Academic

An Experiment on Law Review Placement

Posted on October 05, 2009
Our faculty had a lunch discussion of non-traditional legal scholarship and publishing today. As someone who sees growing convergence between scholarship in law and scholarship in other disciplines and who wonders how long the pre-Internet model of legal publishing is likely to persist, I started thinking about the classifying function of traditional legal scholarship...

Response to Prof. Crump

Posted on August 19, 2009
  Anyone who has taken a marketing course (or sold drugs in Baltimore) would realize the importance of rebranding.  Merely restating the curriculum as Torts, Contracts, etc. would not be innovative.  Many of us teach those tools of the trade in a single course, but suffer from a branding problem...

'Innovation' redux

Posted on August 04, 2009
Here is the 'innovative curriculum' at the new UC Irvine Law School. It's not really very innovative, even though it has different names for the courses, but it does scrap the traditional curriculum and try something different. One thing that looks interesting about this curriculum is that it seems to repeat the what-do-you-think-and-how-do-you-feel-about-this-court-opinion method a little less...

Waxman-Markey Climate Change Bill Not a Disaster for the Environment

Posted on May 26, 2009
I have spent the better part of four years studying proposed US climate change legislation, state and local climate actions, the roll-out of the Kyoto Protocol and the implementation of the European Union's Emissions Trading Scheme. I have written about the large scale issues that must be considered in federal legislation, and looked in depth at some of the issues surrounding offsets and trading, and have recently published op-eds and blogged on the way the Waxman-Markey bill deals with offsets...

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What should we learn from disasters affecting children?

Posted on January 23, 2009
Together with the ABA, the UHLC’s Center for Children, Law & Policy has published a book on the effect of the hurricanes of 2005 on children. It is filled with interdisciplinary insights about what happened to children in families, foster care, and the juvenile justice and educational systems...

On Grading

Posted on January 23, 2009
 One of the most important faculty functions (apart from the education of budding lawyers) is to appraise the abilities of students based upon a single snapshot known as the “final exam” or “final.”  The grade ultimately earned by the exam taker reflects the professor’s appraisal of the student based solely on what the student wrote on that exam...

Drilling Down Into Gov. Palin's Energy 'Experience'

Posted on September 10, 2008
Say what you will about the selection of Alaska Governor Sarah Palin for the Republican Vice Presidential slot, but one inarguable fact remains: she is the only candidate on either ticket with direct energy policy experience. Palin spent one year as chairwoman of the Alaska Oil and Gas Conservation Commission, and as governor of Alaska she has received positive reviews for her work on energy issues ranging from natural gas pipeline construction to patchy statewide shortages of energy...

Copyright content providers lose control of DVR market

Posted on September 08, 2008
Who should derive revenue from remote DVR systems? According to a panel of the Second Circuit Court of Appeals, the revenue should not go to the content providers. This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers...

Taking Environmental Laws Seriously: North Carolina v. EPA

Posted on August 06, 2008
Many environmental organizations were stunned recently when the D.C. Circuit vacated the EPA’s implementation of the Clean Air Interstate Rule (“CAIR”) in North Carolina v. EPA. According to the Court, the CAIR failed to follow Clean Air Act (“CAA”) statutory mandates...

Why have a Bar Exam? One Inductee's Appraisal

Posted on August 06, 2008
Legions of aspiring lawyers recently sat for licensing exams administered by their respective state bars.  Was it worth the effort?  Here's my take. My very first client after law school posed an interesting question. She was a creditor who was unsure as to whether she was a secured creditor...

Guns and Campuses: A Dangerous Combination

Posted on July 28, 2008
It is time once again for the discussion about whether students should be permitted to pack heat on a college campus.  See http://www.chron.com/disp/story.mpl/ap/tx/5885729.html.  My thoughts on this issue have not changed.  As was stated in the op-ed I wrote (see below), allowing students to carry guns on a Texas college’s campus is a dangerous threat to higher education in Texas...

Abolish the Act of State doctrine?

Posted on July 09, 2008
Imagine what would happen if an American President were to persuade Congress to abolish the Act of State doctrine. Presumably, the President would follow this step by “tough negotiations” conducted with the Saudis, which would be convened either “with or without preconditions...

Original jurisdiction of the Supreme Court etc.

Posted on July 09, 2008
Congress cannot obviate original jurisdiction of the Supreme Court, but it can sometimes limit the jurisdiction of lower federal courts – but can it do so in such a manner as to unconstitutionally thwart “judicial power” based in the U...

Note: Banco Nacional de Cuba v. Sabbatino

Posted on July 08, 2008
According to Gary Born, International Civil Litigation in U.S. Courts (3d ed, 1996), at 688, Sabbatino relied in significant part on domestic separation of powers considerations.   Justice Harlan, writing for the majority in Banco Nacional de Cuba v...

NOPEC Clarified

Posted on July 07, 2008
The NOPEC Bill, which passed the House, would have repealed the Act of State Doctrine with respect to the petroleum industry. The bill was defeated in the Senate. President Bush (unrelated) threatened a veto.   I fail to see the separation of powers argument...

Questions for Prof. Bush

Posted on July 07, 2008
I wasn’t aware of the SD Texas case – was it brought by an affected party, or by the government? Does it raise the FSIA issue the of commercial activities exception to sovereign immunity? It could be an important precedent in this regard, since the 1979 opinion on this issue was issued by a District Court...

Cartels are evil. (Response to Prof. Zamora)

Posted on July 03, 2008
As you know, the MOST recent lawsuit against OPEC is In Re Petroleum Products Antitrust Litigation, MDL No. 1886, currently in the Southern District of Texas.  Of course, there are serious obstacles in terms of an antitrust suit against OPECor more precisely, its members...

Response to Darren Bush op-ed

Posted on July 03, 2008
The last time OPEC was sued over price fixing (IAM v. OPEC, in the 1970s), the U.S. District Court ruled that OPEC lacked legal personality to be sued as an entity. The lawsuit proceeded against the individual OPEC governments, but was dismissed on the grounds that the Foreign Sovereign Immunities Act (FSIA) made the governments immune from suit...

Sue OPEC?

Posted on July 03, 2008
In an op-ed published in the LA TIMES, Darren Bush and co-authors Harry First and John J. Flynn advance the notion that the brazen actions of the OPEC cartel run afoul of U.S. antitrust laws. As the national average price of gasoline raced toward $4 a gallon and airlines laid off workers by the thousands because of rising jet fuel costs, the House of Representatives took action: It overwhelmingly passed the Gas Price Relief for Consumers Act of 2008...

A Climate Change Policy With No Teeth

Posted on April 17, 2008
The academy, politicians, and environmental law nerds have been abuzz the last few days about the possibility of President Bush putting forward a climate change policy showing significant movement from his prior positions. I guess we can all harbor hope...

Does the future of patent law portend compulsory licensing by judicial fiat?

Posted on January 02, 2008
I hope not, but that is one risk created by the Supreme Court’s decision in the Ebay case and by the actions of some courts who have denied permanent injunctions in successful infringement cases. But the fact that a permanent injunction does not issue after a judgment of infringement does not mean that the infringer (by losing the case) obtains a right to use the patent owner’s property in the future...

Watchdog Blog Bites Arbitration for Business Bent

Posted on October 02, 2007
Public Citizen's Watchdog Blog discusses a new report that concludes that arbitrators rule for business between 94 and 97 percent of the time.In a nutshell, [binding mandatory arbitration] is a private, corporate-dominated secret "court" that overwhelmingly rules against consumers...

Standards Setting Organizations: deference to the market

Posted on September 27, 2007
Many industries function under technological standards that shape the technology, the products, and the focus of competition. But standards-setting groups have become competition focuses themselves, such as in the debate about “open document” versus “open xml” as a standard...

Justice Denied

Posted on July 19, 2007
George W. Bush became governor of Texas in 1994, when he upset the popular incumbent, Ann Richards. The following September, my client, Carl Johnson, was scheduled for execution. Johnson had killed a security guard during a holdup of a convenience store...

E-Commerce should not be over-regulated

Posted on July 19, 2007
We wake up one morning and discover that a question we have been asking for the last decade or two may now be the wrong one. The question was: how can we use law to enable businesses to use e-commerce? The question now seems to be: how can we shape law to support e-commerce without over-regulating it?Here’s how things have changed over the years about the idea of “electronic commercial law...

Saving The Environment, One Transaction At A Time

Posted on April 02, 2007
Can you be an environmentalist and a business supporter at the same time? Environmental groups believe it’s possible, even after decades of litigation and open warfare with business interests. But a multi-billion-dollar deal in the works in Texas suggests that a new era may be dawning, with the private sector finally willing to take important measures to protect the environment...

Response to David Crump

Posted on February 08, 2007
Dear David, Of course the DOJ had clients.  We called them “the people.”I suppose my quibble is about what I view to be a false dichotomy between intellectual endeavors and practice endeavors.  For example, in my line of work, fact development is not done in a vacuum...

Hole vs. Donut: A response to Darren Bush

Posted on February 08, 2007
Darren, the Stracher piece is a mild call for a corrective to a skewed educational system. Yes, there are occasions for intellectual debate in the law. But they are rare, compared to other things.They are possible in larger doses for people in the Justice Department or academia because they are in a rarified atmosphere; they don’t have clients and can afford “wasted meetings” that other lawyers could not...

Being a lawyer is NOT about intellectual debate??

Posted on February 08, 2007
I read Stracher’s piece this morning, and was devastated to discover that being a lawyer is not about intellectual debate.  I guess it explains a lot of wasted meetings at Justice.  It also explains why I incessantly get calls asking me to file amicus briefs—lawyers don’t engage in intellectual debate, they instead run to the halls of academe to provide it!   (link to Stracher’s piece)With respect to the proposal of postgraduate work (also known as the articling process), in the daze of my youth I wrote a piece entitled “why have a bar exam?” calling for the abolishment of the bar exam...

We need Federal Law to Protect Gays and Lesbians from Discrimination

Posted on November 21, 2006
With the Democrats retaking the House and Senate, the gay and lesbian community, like many interest groups, is hoping that issues important to it will be addressed. Though gay marriage seems to be the issue “du jour” for our community; in reality we should be paying attention to protection from employment discrimination...

Election 2006 - Has Houston's Environment Finally Become a Political Issue?

Posted on November 08, 2006
While Democrats celebrate their national victory and talk of a change in direction in Iraq, another important issue may have been decisive in the race for State District 134 here in Houston. Despite winning two previous terms in a Republican leaning state district, Republican Representative Martha Wong was decisively turned out of office on Nov...

Separate is NEVER Equal -- Even in Jersey

Posted on November 08, 2006
The New Jersey Supreme Court might have thought it was dropping a bombshell when it ruled that gay and lesbian committed couples deserved the same legal benefits as heterosexual married couples under the state’s constitution. But the justices achieved something else: they fired off a dud...

Reverse engineering is not an inviolate right

Posted on November 06, 2006
Reverse engineering is not an inviolate right       Actually, contracts control. I can have a privilege to do something, but then can waive that privilege. So too the privilege to make limited copies for purposes of some forms of reverse engineering...

It's Easy and Wrong to Blame Immigrants for Crime

Posted on November 02, 2006
The airline industry has a term for what Houston wants to do about illegal immigrants and the crimes they commit. When pilots make the wrong decisions because of a real or perceived need to rush through their tasks, they are said to have experienced the “hurry-up syndrome...

Antitrust in Dallas

Posted on November 02, 2006
A letter to four ranking Congressmen gets to the heart of the antitrust issues surrounding the supercharged plans involving airfields in Dallas. September 13, 2006 The Honorable Arlen Specter, Chairman Committee on the Judiciary United States Senate 711 Hart Building Washington, DC 20510 The Honorable Patrick J...

Innocence as a Death-Penalty Distraction

Posted on November 02, 2006
For too many years now, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America. Innocence is a distraction.EARLIER this week, the Supreme Court decided, in a 5-to-3 opinion, that a Tennessee prison inmate named Paul G...

An Unsafe Harbor On Detainee Treatment

Posted on November 02, 2006
Unsafe Harbor: The GOP 'Compromise' on Detainee Treatment Congressional adoption of the recent “compromise” between three Republican Senators and President Bush does not provide proper legal guidance to U.S. interrogators, and adherence merely to its standards would place the United States in violation of common Article 3 and other provisions of the 1949 Geneva Conventions,  not to mention similar provisions in several other international treaties and instruments and customary international law...