in blog time -- Professor Richard Epstein posted a column at Forbes.com on the Sotomayor nomination. Epstein had already made clear his disagreement with some of Sotomayor's rulings; this time, he turned his attention to "the serious intellectual weakness in the conservative [as opposed to libertarian] case against her confirmation...
Paternity Leave
Posted on June 04, 2009If it's June, it must be PrawfsBlawg. Thanks to all the Prawfs regulars for sharing their space with me for another guest stint. I thought I'd kick off my visit by talking about my experience this past semester of life on paternity leave. When we had our first son, two years ago, I was in my first year at Cornell, without tenure, eager to get to know people and make a good first impression...
Scholarship, Relevance, and Division of Labor
Posted on June 04, 2009I recently read these pungent remarks by Brooklyn's Aaron Twerski in connection with his receipt of the Robert C. McCay Law Professor Award from the Torts and Insurance Section of the ABA. Twerski observes and endorses criticisms of contemporary legal scholarship as "out of touch" and "lack[ing] relevance to the work" of judges and lawyers...
Still more on Iqbal and Twombly
Posted on June 04, 2009The prolific folks at Drug and Device Law responded to my post, arguing why Iqbal/Twombly is the right approach to pleading. I would respond by pointing to two points on which actually, somewhat, agree. First, they criticize Conley for allowing plaintiffs to get away with complaints that say "Defendants violated my rights" or "Defendants injured me" or claims "an FDA violation...
Tuesday Night Music (and Philosophy) Blog
Posted on June 03, 2009Law review authors occasionally use rock song lyrics to make a point. Alex Long has written insightfully about their tendency to do so. (And I am guilty of it in this recent article on First Amendment law and virtual reality). This led me to wonder what happens when things work in reverse: Which law review articles are cited the most in rock music? Are the same law reviews that are highest in court and scholarship citation counts ? according to the Washington and Lee rankings ? also the most frequently cited in angst-ridden rock lyrics? Unfortunately, it seems that rock...
Sytematic Reviews and the Scientization of Law
Posted on June 03, 2009So far I have looked at how to incorporate systematic reviews into our current legal framework, whether through court-apppointed Rule 706 experts or through special masters or technical advisors assisting judges in their Daubert or Frye decisions. In both cases, however, partisan experts remain...
Dave Matthews Band, Bootlegs, and Network Economics
Posted on June 03, 2009In honor of the release of the latest Dave Matthews Band album, and my upcoming concert visit, I thought I would blog a bit about an area of interest that I don't often get to write about. As the title implies, this topic combines three areas of interest: DMB, Bootleg Trading (which prefer to call concert trading, as I don't really view permissive recording of concerts to be a bootleg), and network economics...
Rethinking music videos
Posted on June 03, 2009Marc has made music the order of the day, so I decided to follow up on that. My post has nothing to do with law, unless there is some question about transformative use, or philosophy (I don't think). Anyway, there is a series of "Literal Videos" making the rounds on YouTube...
WiPping Your Articles Into Shape
Posted on June 03, 2009I've just returned from Marquette's first Works in Progress Workshop of the summer. I know many other law schools have similar programs, but the format has worked so well for us that I thought I would give it a plug here for faculties that are not yet doing it...
Discovery, burdens, risks, and Iqbal
Posted on June 02, 2009The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here)...
Come Back, Little Jeffrey
Posted on June 02, 2009As reported here and elsewhere, one upshot of the kerfuffle over Jeffrey Rosen's initial article on Sonia Sotomayor -- about which, if I recall correctly, our guest-blogger Rob Kar had something to say -- is that Rosen has sworn off blogging. In the story I linked to, Rosen stands by his initial story, although he dislikes the headline his editors chose and wishes the story had shown more nuance; but he adds that he was dismayed by how his article was treated by people "of both ideological stripes," and says the fuss has made him reconsider blogging at all...
Canons to the Left of Them, Canons to the Right of Them...
Posted on June 02, 2009Most readers probably do not follow the bumper crop of recent SCOTUS opinions that deploys canons of statutory construction, but they are personal favorites of mine. Indeed, I taught a couple of them from the '07 term of the Court this Spring. Although most people would not regard United States v...
Sotomayor, Cardozo, and the "Hispanic" Question
Posted on June 02, 2009Hey all. Great to be back at Prawfs again. I was going to post something less legal, and probably more interesting, for introductory purposes, but yesterday this item in the NY Times caught my eye. I?m certainly not the first person in the blogosphere to mention this, but the issue is: if Sonia Sotomayor were confirmed, would she really be the first Hispanic justice? The possible problem is that there was already a jurist of Portuguese descent on the Court that you may have heard of: Justice Benjamin Cardozo...
Judge Sotomayor and the First Amendment
Posted on June 02, 2009If you're looking for some more insight into Judge Sotomayor?s approach to solving constitutional problems, consider her dissent in the First Amendment case of Pappas v. Giuliani, which involved a police officer fired after he had been discovered to have mailed anonymous racist materials to various nonprofit organizations that had sent him fundraising solicitations...
Rotations
Posted on June 01, 2009With the onset of the new month, I want to take a moment first to thank all the wonderful contributions over May and April from Mark Kende, John Pfaff, Marc Blitz, Marc DeGirolami, Rose Cuizon Villazar, Brooks Holland, Chad Oldfather, Jessie Hill, Bill Araiza, Hillel Levin, and Brian Galle...
SCOTUS on Collateral Estoppel in Criminal Cases
Posted on June 01, 2009I'm grateful to Dan for inviting me back for a third stint on Prawfs. I'm not sure whether I should be pleased or chagrined, but I've found in recent years that when I meet new people at AALS, they are more likely to recognize my name from Prawfs than from my law review scholarship...
Signing off with Souter
Posted on June 01, 2009Somehow or other this guest-blogging stint didn?t quite come together the way I anticipated back when I signed up. You know how it goes ? May seemed far off. Plus, what is there to do in May anyway? Just writing and grading some exams. There?ll be plenty of time to blog, I thought to myself...
Parenting Advice
Posted on June 01, 2009I?m delighted to start my posts on PrawfsBlawg in June because June is THE most popular month for weddings. Almost 11% of the 2.4 million weddings each year occur in June, while just under 5% occur in January (my reliable source for these statistics is the National Mail Order Association, which has lots to gain by being right on this)...
Hello Again and Bilski Redux
Posted on June 01, 2009Thanks for the welcome, Dan, and thanks to Prawfsblawg for having me back. I have a variety of areas I want to post about this month. But first, it is good timing that I am guesting this month, as the Supreme Court just granted cert. in In re Bilski (now Bilski v...
Signing off
Posted on June 01, 2009It has certainly been a pleasure to post, however sporadically, at Prawfsblawg for the month of May. I wish everyone a productive summer. -- Jessie
The Chrysler bankruptcy case & Indiana's "takings" lawsuit
Posted on June 01, 2009Last night, Bankruptcy Judge Arthur Gonzales approved the section 363 sale of Chrysler to Fiat. This morning, Judge Gonzales refused to transfer Indiana's constitutional claim against the deal to federal district court. Here's a question for the prawfs interested in takings: Is there any merit to the Indiana pension funds' claim that, by ignoring the absolute priority of secured creditors, the bankruptcy court has "taken" those creditors' security interest without just compensation in violation of the Fifth Amendment? The claim has inspired the usual outrage or applause from the usual suspects: George Will praises Indiana's lawsuit as plucky opposition to...
Late-Night Lawyers
Posted on June 01, 2009It was an honor and a delight to join PrawfsBlawg as a guest in May. Where did the time go? In other (much more famous) news of transitions, we all know that Jay Leno signed off on the Tonight Show on Friday, and Conan O?Brien takes the helm today, which led me to think about the relatively small number of lawyers who have joined either show as guests over the years...
Some belated thoughts on Iqbal, empathy, and Sotomayor
Posted on May 31, 2009Fittingly for what is probably my last post on Prawfs for a while, I thought I'd tie together some of the threads that have been running through Prawfsblawg this month, specifically those pertaining to "empathy," the nomination of Sonia Sotomayor to the Supreme Court, and the Court's recent decision in Ashcroft v...
Takaki on "Revolutionary" Thinking
Posted on May 31, 2009Since a good deal of attention on Judge Sotomayor has focused on her youthful and subsequent interest in "identity politics," and since some scorn has been cast on her helping to start a course at Princeton on the history and politics of Puerto RIco -- scorn that probably finds its reductio ad absurdam in the blog comments linked to here -- I thought it might be worthwhile to quote from a slightly different take on the nature of courses arising from identity politics...
Giving students feedback on exams
Posted on May 31, 2009I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important...
Signing off
Posted on May 31, 2009Thanks to Dan and Prawfsblawg for inviting me to blog. I enjoyed blogging (albeit not as frequently as I had hoped I would) and look forward to seeing many of you at various conferences, symposia and workshops. Have a great and productive summer!
"An artificial perfection of reason": Intimations from Hamburger
Posted on May 31, 2009I have been making my way through Philip Hamburger's truly magnificent book, Law and Judicial Duty. There is a great deal in this book in the way of assiduously researched detail -- but many of the delicate ornaments and historical baubles are placed in the service of several broad themes; the sweep and significance of the book is very much more than the sum of its details, and it has much to say about the way in which we think about the role of the judge and the institution of "judicial review...
Does EFCA's Defeat Show the Death of Organized Labor as a Political Force?
Posted on May 31, 2009While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor?s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the ?card check? legislation) was pronounced dead...
Hispanic or Not, The Man Could Write
Posted on May 29, 2009All the recent talk about whether Justice Cardozo was in fact the first Hispanic justice gives me a chance to share what I consider one of the great lines in the U.S. Reports. In 1936 the Court decided two companion cases dealing with equal protection challenges to a New York milk marketing law...
Final version of How Should Punitive Damages Work? now available
Posted on May 29, 2009Via the Tarlton Library email at UTexas, I just saw that the final version of my recent piece on punitive damages is now out. It's called How Should Punitive Damages Work?, and it's the second in a projected 4 part series of articles designed to rethink punitive damages policy and doctrine...
LSA, etc
Posted on May 29, 2009Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference. As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels...
New info on Lex Opus; an alternative to Expresso?
Posted on May 29, 2009LexOpus (http://lexopus.wlu.edu) is a recently launched service at Washington and Lee Law School offering free online submissions to law journals. The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers...
Urgent Sponsored Announcement from University of Tusla
Posted on May 29, 2009THE UNIVERSITY OF TULSA COLLEGE OF LAW is urgently seeking a visitor to teach Environmental Law in either Fall 2009 or Spring 2010. The College of Law is particularly interested in talking to candidates who are also willing to teach International Environmental Law, European Union Law, International Law, Antitrust, Banking, Corporate finance, Securities or other business related courses...
Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change
Posted on May 29, 2009There?ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does ? and should ? play in judicial reasoning. There?s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I?m sure many others I haven?t read)...
Is "Business Litigation" a "Background in Business Law?"
Posted on May 29, 2009Note: The initial version of this post mistakenly attributed the post I discuss below to Brian Tamanaha rather than to Bernard Harcourt. My apologies! I've revised it accordingly. Anent the Sotomayor nomination, natch, Bernard Harcourt has an interesting and impassioned post at Balkinization taking David Frum to task for arguing that Sotomayor has only an "abstract and academic" experience of business law...
Medical Restraint
Posted on May 29, 2009Atul Gawande has a terrific piece in this week's New Yorker about medical costs. Gawande travels to McAllen, Texas, which he suggests has some of the highest per-person medical costs in the country. On his analysis, McAllen may have fancier care than one might expect, but it does not have better care, as measured by actual patient outcomes...
Getting Real about "Legal Realism": Sotomayor ain't no "Realist"
Posted on May 29, 2009There are posts -- the Wall Street Journal and Leiter's blog, for instance -- suggesting that the usual law professor's self-hatred might be clouding the question of how one evaluates SCOTUS opinions. In particular, the notion that Sotomayor is a "legal Realist" because she believes that judges' backgrounds affect their decisions so trivializes actual legal Realism that it is hard for a non-self-hating legal academic like myself to stomach...
In the Mail: Looseleaf Casebooks!
Posted on May 29, 2009In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System...
The Walls They Are A-Changin'
Posted on May 28, 2009I have been teaching Art Law for a number of years, so an article in the WSJ about White House art caught my eye. It seems that along with a changing of the guard comes a changing of the walls. There are also a number of law schools and firms with impressive (if not renowned) collections...
Ricci v. McCormack
Posted on May 28, 2009Some of the attention focused on Judge Sotomayor's position in the Ricci case has discussed the likelihood that the Supreme Court will take the opposite view within the coming weeks, in the middle of the confirmation process. If that is so, I imagine some writers will take the view that being reversed in a high-profile case says something pertinent about whether Sotomayor is worthy of confirmation, or that it is a deliberate public blow against Sotomayor by the Court, one that is warranted or unwarranted depending on one's viewpoint...
A Tour of New York City's Zoning Dysfunction
Posted on May 28, 2009I live in the Cobble Hill area of Brooklyn, giving me easy access to one of my favorite running routes ? a roughly five-mile stretch of waterfront on the Upper Bay and East River that I call the ?dysfunctional zoning tour.? Starting at the IKEA store in Red Hook and running past the Fairway Grocery, I can make my way north along the waterfront on Connoyer, Van Brunt, and Columbia Heights to Furman (right under the Brooklyn Heights Promenade) and on into DUMBO...
What's Your Family's Catch Phrase?
Posted on May 28, 2009Did anyone else here catch the show that was on the other night which counted down the fifty top funniest phrases in TV history? It was a pretty funny program, although the absence from the countdown of either Good Times' "Dyn-o-mite!" or Different Strokes' "What you talking 'bout Willis?" was really inexcusable...
"Federal Court? Wow. Never Thought of That."
Posted on May 28, 2009The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court. (Ethan blogged about this lawsuit yesterday.) One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit...
The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown
Posted on May 28, 2009For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here)...
What, and Who, is a "Good" Justice?
Posted on May 28, 2009In a previous post I asked whether brilliance is necessary for a justice, and whether more intelligence = better judging. I intimated that my inclination was that beyond a certain (very high) level of intelligence, I saw no evidence that yet more intelligence led to better judging...
More on the Olson-Boies Lawsuit: Responses to Comments
Posted on May 28, 2009I appreciate the responses to my original post on the Olson-Boies lawsuit. I tried to post the following comments in reply but for some reason I got rejected (rejected by my own post -- hah!) Apologies for using the post format as a reply mechanism. But here goes: 1...
We are all Realists - but don't tell anyone
Posted on May 28, 2009One of the things that?s always struck me about judges is how reluctant nearly all of them are to acknowledge the extent to which there is a lawmaking role to the job (at least at the appellate level), and more generally how underdetermined an awful lot of legal questions are...
Sotomayor <> Miers: A Brief Rundown
Posted on May 27, 2009I've heard this comparison enough (Dreher, Ponnuru, Buchanan on MSNBC) that I thought a quick bullet-point presentation might be in order: Sotomayor is not a close friend and counsel to the President; Miers was. Sotomayor has the most federal judicial experience of any Supreme Court nominee in over a century; Miers had none...
Classroom Twitter Pages
Posted on May 27, 2009Many of us already use a variety of electronic resources in the classroom, but what about using Twitter? Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point)...
Deborah Hellman on Prop 8 decision, Peter Westen, & Equality
Posted on May 27, 2009Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below: "Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right...
Affirmative Action in Michigan & the Hunter-Seattle Doctrine
Posted on May 27, 2009What should a law professor think of judge?s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question...
Trial experience, pleading, and the Supreme Court
Posted on May 27, 2009One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues...
Can a Run Really Count When the Runner Never Crosses Home?
Posted on May 27, 2009So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game: With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory...
And Now for a More Plausible Challenge to Prop 8 . . .
Posted on May 27, 2009I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on. I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve. But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite...
Alex Acosta to be dean at FIU
Posted on May 27, 2009I am thrilled to report that R. Alexander Acosta, currently U.S. Attorney for the Southern District of Florida and former head of the Civil Rights Division at DOJ, will be the new dean of FIU College of Law. Acosta graduated from Harvard College and Harvard Law School and clerked for Samuel Alito on the 3d Circuit (my old circuit)...
The symbolic stakes of the Establishment Clause
Posted on May 27, 2009It seems to me that the Establishment Clause, at least as it is viewed by the Supreme Court, it increasingly about symbolism. What I mean by this is that more and more, the Establishment Clause disputes that tend to make it to the Supreme Court are over religious speech, symbolism, and the like, where no real financial or other "concrete" stakes are involved...
Padel's Resignation from Oxford
Posted on May 26, 2009The AP via NYT reports: Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel, the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708...
One Small Victory
Posted on May 26, 2009I don't have strong views about the merits of President Obama's decision to nominate Judge Sotomayor to the Court. But I am pleased that now she will not be defined by the speculation that's swirled around her over the last few weeks. I don't know her, and don't know her judicial work, but she's obviously highly accomplished with an extraordinary personal story...
Debating the Guidelines
Posted on May 26, 2009In my posts so far, I have simply assumed that there exist reliable quality guidelines to measure the quality of empirical work, and then I have looked at how these guidelines should be used. To understate things, this is a substantial handwave. These guideline can be quite difficult to develop, and in this post I want to touch on some of the important issues raised by these challenges, particularly for litigation...
Six (!) Catholics on the Court?
Posted on May 26, 2009So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter. Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")? Poor Chris Hitchens! And now for some bold punditry: I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.
How Should We Play the [Sotomayor] Game?
Posted on May 26, 2009So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames. Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been...
Initial Thoughts on the Prop. 8 Decision: Back to Where We Started?
Posted on May 26, 2009The California Supreme Court has issued its decision in the Prop. 8 case, upholding (on a 6-1 vote) the validity of Prop. 8 as an amendment to (rather than a revision of) the California Constitution, but also upholding (on a 7-0 vote) the validity of the approximately 18,000 same-sex marriages (including mine) entered into between June and November, 2008...
Pssst: it really isn't that hard of a job.
Posted on May 26, 2009Okay, so I was a little off. Stunningly wrong, actually. This is why they don't pay me the big bucks. Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks. I want to ask the prawfs community a question. We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more...
Some Quibbles With Rick
Posted on May 26, 2009Rick has posted a well-written comment on the National Review's Bench Memos blog, which I've already had occasion to speak ill of once today. I stand by that, by the way, not because it's conservative but because I think too many of the bloggers there are reflexive, rabid, and, well, silly -- Rick (and a perfectly fair post by Gerard Bradley) excluded...
More on religious freedom, exemptions, and SSM
Posted on May 24, 2009Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot")...
Books of Brilliance
Posted on May 24, 2009Since Paul has already identified the truly important material in this week's NY Times book review, it remains for me to note David Brooks's piqued reaction to Simon Schama's "The American Future: A History." Brooks disdainfully places it in the "brilliant book" category -- "the sort of book written by a big thinker who comes to capture the American spirit while armed only with his brilliance," and one can feel the indignant irritation radiating off the screen...
The Best Books in the New York Times Book Review...
Posted on May 24, 2009...often aren't among the books reviewed that week. They're the self- or vanity-press-published books advertised in the Review. Some of these books, it should be said, go on to enjoy larger fame and have been picked up by major presses for substantial advances...
Law school hiring observation III: the Prawfs hiring thread
Posted on May 23, 2009This post is not so much about the hiring process itself as the hiring thread that Dan and the other co-bloggers were gracious enough to organize and host. As before, these are only my own thoughts and I think it worthwhile in this context especially to emphasize that they may well reflect the point of view of exactly one person...
The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS
Posted on May 23, 2009I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response...
Signing off
Posted on May 22, 2009I hate to blog and run, but after weeks of exams and grading, it's time for a vacation before I return to the computer and a new article. I have thoroughly enjoyed the past month-plus on Prawfs, and I'm grateful to Dan et al. for allowing me to stay on a bit longer than usual...
Defining Partnership
Posted on May 22, 2009Due to the personal situation of a close friend, I've been giving a lot of thought lately to the hospital visitation rights of same-sex and heterosexual, non-married partners. As reported in the NYT several days ago, the Human Rights Campaign recently released its Healthcare Equality Index, a report on the treatment of those in the GLBT community by healthcare facilities...
Advice for Getting a Job on the Law Teaching Market
Posted on May 22, 2009Thanks to a great resource by Michael Risch (WVA), one of our past and future guests, I thought I'd reprise some of the links people have found helpful in the past regarding the process of getting a teaching job in law. TeachLaw-Resources for Lawyers Who Want to Be Law Professors (cache) Considering Law Teaching - Cornell (cache) Leiter's Law School Reports: Professional Advice (cache) Leiter: Law school hiring practices (cache) Concurring opinions: Law School Hiring (cache) PrawfsBlawg: Teaching Law (cache) Conglomerate Blog on law schools and lawyering (cache) Becoming a law professor - Eric Goldman (cache) Goldman blogswarm (cache) So...
Actuarial Criminal Policy
Posted on May 22, 2009A student of mine sent me this article from the Wall Street Journal about efforts in LA to develop an actuarial model to determine what children are most at risk of joining a criminal street gang. It is exciting to see state officials say things such as this: Previously, city officials depended on what they concede was a patchwork of information to build gang-prevention programs, often using anecdotal tips from local beat cops or high school teachers...
Teaching about Writing by Doing
Posted on May 22, 2009I am just back from an arduous "vacation" with to Disneyworld with my husband, my toddler, and my preschooler (hence the blogging hiatus), to find that all hell has broken loose, at least, as Howard Wasserman has been describing, where notice pleading rules are concerned...
Reality Imitating Art, or Vice Versa?
Posted on May 21, 2009I just saw an interesting question on The Chronicle of Higher Education?s site about fictional professors that have served as influences in the lives of actual faculty. Much like L.A. Law or Boston Legal may have inspired people to go to law school, there are certain teachers and professors on television and in films who probably inspired us to go to the Head of the Class...
Prawfsblawg Gets Results: A Post by Eugene Kontorovich
Posted on May 21, 2009I recently criticized in print and more extensively on this blog, Spain's highly selective prosecution use of universal jurisdiction. Spanish courts have pursued charges against foreigners involved in highly complex, politically charged scenarios and not even in their custody; that they have gone so far as to order the release of captured pirates, the paradigm international criminals...
Systematic Reviews, Conflict Resolution, and Party Control
Posted on May 21, 2009In a recent post, I argued that systematic reviews are perfectly compatible with at least two goals of our adversarial system: finding the truth and avoiding arbitrary outcomes. In fact, I believe that they advance these goals better than adversarial procedures (putting aside for now--I will address this in my next post--the critically essentially issue of where the review's guidelines come from in the first place)...
Conscience, Speech and TIAA-Cref Advice
Posted on May 21, 2009There's been a lot of talk recently about conscience exemptions: exemptions from generally-applicable laws based on religious or more general moral concerns. President Obama called for one for medical personnel opposed to abortion, and the idea has been gaining currency that similar exemptions could be part of some sort of compromise on the same-sex marriage issue...
Against Prediction as Control: Of Boulders and the River
Posted on May 21, 2009The times recently have witnessed a dizzying flurry of predictions about whom President Obama might next nominate to the Supreme Court and about how that someone might interact with, affect, and be affected by the Court's current denizens over time. In one of the comments to Hillel Levin's posting, Christian Turner offered the highly evocative image that attempting to predict who will influence whom, and in what ways, is like choosing among boulders to throw into a rushing river in order to give it, over time, the proper shape...
Pleading and the evolution of federal court litigation
Posted on May 20, 2009Some random thoughts on Iqbal and its future effects, particularly in light of the very interesting exchange that has attended this post. First, over the weekend I finally read Richard Epstein's paper on Twombly from last spring, which was coincidental to Iqbal being released Monday...
Textbooks on Kindle
Posted on May 20, 2009I had a chat with my publisher today, and he raised the issue of offering textbooks on Kindle. There are myraid pros and cons, but I thought I might send a post to see what others think of the idea. Would you permit your work to be offered on Kindle? Should textbooks be available for students to purchase in this format?
The Establishment Clause and the Test of Time
Posted on May 20, 2009Via the absolutely indispensable Howard Friedman, I see this story out of Oklahoma. It appears that a bill has now been signed by the governor (it had passed 83-2 in the OK House of Representatives) to erect a Ten Commandments monument at the state capitol (for those who may not be familiar with Professor Friedman's Religion Clause blog and who are interested in this area, his blog is a superb place for the latest)...
Iqbal III: The Death of Supervisory Liability
Posted on May 19, 2009Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo...
Amazon's "Tag Suggestions"
Posted on May 19, 2009I was curious what happens when you tell Amazon that you want to write a review, so I clicked on the relevant link on my book's Amazon page, and it took me to a screen where I could enter a review (no, I didn't actually enter a review of my own book)...
How Far We've Come, and the Rhetoric of Evidence Based Policy
Posted on May 19, 2009Just two short comments today. First, last month I talked a bit about the technological revolution that has taken place in computing over the past several decades. Thanks to io9, I came across this article, which is not only a tribute to 1960s stock photography, but a great reminder of just how far we've come...
A Real Thriller
Posted on May 18, 2009I can?t think of any law school who could pull this off singlehandedly, but a group at the College of William and Mary managed quite a feat on April 19 ? a world-record number of people completed the infamous dance sequence en masse from Michael Jackson?s Thriller...
SCOTUS decides Iqbal
Posted on May 18, 2009One of this term's cases that I have been waiting for came down today: Ashcroft v. Iqbal, a 5-4 decision in which the Court held that the plaintiffs, post-9/11 detainees, did not sufficiently plead a Bivens claim as to several high-ranking executive branch official...
Memoir and Memory
Posted on May 18, 2009Yesterday's NY Times contains this memoir by Reynolds Price recounting and reflecting on his time at Oxford in the '50s as a Rhodes Scholar (yes, yes, it also contains a review of that other book). Price was my teacher at Duke in the early '90s and an absolutely wonderful man...
How Much? How Frequently?
Posted on May 18, 2009Tying in to Rose's post from earlier today I'd like to raise a related but slightly different question about summer scholarship, and scholarship more generally: how much and how frequently? Early in my scholarly career I had a pretty fixed, even robotic, writing schedule: one article per year...
Iqbal and the death of notice pleading: Part II
Posted on May 18, 2009Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal: The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint...
Writing about Diverse Scholarly Interests
Posted on May 18, 2009Similar to many law professors, I do most of my research and writing in the summer. One challenge I often face in the summer is determining in which field I want to write. I research, write and teach in the areas of property, immigration and citizenship...
Iqbal and the death of notice pleading: Part I
Posted on May 18, 2009Having now read Iqbal, it's a doozy ("breathtaking" as one poster to the civ pro listserv put it) in many ways and in many areas of law (all of which are of interest to me). Many doctrinal points were killed off or dramatically altered today. I am going to look at them in a series of posts in the next couple of days...
The University of Chicago Class of 2001: A Post by Eugene Kontorovich
Posted on May 17, 2009I'm happy to observe that 25% of the guest bloggers here were at the University of Chicago law school together. Mark Blitz and I were in the same class, with John Pfaff, a JD/PHD, a year below I believe. This led me to think about my other classmates in academia, and I've realized there are quite a lot of them...
Prop. 8 Redux?
Posted on May 16, 2009Over the last year the same-sex marriage movement has had as many ups and downs as ... well, a marriage. As I've blogged about in the past, the passage of Proposition 8 in California last November was a bitter defeat for pro-marriage rights forces, especially those, like me, with a personal stake in the outcome...
Criminal Law, Foreboding, and the Forbidden
Posted on May 16, 2009I had the great fortune to teach criminal law this spring and the even greater fortune to use Joshua Dressler's book. Professor Dressler's book begins with what may be a familiar tract by Henry Hart, wherein Hart argues that what distinguishes criminal from civil sanction is a certain type of community condemnation...
The upcoming battle over New York's public schools
Posted on May 15, 2009For Albany watchers and other political junkies, the summer?s biggest sporting event is the State Assembly?s impending decision about whether to renew mayoral control of New York City?s schools. The vote is scheduled for the end of June, and, to insure maximum high drama, the vote coincides with Bloomberg?s third-term re-election campaign and precedes the October expiration of the American Federation of Teacher?s contract with the New York Board of Education...
After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!
Posted on May 14, 2009Scandal! Scandal! I smell a true scandal in the air! After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court...
Radio Interview on piracy and international law (Eugene Kontorovich)
Posted on May 14, 2009This morning I will be on the air discussing the international legal response to piracy, along with Adm. Kevin J. Cosgriff. The interview will air between from 1003 to 1058 in the morning (CST), on 580 AM, which is heard in the Northern Illinois (including Chicago) and northern Indiana areas...
Blogging and Bar Mitzvah? A Post by Eugene Kontorovich
Posted on May 14, 2009As careful readers will note, I am not the poster of my posts. I depend on the good offices Ethan and Dan to actually get my words to screen. Herein lies a story, a mystery and hopefully a solution. Dan sent me a link to set myself up an account as a guest-blogger...
Law School Hiring Observation II: Dante's Refining Purgatorial Fire
Posted on May 14, 2009Professor Kaimi Wenger gives some advice about getting into law teaching without having graduated from a top 5 school. It's all very good and useful, and well worth checking out if you are in the position that he describes. I graduated from Boston University School of Law, and while my experience there was absolutely terrific and I think back on law school very fondly, I think it not unfair to say that BU does not produce many law professors and that there are special challenges facing someone whose JD is not, to say nothing of the top 5, from the...
News: Anti-semitism is alive and well
Posted on May 14, 2009Because I am related to a number of people that worry a lot about anti-semitism (and use it as part of a defense of policies in Israel that I think are indefensible), I am probably too dismissive about claims of anti-semitism. Unless it is self-serving: I assume that all the students who hate me in their student evaluations are probably anti-semites...
Systematic Reviews and Adversarialism: Truth and Arbitrariness
Posted on May 14, 2009In my last post, I laid out some of the major arguments for favoring adversarial debates about scientific evidence over independent experts. Now I want to start pointing out how systematic reviews retain the benefits of independent expertise while addressing the concerns raised by the defenders of adversarialism...
Why President Obama Will Not Appoint Judge Sotomayor
Posted on May 14, 2009Anyone who has been paying attention knows that Judge Sonia Sotomayor is (was?) a (the?) front-runner for Justice Souter?s Supreme Court seat. But along came Jeff Rosen, who questioned the choice of Sotomayor on the grounds that (1) she allegedly does not have the intellectual horsepower for the job, and (2) she?s a bully on the bench and difficult to work with...
Supreme Court Law Clerks from Non-Elite Schools
Posted on May 13, 2009The New York Times yesterday discussed why news reporters should keep up with Justice Scalia. In his article, "On the Bench and Off, the Eminently Quotable Justice Scalia," Adam Liptak noted some of Justice Scalia's most recent memorable musings. For instance, when asked by a student at the American University Washington College of Law (WCL - my alma mater) what her chances were of getting a clerkship with the U...
Against Appointing Pols to SCOTUS
Posted on May 13, 2009Given my appalling performance as a blogger -- I've been post-less since March -- I have some nerve calling out other people as unqualified for a position involving lots of writing. But it is exam-grading time, and shame cannot stand in the way of my need for a distraction...
I Am the Law
Posted on May 13, 2009Turner Classic Movies is airing the 1938 classic, I Am the Law, today. It is one of the first films to feature a law professor as a protagonist. Edward G. Robinson plays law professor John Lindsay, a man who is bored enough with being on sabbatical that he agrees to take on the mob...
When is the Movie Better Than the Book?
Posted on May 13, 2009Well, for my 40th birthday last month my wife did not get me a Ferrari (do they even make those in an automatic transmission?) but she did get me something almost as good: a rare, perfect condition, first edition copy of Cameron Crowe's 1981 book Fast Times at Ridgemont High: A True Story...
"Can You Explain the Commerce Clause?"
Posted on May 13, 2009All profs know the sinking feeling we get when we read exams that make us wonder if the student ever showed up for the class. As a colleague of mine reminded me yesterday, describing the exam period, "never do so many show so convincingly that they have learned so little...
Pirate nicknames (only half serious)
Posted on May 12, 2009Eugene's post about piracy repeatedly makes the point about the heinousness and seriousness of piracy as a crime, which is lost in the mythos of eye patches and bottles of rum and parrots. So that led me to wonder, in only half-seriousness (maybe only 37 % seriousness), whether pirate nicknames for sports team have become inappropriate...
Judicial Supremacy In a Footnote?
Posted on May 12, 2009In the spirit of Marc's posting on the footnote to Justice Stevens's dissent in FCC v. Fox TV I'd like to comment on a footnote to Justice Scalia's majority opinion in Heller v. Doe. (Thanks to Andy Hessick at ASU for directing my attention to it at Prawfsfest a couple of weeks ago...
Chess and Law
Posted on May 12, 2009When the brilliant Eugene Volokh mentioned math camp in a posting the other day, I thought I'd put in a plug for one of the greatest human activities ever invented -- chess. Or as some of my friends call it, "Mark's addiction." I've played chess since I was 12 through various cycles of activity...
Media Calls on Supreme Court Appointments
Posted on May 12, 2009I suppose that one of the downsides of trying to preserve the repuation of a jurist in light of political attacks is that you start getting lots and lots of calls from the media. I am, unfortunately, extraordinarily busy these days, but, because I have sometimes found it helpful just to point callers to various posts, I have decided that I may try, anyway, to continue with a few more thoughts on various aspects of Judge Sotomayor's record...
The Goals of Adversarialism
Posted on May 12, 2009I want to start to consider how to incorporate evidence-based systematic reviews into the legal system. There are two ways to approach the problem. The first is to think about how to use systematic reviews in a supplmentary way: the parties can still retain their own experts, but the judge and/or the jury can also see what the complete picture is as well...
The Duty (Not?) To Retreat: The Cultural Righteousness of Justification
Posted on May 12, 2009A few days ago I saw this story from Florida about the duty to retreat before using deadly self-defensive force. Florida is one of a growing number of states that has a "stand your ground" law for all self-defensive force, and permits the use of deadly self-defensive force where the actor "reasonably believes it is necessary to ...
South African v. American Constitutional Law
Posted on May 12, 2009One last post before I must sign off and do some traveling. If you want to highlight or contrast U.S.Supreme Court gender discrimination or equality jurisprudence, then you could have a class read the South African Constitutional Court's decision in Pres...
I don't mean to brag, but ...
Posted on May 11, 2009My school has recently adopted a pre-tenure leave (teaching release) policy, of which I will be one of the early beneficiaries this fall. In fact, with classes over for the year, I only have 70 civil procedure exams standing between me and that leave...
Electronic law review supplements and tenure
Posted on May 11, 2009I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky's Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review's launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow...
Making Information Pay: How the Recession is Changing the Book Business
Posted on May 11, 2009In the not-too-distant past, academic titles could be published and languish on shelves indefinitely. Now, each title needs to prove its financial value, as well as its scholarly merit. A recent article discusses this trend on the trade side, and even some of the best-known and most established academic publishers are reportedly feeling the pinch...
Piracy & Jurisdiction: A Post by Eugene Kontorovich (NW Law)
Posted on May 11, 2009I've been writing for several years about piracy, using it as a case study to better understand universal jurisdiction, which originated with piracy and has been extended now to other crimes. The current piracy epidemic in the Gulf of Aden has made all this quite relevant...
"It is what it is": Anatomy of an idiom
Posted on May 11, 2009As I've begun to go to conferences and to learn what legal academic life is all about, I'm coming to appreciate some of the manners of speech and phraseology that are part of the culture. The pregnant So..., the postmodern "stories" and "narratives" (often offered up inside tellingly non-neutral quotation marks), the orthogonalisms, the acutely self-conscious normative/descriptive parsings, the takings up of the second part first, and so many others...
Lawyer's Evaluations of Judge Sonia Sotomayor
Posted on May 10, 2009As a number of people in the blogosphere have noted, Jefferey Rosen's pieces in the New Republic have tried to swiftboat Judge Sonia Sotomayor, and introduce her to the world in a way that distorts the incredible work and achievements of this gifted and accomplished woman...
The Supreme Court, Socio-Economic Rights, and Separation of Powers
Posted on May 08, 2009The U.S. Supreme Court has issued numerous decisions where it has ruled against implying positive socio-economic rights, though it has not hesitated to find an implied right to privacy, abortion, travel, etc. One of the Court's major arguments has been separation of powers...
Review Essay Review: Abner Greene on Religion Clause Theorists
Posted on May 08, 2009Via Larry Solum, I saw this review essay by Abner Greene on the recent work of Martha Nussbaum, Christopher Eisgruber and Lawrence Sager, and Brian Barry (though Barry's work is, for Greene, not so much an object of review as an egalitarian counterpoint to the approaches of the other two)...
Monica Redux
Posted on May 08, 2009I'm not sure it can be called "piling on" to write about Elizabeth Edwards' private life right now, given that she has little apparent hesitation talking about it either -- to Oprah, no less. I don't want to dwell on it. But one statement she made yesterday is worth looking at for a second...
When to Post to SSRN (Junior Edition)
Posted on May 08, 2009There was a useful exchange at Prawfsblawg a while back - here and here - about