Legal Commentary

On Caffeine

Posted on April 06, 2010
Hi all. It?s great to be back on (or near) the glorious fifth anniversary of Prawfs? entrée into the blawgosphere. I?ve just gotten back to SoCal from Michigan, where I participated in the Junior Scholars in IP Workshop at MSU (which was an outstanding conference?mad props to organizers Adam Candeub, Sean Pager, and Rob Heverly) and then visited some friends in Ann Arbor who teach at the University of Michigan...

Becoming Less Crotchety in Old Age

Posted on April 05, 2010
Thanks to Dan and the rest of the Prawfs gang for having me back, and best holiday wishes to all. I thought I would use the occasion of Prawfs' anniversary and my birthday (33), to ruminate on the ways in which I've changed my attitudes and behaviors concerning my job over the past several years...

Another Side of Lateraling

Posted on April 05, 2010
If you don't follow law job market gossip blogs, you may not know that I'm moving to Villanova Law School next year. Indeed, you probably don't know it even if you do. Many have written really helpful blog posts and articles on the subject, and I've read them all...

The Upside of Downunder

Posted on April 05, 2010
On the occasion of our fifth year anniversary, coinciding with Leiter?s 2010 faculty impact report, I am raising my head above water. First off, mazal tov Dan ? you are the best! The Leiter report got me thinking again (how banal of me) about rankings and placement and the job market and well, the legal academy...

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Still 9 days, 8 hours, and 16 minutes to go?!

Posted on April 05, 2010
Thanks to my friends at Prawfs for inviting me back for another guest blogging stint. I'm delighted to have something to occupy my mind while I anxiously await the release of this year's US News rankings, with the convenient assistance of the second-by-second countdown timer on the US News website...

Would you rather teach at a school with a clean sports program, or a winning sports program?

Posted on April 05, 2010
On the eve of tonight's version of the Battle of the Valley of Elah featuring Butler and Duke, I wonder whether readers would rather teach at a school with a "clean" sports program, or a winning sports program. A friend at a mid-major school recently explained to me that s/he would rather teach at a school that wins big -- even if the end result was an NCAA infractions investigation -- because of the positive institutional PR that a March Madness run can bring...

Specter's Specter

Posted on April 05, 2010
Our nation's capital has been buzzing for some time now about the possibility of Justice Stevens's retirement, and Adam Liptak's piece in the NYT this weekend heightened speculation. Now Senator Arlen Specter has jumped into the discussion with a suggestion that Justice Stevens wait until next year...

PrawfsBlawg is Five

Posted on April 05, 2010
Five years ago today Dan started it all with this post. By the end of the month, Ethan, Paul and Hillel Levin (aka AmosAnon1) were in on the act. Congrats to all who have been making this work for five years, but especially our grand poobah Dan.

When is a Case "Casebook Worthy"? [A Cautionary Tale]

Posted on April 05, 2010
I'm in the midst of casebook angst, and probably one shouldn't blog in this state, but here goes. I've been valiantly and perhaps quixotically trying to update the defamation chapter of my Mass Media Law casebook (co-authored with Franklin, Anderson, and (soon) Krotoszynski, Jr...

One Last Thing ...

Posted on April 04, 2010
I said I?d go ? and I will. But there?s one last thing. As someone who has litigated public law matters for close to twenty-five years, I will say with confidence (and even wager money that I do not have) that there is no chance ? absolutely none - that lawyers challenging the individual mandate will be subject to Rule 11 sanctions...

Harvard, Easter, & the Law of Evidence

Posted on April 04, 2010
On this Easter Day, it is only fitting that we law prawfs pause to remember Simon Greenleaf's Examination of the Testimony of the Four Evangelists, by the Rules of Evidence. Greenleaf was, along with Joseph Story, a founder of Harvard Law School, antebellum America's most renowned scholar of the law of evidence, and a pious evangelical Christian...

Law, politics, and medicine

Posted on April 04, 2010
I found this story really disturbing and a bit disgusting, although I am not entirely sure why. A urologist near Orlando posted a sign on his office door reading "If you voted for Obama, seek urologic care elsewhere. Changes to your healthcare begin right now...

Why I Plan to Buy an iPad for Teaching

Posted on April 03, 2010
Law professor bloggers haven't said much about the iPad, aside from the bloggers at Law School Innovation who have posted some interesting thoughts (1 2 3). To celebrate iPad launch day, let me explain why I plan to buy one to use in the classroom. This semester, I taught a class in math for lawyers, and in class I found myself drawing lots of diagrams and equations for the students...

Why Tax Cheats Love the AG Suits Challenging Health Care Reform

Posted on April 03, 2010
As I've detailed, the lawsuits challenging the constitutionality of the health care legislation have no chance of succeeding under current law. I fully expect the lawyers who sign the briefs to face a motion for Rule 11 sanctions and, if they appeal to a federal court of appeals, for costs...

Federalism and Libertarianism

Posted on April 03, 2010
I regret that I had little time for blogging this month. Before I go, I was intrigued by Rick Hills? post on why libertarians believe in federalism ? a question apparently inspired by the opposition of certain libertarian scholars to the individual mandate included in the recent passed health care bill...

Good to be Back and Bilski Redux (Again) [Maybe]

Posted on April 02, 2010
Thanks again to Prawfs for having me back this month. This is my fourth stint as a guest blogger - time flies! I won't have much to say until next week, as I'm house hunting with the family in Pennsylvania this week. I'll blog a bit about that and other thoughts lateraling that may be of interest...

Letting a Thousand Legal Research Flowers Bloom

Posted on April 02, 2010
Thanks to Dan for letting me overstay my visit a little. To continue my series on legal research, I wanted to focus next not on the giants--Westlaw and Lexis--nor the giant new entrants--Google and Bloomberg--but rather on the other end of the long tail, on the small companies, start-ups, and solitary programmers who are developing new tools for legal research...

"Hot News" Misappropriation: Implications for Bloggers? for Bloomberg News?

Posted on April 02, 2010
What happens when the interests of newsgatherers and news aggregators collide? That was the issue before District Court Judge Denise Cote last month in Barclays Capital Inc. v. Theflyonthewall.com (S.D.N.Y., 3/18/10), and the opinion in the case arguably has negative (dare I say ominous?) implications for bloggers and for anyone who republishes truthful information about a matter of public concern, even if that information has already leaked into the public domain...

Clinics, State Funding and the Piper

Posted on April 02, 2010
From Sid Shapiro at Wake Forest comes news of a threat to cut state funding to the University of Maryland's Law School in response to the UM environmental law clinic's lawsuit against Perdue Farms (the chicken producer) and a Maryland chicken farmer. My initial sympthaties are certainly with the law school, for the reasons that most of us can probably immediately think of...

Nobody Knows Anything, Socratic Edition: How My Expectations Did Not Align With Reality

Posted on April 02, 2010
William Goldman (Butch Cassidy and the Sundance Kid, The Princess Bride, etc.) famously said of Hollywood that "Nobody Knows Anything." I wouldn't be surprised if Goldman was a fan of Socrates, who himself famously stated "I am wiser than this man; neither of us really knows anything worth knowing, but he thinks he knows something when in fact he does not, whereas I, knowing nothing at all, make no pretence of doing so...

The Oddest Omission in McDonald v. Chicago

Posted on April 01, 2010
McDonald v. Chicago presents the first real opportunity in decades for the Supreme Court to place the jurisprudence of Fourteenth Amendment substantive individual rights on solid textual and historical ground. Almost no one believes that the original understanding of the Due Process rights...

"Congratulations, we almost accepted your article!"

Posted on April 01, 2010
A question for law review editors: why the current practice of informing an author that their article is getting a "board read"? The ostensible reasons seem to be (a) letting the author know that some folks at the review like the article and (b) keeping the author from selecting another review before a final decision has been made...

Signing On

Posted on April 01, 2010
I'm thrilled to be back on Prawfs. Today is one of the first wonderful spring days in New York City and that has to be a harbinger of good things. But first I've got to get over the shocking news from Yale Law School and the Republican National Committee...

Sports and politics, mixed

Posted on April 01, 2010
A recent study by National Media, Inc., a GOP firm (conducted by Scarborough USA, a joint project of Nielsen and Arbitron) found that dedicated sports fans tended to vote Republican than Democrat. The strongest Republican support was among fans of the PGA, college football, and NASCAR; strongest Democrat support was among fans of the NBA, WNBA, men's and women's tennis, and WWE (!)...

Should graduate students be able to unionize?

Posted on April 01, 2010
In light of Obama's recent recess appointments to the NLRB, the question has special urgency here at NYU, because the new Obama-controlled NLRB will almost certainly reverse its 2004 decision holding that Brown University's graduate students are not statutory employees within the meaning of federal labor law and, therefore, not covered by the Wagner Act...

Attempted Piracy

Posted on April 01, 2010
I just got back from the American University Law Review's spring symposium on combatting piracy, "Troubled Waters." In all, an outstanding event, with a great mix of scholars and policymakers, and the student editors as usual did a fantastic job of bringing things together...

April Rotations

Posted on April 01, 2010
Greetings all! I'm very excited about this month's visiting contributors. Jack Balkin, Danielle Citron, Orin Kerr, Kim Krawiec, Frank Pasquale, Gordon Smith, Al Brophy, Christine Hurt, Sandy Levinson, Mary Dudziak, and Dave Hoffman have all agreed to give up their perches for the month and join us at PrawfsBlawg...

AZ man facing 100 year sentence for possessing child porn

Posted on April 01, 2010
My local news is reporting that a man who was just convicted of 10 counts of possessing child pornography is facing a mandatory minimum sentence of 100 years imprisonment. Here in Arizona, the legislature classifies possession of child pornography as "sexual exploitation of a minor," which means that it is subject to the same criminal penalties as sexually assaulting a child...

Transnational Litigation and Extraterritorial Regulation

Posted on March 31, 2010
I promised to follow-up on my earlier post about the Morrison case and the extraterritorial application of U.S. securities laws. Here it is.... In recent years, two trends have appeared in the area of transnational litigation. First, U.S. courts are perceived to be hostile to foreign plaintiffs suing U...

Bringing Meaningful Privacy to the Internet

Posted on March 31, 2010
The most important law protecting privacy online is the federal Electronic Communications Privacy Act (ECPA). But the law is now nearly 25 years old, and it is riddled with anachronisms and saddled with unnecessary complexity. Yesterday, a new group calling itself Digital Due Process launched, with the goal of helping Congress effect meaningful ECPA reform...

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