Legal Commentary

A Transaction Cost Approach to Constitutional Interpretation

Posted on February 04, 2010
Building on a long tradition, recent work in constitutional theory has traced the normative deficiencies of originalism to two central factors?the extreme age of the Constitution and the extreme difficulty of the amendment process. See here, here, here, and here...

The Haters and the Hated

Posted on February 04, 2010
As Howard Friedman notes on his Religion Clause blog, a group of pastors and the "American Family Association of Michigan" filed suit in federal court on Tuesday challenging the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, which criminalizes violence motivated by a victim's "actual or perceived" sexual orientation...

Sex, Identity, and Haiti

Posted on February 04, 2010
I too am a long-time Prawfs reader and a virgin guest blogger. Thanks to Dan and the Prawfs team for extending the invite to me this month ? I?ll be blogging mostly about international, comparative and corporate contexts with a focus on gender and sexuality...

Finding your voice

Posted on February 04, 2010
Finding your voice as a writer can be difficult, but sometimes as prawfs we have a more basic problem: how to use your actual speaking voice to communicate effectively in the classroom and when presenting papers. In my other life I am a classically trained singer...

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Does the Constitution Prescribe Rules for its Own Interpretation?

Posted on February 04, 2010
This question is the title of a provocative recent article by Michael Stokes Paulsen, who answers in the affirmative. For reasons I explain in a forthcoming article, I think the argument supporting this answer is mistaken. Nevertheless, it is an interesting puzzle whether a constitutional text (or any other text) can ever authoritatively supply the methodology for its own interpretation...

Federalist Society Debate on Citizens United

Posted on February 03, 2010
I am one of the (possibly few) strongly liberal Democrats who also believes Citizens United was correctly decided and that corporate political speech deserves full First Amendment protection, which puts me in a fun position. For the next two weeks, I will be participating in an on-line Federalist Society debate on Citizens United...

Memo to Microsoft

Posted on February 03, 2010
It's great to be back at Prawfs. I'll take this opportunity for access to a substantial public forum to make a couple of friendly points to the good folks in charge of the Microsoft Word Spell Checker: 1) "Thurgood" is actually a word, the first name of a well known American, so no need to flag it as an error, and 2) it is not a misspelling of the word "Thurmond"...

The legal debate over the Senate's rules: a dialogue

Posted on February 03, 2010
There has been a lot of discussion lately about reforming the Senate's rules. This isn't especially surprising. The same party controls the presidency and has majorities in both houses of Congress, and the Senate minority has been using the veto powers it enjoys under the Senate rules to block some of the governing party's initiatives...

I don't see any connection to Vietnam, Walter

Posted on February 03, 2010
Thanks for having me back to Prawfs this month. Whenever I meet someone at another institution, the question of what I teach is usually an early question. My response of "Torts, Labor, Employment Discrimination, and Laws of War" usually draws a quizzical look...

CAFA and the Home State Exception

Posted on February 03, 2010
Even if you're not a civ pro buff you've probably heard of the Class Action Fairness Act (CAFA). Enacted in 2005, CAFA allows some class actions based in state law to proceed in federal court, even if they don't meet the normal 1332 diversity requirements...

Governing through Crime "Old School" style in Iran

Posted on February 02, 2010
When I was in graduate school reading the then recent historical research of the late Edward P. Thompson and his colleagues on crime and society in Britain during the 18th century I was thrilled (intellectually speaking) to see how the majesty of the English common law had served to bolster a shaky revolutionary gentry class in its hour of need...

Constructing the Canon

Posted on February 02, 2010
Greetings prawfsworld. It's a real pleasure to be invited to guest blawg, and I want to thank Dan, Rick, et al for the opportunity. I thought I'd use my first post to plug the paper--or at least the idea--that I presented on the AALS panel with Rick Hills, Larry Solum, Mitch Berman, Laura Cisneros, and John McGinnis...

Poll/Contest: What shape is the Constitution?

Posted on February 02, 2010
I sometimes find it useful to draw the Constitution on the board during my Legislation class. For instance, when I discuss the doctrine of constitutional avoidance, I draw statutes getting "bent" around the Constitution. (It is sort of like how celestial objects bend light around them, except the opposite because the Constitution pushes statutes away from its edge...

Student Evaluations of Teaching

Posted on February 01, 2010
I received my student evaluations from last semester on Monday. I'm sure many of you are critical of the process by which teaching is evaluated, but that's not the point of this post. Instead, I have to share one of my evaluations that amused me. The student who wrote it evidently enjoyed Media Law so much that s/he wrote, "You've redeemed the state of Texas for me...

Hi, there, prawfs world

Posted on February 01, 2010
I'm happy to be guest blogging here for the month of February, a month that singer/songwriter Dar Williams once called "the longest month of the year." So, despite its compact 28 days, I promise to deliver a full serving of posts about civil procedure, complex litigation, and comparative law, some of which I will cross-post at the Civil Procedure and Federal Courts Blog where I am a co-editor...

Presley v. Georgia, the Sixth Amendment, and Courtroom Closures

Posted on February 01, 2010
Presley v. Georgia is a Sixth Amendment decision with First Amendment implications that you may have overlooked in all the brouhaha over Citizens United. In Presley, the Supreme Court held in a per curiam opinion that a criminal defendant's "Sixth Amendment right to a public trial extends to the voir dire of prospective jurors...

Greetings, Prawfs readers!

Posted on February 01, 2010
I am a long-time Prawfs reader, first-time guest blogger. I'm grateful to the Prawfs gang for inviting me to blog this month. I will plan to post on the legislative process (including the timely topic of Senate reform), appellate procedure, and some miscellaneous topics...

Rotations and sundry

Posted on January 31, 2010
It's time for rotations! I'm very grateful to all of our January guest bloggers and I'm very excited to welcome (back) a great new crew of folks for February. Joining us for the first time, we have Robin Effron (Brooklyn Law); Darren Rosenblum (Pace); Aaron Bruhl (Houston); Andrew Coan (Wisconsin/Michigan); and Ian Bartrum (Drake)...

Undoing Citizens United

Posted on January 31, 2010
Last week, I wondered what Congress might do to undo the effects of Citizens United and considered some ideas, mostly sounding in changes to corporate law. Ian Ayres and Bruce Ackerman have an op-ed and blog post with a different, quite interesting proposal: Making federal contracts contingent on contracting corporations agreeing not to engage in electioneering speech--sort of a contractor analogue to the Hatch Act prohibitions on government employees...

Jeff Yates signing off and giving thanks

Posted on January 30, 2010
I have really enjoyed my time guest-blogging here at Prawfs and I'd like to thank Dan and the rest of the Prawfs gang for inviting me to join them for a while. I am a loyal reader of the blog and I think that it provides a lot of useful information, valuable insights, and fun entertainment...

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

Posted on January 29, 2010
On Friday-Saturday, March 26-27, FIU College of Law and FIU Law Review will host a live symposium, Whither the Board? The National Labor Relations Board at 75. The program was put together by my colleague Kerri Stone, and marks the installation of R. Alexander Acosta, a former member of the NLRB, as FIU's Second Dean...

"Well-Motivated" Government Actors and Bright-Line Rules

Posted on January 28, 2010
I interviewed once with a DOJ bigshot who looked at my resume and said: ?I see you?re into philosophy. Well, around here, we don?t sit around pondering the philosophical implications of the Fourth Amendment.? Turns out we do: a lot of agents really like to ponder the philosophical implications of the Fourth Amendment, and it doesn?t take much to get them going...

Partisanship and Separation of Powers

Posted on January 28, 2010
Once again, where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week's decision in Citizens United. The divide is less partisan over whether Justice Alito acted properly in mouthing/mumbling "No, that's not right" in response...

RIP Louis Auchincloss

Posted on January 27, 2010
Lawyer/novelist, or novelist/lawyer, Louis Auchincloss is dead at the age of 92. The Times has a lengthy obituary here. (Appropriately enough, the name on the byline, Holcomb B. Noble, could easily have come from one of Auchincloss's own books.) It is a fascinating story...

"Cognitive infiltration"

Posted on January 27, 2010
A few days ago, over at Salon.com, Glenn Greenwald put up this post, in which he described and criticized a 2008 paper (by Cass Sunstein (now, as Greenwald notes, the head of the President's Office of Information and Regulatory Affairs). Here is the SSRN abstract of the paper: Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event...

'Tis the Season

Posted on January 27, 2010
Kaimi Wenger has a post on CoOp calling for information from law review editors about the upcoming submission season (when boards change, how to submit, formatting, etc.). Leave comments there or here. I would love an answer to the simplest question--someone give me one date when the window opens.

Satellite VC Comments Now Open

Posted on January 26, 2010
Spy Magazine occasionally ran a Letters to the Editor of the New Yorker feature, back when the New Yorker didn't have a letters section. Because Jim Lindgren didn't set up the comments feature for this post, I think it's worth opening it up for comments here...

On class sign ups, course caps, and drop/add

Posted on January 25, 2010
Having taught classes at three universities, I have yet to see a system of class sign ups, course caps, and drop/adds that comes anywhere close to being optimal. Perhaps the general way we approach these situations is flawed. Every semester some courses do not fill (some don't come even come close to filling) while others have a line for entry that could go around the block (if we still did the wait in line method, rather than online sign ups)...

What next after Citizens United?

Posted on January 25, 2010
Immediately after last week's decision in Citizens United, President Obama called on Congress to do something (he did not say what) to undo the Court's decision and stop the feared influx of corporate special-interest money. Now given as how he is a former con law professor, I presume he realizes that this was a constitutional decision protecting corporate speech rights that Congress cannot directly undo by re-regulating corporate speech...

Setencing Guidelines Haiku

Posted on January 25, 2010
I am preparing a serious post reflecting on the continuing relevance of the dichotomy in ethical theory between emphasis on character and emphasis on rules (virtue ethics vs. deontology and utilitarianism) as one teaches criminal procedure. I will reflect on Officer Bart Turek and what insights we can draw from moral philosophy about what sorts of criminal procedure rules to adopt in a world of actual or potential Bart Tureks...

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