Legal Commentary

Varieties of Secularism in a Secular Age

Posted on March 17, 2010
A lovely and important book has come out -- a response to Charles Taylor's magisterial work A Secular Age. The book is called Varieties of Secularism in a Secular Age, edited by Michael Warner, Jonathan Vanantwerpen, and Craig Calhoun. It contains a variety of responses to and critiques of Taylor's wonderful book, and an afterword by Taylor himself...

Sovereignty -- Again

Posted on March 17, 2010
I keep thinking about dropping U.S. Term Limits v. Thornton from my con law class. I find the short chapter two of Sullivan and Gunther's constitutional law casebook, which contains only McCulloch v. Maryland and U.S. Term Limits, a bit odd, and students wonder why we spend a fair amount of time in class arguing in rather broad terms over the role of sovereignty in our constitutional system before getting to the core doctrinal areas...

Defamation, or Just Masturbation?

Posted on March 17, 2010
Here's the link to a news article describing an interesting lawsuit brought by former model Irina Krupnik in Manhattan Supreme Court against NBC Universal and Universal Pictures Co. Ms. Krupnik is disgruntled, and understandably so, because a bikini-clad photo of her was used as a masturbation aid by a "purposely unattractive male" character (played by Jon Favreau) in the movie Couples Retreat...

Taxing Punitive Damages, coming soon

Posted on March 17, 2010
My colleague Gregg Polsky and I have a piece called Taxing Punitive Damages that we're pretty excited about, which we've just uploaded finally to SSRN. It's a draft and so we welcome comments and feedback. I may take the liberty of sharing some more of the paper in some coming posts, but in case I don't get to that soon, here's the link to the whole thing, and the abstract appears below: There is a curious anomaly in the law of punitive damages...

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Fiction Galore!

Posted on March 17, 2010
A few crime-related fiction films I've seen (or, re-seen) recently and enjoyed a lot: Ajami. Nominated for a Best Foreign Film Academy Award this year,Yaron Shani and Scandar Copti's film reminds one very much of The Wire. Except it's set in Israel, and it's a more intense, tightly-woven narrative...

Why Collaborate? (and Why Not)

Posted on March 16, 2010
Recently, I have been collaborating with Evan Fox-Decent (McGill Law) on a series of papers, which explore the theoretical foundations of international human rights law. Our basic thesis is that Kant?s theory of fiduciary relations in the Metaphysics of Morals offers a sound philosophical basis for attributing human rights obligations to states and state-like actors...

Mah Nishtanah

Posted on March 16, 2010
In the course of the discussion of the "Al Qaeda Seven," or the "Constitutional Seven" -- take your pick -- an often-featured argument has been that we can draw stronger inferences about the beliefs of those lawyers because they took on the representation of detainees on a pro bono basis...

Not-a-book-blog

Posted on March 16, 2010
Many thanks to Dan and Prawfs for having me back. In part as a result of my first Prawfs stint, I was sufficiently emboldened (read foolhardy) to start my own blog this past fall, in connection with the release of my book Snitching: Criminal Informants and the Erosion of American Justice (NYU Press)...

The Professorial Second Opinion, Take 2: Do You Think that Law Student Grades Should be Subject to Change?

Posted on March 16, 2010
When I guest blogged here last April, I posted an entry entitled The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences? From that post and the comments to it, I gathered that many law schools allow professors to change grades based upon computational errors, such as assigning 5 points to a student's discussion of a hearsay exception but failing to add those points to the student's final score, but do not allow professors to change grades based upon qualitative errors, such as failing to notice that a student addressed the same hearsay question...

Solove on Westboro

Posted on March 16, 2010
Dan Solove on CoOp analyzes the issues in Snyder v. Phelps, the funeral-picketing, tort-liability case against Westboro Baptist Church, on which SCOTUS granted cert last week. Solove argues (and I agree) that Snyder's claims are weak as a matter of tort law and the First Amendment and should fail...

The Father of the Fourteenth Amendment?and Why He's Almost Entirely Unknown

Posted on March 16, 2010
Every well-educated high school student in the United States has heard of James Madison, often because their school is named after Mr. Madison. If pressed, a few of them might even be able to explain why Madison is an important figure in our country?s history?the so-called ?father of the Constitution,? Madison helped shape the original Constitution and he drafted the original Bill of Rights...

Natural Disasters and Disability

Posted on March 15, 2010
Natural disasters are not obvious discriminators. As witnessed in Hurricane Katrina, Haiti, and most recently in Chile, they wreak havoc and cause devastation for whoever gets caught in their path. But from a disability perspective, these events carry a special significance...

Grutter-izing of the Second Amendment?

Posted on March 15, 2010
For federalism fans (of which I am one), the oral argument in McDonald two weeks ago oral argument in McDonald two weeks ago was only a modest disappointment. Several members of the Court looked as if they might adopt the strategy familiar from the Sixth Amendment of formally incorporating the Second Amendment against the states but giving the states a lot of leeway to ?tailor? the details of the right...

Congress and Iqbal/Twombly

Posted on March 15, 2010
Here is the current working version (sponsored by Sen. Whitehouse) of S. 1504, the Notice Pleading Restoration Act of 2010. This bill (modeled on a proposal that Steve Burbank proposed in recent Judiciary Committee testimony) provides that motions to dismiss, strike, or for judgment on the pleadings are governed by the standards applicable on May 20, 2007, the day Twombly was decided...

The Socratic Method, Love The One You're With?, Take 2: Is the Problem Method The RC Cola of Teaching Methodologies?

Posted on March 15, 2010
Do you remember those old RC Cola commercials from the 1980s? They would always tout that people consistently picked the cola over stalwarts Coke and Pepsi in blind taste tests. And yet, despite being armed with this data, my friends and I never bought it, and we were not alone...

The Times insults every civ pro professor in the country

Posted on March 14, 2010
The New York Times today features a profile of Senate Parliamentarian Alan Frumin, leading with the following: "To his [law school] classmates, one trait stood out. He was a whiz at mastering the mind-numbing rules of civil procedure." (H/T: Suzanna Sherry)

Richard Primus, Obama's Oath, and Our Indifference to Plain Constitutional Text

Posted on March 14, 2010
There is a widespread sense among scholars and laity that, whatever the force of ambiguous constitutional text, the plain text always governs, regardless of other considerations: Two Senators from each state, only 35-year-old Presidents, and so forth...

Nobody's Fools: The Rational Audience as First Amendment Ideal

Posted on March 14, 2010
I am very pleased that my article, Nobody's Fools: The Rational Audience as First Amendment Ideal, has gone to the printer and will soon appear in the University of Illinois Law Review. This article represented my first foray (and possibly my last) into behavioral economics...

Congressional Procedure = Real Constitutional Law

Posted on March 13, 2010
As I had hoped way back in September, it looks like the Senate Parliamentarian, Alan Frumin, is going to a major player in the health care debate. Frumin has ruled that the House must pass the Senate's version of health care before the Senate use the budget reconciliation process -- aka 51 votes -- to pass changes in the health care bill demanded by the House...

If this is not clearly established law . . .

Posted on March 12, 2010
In late January, a 13-year-old female student at Roberto Clemente Middle School in Germantown, Maryland, refused to stand or speak during the Pledge of Allegiance. Her teacher demanded she stand and, when the girl refused, he kicked her out of the room and sent her to a counselor's office...

Akerloff and Kranton on "Identity Economics"

Posted on March 12, 2010
My inbox has been overflowing with excellent new books of late. I hope to blurb a few of them in the coming weeks. Let me start by mentioning a new book by Economics "Nobel" winner George Akerloff and Rachel Kranton titled Identity Economics: How Our Identities Shape Our Work, Wages, and Well-Being...

To Iqbal or Not to Iqbal?

Posted on March 12, 2010
One of the recent challenges for Civil Procedure profs has been to explain the Twombly/Iqbal event to students already struggling to understand what often seems to be an arcane and highly contrived subject. I begin by lowering expectations, showing a slide of a local federal judge with a caption depicting his reaction to Twombly - expressed on a panel discussing the case at a CLE seminar...

Alternative Interpretations of the Privileges or Immunities Clause?and desperately seeking John Bingham

Posted on March 12, 2010
Now that submission season is over and Georgetown Law Journal has graciously agreed to publish Part II of my historical investigation of the Privileges or Immunities Clause, I can get back to blogging! There are four basic positions one can take on the meaning of the Privileges or Immunities Clause...

"The End of Endorsement"?

Posted on March 12, 2010
Steve Smith asks, over at the new Law, Religion, Ethics blog, whether we are seeing, in the Ninth Circuit's decisions rejecting First Amendment challenges to the Pledge and to the National Motto, the "end" of the Court's "endorsement test." (I note, by the way, that among the virtues of Law, Religion, Ethics is that it has resulted in more things to read by Prof...

The "Institutional" First Amendment

Posted on March 11, 2010
Here is the Ninth Circuit's decision in McDermott v. Ampersand Publishing. The district court had ruled that "a significant risk of First Amendment violation" would arise if a newspaper was forced by the NLRB to reinstate employees that the newspaper had fired for certain union-related activities...

A Law School Midterm Week: Hell Week or a Helluva Good Idea?

Posted on March 11, 2010
When I guest blogged here last April, I did a post about law school midterms. I noted that I give an ungraded midterm in all of my classes and listed nine reasons for doing so. The main reason I give an ungraded midterm is to give students feedback about where they stand at the mid-point of the semester...

Considering 1L Summer Abroad...

Posted on March 11, 2010
It?s that time of year when students are considering what to do with the summer. Getting a legal job as a first-year student has always been extremely difficult. But with the economy still weak and the law firm market the toughest it?s been in years -- some describing it as a ?law firm hiring crisis? ? the chances of 1L students getting a paying job are slim...

Too ridiculous to even be a hoax

Posted on March 10, 2010
I was almost hesitant to write about this one, thinking it might be a hoax, but apparently it is real: Actress Lindsay Lohan has sued E-Trade over the "Talking Baby" Commercial that aired during the Super Bowl and Olympics: The complaint (filed in state court in New York) alleges that the ad used Lohan's "name, characterization, and personality for advertising purposes" without her consent...

The Best-Selling Book of All Time?

Posted on March 10, 2010
Probably not; there are no broody teen vampires in it. But I am still proud and pleased to announce the publication of Sovereignty, Emergency, Legality, edited by the indefatigable Austin Sarat and published by Cambridge University Press. Here's a description: It is widely recognized that times of national emergency put legality to its greatest test...

Roberts on the SOTU (that Sonofagun Obama Troubles Us)

Posted on March 10, 2010
I was at Chief Justice Roberts' Albritton Lecture yesterday at my school, the University of Alabama. (Well, I was in an overflow room. Same difference.) As the media has reported, Roberts had some tough words about the Justices' attendance at the State of the Union address, where Obama criticized the Court for its decision in CItizens United...

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