Legal Commentary

Ordering the City, Redux

Posted on March 23, 2010
Many thanks to Prawfs for organizing this discussion, and, especially to all of the book club participants for their insights. I?ve been given much food for thought and ideas that will undoubtedly shape my future work. Here are a few initial ruminations sparked by the terrific discussion yesterday: On Complexity, Planning and Humility Like Ben, I have, at various points, held ?fairly strong doctrinaire positions? about many of the issues that I tackle in Ordering the City...

So Are You

Posted on March 23, 2010
One of my favorite captions on a Prawfs post was Matt Brodie's observation that our political discourse is marked by Hypocrisy All The Way Down." Another overused (and somewhat related) trope is tu quoque, (you too). Faced with an argument that "deem and pass" enactment of health care reform would be unconstitutional, the first response of Congressional Democrats was that "Republicans did it too...

FIU Law Review Symposium: Whither the Board? The National Labor Relations Board at 75

Posted on March 23, 2010
This Friday and Saturday, March 26-27, FIU Law Review will host a symposium, entitled Whither the Board? The National Labor Relations Board at 75. The keynote speaker is current NLRB Chair Wilma Liebman, with remarks by Board Member Peter Schaumber. Presenters include Prawf's own Matt Bodie, FIU College of Law Dean (and former Board member) Alex Acosta, and many of the top labor scholars and practitioners...

Ordering the City

Posted on March 22, 2010
Nicole Garnett has written a truly insightful book, full of colorful examples, and careful analysis. It is broad in scope and a discussion of the book could easily go down any number of substantive paths. I want to pick just one of the many interesting points to explore: why she ultimately is less willing to embrace innovation in land use policy than in other forms of government responses to urban disorder...

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Third Circuit on sexting

Posted on March 22, 2010
The Third Circuit this week affirmed the preliminary injunction prohibiting a Pennsylvania District Attorney from prosecuting a teen-age girl, in one of the first widely publicized sexting cases (which I wrote about here and here last year). Slate's Dahlia Lithwick weighs in on the Third Circuit decision...

Meares on "Ordering the City"

Posted on March 22, 2010
The following post is from Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School: I applaud Nicole Garnett for her smart and thorough review of the relationships between land-use regulation and disorder. There is much to chew on here...

Randy Barnett and Health Care Constitutionality

Posted on March 22, 2010
Am I reading Randy Barnett correctly to say that the health care bill will be found constitutional unless the Supreme Court decides to act unconstitutionally itself? Here's his conclusion: Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart...

Complexity and the City

Posted on March 22, 2010
Thanks to Matt for the invitation to participate in this book club on Nicole Stelle Garnett?s Ordering the City. Thanks also to Nicole for writing such an engaging and enjoyable book. Ordering the City is refreshingly non-doctrinaire. If there is one overriding theme in the book, it is that the problems facing cities are complex, and that the solutions to these problems, if they can be found, are likely to be equally complex and multi-faceted...

Welcome to the Book Club on "Ordering the City"

Posted on March 22, 2010
Today begins our book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America." Click here for more information on the club. We hope you'll join us in the comments.

Order and the Poor

Posted on March 22, 2010
It?s a pleasure to be part of this discussion of Nicole Garnett?s impressive Ordering the City. The book is so rich and packed with goodies that it?s difficult to know which sail to hoist first. One of the surest strengths of the book is that it puts some theoretical meat on the definition of urban ?disorder...

Ordering the City

Posted on March 22, 2010
Nicole Garnett?s important book covers a tremendous amount of ground, and does so very skillfully. It?s a must-read for anyone who cares about urban issues. I want to focus my initial remarks on two facets of the project. The first is taxonomic. In Chapter 3, Garnett offers a ?four-category taxonomy of disorder? that includes ?physical disorder,? ?social disorder,? ?crimes,? and ?economic activities...

Ordering the City

Posted on March 22, 2010
Set in a comparative planning context, a basic conversation about disorder might look like this. Order: Singapore is modern, clean, and green, with a ban on chewing gum that represents a planning school laughline regarding state oppression. Disorder: Lagos, as captured in a 2006 essay in The New Yorker, is teeming with poverty and desperation (?pandemonium,? fumes, filth) as well as with economic activity and entrepreneurialism (?the hustle never stops? and ?everyone is a striver?)...

On Conspiracy Theories and the Prison Industrial Complex

Posted on March 21, 2010
Business Insider is not one of the usual places where I go for news, but I got there this morning via the Prison Law Blog. The newssite suggests that hedge funders like Bill Ackman might be displeased with the recently dropping prison rates. The reason? Counting on growing imprisonment rates, Ackman has invested heavily in Corrections Corporations of America...

Is "Deem and Pass" Unconstitutional?

Posted on March 20, 2010
Mike McConnell seems to think that it might be. He offers an argument that the procedure might violate the requirement that both Houses of Congress vote on the same bill. Personally, I would have thought that the "enrolled bill" rule of Marshall Fields would have obviated any constitutional problem, but, given my enormous respect for Mike's analytical smarts, I'll give the question more thought...

NYRB series on prison rape

Posted on March 20, 2010
The prison population may be shrinking, see Hadar's recent post, but it's still pretty rough in there. Prison rape is one of those pesky moral disasters that somehow the penal system can't quite manage to fix, although the New York Review of Books two-part essay by David Kaiser and Lovisa Stannow points out that some prison systems have nearly eliminated rape, while others, e...

Health care reform and pedagogical tools

Posted on March 20, 2010
Rick's post on his missed opportunity to use deem-and-pass in class brings up a question I have been thinking about for a while. I taught Legislation once, long ago (although I might consider doing it again), using the Eskridge/Frickey/Garrett casebook...

Extra! Extra! Prison Population Declines for the First Time in Decades

Posted on March 19, 2010
For the first time in nearly 40 years, states see a decline in prison population, as reported by this new Pew report. The decline in California, though not the most impressive percentagewise (that honor falls to Rhode Island), is the largest in total numbers: we have shedded 4,257 prisoners in 2009...

Preparing for Final Exams

Posted on March 19, 2010
PrawfsBlawg has always provided good advice to law students on how they can prepare for and do well on final exams. Since it's getting to be that time of the semester -- with law schools exams just around the corner -- I thought I would toss in my own advice...

How not to attack local control of education

Posted on March 19, 2010
Susan Jacoby's op-ed piece in today's New York Times beautifully illustrates how not to attack local control of education. Jacoby calls for a national curriculum, national teacher standards, and national investment in teacher training, arguing that local and state control of education "is ill-suited to the needs of a 21st-century nation competing in a global economy...

Homosexuality as Defamation: When Will It End?

Posted on March 19, 2010
My previous post on cyberbullying involved, among other things, a claim by the plaintiff that his reputation was injured by being called gay. Just last month, a district court judge decided that a reasonable jury might determine that it is defamatory to call someone gay...

Reminder: "Ordering the City" Book Club begins Monday

Posted on March 19, 2010
Join us Monday for our book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America" The club begins on March 22 and will run through March 24. Here are our contributors: Michelle Wilde Anderson, Assistant Professor, UC Berkeley School of Law D...

The Geographic Reach of Federal Law...

Posted on March 18, 2010
Last week, I blogged about an amicus brief that Max Huffman and I are about to file. The amicus brief involves the issue of how courts should approach questions of legislative jurisdiction and the extraterritorial reach of federal laws (post here). I thought I would continue the conversation about extraterritoriality and note three excellent articles that were recently posted on SSRN...

Legally Blind Grading, Take 3: What Approach Do You Use for Questioning Students?

Posted on March 18, 2010
As noted in a previous post, "a staggering ninety-seven percent of those teaching first year classes reported using the Socratic method, with the use of alternative teaching techniques decreasing as a teacher became more experienced or tenured!" The defining feature of the Socratic method is that "the professor calls upon a student and engages that student in a colloquy, either about a case or about some other problem...

New Cyberbullying Case: D.C. v. R.R.

Posted on March 18, 2010
Here's a new cyberbullying case with truly atrocious facts. It is called D.C. v. RR and was decided by a California Court of Appeal. It involves a 15-year-old who received harassing comments on a website he maintained to promote his entertainment career...

Executions in Iran and North Korea

Posted on March 18, 2010
Students of the sociology of punishment are getting the rare opportunity to look back into the history of penal evolution by watching the penal behavior of two polities that are arguably throwbacks to the absolutist model of government, Iran and North Korea...

Toobin on the Court after Justice Stevens

Posted on March 18, 2010
A number of law-blogs have picked up on Jeff Toobin's recent New Yorker piece, "After Stevens," a long biographical presentation and also an analysis of the Justice's work, evolution, and legacy. I was, I admit, put off a bit at the outset by the long-ago-tired "Justices are ...

Law Reviews Playing the Game

Posted on March 18, 2010
Here's an interesting one. I received an offer on my Klein piece (finally!) from a main journal at a school in low/mid-50s (going by US News). The terms of the offer were: 1) Respond within seven days or 2) Respond within 12 days (i.e., an extra work week to shop) if I agreed to trade only into journals from schools ranked in the Top 30 of US News (which I interpreted to include specialty journals)...

Desparately searching for real "Tenthers"

Posted on March 18, 2010
The New York Times ran a story yesterday that interests me both as a federalism fan and as a popular constitutionalist -- the revival of the Tenth Amendment as a popular rallying cry. "Tenthers" argue that the SCOTUS's doctrine of enumerated powers has given Congress powers far in excess of what the text demands and the the People need to take back this excessive centralization through rallies, state legislative resolutions, and general hell-raising...

Conference on international disability law

Posted on March 18, 2010
Tomorrow, we are hosting a symposium on the UN Convention on the Rights of Persons with Disabilities at Loyola Law School. With apologies for the lateness of the invitation, if you are in the Los Angeles area I do hope you consider joining us. We are bringing together a great group of people from around the world, many of whom were directly involved with the negotiations of the Convention...

A Modest Proposal

Posted on March 17, 2010
Jacqui Lipton at Faculty Lounge flags a comment from Jonathan Adler's Volokh Conspiracy post on laptops in the classroom (a debate now stretching into the undergrad level). The commenter, who identifies herself MBA student, offers to give up her laptop if professors agree to give up PowerPoint...

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