Legal Commentary

More on Barnett on Health Care Reform

Posted on April 19, 2010
Over at the VC, Randy has a post sorta-responding (in an apparent emulation of a senate tradition, he refuses to name any of his interlocutors except Orin) to my earlier posts criticizing his view that portions of the health care reform legislation are unconstitutional...

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

Posted on April 19, 2010
I contributed to an interesting criminal law symposium published by the University of Michigan Journal of Law Reform, entitled The Nature, Structure, and Function of Heat of Passion/Provocation as a Criminal Defense. The symposium was built around a paper by Reid Fontaine, a J...

Arkansas Foster Parent/Adoption Law Struck Down

Posted on April 19, 2010
Last Friday Judge Christopher Piazza, a state circuit judge in Arkansas, struck down Act I, the Arkansas ballot initiative that banned adoption by or foster placement in a household where the applicant for parental rights is cohabiting with a sexual partner outside of marriage...

Conservatives need more accurate historical icons

Posted on April 18, 2010
One of the happier byproducts of the Texas School Board's campaign against "liberalism" in textbooks was the alienation of Texas conservatives from Jefferson. I call this a happy development, because, as a conservative myself, I am perpetually annoyed by conservatives' willingness to embrace anyone with a periwig and 18th century diction as one of their intellectual ancestors...

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A Supreme Court without Protestants?

Posted on April 17, 2010
I have an op-ed in today's "weekend" edition of the Wall Street Journal called "The Minority Court" (I didn't pick the title). Here's a bit . . . Those who founded our nation would certainly have been surprised by much of what goes on now at the Supreme Court?free-speech cases about online child pornography, search-and-seizure disputes involving thermal-imaging devices, and so on...

Oman on judges and umpires

Posted on April 16, 2010
Nate Oman has a great post at CoOp defending Chief Justice Roberts' judges-as-umpires analogy, which is back on the blogs and op-ed pages with the coming Supreme Court appointment and a recent Times op-ed by Geoff Stone. Nate defends the analogy by arguing that Roberts was not proposing an account of law or judicial decisionmaking, but rather a theory of judicial virtue...

E-reprints?

Posted on April 16, 2010
A couple months back, against all odds and in spite of my own skepticism that it would ever happen, I sent out a batch of article reprints. They were so dusty from sitting in a distant corner of my office that my poor RAs had to wipe the dust off the copies before sending them on their way...

Friday Afternoon Jukebox

Posted on April 16, 2010
I thought I'd try out a PrawfsBlawg Friday afternoon jukebox. I know it's not law-related, but hey, music can help the writing muse sometimes. You get three plays for a dollar, so here are mine: Dressed up like a car crash Your wheels are turnin' but you're upside down...

Foucault and the Law

Posted on April 16, 2010
I was quite surprised to see, via Larry Solum earlier this month, that Michel Foucault ranks as one of the most-cited authors in 2007 not only in the humanities -- taking first place, with 2,521 citations -- but also as one of the most-cited philosophers in legal scholarship (based on Solum's survey of the Westlaw JLR database)...

A reasonable -- and therefore politically impossible -- position on how to investigate and try alleged terrorists

Posted on April 16, 2010
I know that my post's title has a "dog-bites-man" blandness, but, in the context of our hyper-ventilated politics, it is downright weird to come across an analysis of the investigation and trial of suspected terrorists as calmly nuanced as today's post by Rick Pildes and David Golove over at Baliknization...

Westboro Baptist in Gainesville This Weekend

Posted on April 16, 2010
Fred Phelps' hate-mongering Westboro Baptist Church is coming to my little college town this Sunday to protest at Trinity United Methodist, UF Hillel, Queen of Peace Church, and St. Augustine Church. I have been debating whether it is more important to attend one of these protests with some "counter-speech" in tow or to just ignore these pathetic, vicious, deluded, publicity-seeking imbeciles...

No Expressive Matter Vending Please, We're New Yorkers

Posted on April 16, 2010
Kathleen Bergin at the First Amendment Law Professor Blog has spotted an interesting set of proposed regulations on vending in New York City public spaces. The proposed regulations have some seemingly standard rules about how vendors can operate (don't block sidewalks, etc), plus a requirement that they obtain a license from the city, which are apparently given out on a first-come, first-served basis...

For Your Viewing Pleasure

Posted on April 16, 2010
I don't normally post this sort of thing, for the same reason that I don't spend a lot of time shooting fish in barrels, but I must say I found this video quite amusing. In fairness, I should say that I don't watch any cable news channels, except when I am forced to sit in captivity in a doctor's waiting room; and, of course, the people depicted here are entertainers, not serious journalists or commentators...

Friedman and Rosen on "Activism"

Posted on April 16, 2010
In this New Republic piece, ?The Battle Over the Court,? Profs. Barry Friedman and Jeffrey Rosen write, among other things, that: Liberals during the Warren Court era also relied on courts to hand them victories that eluded them in the political arena...

Thoughts for Tax Day

Posted on April 15, 2010
Good article by E.J. Dionne in today's Washington Post. Dionne points out that, as much as we all dislike paying taxes, we should recognize that the IRS performs a vital function that provides the finances for our military troops, health and safety functions, and all the other positive things that government provides...

Reminders

Posted on April 15, 2010
The Washington Post is reporting that a federal judge in Mississippi has ordered a school district to stop allowing white students to transfer out of a predominantly African-American school into a smaller, predominantly white school, actions that had the effect of significantly increasing the racial identifiability of the two schools...

New Paper: The Story of Santa Fe

Posted on April 15, 2010
I've posted a new paper on SSRN, titled "Of Football, 'Footnote One,' and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe." It will appear in a new book in the Law Stories series, First Amendment Stories, edited by Andy Koppelman and our own Rick Garnett...

Supreme Court strikes down National Day of Prayer!

Posted on April 15, 2010
OK, not exactly. But a federal district court did. Without expressing myself on the merits of the decision for the time being (it's correct), I will at this point just note that the district court's holding is most likely not long for this world. The counterfactual that comprises the title of this post is unlikely to materialize any time in the near future...

Video evidence and police misconduct

Posted on April 14, 2010
I missed this when it happened. But back in March, after Maryland beat Duke in basketball, Maryland fans took to the streets, resulting in a major clash with police on horseback and in riot gear. One student was seriously injured when, according to sworn statements from the officers, he attacked several mounted police officers, causing them minor injuries; the horses then kicked the student, causing his injuries...

Filed Yet?

Posted on April 14, 2010
Tax returns are due tomorrow. NPR featured a story this morning about Tea Party tax protestors -- as well as some wealthy people who are actually asking for higher taxes. Have you filed yet? I filed my returns yesterday, and in addition to pondering questions such as Why do we have to submit copies of our W-2s with our returns? Doesn't the IRS already get a copy from our employers?, I spent some time, as I so frequently do, thinking about tax protestors...

Penalties on the uninsured are thoroughly precedented

Posted on April 14, 2010
Randy Barnett is not just a great scholar; he's also a great lawyer. Maybe someone else beat him to it, but I credit him with the now-popular claim that health care reform's "mandate" to buy insurance is "unprecedented" in american history, that never before has the government forced anyone to enter into a contract with another party for insurance...

The "Professor" Puzzle

Posted on April 14, 2010
The sign outside my door reads ?Professor David Fagundes,? and this puzzles me a bit. Why is there a professional norm within the legal academy that lawprofs are addressed by their job title (i.e., ?Professor Smith? rather than just ?Mr. Smith?)? It has always seemed to me kind of stilted and totally unnecessary to use ?professor? as a title...

Entry Level Hiring Survey

Posted on April 13, 2010
Larry Solum has posted the first installment of his entry-level hiring survey here. Given how busy he is, and particularly given his own personal commitments, he is owed a great debt of thanks for putting this together. Aside from the usual academic coin of the realm, he's not paid for this service, and it is a useful and time-consuming service...

Celebrating Bill Stuntz

Posted on April 13, 2010
Via Orin, I just discovered that video of the recent HLS event celebrating Bill Stuntz is available online over here. Erin Sheley, whom some of you might know through Fed Soc stuff, has a writeup of the event over here. Sheley included these lines of praise for Stuntz from David Sklansky and Richard MacAdams: David Sklansky of Berkeley, citing Orwell on Dickens, observed that ?everyone wants to claim him...

Secrecy in Settlements - Who Wants To Know? (and WHY?)

Posted on April 13, 2010
I recently saw an interesting example of human behaviour and confidential lawsuit settlements, something I?ve been interested in and have recently written about (which caused some interesting reactions at Prawfsfest in T-town last year). Recently, the Royal Canadian Mounted Police settled a lawsuit with the mother of a Polish man who was tasered and died in the Vancouver airport last year...

"A Catholic Interpretation of the Establishment Clause"?

Posted on April 13, 2010
Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge). The book is first-rate, in my view. (Full disclosure: I blurbed the book for the press.) After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to...

Originalism's Old Bulldog: Notes from Scalia's visit to FSU

Posted on April 12, 2010
I earlier mentioned how Justice Scalia was in Tallahassee (for turkey hunting season) the other day. This was just a day before we had an even more prominent guest at the enrichment series for FSU's faculty -- thanks again for coming here, Tracey :-) As it happens, I did take some notes during Scalia's presentation, which focused on his "shtick" re: originalism...

Bentham on Stilts, now on SSRN

Posted on April 12, 2010
Chad Flanders (SLU) and I have a draft of a newish paper finally up on SSRN. The paper is called Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, and you can find a draft here. A final version is slated to appear in Calif LR in August 2010...

Did excessive centralization help inflate the housing bubble?

Posted on April 12, 2010
Paul Krugman's column this morning describes a contrast between two sorts of institutional barriers to regulation, one of which exacerbated the housing bubble and one of which prevented it. Although Krugman does not note the point, the contrast is an object lesson in the benefits of federalism and the costs of centralization...

Fun (Sort of) With Torts

Posted on April 12, 2010
Sometimes hypos really do happen. I haven't studied Torts since Professor Judge Calabresi utterly confused me taught me the basic course. (In all seriousness, he was a delightful professor; but I still haven't thought about the subject in any sustained way since then...

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