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Legal Commentary

Prawfs Prawfs

Friends argue about law and life.
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

Post Frequency: 72.7/day

Last Entry: April 23, 2014 at 08:51:47

Recent Entries: 7412

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Another (easy) procedure case

Posted on April 07, 2014
SCOTUS today granted cert in Dart Cherokee Basin Operating Co. v. Owens, to resolve whether a Notice of Removal must include evidence in support of subject matter jurisdiction (as the district court held here and the ) or whether it is enough that the Notice contain a "short and plain statement" of jurisdiction (as seven circuits have held), with no evidence necessary until arguing the Motion for Remand...

Eich and the Politicization of the Corporation

Posted on April 07, 2014
Just a brief word on the (forced) resignation of Mozilla CEO Brendan Eich because of his Prop 8 donations: welcome to the continuing politicization of the corporation. If corporations have speech protections and can play an active role in ideological debates of all stripes, then it matters if the CEO takes a different political position than the majority of stakeholders in the enterprise...

Unions, incentives, and change

Posted on April 06, 2014
In March, the regional director of the Chicago office of the National Labor Relations Board ruled that football players at Northwestern University were employees, entitled to form a union and to collectively bargain with the university over conditions...

Weekend Reading Squared

Posted on April 05, 2014
I'm grateful to Randy Kozel of Notre Dame for reviewing my book First Amendment Institutions. (Hell, I'm grateful to him for reading it.) His SSRN version of the review, forthcoming in the Michigan Law Review, is here, and the abstract follows. The book is available here and makes a fine Passover or Administrative Professionals Day present...

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Plus ca Change

Posted on April 04, 2014
I'm rereading Adam Sisman's very well-done and readable biography of the historian Hugh Trevor-Roper. Here's a passage in which Trevor-Roper, a thoroughly nasty and brilliant man, describes the work of his colleague Lawrence Stone: "[He] wrote articles which, by the triple technique of a challenging thesis (generally a mere exaggeration of a borrowed thesis), a dogmatic ex cathedra style, and a portentous array of documentation ...

JOTWELL: Yung on Steinman on state decisis

Posted on April 04, 2014
The new essay for JOTWELL's Courts Law comes from Corey Yung (Kansas), reviewing Adam Steinman's To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis (Virginia Law Review). Adam's article, which is great, argues for an approach to stare decisis that looks to the core rule of a case, not to its result; Corey then discusses how this approach would control the use of Lawrence v...

Is a Vote For Campaign Finance Reform a Vote for Brendan Eich? (And Vice Versa)

Posted on April 04, 2014
Whatever I may feel about boycotts and similar actions in general, or the pressure for the resignation of Brendan Eich in particular, I must make clear that I do not think Eich was defenestrated. Jan Masaryk was defenestrated; Eich was subjected to highly disputable uses of market pressures...

Obesity and Taxes

Posted on April 03, 2014
Cigarette taxes have proved to be an effective strategy to reduce smoking, so one might think (as many experts do) that soda taxes would be an effective strategy to reduce obesity. Consumption of soft drinks seems to be an important risk factor for obesity, and people are sensitive to the price of their colas...

Linguistic Versatility (or is it Hegemony?) and the Law

Posted on April 03, 2014
There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew...

Checking In

Posted on April 03, 2014
I've read PrawfsBlawg with what in retrospect seems to me disturbing thoroughness almost since its inception, so I'm grateful to Dan and the Prawfs community for the chance to guest this month. I teach federal courts and constitutional law and write about those subjects and constitutional theory...

The Future of National Security Law at Pepperdine University School of Law

Posted on April 03, 2014
The Pepperdine Law Review along with my colleagues here at Pepperdine University School of Law are hosting a very interesting symposium tomorrow on the Future of National Security Law. The symposium features a diverse group of scholars many with prior government experience...

Two by Zimmerman

Posted on April 02, 2014
If you have not yet read the work of my former St. John's colleague and friend, Adam Zimmerman, you are missing out. Adam's work often addresses the question of settlements, but it does so drawing from (and with major structural implications for) administrative law, tort law, criminal law, and constitutional law...

Affordable Care and the Lessons of History

Posted on April 02, 2014
The Affordable Care Act (ACA) seems to be gaining steam. After a rocky start in October, the new health insurance exchanges reached the government's enrollment goal of 7 million. As ACA's provisions continue to take effect, its status should solidify and transform the U...

Better to post your criticisms on Twitter, I guess

Posted on April 02, 2014
One law student's travails (from Above the Law).

A salience-bias defense of marginal law reforms

Posted on April 02, 2014
Hey y?all. It?s always good to be back guesting at Prawfs. I?m looking forward to sharing thoughts about property?physical, intellectual, and otherwise?over the course of the next month. I?ll kick it off with a news item that caught my eye today: The UK just announced a forthcoming reform to its copyright law...

Signing On

Posted on April 02, 2014
Thanks very much to Dan and PrawfsBlawg for hosting me as a guest blogger this month. I teach and write primarily in health care law and constitutional law, so tend to blog on topics in those fields. I'll also draw on my past experiences as a three-term state representative in Indiana and a practicing physician...


Posted on April 02, 2014
My colleagues at the NYU Center on the Administration of Criminal Law are hosting a very interesting day of discussions on mercy and clemency in the criminal justice system on the upcoming Ides of April. Doug Berman, a frequent guest here at Prawfs, will be one of the many interesting speakers...

Wake Up! It's April Fool's Day!

Posted on April 01, 2014
My favorite part of April Fool's Day--apart from the fact that it's also the day this year for my students to fill out their evaluations forms; that should be hilarious!--is Larry Solum's Legal Theory Blog. His entries almost always pass the "I'm going to click through, just to be sure" test...

Orality in litigation

Posted on April 01, 2014
I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee)...


Posted on April 01, 2014
Thank you to Dan and Prawfs for having me as a guest blogger for the month of April. I am a first year associate professor of law at Pepperdine University School of Law where I teach the IP Survey course, Entertainment Law, and a somewhat unusual seminar called "Business Perspectives on Workplace Privacy...

Signing Off

Posted on April 01, 2014
Many thanks to Dan and the Prawfsblawg crew for inviting me to guest-blog. It's the first time I've done something like this, and I've really enjoyed the experience. And thanks to all for reading and commenting! It's been great to "meet" many of you over the past month.

One More for the Road: The Knobe Effect

Posted on April 01, 2014
Although I've already signed off, I wanted to post one more thing. I've been researching vicarious felony murder for Arnold Loewy's (interesting, enlightening, fun, well-run, excellent) annual upcoming criminal law symposium at Texas Tech, and came across the Knobe Effect, which hasn't, I think, been given the attention in the criminal law literature that it deserves...


Posted on April 01, 2014
Happy Spaghetti Tree Day! I'm delighted to issue a warm welcome to three new voices to Prawfs (Victoria Schwartz from Pepperdine, David Orentlicher from Indiana, and Garrick Pursley from Florida State); I'm also thrilled to welcome back to Prawfs our fair hero, Dave Fagundes from Southwestern...

April Fools at Law School

Posted on April 01, 2014
I thought I'd kickoff my stint here with a post in honor of the day. After all wouldn't want any more serious academic posts to get lost in all the April Fools humor circulating today. I decided to take a look at how April Fools jokes have come up in legal cases, many of which are unfortunately far from being funny...

Two Good Readings

Posted on March 31, 2014
The first is short but I couldn't resist. It comes from a speech Gov. Chris Christie gave this weekend at the Republican Jewish Coalition. In that speech, Christie said, "In New Jersey, nobody has to wonder whether I am for them or against them." Granted, the speech was about pandering on Israel, not about Bridgegate, but still--as they used to say on Archer, phrasing! The second is slightly more serious...

Signing off

Posted on March 31, 2014
My month as a guest blogger has come to an end. Thanks to all who read my posts and made comments. This was my first time guest blogging, and hopefully not my last; it has been an interesting way to get out some of my ideas and generate discussion, and I quite enjoyed the process...

Writing Methodologies

Posted on March 31, 2014
Up until now, I?ve generally taken a very deliberate approach to writing. At the outset, I?d take an extended period of time to do exhaustive research and formulate my ideas. I?d then painstakingly outline my argument step-by-step, reformulating arguments and conducting additional research as necessary...

Video and public gatherings

Posted on March 31, 2014
Much is being written about the "riot" in Tucson near the University of Arizona campus on Saturday evening following the school's overtime loss in the Elite Eight of the NCAA Tournament. The police department is defending its actions, although there are murmurings about coming lawsuits and a thorough internal investigation...

Thoughts on Ackerman on Dignity

Posted on March 30, 2014
Bruce Ackerman has a lovely op-ed in the Times today titled "Dignity is a Constitutional Principle." He writes, anent the recent same-sex marriage cases and future ones, that "the [Supreme Court] should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution...

Question Begging

Posted on March 29, 2014
Without digging into the underlying issue, I found curious the headline of this post by Robert George on Mirror of Justice, although I rather admired it for talking in terms of the Bible rather than natural law. The headline is: "World Vision reverses course and returns to the biblical view of marriage...

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