Legal Commentary

Better Politics

Posted on April 26, 2010
When health care reform was teetering on the brink of extinction (following Senator Scott Brown's victory in Massachusetts), I noted that President George W. Bush managed to get pretty much everything he wanted even though Republicans never had more than 55 Senate seats during his Presidency...

Search of Gizmodo Journalist's "Newsroom"/Bedroom: Federal Law

Posted on April 26, 2010
There are interesting new developments in the case of the "lost" iPhone 4G prototype. On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar...

ALEA 2010 at Princeton

Posted on April 25, 2010
The annual meeting of the American Law and Economics Association is less than two weeks away. Its at Princeton NJ and I am presenting my forthcoming article, The Incentives Matrix, Texas Law Review (2010) with Yuval Feldman. I haven't seen any bloggers' happy hour in the works like the ones Dan and our friends over at Co-Op, Opinio Juris, Glom and others organize at LSA and AALS...

A Solomonic Post

Posted on April 24, 2010
I have long been struck by the casual prevalence of the King Solomon metaphor in legal writing. A quick search of Westlaw's law review (JLR) database for the word "Solomonic" returns 1,194 articles; 388 cases turn up in the ALLCASES database. But what fascinates me more than the reference's prevalence is the fact that the reference is almost invariably misused...

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Tax Protestors Follow-up

Posted on April 23, 2010
I mentioned last week that Peter Hendrickson, one of this year's most noted tax protestors, was due for sentencing. He got a bit less than three years. The government had asked for more, seeing as how Hendrickson is a major promoter of a fraudulent tax scheme, who boasts on his own website that his followers have procured more than $10 million in refunds using his method (he posts copies of the refund checks, making them easy for the IRS to find), and who, according to the government, may have induced over 10,000 people to file false refund claims...

United States v. Stevens: Why it Matters

Posted on April 23, 2010
As readers of this blog probably know by now, United States v. Stevens, 559 U.S. __ (2010) dealt with the constitutionality of a federal statute, 18 U.S.C. § 48, that criminalized depictions of living animals being intentionally harmed. Although the statute was aimed primarily at eliminating so-called "crush videos," the respondent in the case was convicted for producing videos depicting dog fighting and a pit bull savagely attacking a pig...

South Park, Comedy Central, and "warnings" of violence

Posted on April 23, 2010
South Park is in trouble with some Islamic groups, in a way that has turned a bit ominous. And creators Matt Stone and Trey Parker appear to be in a creative spat with Comedy Central. Last week, the show marked its 200th episode with a very meta show in which many or most of the characters from throughout the show's history appear, among them Tom Cruise and every other public figure who ever has been ridiculed or satirized on the show...

Sex, Intersex and Sports

Posted on April 23, 2010
The news that Eri Yashoda, an 18-year old Japanese woman, will be playing professional (though not major league) baseball in the United States, brought to mind a discussion my students and I had in our Law and Sexuality class about gender identity. Thanks to a student who is writing a paper on the topic, the conversation during that class turned to gender and sports...

Birther Bill Back

Posted on April 22, 2010
The Birther Bill is back. After making no progress at the federal level (H.R. 1503 was referred to a committee more than a year ago and hasn't been heard from since), the Birther Bill concept has devolved to the states. Arizona's House of Representatives just passed a version that would require presidential candidates to file proof of eligibility -- i...

Are bartenders fiduciaries?

Posted on April 22, 2010
Two stories over the past weeks have featured bar patrons leaving behind items of some significance after paying their tabs and heading for the taxi stand. As James Grimmelman wrote in this space on Tuesday, an Apple employee may have walked off without a prototype future iPhone...

Of Banks, Buy-Outs, and Brontosaurs

Posted on April 22, 2010
Although major financial reform now looks like it will happen, there doesn't seem to be any plan to reduce the size of the largest financial players. What brings this within my purview is that one proposal for curbing bank size is the so-called "bank tax," such as the one sketched out recently by International Monetary Fund staff...

Justices struggle with civil procedure

Posted on April 22, 2010
The Court heard arguments yesterday in Krupski v. Costa Crociere dealing with relation back of amendments under FRCP 15(c). I am not particularly good at counting noses or predicting based on oral argument, but a couple things jumped out at me. 1) The Justices are not great at the minutiae of civil procedure...

Disappointing Foray into Agency Notice & Comment

Posted on April 22, 2010
Even though I don?t teach administrative law, I?m constantly telling my students how important agency regulation is, and I always encourage them to take an administrative law course. So when the U.S. Sentencing Commission published a request for public comments on the topic of a paper I published two years ago, I decided to submit a comment encouraging the agency to change its regulation...

Watching cases no one else cares about

Posted on April 21, 2010
While everyone (including me) is talking about yesterday's decision in the dog-fighting case or Monday's oral argument in Christian Legal Society, I am all about this morning's argument in Krupski v. Costa Crociere, a case from the Eleventh Circuit that deals with relation back of amended pleadings under Rule 15(c) and what constitutes a "mistake concerning the proper party's identity...

Dogfighting, child porn, and unprotected categories

Posted on April 21, 2010
Lyrissa mentioned yesterday's SCOTUS decision in United States v. Stevens, striking down a federal statute prohibiting the making, sale, or possession of videos depicting animal cruelty. I was most intrigued by the majority's refusal to recognize a new category of unprotected expression...

Padilla v. Kentucky and Farewell

Posted on April 21, 2010
Thanks to Dan and the rest of the Prawfs crew for allowing me this extended visit. I leave with a link to a short piece, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction. My esteemed collaborator, Margy Love, did most of the work on this...

A New Birth(er) of Federalism?

Posted on April 21, 2010
Here is a link to an article discussing bills moving through several states that prohibit placing the name of a candidate for President on the ballot unless the local secretary of state has been given sufficient evidence that the candidate is a natural born citizen...

What Animal Cruelty Videos May Tell Us About Teen Sexting

Posted on April 21, 2010
While researching a recent article on the increasing penalties associated with possession of child pornography, I kept coming across references to teen sexting. (The term ?sexting? refers to ?the act of sending sexually explicit messages or photographs electronically, primarily between mobile phones...

More on Prestige vs. Principle

Posted on April 21, 2010
Micah Schwartzman offered some thoughtful arguments against my earlier, somewhat impassioned post arguing that if progressive (or conservative) law students are dispirited by the lack of proper "heroes" on the Supreme Court, perhaps that's a good thing, inasmuch as they ought to be focusing their efforts on other paths to genuine change, especially local elective office...

Accountability and the Prawf...

Posted on April 21, 2010
I just spent some time (though I'm embarrassed to say just how much or little) writing up my "annual letter" to the dean at FSU, which we're all required to do, regardless of seniority. The letter (along with relevant supporting material, i.e., drafts/teaching evals, etc) is supposed to capture the past year's efforts at teaching, scholarship, and service to students/school/the profession...

Next-Generation IP Exam Question Found Sitting on Barstool

Posted on April 20, 2010
I've been following this story for a few days; it recently took the jump from interesting to full-on fascinating. An Apple engineer was drinking in a Silicon Valley bar, where he [left a prototype unit](http://gizmodo.com/5520438/how-apple-lost-the-next-iphone) for a future iPhone sitting on a barstool...

The Justification/Excuse Debate in Criminal Law Scholarship (Part II)

Posted on April 20, 2010
As I mentioned in a recent post, I believe the scholarly debate about whether particular defenses should be categorized as justifications or excuses has little practical utility to offer the criminal justice system. Although I am in a distinct minority (at least three out of the five most cited criminal law and procedure professors are enthusiastic participants in the conversation, as are many other distinguished criminal law scholars), I was comforted by the company: Kent Greenawalt wrote an important paper in 1984, contending that "Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic...

Haunted Houses (part, whatever)

Posted on April 20, 2010
How do you know you are middle class in America? Do you open your wallet and look at how much cash is there (my Uncle Lou Jacobs used to carry around huge wads of twenties, fifties, and hundreds,way back in 60s, but he was a Purple Gang associate and may have been unusual even for his era)? Do you look at your family pictures and think with pride how many generations of your lot went to college? Do you check your employee ID, health insurance membership or social security card? I think most Americans (at least until the music stopped...

Please Donate to Team Horwitz and the March of Dimes March for Babies

Posted on April 20, 2010
My family is the local "ambassador" family for the annual March for Babies, conducted by the March of Dimes. The proceeds go to research and resources for babies, and families of babies, who are born prematurely or have birth defects. It's a cause near and dear to my family's heart, because both of our children were born extremely prematurely and spent a combined six months in the NICU before coming home...

Am I Hot or Not?

Posted on April 20, 2010
Last week, Larry Solum posted a first draft of his annual entry level law professor hiring survey. As in the past, Yale and Harvard were the big winners among feeder schools. The number of new hires out of VAP and fellowship programs also remains high...

USSC strikes down law re depictions of animal cruelty

Posted on April 20, 2010
The Supreme Court has handed down U.S. v. Stevens, the dog fighting case. The Court struck down as overbroad the federal law barring depictions of animal cruelty. Chief Justice John Roberts wrote the majority opinion, in which he rejected the argument for making animal cruelty an unprotected category of speech akin to child pornography...

On Hope vs. Change and Prestige vs. Principle

Posted on April 19, 2010
There was a lot of talk about, and pushback to, Dahlia Lithwick's recent Slate piece asking why liberal or progressive law students are so unhappy. Her answer, in short, is that their heroes, those who have been willing to "talk and write in bold ways about liberal jurisprudence," have not been taken seriously as prospects for the Supreme Court, and that this is dispiriting and wrong...

Dog Bites Politician

Posted on April 19, 2010
I find David Kopel's posts at the VC weirdly compelling. (Feel free to quote me if you're looking for blurbs.) Today, he has a short post excoriating former President Bill Clinton for running an op-ed in the Times on the 15th anniversary of the Oklahoma City bombing...

Phones and Flying

Posted on April 19, 2010
A few months ago I was flying into National Airport in DC, and I noticed that the teenage boy next to me was texting. I?m a wimpy flyer, and since September 11th the landings at National have become particularly harrowing because pilots are required to follow the Potomac River (an awfully twisty river) to the airport...

Reinventing Usefulness

Posted on April 19, 2010
I plan to write a couple of posts about "Reinventing Usefulness," an article that I have forthcoming in the BYU Law Review. Since 1790, Congress has required that all patents must be "useful," but little attention has been given to what this term means...

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