Legal Commentary

The Modified Workshop Queuing Experiment

Posted on May 17, 2013
In the interest of sharing ideas, I wanted to say a word about workshops. Over the last several years I have co-run with Einer Elhauge a workshop in health policy, biotechnology, and bioethics, where leading scholars present works in progress. We usually have a significant number of faculty and fellows, as well as several students who enroll for credit...

Non-State Law and Enforcement

Posted on May 17, 2013
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise...

Blog Symposium on Radin's Boilerplate

Posted on May 16, 2013
There is a blog symposium at ContractsProf on Peggy Radin's new book, Boilerplate. My micro-review on the fetishization of consent is available here.

First Amendment Institutions in the Law and Politics Book Review

Posted on May 16, 2013
My most recent book, First Amendment Institutions (it makes a good Victoria Day gift!), is reviewed in the latest issue of the Law and Politics Book Review by law professor Ruthann Robson. It's a tough but fair review. I welcome the criticism, and hope I may be forgiven for cherry-picking a couple of generous lines: the book "provides the most sustained, nuanced, and well-reasoned argument for an 'institutional turn' in First Amendment jurisprudence," and "admirably achieves" the goal of "open[ing] a conversation about First Amendment institutionalism, ...

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Spreading out grading

Posted on May 16, 2013
I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post)...

Learning from exams

Posted on May 16, 2013
I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams. Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391...

Missing Minorities in a New Publication About Law School Diversity

Posted on May 16, 2013
The publication Lawyers of Color just published a special issue on diversity in the legal academy, apparently aimed at students. It identifies "50 Under 50", the most influential minority law professors under 50 years old, a very distinguished group. It also purports to list the most diverse law faculties and to identify every minority law professor teaching at every law school...

Freedom of the Church Without Romance

Posted on May 15, 2013
I'm happy to share my latest draft paper, Freedom of the Church Without Romance. It was written for a symposium at the University of San Diego's law school called "Freedom of the Church in the Modern Era," and I must say that the articles coming out of that symposium, mine excepted, are very strong and will constitute excellent resources for those interested in the increasingly popular subjects of "freedom of the church," religious institutional autonomy, the ministerial exception, and related themes...

Two Moving Testimonies

Posted on May 15, 2013
Here are links to two recent powerful pieces of personal testimony, both dimly but only dimly law-related. The first is this moving letter-cum-tribute between law professor Charles Barzun and his illustrious grandfather, Jacques Barzun. The second, even more powerfully personal, is this piece by lawyer Tony Nitti, about suffering and recovering from a brain aneurysm, in which he observes and explains why, "when recovering from a life-threatening ailment, the real challenge often doesn?t begin until the healing is complete...

JOTWELL: Coleman on Hoffman on federal rulemaking

Posted on May 15, 2013
The latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).

A Jot on "Balkan Ghosts"

Posted on May 15, 2013
The latest con law "jot" from Jotwell: Pat Gudridge on Reva Siegel, balkanization, and equal protection. Enjoy!

The Getting (Criminal Law) Scholarship into Courts Project: Litigate This

Posted on May 15, 2013
I'm involved in a new project designed to connect practicing criminal lawyers with useful legal scholarship. I am very excited about it, because, contrary to some, I think law review articles are frequently relevant to legal issues decided by courts. Every month, a committee of practicing and academic lawyers will identify a set of articles about issues practitioners might want to raise in their cases...

Rationing Legal Services

Posted on May 15, 2013
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance...

Buy "The Business of Baby!"

Posted on May 15, 2013
I almost missed it, but you might enjoy, from this weekend's New York Times Book Review, this review by Annie Murphy Paul of "The Business of Baby," a book by the capitalist journalist Jennifer Margulis.

Is a broadcast to everyone private under the Copyright Act?

Posted on May 14, 2013
For the final post in my extended visit here, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today?s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service...

The inevitably phoney textualism of "express" preemption doctrine

Posted on May 14, 2013
Few probably waited with eager anticipation for the SCOTUS to hand down Dan's City Used Cars, Inc. v. Pelkey. To federalism aficionados, however, the opinion illustrates the threadbare quality of the textualist ritual when applied to so-called express preemption cases...

Dean Wu and Judge Chin Reenact Vincent Chin Trial

Posted on May 14, 2013
May is Asian Pacific American Heritage Month, so it is appropriate to share this reenactment of the trial of the men who killed Vincent Chin in 1982. The killing was a transformative event in the history of APAs, and UC Hastings Chancelor & Dean Frank Wu and Second Circuit Judge Denny Chin have presented this trial reenactment in a number of venues...

Oh, the Cases You'll Know

Posted on May 14, 2013
The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)

Sunstein on Albert Hirschman

Posted on May 13, 2013
In the new New York Review of Books, Cass Sunstein has a very enjoyable essay on Albert Hirschman, jumping off of a recent biography. Hirschman's classic book Exit, Voice and Loyalty is well known to legal scholars, with some 870 cites in the Westlaw legal periodical database (including a good new piece by Heather Gerken in the Duke Law Journal)...

The Tragedy of Religious Freedom: Available Now

Posted on May 13, 2013
I'm pleased to announce that my new book, The Tragedy of Religious Freedom, is now available for purchase from Amazon (official publication date is June 1). Here is Harvard University Press's page for it. The book is specifically about the First Amendment religion clauses but it also involves more general questions about the relationship of legal theory and legal practice, and the tasks that legal scholars set for themselves...

Honoring Judge Jane Roth

Posted on May 13, 2013
Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006...

Source bleg

Posted on May 13, 2013
I am looking for a source to support following proposition: A prohibition on some conduct is justified, even if the prohibited conduct and harm does not arise that often, so long as having the prohibition does not impose new/additional costs that exceed any benefits...

Mike Wallace interviews Justice Douglas on free expression (1958)

Posted on May 13, 2013
If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch...

McGeveran on Continuous Assessment

Posted on May 13, 2013
At CoOp, William McGeveran had a post last week on continuous assessment, rather than the traditional hundred percent final, in law school. It didn't receive much by way of reaction or commentary. Given a recent discussion here, perhaps that's for the best, because McGeveran, with candor but not indifference, notes some glitches in shifting from one approach to the other...

A Mother's Day Essay In Praise of Pioneers

Posted on May 12, 2013
Most strongly held views of parenthood make heroically unrealistic assumptions about what parents ought to know about parenting. This obligation for omniscience spans familiar divisions among parenting reformers. Regardless of whether they favor Tiger Moms or children?s self-esteem, parenting advocates today agree that parents know ? or ought to know ? how their parenting decisions will affect their kids...

Marty Redish and A Jurisdictional Perspective on New York Times

Posted on May 12, 2013
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching...

Sports, video, and procedural rules

Posted on May 09, 2013
This story captures why people like me like using sports to illustrate legal ideas. 1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call...

Reflections on the Rhythm of Academic Life

Posted on May 09, 2013
Apologies for showing up a bit late to the Prawfs party, and many thanks to Dan for inviting me back again. Like many of you, no doubt, I am overwhelmed at the moment with grading and administrative responsibilities, so the most I can muster here today is a post about academic life...

Interview with Brian Dalton about Above the Law?s New Rankings

Posted on May 09, 2013
You?ve no doubt heard about the new Above the Law Top 50 Law School Rankings. But have we really had the chance to scrutinize them to death? ATL itself has done the job for us, to some extent, with self-criticism here and here. But perhaps you still have questions? We here at Prawfs did, and ATL?s rankings guru Brian Dalton was kind enough to answer them...

Spousal Hiring, Ethics, and the Theory of the Family

Posted on May 09, 2013
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]...

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