Legal Commentary

New ABA Accreditation Rule 304(g) and the Outsourcing of Legal Education

Posted on April 01, 2011
One thing that I always thought was great about being a law professor was that ours was a job that was basically guaranteed not to be outsourced. So I was shocked by today's news that the ABA Section of Legal Education and Admissions to the Bar voted to approve Standard 304(g): "A program of instruction may be completed through exclusively online instruction...

Duke lacrosse lawsuits going forward, at least in part

Posted on April 01, 2011
Judge James Beaty of the United States District Court for the Middle District of North Carolina has denied, at least in part, the motions to dismiss in Evans v. City of Durham, the action by the three indicted Duke lacrosse players (they previously settled with Duke University) and the motions for summary judgment in Carrington v...

Exclusive Submission Window Available at Florida State's Law Review

Posted on April 01, 2011
My wonderful former student, Hannah Monroe, is the new senior articles editor at the Florida State University Law Review. She's asked me to share this information. Feel free to contact me or her about this opportunity. See below. The Florida State University Law Review will be conducting exclusive spring article reviews...

Solum for the win!

Posted on April 01, 2011
Dorf and Leiter have some April Fool's pranks up, but neither approaches the subtlety of Solum's abstracts for today. Remember that last year, Solum was able to actually predict the next piece of one of his targets. Well-played, Larry. I think my favorite is Posner's What Do Deities Maximize?

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Fiduciary Representation and Deliberative Engagement with Children

Posted on April 01, 2011
The Journal of Political Philosophy has just pre-released an article of mine (co-authored with David Ponet of UNICEF); it will be published in a print issue in 2012. The paper uses dimensions of fiduciary law to understand how we can better think about the representation of children in democracies...

Bacon Flavored Air

Posted on April 01, 2011
Available here. I'm sorry, the title of the post is somewhat misleading. It's actually a bacon-flavored-oxygen-inhaler. My mistake. But it is only $8.99. Sadly, though, they are currently out of stock. You'll have to wait.

Who Has to Draw the Line?

Posted on April 01, 2011
Jonathan Adler over at Volokh Conspiracy had a post a couple days ago about the mandate and the broccoli question. Adler has a good couple sentences summarizing things here: This, in the end, is why mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question: If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can?t it also require everyone to purchase broccoli? I come at this as an outsider; I haven?t yet taught the Commerce Clause; I don?t have strong feelings about it...

transparency & politics

Posted on April 01, 2011
To set the scene: Zoom in from Wisconsin to Governor Scott Walker's and the Wisconsin legislature's ultimately successful effort to radically scale back public sector collective bargaining rights. Shift to the popular response against that effort in Madison (and elsewhere in the state), and focus on the work of academics at UW-M like History professor William Cronon...

Just a quick hello

Posted on April 01, 2011
Hi folks. I wanted to drop by briefly, mostly to thank Dan for inviting me back for the month. I have, I think, a lot of stuff to talk about: my webinar and my sabbatical, the thrills of putting together my promotion packet for next year and related reflections on career trajectories, and surely some other stuff will come up (the White Sox world series hopes? too soon?)...

It's Good to Be Back...

Posted on April 01, 2011
Thanks to Dan and the whole Prawfsblawg community for having me back, despite all the threats they received last time because of me. (Sorry, that?s a bad stab at humor, as per Brendan below.) I?m an avid reader here, though often just a lurker. It?ll be nice to get more involved...

Laugh On

Posted on April 01, 2011
Glad to be back. This is my second time wearing the Prawfs jeans, so they're broken in and I'm feeling jaunty. Confession: I?m suspicious of humorless people. People who are unflinchingly unsmiling, or blind to the lighter side of otherwise serious situations, strike me as the sort most likely to ignore reality in favor of pet abstractions...

Rotations

Posted on March 31, 2011
It's a new month and almost our 6th freaking anniversary in a matter of days, so it's time to take stock but I haven't got the time to do so today, so instead I will simply say thanks to the cadre of wonderful March guest bloggers, and welcome the new voices taking up residence here during the month of April...

Same Sex Marriage in the Fed Courts, Part I ("The Memo")

Posted on March 30, 2011
(first in a series of some ruminations, not wholly random, on the twin subjects of litigation -- California's Proposition 8 and DOMA -- presently winding their way through the courts). With regard to the remarkable February letter from Attorney General Holder on behalf of the Obama administration, two pieces of intriguing fine print: In footnote 2 of the letter, AG Holder says, in juxtaposing racial and sexual orientation discrimination, that "some of the (sexual orientation) discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed ...

Symposium on Freedom of Conscience

Posted on March 30, 2011
The San Diego Law Review recently published a symposium issue on freedom of conscience. The issue features contributions from Larry Alexander and Steven D. Smith, Kent Greenawalt, Adam Kolber, Brian Leiter, Andrew Koppelman, Chris Wonnell, Michael Perry, Dick Arneson, Nomi Stolzenberg, Michael White, Ronald Beiner, and Maimon Schwarzschild...

Statutory Construction is Going to the Dogs

Posted on March 30, 2011
My bike ride to work today reminded me of a sneaky little game I play with my students when statutory construction comes up. A medium-sized dog was in the front passenger seat of a Chevrolet SUV and the dog was wearing a seat belt. My first thought was that this was hilarious; my second thought was that it actually is just safer...

Roger Alford to Notre Dame

Posted on March 30, 2011
Many readers will be familiar with Roger Alford's work in international-trade and international-arbitration law, as well as comparative constitutional law, and also -- more important, of course! -- with his blogging at Opinio Juris. I'm delighted to report that he has accepted a lateral offer from Notre Dame Law School, and will be joining us next year, moving from Pepperdine...

Public financing and government speech

Posted on March 30, 2011
Based on yesterday's Monday's oral argument in McComish v. Bennett, it seems pretty clear that five justices (at least) will vote to invalidate the matching-funds provision of Arizona's public-financing law. Under that provision, a candidate who opts in to the public-finance system receives matching funds when privately financed opponents or independent groups spend more than a certain amount on speech...

Want to come to Los Angeles in September?

Posted on March 30, 2011
The Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law will take place in Los Angeles on September 16-17. It will be jointly hosted by Loyola Los Angeles, Southwestern, and UCLA. If you are interested, you can register here. As conference lore has it, this conference was initially the brainchild of Paul Secunda and Scott Moss, who on various blog posts were lamenting that there was no subject matter specific conference on employment and labor law allowing a broad cross section of individuals to present their current work...

Reports of pleading's demise may have been exaggerated

Posted on March 29, 2011
The Federal Judicial Center today released a study of the use and granting of 12(b)(6) motions under Twiqbal, comparing the years 2006 (the year before Twombly) and 2010 (the year after Iqbal). The Executive Summary put forth the following: ? There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III...

Presence makes the heart grow fonder?

Posted on March 28, 2011
Making my way through Edward Glaeser's thrilling new book, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier (Penguin 2011). Glaeser points us to 19th century English economist, Wm. Stanley Jevons, whose noted the paradox that efficiency improvements lead to more, rather than less, consumption (fuel efficient cars end up consuming more gas, and the like)...

Lie Detection and the Technological Look-Back Principle

Posted on March 28, 2011
Over the last decade, neuroscientists have made significant strides toward using various brain imaging techniques to determine when a subject is lying. The research is still at early stage, however, and has principally involved rather artificial experimental settings (e...

DOMA, Immigration, and Switch in Time: A Dissenting View

Posted on March 28, 2011
Regarding Ari Waldman's valuable post, I am more troubled by this turn of events. Let me begin by saying that I share 100% Ari's priors: DOMA is unconstitutional, the Obama administration's recent position is both defensible and well-defended, and concerns of compassion and fundamental fairness make the immigration authorities' post-DOMA position hard to stomach...

DOMA: Enforcing an Unconstitutional Law

Posted on March 28, 2011
Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. I am not alone in this view, with President Obama, Judge Joseph Tauro (D. Mass.) and many others on the left and right in my camp. But, even after announcing that the Department of Justice will no longer defend DOMA Section 3 because such laws fail heightened scrutiny, President Obama has rightly promised to continue enforcing DOMA Section 3 until it is either finally overturned by the Supreme Court or repealed in Congress...

The Constitution's Pocket Part

Posted on March 28, 2011
While I'm at it, here is a link to a short post on Jotwell that I wrote, discussing a forthcoming satirical article by Michael Stokes Paulsen titled "Our Perfect, Perfect Constitution." In selecting this piece, I was mindful of some excellent criticism I received from a friend while I was at the AALS conference this year...

"Prof. Moron" on Banning Sharia in Alabama Courts

Posted on March 28, 2011
Here is a link to an op-ed I published the other day in the Montgomery Advertiser, objecting to a recent bill proposed by an Alabama state senator which, like others that have been proposed elsewhere, would ban the state courts from "looking to" Sharia in deciding legal disputes...

Characterizing the ministrerial exemption

Posted on March 28, 2011
Rick beat me to the announcement of today's cert grant in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, onthe scope of the ministerial exemption from federal employment-discrimination laws. Marc first discussed this case a month ago when it was about to be conferenced; it kept getting pushed back until today...

The Court grants cert. in ministerial-exception case

Posted on March 28, 2011
Today, the Supreme Court agreed to hear what (I think) might be its most important religious-freedom case in a long time. The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC. (More here, at the Religion Clause blog.) The case does not involve what?s become the usual stuff of the Court?s church-state caselaw: prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks...

BGSU Paternalism Workshop

Posted on March 28, 2011
I?m fortunate to have the opportunity to participate this week in a workshop at Bowling Green State University, ?Freedom, Paternalism, and Morality,? a Workshop in Applied Ethics and Policy sponsored by the Philosophy Department. Keynote speakers are Douglas Husak (Rutgers) and Richard Arneson (UCSD)...

Judge Blane Michael

Posted on March 27, 2011
M. Blane Michael, a judge on the Fourth Circuit Court of Appeals, passed away on Friday. As one of his former clerks, I am incredibly sad at this news. Judge Michael was one of the most decent and honorable people I have ever met. He was beloved by all on the Fourth Circuit, no matter the political stripe -- he got along fabulously with Judge Luttig, despite their frequent clashes on the page, and he frequently went jogging with Judge Wilkinson during court week...

Federalism and Corruption: Which states effectively self-police themselves?

Posted on March 27, 2011
This last Friday, I had the pleasure of appearing on a panel with some very distinguished public officials in federalism and the fight against corruption in the United States. The panel was part of a conference on Policing, Regulating, and Prosecuting Corruption, organized by NYU's Center on the Administration of Criminal Law, a think tank run by Tony and Rachel Barkow...

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