Legal Commentary

Reports of our demise are greatly exaggerated

Posted on January 25, 2010
Heather Gerkin argues that sites such as JOTWELL are harbingers of the demise of student-edited journals (other than the top-tier journals), because they no longer are needed, given the increase in alternative places to publish. I am not convinced. JOTWELL is a great site and a great idea, taking the article-sifting-and-aggregating process (done best by Larry Solum, as well as the individual lawprofessors network blogs) to the next level...

On Casebooks

Posted on January 24, 2010
Writing a good casebook is a thankless task. If a casebook is well constructed, the professor using it will never give much thought to its construction. The organizational choices made by the casebook author/editors will seem obvious, the notes will seem insightful but unobtrusive, and the editing of the cases will be invisible...

Mickey Kaus and the Health Care Debate

Posted on January 24, 2010
Mickey Kaus is an extremely talented blogger. He gets the medium. He focuses on a few core issues and then keeps hitting them, over and over, so that you see events unfolding through his perspective. I think he has been spot-on about the health care debate from the beginning...

LLM in entrepreneurial law

Posted on January 23, 2010
There was an interesting story in the National Law Journal a couple of days ago about such programs and a developing trend of using the law degree (either JD or LLM) as good basis for starting companies rather than joining law firms. Here's an excerpt:A handful of U...

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PrawfsBlawg is prescient

Posted on January 23, 2010
At least that's what I'll claim in retrospect as the point of this post. We will miss you, Conando. Here's his last show; don't miss the last segment.

So John Edwards is back in the news....

Posted on January 23, 2010
I may be alone in finding the paternity of John Edwards' baby a non-event. But I've long thought differences in punishment difference between attempted murder and murder were irrational. But the far more interesting thing is, of course, the federal grand jury's consideration of whether any crimes were committed in the dealings with Edwards' illicit relationship...

Further thoughts on Citizens United

Posted on January 22, 2010
My first significant scholarly work (a senior-research paper, the writing of which convinced me, three weeks before graduation, I wanted to be an academic), published (as co-author) 12 years ago, argued all the ways that Austin was wrong and thoroughly inconsistent with important free-expression principles...

Speech, politics, and the corporate form

Posted on January 22, 2010
I don't teach or write (or, frankly, know much of anything about) corporations and business organizations. So read this in that light. But Citizens United triggers a number of corporations issues (some of which Matt already touched on). First, it seems that there is a public and political misconception about what a corporation is...

Bail and Punishment: Many Behind Bars Have Been Convicted of Nothing

Posted on January 22, 2010
Most Americans believe that if you are behind bars somewhere it is because you committed a crime. Kudos to NPR's Laura Sullivan for setting the record straight with her stunning multi-part story on bail and jail in America. Bottom line, thousands of Americans languish in jails accused of petty crimes but unable to meet usurious bond fees set by bondsmen (an ominous if old fashioned term for an industry comparable to the payday loan business) while in aggregate, local and state governments spend 9 billion dollars a year housing people who pose little threat and who have not been convicted...

After the Health Reform Crack Up: Govern through crime?

Posted on January 21, 2010
Former Clinton adviser Mark Penn lays out the case for a Bill Clinton post-1994 model for Obama to come back to the "center" and "swing voters" after the apparent crack up of his signature health reform initiative. Whatever the politics of swing v. base voters going into, rather than coming out of, a mid-term congressional election (which may be important) it is also worth remembering that what Clinton did in that period was to help enact some of the worst pieces of crime legislation in the history of democratic societies including a host of new federal death penalties, the Anti-terrorism...

How do you solve a problem like Iqbal?

Posted on January 21, 2010
Multiple ways, apparently. Ed Hartnett (Seton Hall) sent this compilation to the CivPro listserv (gleaned in part from Scott Dodson's New Pleadings, New Discovery), showing the multiple different proposals that have been made to undo Iqbal. Notice Pleading Restoration Act, S...

Two small thoughts on Citizens United

Posted on January 21, 2010
Just wanted to add these minor notes to the growing agglomeration of commentary: For a terrific take on the legitimate uses of corporate money to advocate for policy positions, see Jill Fisch's How Do Corporations Play Politics?: The FedEx Story, 58 VAND...

The Yale "So"

Posted on January 20, 2010
I enjoyed the AALS conference a good deal (notwithstanding the registration fee!), but my one comment about it (actually, one of two, if I ever get around to writing about what Orin recently said on the subject) is a little less substantive. Judge Guido Calabresi, former Dean of Yale Law School, was the special guest and main luncheon speaker, and gave what I gather is a typically sparkling -- or should that be "twinkling" -- talk...

Government-Sponsored Social Media Sites and the First Amendment

Posted on January 20, 2010
Suppose State University Law School sets up a Facebook page whose stated purpose is "to allow all current law students to discuss law-school-related issues." The leader of the Law School Democrats and the leader of the Law School Republicans begin a heated discussion on the Law School's Facebook page about President Obama's policy of sending more troops to Afghanistan...

More on Sabbaticals

Posted on January 20, 2010
In a comment to Lyrissa's interesting post on sabbaticals, Rob Vischer (buy his new book!) writes: [W]hat exactly is the purpose of a sabbatical if not to delve more deeply into a single, sustained scholarly project? I'm sure that folks in many jobs would love six months off from their primary responsibility in order to learn a new language or get to know the various constituents in their place of employment better...

Party school! - whoa, wait a minute ...

Posted on January 20, 2010
Having spent most of my adult life in a college town - either as a student or faculty member - I was pretty sure that I had heard just about every story about party colleges, and well ... partying. Nothing could shock me - I was "unshockable," and, in fact, many years ago I may or may not have even done some shocking myself...

Immigration Policy and the Law-Enforcement Benefits of Open Borders

Posted on January 19, 2010
Jonathan Simon's post on Haiti and security is a good reminder that immigration policy has got to be a component of any meaningful foreign policy, security policy, or drug control policy. The legislative process being what it is, we do one bill at a time, but this integration should be in the back of our minds, especially if we really are going to get a bill this year...

On not wasting a sabbatical

Posted on January 19, 2010
I am in the second week of my second sabbatical, and I find myself beset by sabbatical anxiety. Ideally, I would be using the sabbatical to write a highly theoretical, paradigm-shifting monograph, an extended discourse pulling together the various strands of my previous scholarly works into one coherent and compelling whole...

Thoughts on cameras in the courtroom

Posted on January 18, 2010
Lots of commentary out there about the Supreme Court's Download Perry-order-opinion staying the effort by District Judge Vaughn Walker of the Northern District of California to have limited video broadcasts (live-streaming in five federal courthouses and recorded for posting to YouTube) of the trial challenging California's Proposition 8...

The Paradox of Security in Disasters: Suffering, Looting and Delay in Haiti

Posted on January 18, 2010
As the days have passed since the devastating earth quake struck in Haiti a week ago tomorrow, two themes have dominated the media coverage: when will water and food reach the struggling survivors in the streets of Port au Prince and when will the violence start...

More on Grades

Posted on January 18, 2010
The recent discussions on grades have been very interesting. They certainly suggest that many professors grieve over grades and want students to know that although they are important, they're not everything; some of the comments suggest that students didn't know this and may be reassured to learn that we feel this way...

Charity Challenge for Haiti

Posted on January 17, 2010
It's not always possible that this blog will jump on major news events, but I'm a bit sorry we haven't had more discussion on the devastation in Haiti or what to do, if anything. For what it's worth, Wendi, Benjamin, and I want to make some effort to alleviate the suffering and at least right now, we intend to do so financially...

The odd invisibility of slavery landmarks in the United States

Posted on January 17, 2010
Last Friday, while freezing in New Orleans for the AALS meeting, I had the unnerving experience of eating lunch in New Orleans' former slave exchange, in which Pierre Maspero's restaurant is now housed. The building's former role as a slave market is invisible except for a discrete historical plaque...

Emotional Distress and 1L Grades

Posted on January 16, 2010
My 1Ls got their grades this week. This is always painful--for them and for me. Inevitably, there is a bright, eager student who had great insights in class whose grade doesn't reflect his or her abilities. Inevitably, there is a student I couldn't recognize in a line-up who makes one of the highest grades in the class...

First year grades - the saga continues

Posted on January 16, 2010
It appears that first year grades and more specifically first semester grades are the topic of the day. In addition to Lyrissa Lidsky's wonderful post and the interesting comments here on prawfs, Michael Froomkin blogs on the release of first semester grades here and Orin Kerr provides a very thoughtful post here...

College sports and the higher education economic crises

Posted on January 14, 2010
The USA Today carries an interesting story today about the cost of college sports in the context of university economic struggles. I have blogged about this general proposition on the Voir Dire Blog here, but that was before the financial meltdown. Here are some intriguing excerpts from the USA Today story: ...

Sharing the Blame: Punishing Entities at BLS

Posted on January 14, 2010
Our friends at Brooklyn Law School, which will be hosting the next Prawfsfest! this summer, are also hosting a neat symposium early next month entitled, Sharing the Blame: The Law and Morality of Punishing Collective Entities. Looks very interesting, especially if you're in the NYC area...

Real-Offense Sentencing, Prior-Conviction Enhancments, and the Meaning of "Most": A Post for People Interested in Sentencing

Posted on January 14, 2010
Here?s a small linguistic/sentencing conundrum that has bugged me for a long time, involving the meaning of ?is,? and? in trying to settle that one? the meaning of ?most.? This has nothing to do with sex, and I?ve put most of it below the fold because it?s only for people really interested in sentencing...

Class Movie Night

Posted on January 13, 2010
Flying back to Miami last weekend on JetBlue, I watched (for likely a time in triple digits) A Few Good Men. And it struck me how great the trial scenes are for demonstrating a host of Evidence issues (rightly or wrongly) and that I want to this as a teaching tool...

Law School Hiring Thread, 2009-10, Thread Four: The Last Phase?

Posted on January 12, 2010
This thread will be moved to the front every ten days or so. Please add comments to this thread, not Threads One or Two or Three (where comments are now closed). This thread is for both law professors and people who are on the market this coming year for becoming a law professor...

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