Legal Commentary

Health Care Reform and the Taxing Power

Posted on March 31, 2010
When last we met, I argued that the newly-minted "individual responsibility" requirement ("IRR") that individuals purchase health insurance or be subjected to a penalty tax is within Congress' power under a combination of the Commerce Clause + the Necessary & Proper Clause...

Carney's Firing: The Other Side of the Story?

Posted on March 30, 2010
Larry Ribstein and the good Professor Bainbridge are bemoaning last week's firing of John Carney from Business Insider. Ribstein, Bainbridge and others are all citing this story by Foster Kamer as to the reason for the firing: Blodget wanted more sensational, pageview-grabbing posts and click-friendly features like galleries, while Carney wanted to put forth breaking news scoops that told a longer narrative...

The Spending Power & Federalism Down Under

Posted on March 30, 2010
Everyone knows that judicially enforced limits on Congress' spending power are mostly moribund. But it is an open question whether the Court could ever practically fashion more robust and judicially manageable limits on the spending power The High Court of Australia's decision in Pape v...

Arguments in Morrison v. Nat'l Australia -- Extraterritorial Laws

Posted on March 30, 2010
Earlier this month, I blogged about the geographic reach of federal law and mentioned the Supreme Court's decision to hear an appeal involving a "foreign-cubed" securities class action in Morrison v. Nat'l Australia Bank, Ltd. The term "foreign-cubed" refers to securities class actions in which the investors are foreign, the issuers are foreign, and the fraudulent conduct occurs abroad...

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The "Hide the Ballpark" Exam and the Importance of Telling Students What You Want (and Don't Want) on an Exam

Posted on March 30, 2010
Students often lament that law professors give "hide the ball" exams. In other words, professors give exams where even many students who knew the material well didn't know that an exam question triggered a certain analysis. If you remember back to law school, you can probably remember having or hearing some of these conversations after exams (unless you wisely avoiding discussing exams after taking them)...

Call for Papers: Religion in Law and Law in Religion

Posted on March 30, 2010
RELIGIOUS LEGAL THEORY CONFERENCE: RELIGION IN LAW AND LAW IN RELIGION Center for Law, Religion, and the Global Community St. John?s University School of Law New York November 5, 2010 This annual symposium, to be shared among different law schools and now in its second year, addresses a broad range of topics...

The Future of Legal Research, Part One

Posted on March 30, 2010
Why doesn't legal research work more like Google? Those who have asked this question (and I have the feeling many have) have really been asking two separate questions, the front-end question and the back-end question. Front-enders wish for a user interface for legal research as simple as Google's interface for search to replace Westlaw's home page's chaotic proliferation of search fields (I haven't used Lexis for a couple years, so I won't comment on it...

Institutional symbolic counter-speech

Posted on March 29, 2010
Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I have written a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message...

Taxing Professional Athletes

Posted on March 29, 2010
The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee...

The FBI's "special file room"

Posted on March 29, 2010
I ran across this piece in the Boston Globe, about a FOIA request that produced hundreds of never-before-seen memos on the FBI's highly restricted special file room. According to the Globe, "for decades sensitive material has been stored separately from the bureau?s central filing system to restrict access severely and, in more sinister instances, some experts assert, prevent the Congress and the public from getting their hands on it...

Why do the Cato Institute and Randy Barnett care about federalism?

Posted on March 28, 2010
Brian's post on the constitutionality of health care legislation inspires my question, but Randy's support for federalism runs deeper than his Washington Post argument against the individual mandate in Obama's health care legislation: He also represented the appellees in Gonzales v...

Criminalizing Urban Space: Three musings on the Sit-Lie Ordinance

Posted on March 28, 2010
(image courtesy San Francisco Chronicle) Prologue Yesterday, the city of San Francisco was awash with protesters against a proposed "sit-lie" ordinance, forbidding the public from sitting or lying on city sidewalks during the daytime. The new ordinance was proposed by Mayor Newsom after a stroll with his baby on Haight and, according to students of mine who attended the police commission meeting, is strongly supported by business owners on Haight street, who ascribed the decline in business over the last two years to the presence of people on the sidewalk...

Supreme Court Bobbleheads at Yale

Posted on March 27, 2010
As someone who cherishes my Green Bag bobbleheads of the Justices, I was relieved by this news: And so the Lillian Goldman Law Library, which probably has the best collection of rare law books in the world after Harvard and the Library of Congress, is now the official repository of bobbling likenesses of a dozen Supreme Court justices...

Is the Health Care Legislation Constitutional?

Posted on March 27, 2010
Rich's post on the possible unconstitutionality of the health care legislation has stirred me from my bad-guest-blogger torpor. (Well, that, and the completion of those darned footnotes.) I want to address (in my next post or two) Rich's interesting claim that conditional taxation might exceed Congress's constitutional power to tax...

Outlining for Class...

Posted on March 27, 2010
Last week, I posted some suggestions for students on how to prepare for final exams. The suggestions were taken from a new book that Cristina Knolton and I have written on how to succeed in law school. I've been told the book will be available in late April, and a sample chapter can be found here...

On Good Writers (Present Company Excepted)

Posted on March 27, 2010
Dan, I've been out of town but I'm grateful for the post. To be told that your writing is a near-cause of child neglect is high praise indeed. For myself, there are those writers I admire and emulate, and those I can only admire, knowing that I can't do what they do...

PowerPoint in the Classroom...

Posted on March 26, 2010
One of the questions that seems to commonly arise among law faculty is the effectiveness of PowerPoint in the classroom. Dan had a good post on the topic a few years ago, My colleague, Dave Fagundes, wrote an interesting post about his conversion (sort of) to PowerPoint as an effective tool...

The Two Fourteenth Amendments

Posted on March 25, 2010
Most historical scholarship on the Privileges or Immunities Clause ignores or minimizes the fact that the Thirty-Ninth Congress debated two very different versions of the Clause. Scholars recognize, of course, that the precise wording of Section One of the Fourteenth Amendment changed shape as the debates went along, but the alteration is treated as if it had little, if any, substantive significance...

Gratitude

Posted on March 25, 2010
Those of you who have been diligently following the train wreck hiring threads of the rookies here at Prawfs the past year should join me in extending our gratitude to Justin Levitt. Justin's the one who performed the yeoman's work of updating the spreadsheet for hiring, a spreadsheet whose existence we also owe thanks for to the inimitable Sarah Lawsky (GW, now at UVA, en route to UC-Irvine)...

Tri-4-Gey 4 is next week!

Posted on March 25, 2010
As many of you know from updates that have appeared in previous years, my FSU colleague Professor Steve Gey has ALS and it's an utterly grim situation. Making the best of the situation, Steve, a distinguished scholar in constitutional law, has been writing law review articles quite literally with his toes...

Legally Blind Grading, Take 4: Do Class Participation Docks and Boosts Unfairly Disadvantage Female and Minority Students?

Posted on March 24, 2010
When I guest blogged here last April, I posted an entry which traced the origins of blind grading in law schools. In that post, I noted that In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s...

Comments on Lindgren on Sowell (or Lindgren and Sowell)

Posted on March 24, 2010
Because Jim Lindgren doesn't generally open comments on his VC posts, let me take the prerogative of saying I'm not sure what he's getting at with his latest post, which makes the interesting choice of quoting Thomas Sowell at length. (Sowell is the author of a new book on intellectuals and society of which Alan Wolfe writes that "[t]here is not a single interesting idea in its more than three-hundred pages," and that it "recycles ancient cliches about the academic world and never questions its author's conviction that those who share his right-wing views are always right...

Prisoners' rights and public employee unions

Posted on March 24, 2010
Jonathan Simon has a nice post on prison conditions in California in which he observes that California politics have not shifted sufficiently to permit wholesale reform of the culture of incarceration that has destroyed California's budget and blighted the lives of low-income communities...

"We can't control ourselves": California Corrections in the National Spotlight

Posted on March 24, 2010
The New York Times gives California's prison crisis and parole reforms front page billing today in an excellent article by Randal Archibold. The litany of problems will be familiar to readers of these posts. Our massively overcrowded prisons are being slowly reduced only under great pressure from federal courts...

The Purposes of Planning (the Good Kind): Ordering the City Part II

Posted on March 24, 2010
Compliments to the club for wonderful ideas, and to Nicole for a thoughtful response. I have two final notes to add. On the issue of whether it?s wise to introduce commercial establishments into residential areas, I think it?s important to reground the discussion in the range of things, beyond curbing disorder, that planners do and should think about...

Final Thoughts on "Ordering the City"

Posted on March 24, 2010
Many thanks to all who contributed to our book club for Nicole Stelle Garnett's "Ordering the City" for an extremely thoughtful and rewarding discussion. If you missed any of the posts, here's a recap: Ben Barros, Complexity and the City Tracey Meares, Meares on "Ordering the City" Chris Serkin, Ordering the City Lee Fennell, Ordering the City Stephen Clowney, Order and the Poor Michelle Wilde Anderson, Ordering the City Nicole Stelle Garnett, Ordering the City, Redux Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II If you want to chime in, feel free to...

Who are your favorite writers (in the legal academy)?

Posted on March 24, 2010
The other day Brian Leiter posted a quiz about people's favorite law bloggers, until he took it down b/c apparently some folks were gaming the poll. Screw that. I have a far more serious question. Who are your favorite writers, qua writers, of law review articles (or, if you're not really reading law review articles these days, blog posts or books)...

The End Of The World As We Knew It?

Posted on March 23, 2010
Prior to Sunday's vote on health care reform, Nancy Pelosi said that we were "at the door step of history." Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the "garden gate of history" but then Scott Brown was elected and "we backed down the front drive of history reversing over the neighbor's dog of history...

Iqbal/Twombly, strange bedfellows, and civil rights

Posted on March 23, 2010
A new voice in the debate over legislation to overrule Iqbal and Twombly is the Alliance Defense Fund, an organization of "Christian attorneys and like-minded organizations" that litigates "civil rights cases in defense of religious freedom, the right to life, and the natural family...

A Comment and Plea on the Nature of Our Political Debate

Posted on March 23, 2010
Glenn Reynolds, the Beauchamp Brogan Distinguished Professor at the University of Tennessee College of Law, linked approvingly to a post by Dana Loesch, a conservative pundit, on the Breitbart "Big Government" website: The Socialists Won a Battle; Now It's Our Turn Yesterday was my son?s 9th birthday and for his present, the government jacked his future...

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