Legal Commentary

Self Help Against Foreclosure

Posted on February 23, 2010
Ohio homeowner Terry Hoskins bulldozed his house rather than let a bank take it in foreclosure. Lest there be any ambiguity about his motives, he explained what he was doing on camera. But Ohio, like many other states, has a statute making it a crime to "destroy ...

Is Everything on the Table Now?

Posted on February 23, 2010
During a recent visit to a law school with a distinguished scholarly reputation and history, I chatted with a prof who, like me, is on a strategic planning committee. This prof had lateraled up, and had a resume showing that scholarship was a central interest...

Wouldn't you like to be a pepper too?

Posted on February 23, 2010
This morning, I opened my inbox to learn I am officially an oppressor. Various websites which oppose the practice of discrimination against men have listed a number of (mostly female) law professors as oppressors. It appears they just cut and paste the membership of feministlawprofessors...

States in Fiscal Crisis: How Did We Get Here?

Posted on February 22, 2010
Ok, state budgets suck right now. We know this. For instance, the New York Times reports (again) this week on the vicious cycle of state budgets and the economy. As fiscally-strapped states cut jobs and other spending, their economies weaken, pushing their own revenues and those of their neighbors lower yet...

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Allocating power between courts and arbitrators - and why scholars of federal courts should care

Posted on February 22, 2010
The Federal Arbitration Act makes arbitration agreements as enforceable as all other contracts. In April, the Supreme Court will hear argument in Rent-A-Center v. Jackson, which concerns the question of who - court or arbitrator - decides a claim that an arbitration agreement is unconscionable and thus unenforceable...

The Irrelevance of Writtenness in Constitutional Interpretation

Posted on February 22, 2010
My last two posts discussed different versions of what I have been calling the originalist "argument from writtenness." The first version holds that only originalism is consistent with the primary purpose of written constitutions?namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints...

"Are There Secular Reasons?"

Posted on February 22, 2010
That's the title of Stanley Fish's latest column. It is fairly standard stuff for readers of Fish on law and religion, but with the added benefit that it discusses and quotes from Steve Smith's terrific forthcoming book, The Disenchantment of Secular Discourse...

Android Apps for Prawfs?

Posted on February 21, 2010
A little while ago, Rick asked about the best apps for iPhones. I just made the switch to a Droid/Verizon after many years on T-Mobile with a Blackberry. The transition so far has not been seemless; sadly, I spent a couple hours fruitlessly waiting while they tried to extract my contacts and photos from my BB and move them to the Droid...

Symposium: Pondering Iqbal

Posted on February 21, 2010
The new issue of Lewis & Clark Law Review is on-line, with a fantastic paper symposium on the much-maligned Aschroft v. Iqbal (the first to reach print, I believe), titled Pondering Iqbal. Contributors include former GuestPrawfs Scott Dodson, Tung Yin, and Hillel Levin, as well as PermaPrawfs Steve Vladeck and myself...

Justice Obama?

Posted on February 19, 2010
Jeffrey Rosen has a fun piece in this weekend's Washington Post arguing that President Obama would be better suited as a Supreme Court Justice than he is as President. (Thanks to his colleague Lawrence Cunningham for linking to it on CoOp.) It's not clear how serious Rosen is about this -- a little? a lot? He speculates about the ways Obama could do it and the likelihood that he would be confirmed, but I think the piece is best read as a thought experiment...

A Non-Lawyer Law Clerk

Posted on February 19, 2010
The New York Times' obituary page today (always the first thing I read in the Times) carries the obituary of Carl Kaysen, an economics professor and former director of Princeton's Institute for Advanced Study, who also along the way helped negotiate the Limited Test Ban Treaty...

Book Club on "Ghost of Jim Crow" continues

Posted on February 19, 2010
Just wanted to provide an update on the book club, which continues through the end of today. Our contributors have each posted their thoughts, and Anders has responded in the comments. Here are the posts: Willoughby Anderson, A Smarter Southern Strategy Al Brophy, Attack on the Moderates Chris Schmidt, Strategic Constitutionalism and Resistance to Brown I'd like to thank Willoughby, Al, Chris, and Anders, as well as those of you who have added your own comments, for a great club...

Trivia from the Supreme Court order list

Posted on February 19, 2010
Anybody can read the Supreme Court's opinions, but the real nerds read the order list. Here is an order from the Court's January 19, 2010 list: Linton v. United States, No.09-7408 - The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted...

Linguistic Vagueness and Constitutional Law

Posted on February 19, 2010
The problem of ?vagueness? has a venerable place in the twentieth-century philosophy of language. Broadly speaking, vagueness seems to present a stumbling block for semantic logicians (such as Bertrand Russell, who commented on the problem himself in 1923) who hope to provide some kind of unitary account of a language?s underlying structure...

Most Americans Disagree with the Citizens United Decision -- should we care?

Posted on February 18, 2010
A new Washington Post-ABC News poll reports that around 80% of Americans disapprove of the Supreme Court's decision in Citizens United. It is unclear to me, from reading the reports of the poll, whether Americans disapprove of unlimited campaign contributions by corporations, or whether they believe that the Supreme Court got it wrong as a legal matter...

Figure skating: Still fixed, still not a sport

Posted on February 18, 2010
If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges. Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging...

Book Club on "The Ghost of Jim Crow" Begins Today

Posted on February 17, 2010
Our book club on "The Ghost of Jim Crow" begins today. You can look forward to contributions from: Willoughby Anderson, Law Clerk for Senior Judge John T. Nixon, United States District Court for the Middle District of Tennessee. Alfred Brophy, Reef C...

When is finality . . . final?

Posted on February 17, 2010
At this Friday's conference, the Supreme Court is scheduled to consider a petition for rehearing in Melson v. Allen. (SCOTUSblog posted an item on the case a couple of months ago, when the Court requested a response to the petition for rehearing.) It is pretty rare that a petition for rehearing has any chance of going anywhere, but this one is worth watching because the Court at least thinks it is worth requesting a response...

Strategic Constitutionalism and Resistance to Brown

Posted on February 17, 2010
In The Ghost of Jim Crow, Anders Walker has written such an interesting and provocative study of the efforts of ?moderate? southern leaders to resist Brown that it is difficult decide which thread to pick up. Let me briefly highlight what I see as several particularly valuable contributions Walker makes to the history of the post-Brown South...

"How to Write an Incendiary Blog Post"

Posted on February 17, 2010
As a service to our guest-bloggers, and via Arts & Letters Daily, here is a cute piece from The Boston Globe on how to write an incendiary blog post. Here's the first paragraph: This sentence contains a provocative statement that attracts the readers? attention, but really has very little to do with the topic of the blog post...

Should We Care Why the Founders Chose a Written Constitution?

Posted on February 17, 2010
As Keith Whittington tells it, the founders deliberately chose a written constitution for two reasons. First, only a written document could be presented to the sovereign people for ratification and thus provide a popular check on the actions of government officials...

Attack on the Moderates

Posted on February 17, 2010
It?s an honor to be here to discuss Anders Walker?s The Ghosts of Jim Crow, especially with Willoughby and Chris, two of the most exciting scholars of the post-Brown Civil Rights era. Jim Crow and its end is one the most vibrant areas in legal history; we?ve had some really terrific books in this area in recent years...

A Smarter Southern Strategy

Posted on February 17, 2010
I am pleased to be a part of this discussion of Anders Walker?s important and thought-provoking The Ghost of Jim Crow. Walker takes on two well-worn themes of civil rights history?the southern white moderate and the backlash to Brown?and in so doing reorients our understanding of resistance to desegregation...

Anonymity versus Access in Doe v. Reed: An Overlooked Argument?

Posted on February 17, 2010
Doe v. Reed, which is on the Supreme Court's oral argument calendar for April, is a media law professor's dream. It pits the (qualified) First Amendment right to speak anonymously against a state public records act designed to assure transparency and accountability in government...

Does Originalism Follow from Our Commitment to a Written Constitution?

Posted on February 16, 2010
Arguments about the nature of judicial review and appropriate methods of judicial interpretation based on the ?writtenness? of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from ?our commitment to a written constitution...

Being sued v. being held liable

Posted on February 15, 2010
One of the biggest popular/public/lay misperceptions of the legal system is a failure to grasp the difference between being sued and being held liable. The belief is that if I do everything "right," then I won't be sued at all (not just that I won't be held liable in the end)...

Deciding When To Decide - Appellate Procedure and Legal Change

Posted on February 15, 2010
Suppose you are a judge on the court of appeals. The case before you concerns some rule or doctrine from a thirty-year-old case, X v. Y. A couple of months ago, the Supreme Court granted certiorari in a case that also concerns the rule in X v. Y. You are almost certain the Supreme Court will repudiate X v...

Must Interpretation Precede Evaluation?

Posted on February 15, 2010
It is something of a shibboleth among certain originalists that interpretation (defined as the search for original meaning) necessarily precedes evaluation. This claim is stated as a necessary conceptual truth about interpretation and, if in fact it is such a truth, nonoriginalist theories of interpretation are in real trouble...

Disestablishment Deontology

Posted on February 15, 2010
Wow, two big ?d? words. I?m in the middle weeks of my law and religion seminar, and as such have just revisited a paper I wrote what seems like ?forever? ago?even though it was really only in 2006?and cringed at much of what I found there. Such, perhaps, is the life and learning curve of the assistant professor...

How Come the Killer Scientist was not Charged with Gun Possession in the Massachusetts Shooting?

Posted on February 15, 2010
Dr. Amy Bishop, the Alabama professor accused of shooting six colleagues, three fatally, killed her brother with a shotgun in 1986. She was not charged, and the current police chief of the town has suggested that a former police chief covered up what might have been an intentional crime...

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