Legal Commentary

How is a Blizzard Like Unemployment Insurance?, or, Should States Save for Disasters?

Posted on February 15, 2011
Living in New England, it's easy to get distracted by snow. I started blogging last week about unemployment insurance, but I want to divert for a bit to talk about some recent news coverage about how many state budgets are being further strained by winter weather cleanup costs...

Welcome to the Birthright Citizenship Roundtable

Posted on February 14, 2011
Thanks to Matt and Dan, Prawfs will be the home to a discussion of the merits of two new proposals to change birthright citizenship law in the United States. These proposals are designed to deny citizenship to some or all children of undocumented non-citizens born in the United States who otherwise would be U...

Metaphors, Models, and Meaning in Contract Law

Posted on February 14, 2011
As I mentioned to Dan Markel offline, I have been less active as a blogger so far this month in part because I've been focused almost entirely, as I have since last September, on two things: (a) prepping for my full-year six credit contracts class, and (b) developing a thesis (embodied in an article) that merges the theory and doctrine of the class prep with what I know about how the real world of "contract practice" works...

The Unreported Accomplishments

Posted on February 14, 2011
Every month our faculty sends around a report discussing the months? positive accomplishments. I believe other law schools have a similar monthly report. This recent accomplishment report is a really useful way to keep the faculty connected and let others know what conferences you?ve been speaking at, what law reviews you have published your most recent works in, and what other impressive things you have been up to...

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An Intervention: What Not to Write

Posted on February 13, 2011
I am conducting an intervention in which both the intervenor and the intervenee are one. I am notoriously slow at learning from my past mistakes, but I am going to try to make up for it by posting a list of writing projects to which neither you nor I should ever say yes in the future...

Feldman on the Virtues of Political Justices

Posted on February 13, 2011
I admire and respect Noah Feldman's writing on the religion clauses. I think that his piece on the intellectual origins of the Establishment Clause was extremely well done. While I don't agree with many of the claims in "Divided by God," particularly the "and what we should do about it" prescriptions, and while I don't think that at least some of the arguments in the book are original to Feldman, I thought the book was well done overall...

WIsh I had thought of this blog

Posted on February 13, 2011
On the "wish I'd thought of that" list: Donna Ballman, who wrote The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, has a blog called The Write Report, in which she comments and answer questions about legal issues and legal spins on TV, movies, and fiction writing...

Gaming the Super Bowl litigation

Posted on February 12, 2011
Slate has a nice piece (including an interview with SCOTUSBlog's Tom Goldstein) gaming out the options for fans seeking some sort of compensation over Super Bowl seating. It now appears that there are three groups of disgruntled fans: 1) Those denied seats altogether; 2) Those moved into nose-bleed seats; and 3) a group of about 1100 fans who were delayed coming in because several gates were not available because of weather problems...

Two Budgets Are Better Than One

Posted on February 11, 2011
Chris Elmendorf and I are back at it trying to fix California's budget process. Our latest effort is in today's S.F. Chronicle. You can read our column here. Our last effort is here. Both pieces seek to strengthen political parties and empower the people, using each democratic modality (popular democracy or party democracy) to improve the other...

Roundtable on Birthright Citizenship

Posted on February 11, 2011
PrawfsBlawg is honored to host an extended roundtable on the issue of birthright citizenship. Our roundtable guests will discuss the constitutional basis for citizenship, as well as state and federal proposals to modify or eliminate birth in the U.S. as an entitlement to citizenship...

P&T Subcommittees for Untenured Faculty Members

Posted on February 11, 2011
This year, I've been chairing a committee at my law school that is reevaluating our current promotion and tenure standards and procedures. One idea that we have been discussing is the creation of small subcommittees of two or three senior faculty members who would be assigned to each junior faculty member to provide regular feedback from the time the junior person starts until he or she is tenured...

Habeas Corpus: A Modest Proposal

Posted on February 10, 2011
I've been following a local habeas case with some interest. The substantive legal issues may not be especially compelling, but the disquieting institutional dynamics are perhaps more worthy of attention. Here's the story. In 2005, Richard Fischer was stopped by police on suspicion of drunk driving...

Class action in Super Bowl ticket debacle

Posted on February 09, 2011
Well, that didn't take long. A class action has been filed in federal court by more than 1000 Super Bowl ticket holders against the NFL and Cowboys owner Jerry Jones, among others. The action is in federal court under the Class Action Fairness Act, which allows for federal jurisdiction on minimal diversity...

Unemployment Insurance as Cooperative Federalism

Posted on February 09, 2011
As part of my effort to blog about something even more boring than tax law (and, admittedly, it was a challenge), I recently started getting interested in unemployment insurance. And, whaddya know, UI is actually a pretty fascinating example of cooperative federalism...

Employees, the Firm, and the Corporation

Posted on February 09, 2011
Last week you may have seen the 2010 productivity numbers from the Bureau of Labor Statistics. Overall nonfarm business productivity was up 3.6 percent for 2010, almost identical to 2009's 3.5 percent growth. Wages, however, were fairly stagnant -- real hourly compensation was up only 0...

Beauty and Complexity, Aesthetics and Law

Posted on February 09, 2011
Sometimes people say that a simple theory is an elegant theory. Or one might hear that a theory is beautiful in its simplicity. That might mean that a simple theory is an effective theory, and that in turn could have two other meanings: (1) the theory's simplicity will allow more people to understand it in the first place; and/or (2) the theory's simplicity will mean that people who understand it and find it appealing are most likely to apply it correctly (or as intended)...

Should murderers have the right to vote in prison?

Posted on February 09, 2011
The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No...

Believing is Seeing

Posted on February 08, 2011
The Culture Cognition Project--the people who showed that perception of purportedly neutral video is tinged by socio-political-cultural factors, experience, and ideology--are back with a new study showing how those same socio-political factors affect perceptions of whether speech is protected...

Best Super Bowl Commercial

Posted on February 08, 2011
If you are from Detroit, this will give you a couple goosebumps. Go Tigers and Red Wings. (Although the Spirit of Detroit sculpture, by Marshall Fredericks, sits in front of the City-County Building, home of the Wayne County Circuit Court, which gives me flashbacks - not so pleasant - to Friday morning motion calls...

Some Doubts About ?Evidence-Based? Decision Making in Criminal Justice

Posted on February 07, 2011
I?ve been reading, with some discomfort, a sort of manifesto for a self-proclaimed ?new paradigm? in criminal justice. Funded by the National Institute for Corrections and issued in its present form in April 2010, the document is entitled A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems...

Right (and Left) on Crime

Posted on February 07, 2011
Thanks to Dan and the Prawfs-folks for the opportunity to share some ideas this month. I've always thought it was interesting how sometimes the extreme left and the right can come together in their support for certain causes. Generally, the left and right plant themselves on opposite sites of issues, but when we look to the extremes of each side, the liberal and conservative can come full circle and meet at the margins...

Applying SOX (or something like it) to law schools

Posted on February 07, 2011
A comment that I saw on Steve Bainbridge's blog sounds like an interesting way to respond to the claim that law schools all too commonly mislead students about the schools' employment data: [A]pply Sarbanes-Oxley to college admissions, bursar, and career placement offices, with university presidents having to certify the data...

Against Restitution as the Core Aim of Criminal Punishment

Posted on February 07, 2011
There is a story in today's National Law Journal (unfortunately kept under lock and key) about orders of monetary restitution to make victims of child pornography whole. The defendants in some of these cases have been convicted of possession of child pornography, not distribution...

Stanford Law Review as Ebook: Kindle, Nook and iPad

Posted on February 06, 2011
My friend and co-blogger Alan Childress's venture, Quid Pro Books, has helped the Stanford Law Review become the first general law review to publish in an ebook version. Volume 63, Issue 1 is now available for Kindle, Nook, and in the Apple iTunes store...

Missing seats, Super Bowl tickets, and contract damages

Posted on February 06, 2011
The NFL and the people who run Cowboys Stadium built a lot of temporary seating for the Super Bowl (apparently to set an attendance record by exceeding 105,000), but approximately 1250 seats could not be installed. The league found alternative seating for 850 of those fans, but not for the remaining 400, who were turned away with a refund of triple their ticket's face value--$2400...

Randy Barnett's Printz challenge, and my response

Posted on February 05, 2011
Randy Barnett has offered the following thoughtful challenge to my earlier post on Judge Vinson's opinion regarding the individual mandate. (He tried to post it as a comment, but, for reasons beyond my ken, it would not post, so I reprint it here): "Rick writes, 'How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?' Where does Printz fit into the structure your analysis? Didn't Congress have a rational basis for believing that mandating local sheriffs to run background checks was means that was necessary to...

A Libel Proof Defendant? Courtney Love's Twitter Defamation

Posted on February 05, 2011
The Twitter defamation suit against celebrity Courtney Love , ostensibly the first of its kind, is set for trial next Wednesday (February 9, 2011) in California. The suit arose after Love got into a tangle with the Boudoir Queen, a fashion designer also known as Dawn Simorangkir...

Interdisciplinary Angst? - A Response to Boyden

Posted on February 04, 2011
I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger. There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking...

Formalism and Formality

Posted on February 04, 2011
For many law professors formalism generally draws at best mixed reviews (there are exceptions, of course -- I've heard tell of some maverick neo-formalists as well as formalists in the great white north of Toronto). Brian Tamanaha's recent book even goes so far as to claim that some formalists of yesteryear didn't embrace the designation...

Legal Scholarship as an Independent Discipline

Posted on February 04, 2011
Legal academia has a bit of an identity problem--namely, it's not really clear what the ideal form of legal scholarship is. This is not a struggle law has dealt with alone. Many subjects in recent decades have developed a case of "science envy"--a concern that there is no particular standard method which can form the basis of normative rules for scholars in that discipline about how their work is to be done--and have as a result cast about "borrowing" from other fields for tools and insights to better ground their own inquiries...

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