Legal Commentary

Why Aren't Instant Replays Reviewed De Novo?

Posted on December 01, 2009
Many thanks to the whole Prawfs crowd for having me here. Throughout the month I?ll try to blog a bit about constitutional law and being a first year law professor, but I?m going to start with a question of much broader significance: Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires ?conclusive? or ?indisputable? evidence to overturn an incorrect call? Why not review them de novo? These are familiar questions for lawyers, of course...

Hello to the Prawfs Community!

Posted on December 01, 2009
It's terrific to join the Prawfs community as a guest blogger for the month. I'm grateful to Dan for inviting me. He knows--and now you do, too--that he has been one of my favorite people since we met some time ago. I'm looking forward to sharing some thoughts on my experience thus far as a first-year law professor (spoiler alert: I love it!), on interesting scholarship I've recently read, and maybe also on politics...

Architecture of Justice: Ideology in Stone?

Posted on December 01, 2009
I'm almost recovered from the physical consequences of a quick Thanksgiving weekend trip to Lincolnshire, England, where I attended a conference on the Architecture of Justice organized by Professor Nicholas Temple of Lincoln University, School of Architecture, and and Professor Renee Tobe of the University of East London, School of Architecture and the Visual Arts...

Law Professor Olympics

Posted on December 01, 2009
Umm, hello? Is this thing on? Ahem. Hi. I'm delighted to be back at PrawfsBlawg for another month of prawfblawgging. The first thing I wanted to talk about is an idea that recently came to me as a way of solving one of the strange problems of the law professor world...

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Signing Off

Posted on December 01, 2009
Thanks, as always, to Dan and to everyone out there who responds to my posts and makes blogging here such a pleasure. Good luck to everyone (profs included) on exams!

Rotations

Posted on December 01, 2009
With the onset of the new month, it's time to thank our many wonderful guests from this past month for their outstanding contributions. Great gratitude goes to all of them, some of whom might linger for a few more days. We are also fortunate to have another crop of excellent guests for the new month...

Why shouldn't the liberty of conscience extend to the racist JP?

Posted on November 30, 2009
Earlier this month, Keith Bardwell resigned as a justice of the peace in Louisiana, a couple of weeks after invoking his conscience as a basis for refusing to issue a marriage license to an interracial couple. I wish that the refusal had never occurred, but if it was going to occur, I wish it had happened before I sent the final galleys of my book on conscience to the publisher...

Eccentric Hobby

Posted on November 30, 2009
Today is my last day as a guest on Prawfs, at least for now. Many thanks to the Prawfs crew, particularly Dan Markel, for the invitation. If you've enjoyed my posts here, you can continue to follow me on my usual blog, Law Prof on the Loose. Before leaving, I can't resist having a post about my eccentric hobby, which is following tax protestors...

Collective Action in Copenhagen

Posted on November 30, 2009
This will be my last post for a while, and I want to thank Dan for this opportunity to guest blog in November. I'm on research leave this semester, so I can't complain about preparing and grading exams. But blogging was a welcome addition to my article writing this semester...

Goodbye and, BTW, Eight Circuit Reinstates ERISA Case Against Wal-Mart Involving Iqbal Plausibility Standard

Posted on November 30, 2009
Thanks to Dan and all for having me as a guest this November. I leave you all with the exciting world of ERISA/employee benefits and how the Iqbal/Twombley plausibility standard is impacting that part of the legal world. Braden v. Wal-Mart Stores, No...

Taking My Leave

Posted on November 30, 2009
Thanks again to PrawfsBlawg for having me as a guest this month. I'm on leave this academic year, and blogging was a welcome diversion from the research and writing grind. As readers may have noted, many of my posts related to the types of public speech and assembly conflicts that I discuss in my book, Speech Out of Doors...

Information Asymmetry, Bruised Egos, and the Law Professor Job Market

Posted on November 30, 2009
Thanks again to the folks at Prawfs for having me this month. In this last post for this stint, I would like to comment on some of the discussions in the comments associated with the various law teaching hiring threads over the past month. I could have posted this in the comments, but I've got guest privileges so I might as well use them...

Is exam grading best approached as a sprint or a marathon?

Posted on November 30, 2009
As I contemplate the arrival of exam-grading season, I'm considering a change in my approach. Exam grading is without a doubt unpleasant -- it's a relentless monotony, but the worst sort of relentless monotony in that it requires my full attention. As such, I've always deemed it prudent to rip the band-aid off all at once, resulting in one (relatively) quick sharp pain, followed by a correspondingly quick turn to scholarship...

A "disgusting" case of mistaken identity...

Posted on November 30, 2009
The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional. The reading of Balkin and his critics is surprisingly shallow...

Should anyone really care about "ex parte blogging" or editorializing?

Posted on November 30, 2009
Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case. Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging...

Shrinking-wrapping NYC: How Neighborhood Activists Are Strangling a City

Posted on November 29, 2009
This last October saw a momentous zoning milestone (at least for land-use wonks like myself who regard zoning decisions as "milestones"): Bloomberg's administration pressed through their 100th re-zoning, coincidentally Right In My Backyard, in the Carroll Garden neighborhood of Brooklyn...

Odyssean Hospitality

Posted on November 29, 2009
I've been enjoying various books on CD during my daily commute -- hoping against hope that the officious Pollyannas that research driving cognition, or whatever, do not turn their intrusive attentions to the "dangers" of listening to books while driving...

Signing Off

Posted on November 28, 2009
Thank you to Dan and the PrawfsBlawg gang for the opportunity to blog here. I hope December brings with it painless exam grading and good cheer!

Unanswered Questions Indeed

Posted on November 28, 2009
As the news reports, there are "plenty of questions" after Tiger Woods got in a car crash that sent him to the hospital. According to the story, Tiger hit a fire hydrant and a tree right near his own driveway, and his wife Elin had to smash a rear window with a golf club to get him out...

"San Diego" Shirt -- And a Lot More -- Banned

Posted on November 28, 2009
From The First Amendment Center comes news of an interesting student free speech case from the Fifth Circuit, Palmer v. Waxahachie Ind. Sch. Dist.. Palmer is another case dealing with the scope of students' rights to wear t-shirts that have statements printed on them...

Timing of Holidays

Posted on November 27, 2009
I just learned that Franklin Delano Roosevelt actually re-set the dates of Thanksgiving a week earlier in 1939-1940 to extend the holiday-shopping seasons in those grim economic years. This interesting WSJ piece lays out how FDR did it, and why, and the instantaneously horrible reception the move received...

Thanks for the Opportunity to Visit

Posted on October 01, 2009
Thanks to everyone at Prawfsblawg for allowing an opportunity to visit. It's been a great experiment for me, one that I recommend highly. I'm glad that I was part of this experience during September, which was otherwise a real adventure. I want to do a quick shout-out to my daughter Elizabeth, a legal studies major at Cal...

Trade in Services, Trade in Technology, and Labor Mobility

Posted on September 30, 2009
It is hard to believe that the month of September is almost over. In blogging, as in academia in general, there are so many things we want to research and write about, and only a certain amount of time. It?s like the old joke about law practice: there are only 24 hours in a day, and you can only bill 36 of them...

Chinatown Part III: The Two Victims

Posted on September 30, 2009
Look for the burgeoning international celebrity crime story of Roman Polanski?s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears...

Law and Intuitions

Posted on September 30, 2009
Laypeople's intuitions about what the law should be sometimes factor into scholarly arguments about what the law should be. There are two principal ways in which such arguments are made. In the "predictive" mode, we seek to understand lay intuitions because we think that laypeople will be more compliant with laws that match their intuitions...

Oligarchy in a one-party town

Posted on September 30, 2009
Yesterday, New York City held the only election that really matters for the only two city-wide offices that were genuinely up for grabs -- the comptroller and the public advocate. (I am assuming that Bloomberg will face little danger from his under-funded and mostly unknown Democratic opponent in the general election)...

Thanks to Prawfs

Posted on September 30, 2009
A quick thanks is due to Dan & Co. at Prawfsblawg for inviting me to guest blog this month. It was my first time guesting on Prawfs, and I hope it won't be my last. It has been a great deal of fun, and the dialogue has been superb (no surprise there)...

The Constitution in 2020: Religion, Division, and Pluralism

Posted on September 29, 2009
As Paul has mentioned, he and I (and Ethan) are participating in the "Constitution in 2020" conference and blog-conversation. My contributions on "The Infrastructure of Religious Freedom" and "Religion and Division" are available here and here. Here is a bit from the former: What The Constitution in 2020 calls a ?progressive vision of constitutional law in the years ahead? should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive ? because very old ? idea...

Toleration or Respect?

Posted on September 29, 2009
Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty: Toleration or Respect?" Here is the abstract: Should we think of what I will refer to generically as ?the law of religious liberty? as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of ?respect? and ?toleration...

Facebook and crime

Posted on September 29, 2009
Last week, a Pennsylvania home was burglarized and the thief was caught because he had used the homeowner's computer to check his facebook page. This is pretty much an example of sheer idiocy. However, Facebook does offer the possibility of actively aiding crime solvers...

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