Legal Commentary

Vindicating the rise and rise of Jack Chin, and a random thought re: Team Kagan and SCOTUS

Posted on April 11, 2010
He's been too modest to announce it during his blogging stint, and I've been delinquent in announcing it, but the Supreme Court recently embraced Jack Chin's work on the Strickland obligations of counsel to inform defendants of collateral consequences such as deportation...

The Peril of Common Names

Posted on April 11, 2010
My friend and former teacher Mike Dorf knows something about the peril of common names. When he taught at Columbia, he was not even the most famous Michael Dorf in New York: that honor belonged to the Michael Dorf who founded the Knitting Factory. Even in legal academia, there's someone named Michael Dorff, who teaches at Southwestern -- "West Coast Mike," as I've always thought of him...

(Pre- and Post-) Confirmation Bias

Posted on April 11, 2010
A propos of the Stevens vacancy, Tuan Samahon has a fun post pointing out some earlier sky-is-falling predictions about Supreme Court nominees that didn't exactly come true. Some commenters bash him for his logic, but I think his point is well-taken on the whole...

The Challenge of Seminars

Posted on April 11, 2010
The conventional wisdom about law professors? teaching preferences is that we are supposed to prefer teaching small seminars on our current research topics. In fact, we even sometimes call the other classes or ?service courses.? But conversations I?ve had over the past two years with various profs leads me to believe that not all law professors feel this way...

To access this complete feed in the blog feed reader login or register for free.

"Religious Liberty, Church Autonomy and the Structure of Freedom"

Posted on April 10, 2010
Here's a link to a book chapter I've done, for a forthcoming volume (edited by John Witte and Frank Alexander) on "Christianity and Human Rights." What is the ?right to freedom of religion,? a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others...

Consistency and judicial filibusters

Posted on April 10, 2010
Rick argues (in the post to which Paul links) that no "Democratic [sic] who praised, during the Bush administration, the filibuster as a vital protection for minority interests in a democracy has any standing to object to any Republican attempt to use the filibuster in the context of the upcoming nomination battle...

Rick G. on Nomination Talk

Posted on April 10, 2010
Our friend and colleague Rick Garnett has a post at the National Review's Bench Memos website offering advice for upcoming discussions of the Stevens opening on the Court. I agree with him that the word "mainstream" -- as in "out of the mainstream" -- should generally be avoided...

Chemerinsky, Starr and other Criminal Law Luminaries in Lubbock

Posted on April 10, 2010
Prof. Arnold Loewy yesterday hosted the Texas Tech Law Review Fourth Amendment Symposium, one of the finest conferences I have ever attended. (Video here). The speakers were an all-star cast, but among the many highlights were Dean Ken Starr's partial defense of the exclusionary rule and reliance on constitutional law of other nations (Panel 3), Dean Erwin Chemerinsky's recap of the first years of the Roberts Court (Lunch Keynote), and Panel 1's evisceration of the Supreme Court's naive and crude misuses of history...

Where Are They Now? First Amendment edition

Posted on April 09, 2010
The latest example of a prosecutor abusing his authority in a moral panic over teen sexuality comes from Wisconsin and Juneau County DA Scott Southworth. Southworth, who was elected in 2004, sent a letter to five school districts warning them that teachers could face criminal prosecution for following a new state law regarding sex education...

Goodbye and thanks

Posted on April 09, 2010
I have officially overstayed my welcome by over a week, so I guess it is time to stay goodbye. Thanks to Dan and the rest of the crew at Prawfs. I have enjoyed being a part of your community, and look forward to seeing you all in cyberspace (and even better, in person!) in the future.

US News and Rationally Ranking Law Schools

Posted on April 09, 2010
Over at Concurring Opinions, Prof. Solove asked tough questions about how deans are supposed to rank law schools on a 1 to 5 scale when there are so many schools and certainly there are 5 schools that are demonstrably better than each other and other schools...

Fixing State Finances Without Bailouts

Posted on April 09, 2010
Rick warns of the dangers of federal bailouts of local governments. But of course the reason bailouts are tempting is because financial crises at lower tiers of government are painful, and not just for the folks in that jurisdiction. Way back at the beginning of my guest stint, I explained why recessions are hard on state and local governments --- their revenues drop together with the economy --- and why those shortfalls are bad for the national economy...

The Shirky Principle

Posted on April 09, 2010
Clay Shirky (whose last book was great and whose next book looks fascinating) has a pithy saying that explains a lot about our world: Institutions will try to preserve the problem to which they are the solution. One part of his point is that as amateurs displace expert-run institutions and the frightened experts lash out, it often becomes clear that the experts have defined their own jobs in a way that makes it clear they will never actually fix the underlying issue...

The Public/Pubic Pitfall and Other Non-typo Typos

Posted on April 09, 2010
Lyrissa?s post yesterday about typos yesterday hit home with me, since I?ve fought a lifelong, and often losing, battle against them in my professional and personal writing. My ally in this battle is the spellchecker, of course, without which my writing would be even more typo-ridden than it currently is...

Obama to States: Drop Dead?

Posted on April 08, 2010
As a lover of federalism, I can only hope that the Daily News has the opportunity to run such a headline. My readers (both of them) will recall that the Daily News published its immortal headline, ?Ford to City: Drop Dead? in October of 1975, after Ford refused to bailout New York City from its crushing debt, forcing Gotham to confront the reality of its fiscal crisis and re-negotiate its contracts with its unions...

Celebrating Confederate History Month with Wenger, Brophy & Tabasco

Posted on April 08, 2010
I'm celebrating Confederate History Month by reading Kaimi Wenger's fine paper Apology Lite: Truths, Doubts, and Reconciliations in the Senate's Guarded Apology for Slavery. The paper contends, among other things, that the Senate's recent apology for slavery lacked a certain sincerity because of its explicit statement that it could not be used as a basis for reparations--"I'm sorry, but I'm not open to discussing whether I need to do anything to make up for what I am apologizing for...

Cause Lawyering for People with Disabilities

Posted on April 08, 2010
I am happy to share a new project I have been working on. Along with David Wilkins and Michael Stein, I have co-authored a book review of Sam Bagenstos's book Law & Contradictions of the Disability Rights Movement. Our book review, available here, is forthcoming in the Harvard Law Review...

Typo Fun

Posted on April 08, 2010
When you write for a living, it is painful to find typographical errors in your published work. When I find typos in my casebooks, in particular, it feels like a knife in my heart. So I found this typographical error by the maker of Major League Baseball jerseys to be strangely heartening.

Existential Crisis: The Leiter Site

Posted on April 08, 2010
Is it just me, or do the scholarly citation rankings recently posted on Brian Leiter's blog cast others into despair? Seriously, though, I'm taking the posting of the citation rankings as a good opportunity to remind myself to focus on the aspects of my scholarship I can control...

Scalia in the Hassee

Posted on April 08, 2010
Though it is happening during and just after my afternoon criminal law class, Justice Scalia will be at FSU this afternoon to give a talk. (I think he's in town because he goes hunting with my neighbor; we'll take the serendipity when we can find it.) In any event, if I'm able to attend or if I hear any funny anecdotes worth sharing, I'll update y'all...

Where are the Scholars of Color in the Leiter Study?

Posted on April 07, 2010
In this iteration of the Highest Impact Faculty in 13 Areas of Specialization Brian Leiter broke out the top 10 most cited professors (all male) and added a list of the top 10 most cited female professors. Evidently, he wanted to identify women who had done well in this arena...

Big Blow to Net Neutrality

Posted on April 07, 2010
A big court decision yesterday from the U.S. Court of Appeals in DC -- the court held that the FCC lacks authority to require an Internet service provider to allow consumers to access any lawful content of their choice. The problem is that the Communications Act doesn't expressly give the FCC the power to regulate Internet service...

Should US News Include an Affordability Index in its Law School Rankings?

Posted on April 07, 2010
On Monday at Concurring Opinions, Dan Solove raises concerns surrounding the all-important academic rankings cast by US News law school voters. I've argued previously that voters should be subjected to some sort of "voter aptitude" test in order to cast votes that count -- for instance, required to name at least one current member of a law faculty in order to cast a high or low ranking...

Does the Comcast decision suggest a new distrust of federal agencies?

Posted on April 07, 2010
Some of my students in Administrative & Regulatory State were excited about the D.C. Circuit's opinion in Comcast v. FCC, thinking that the court might say something general about judicial attitudes towards administrative agencies. Alas, the opinion says very little explicitly about administrative law, instead discussing concerning three SCOTUS opinions construing the 1934 Communications Act...

On Misappropriation...

Posted on April 07, 2010
I found Lyrissa Lidsky's recent Prawfs post on the misappropriation doctrine quite thoughtful, especially the potential connection to blogger lifeblood - commenting on news collected by someone else. I wanted to share a few thoughts on the topic, primarily because I find myself in what appears to be a small minority - academics who think misappropriation is a good thing...

Anti-Islamic Decals on a Military Base

Posted on April 07, 2010
From the Religion Clause blog (via my co-author Tom Baker) coms news of Nieto v. Flatau, a First Amendment case from North Carolina that struck down a military base regulation banning the display of "extremist, indecent, racist or sexist messages" on a motor vehicle, as applied to a civilian-employee motorist's display of decals attacking Islam...

Beth Hillman's Journal from Guantanamo

Posted on April 07, 2010
My colleague Beth Hillman is blogging about her experiences as an observer for the National Institute of Military Justice. She is one the nation's foremost experts on military law. Follow her observations more generally at "The World According to Hastings...

Ooo, Scary

Posted on April 06, 2010
It's official: the U.S. government is proposing to fine Toyota $16.4 million for waiting four months before notifying our safety officials about defects in its vehicles that may be responsible for episodes of unintended acceleration. Apparently that's the maximum fine that can be imposed...

Opening Day (or really night)

Posted on April 06, 2010
I suspect like many of us, one of my favorite things about teaching is the rhythm and cycles of academic life. I love that we have breaks to catch up on reading and focus on scholarship in a more uninterrupted way. And although it is nice when things are relatively quiet over the summer, I really, really look forward to meeting new energetic students each fall and reconnecting with returning students...

First Year Torts - or First Year "Injury Law"?

Posted on April 06, 2010
I'm curious to know thoughts about changing the standard first year Torts course to something a little more inclusive ? and perhaps realistic. Most first year Torts courses do not teach insurance issues to any meaningful degree. Most also do not talk about other accident compensation schemes, such as worker's compensation, no-fault automobile benefits, and the like...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.