Legal Commentary

Prognostication About a Judicial Ethics Complaint

Posted on September 17, 2009
Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Wisconsin Supreme Court Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there. There are two rules that are pertinent...

Fractional Parents

Posted on September 16, 2009
Here is a picture of a very modern family: Alan and Brenda would like to raise a child but both are incapable of natural reproduction. So they find Carl to provide sperm, Deena to provide an egg, and Ellen to carry the fertilized egg in her uterus. Nine months later, Alan and Brenda are the child?s nurturing parents, Carl and Deena are the biological parents, and Ellen is the birth mother...

front-page news

Posted on September 16, 2009
With my habit of glancing at the news online in the am, I didn't pick up on why exactly District Judge Jed Rakoff's rejection of the SEC-Bank of America settlement appeared on the front page of the New York Times, bumping little ol' President Obama's speech to Wall Street to the business pages...

Coaches teaching civ pro

Posted on September 16, 2009
I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro...

To access this complete feed in the blog feed reader login or register for free.

Splitting Feathers

Posted on September 15, 2009
In 2002, Samuel Wilgus, a non-Indian, was prosecuted for illegal possession of eagle feathers under the Migratory Bird Treaty Act and the Eagle Act. Wilgus received training in the Native American Church and was given the feathers as a gift. Eagle feathers are an important part of many native religions, but currently, only American Indians have the right to use and posses eagle feathers...

Judge Rakoff and Judicial Meddling

Posted on September 15, 2009
Judge Jed Rakoff (SDNY) rejected the settlement proposed by the SEC and the Bank of America for allegations that the Bank of America lied to shareholders during its merger with Merrill Lynch. Specifically, the SEC claimed that Bank of America falsely told shareholders that Merrill would not be permitted to pay its executives year-end bonuses when, in fact, BoA had given Merrill approval to pay up to $5...

What the Chinese Tire Safeguards Suggest about the Obama Administration's Trade Policies

Posted on September 15, 2009
On Friday, September 11, 2009, the Obama administration made an announcement that not only was a first for trade remedy law but also has become a fairly visible news media story: for the first time, the United States will impose ?market disruption? safeguards on imports from China...

Jonathan Simon Joins Prawfs

Posted on September 15, 2009
I'm thrilled to announce that Jonathan Simon, who's been a regular guest blogger with us in the past, and who has been with us this past summer, will be joining Prawfs for the balance of the academic year. Welcome, Jonathan! For those of you wondering: Jonathan is Associate Dean for Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley; Faculty Co-Director, Berkeley Center for Criminal Justice; and author of Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007).

Fashion Week

Posted on September 14, 2009
As so many professors do during Fashion Week, my thoughts turn to intellectual property protection for clothing design. As background, those asserting protection for fashion designs have an uphill battle under IP law. Under copyright law, clothing is generally considered functional and not protectable...

The debate about the debate

Posted on September 14, 2009
Paul Horowitz' post about conservative protesters is consistent with a summer long theme on the political left. The point seems to be to talk about the nature of the debate rather than the issues being debated. There is no obvious inconsistency between supporting - or using - government provided infrastructure and concern over the administration's proposed increases in the role of the state...

Teaching pleading

Posted on September 14, 2009
Jon Siegel (guesting at CoOp) has a couple good posts up about Iqbal, including the way it is seeping into very rudimentary tort claims (such as slip-and-fall) that really should be covered by Form 11. Jon makes the following point, which I think is true: The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that?s what we?ve been teaching the students for the last 70 years...

New U of Chicago Dean on Educating Lawyers

Posted on September 14, 2009
In this op-ed for the National Law Journal last year, "Legal Education Must Look Beyond the First Year," UCLA Dean Michael Schill, soon to move to University of Chicago, talks about a theme I agree with: the consistency of schools doing sophisticated interdisciplinary research, and training lawyers in a rigorous way...

My Daughter Does Walk to School

Posted on September 14, 2009
My twelve-year-old daughter will walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley. As Jan Hoffman reported in yesterday?s Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of...

A Crude Post

Posted on September 13, 2009
In Friday's New York Times, movie critic A.O. Scott reviewed the new documentary film Crude, which opens next Wednesday in Manhattan. The review and trailer (see above link) started a train of thought that has stayed with me since then. Scott calls Crude a ?thorough and impassioned? film that ?focuses its gaze on [petroleum] production, rather than consumption...

Don't Tread On Me (Without a Permit)

Posted on September 13, 2009
I found today?s New York Times story about the thousands of protestors who made their way to the streets of the nation?s capital to protest big government compelling and a veritable profile in courage. As they made their way ?by bus [on federally funded highways, carried in buses whose safety, licensing, and non-discrimination policies follow federal mandates], car [mostly those of the post-Pinto, NHTSA-approved, non-exploding variety], and airplane [under FAA supervision]? to the streets (road maintenance and sewer service permitting) of the District of Columbia (see, e...

The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...

Posted on September 12, 2009
How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt...

Slaughterhouse and the Privileges or Immunities Clause

Posted on September 12, 2009
Historical accounts of the Privileges or Immunities Clause of the Fourteenth Amendment generally assume that the author of the text, John Bingham, based the Clause on Article IV of the original Constitution. This view assumes that Bingham and the other Republican members of the Thirty-Ninth Congress embraced Justice Bushrod Washington?s opinion in Corfield v...

Prison Reform Lite: With Fiscal and Constitutional Alarms Ringing, Cal Legislature Hits the Snooze Button

Posted on September 12, 2009
Staggering to the end of what Assembly Speaker Karen Bass called "a painful year for all of us", the California legislature passed and sent on to Governor Schwarzenegger a prison bill that will help the state save about a billion dollars (in a 26 billion deficit situation), about 200 million short of the governors announced goal (read Michael Rothfeld and Shane Goldmacher's reporting in the LATimes; and Kevin Yamamura, Steve Wiegand and Jim Sanders' reporting in the SacBee)...

Disneyland and property rights in tickets

Posted on September 11, 2009
Due to a family matter, I had to head down to Los Angeles last week, so naturally my wife and I took our two little boys to Disneyland as well. While there, the following two possibly analogous incidents occurred that got me thinking about property rights in tickets...

More about the European Pharmaceutical Sector: Procedural Changes

Posted on September 11, 2009
Earlier, I described the European Commission?s recent examination of the pharmaceutical sector. Part of the EC's inquiry focuses on procedural concerns. Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC?s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, ?[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 ? 2007, is estimated to exceed ? 420 million, of which a significant proportion could have been saved? if a...

Law School Hiring Thread, 2009-10, Thread Two

Posted on September 11, 2009
This thread will be moved to the front every ten days or so. Please add comments to this thread, not Thread One (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...

Export Controls, Proliferation, and Choke Points

Posted on September 10, 2009
There was an article in the Times of India on Wednesday, reporting on assertions by Pakistani nuclear scientist A.Q. Khan that Pakistan had nuclear weapons capability as early as 1983. According to the article, Khan maintains that U.S. preoccupation with the Soviet invasion of Afghanistan gave him somewhat freer reign to pursue a nuclear program for Pakistan, which he was able to do in just six years...

Happy New Year

Posted on September 10, 2009
Rosh Hashanah, the celebration of the Jewish New Year, begins at sunset next Friday. Far away, but I could not wait to post this. Because it falls on Shabbos this year, we do not blow the Shofar on the first day. We do, however, take the day to "recall" the blowing of the Shofar...

Catholic Social Thought and Legal Education

Posted on September 10, 2009
I've imposed a few times on Prawfsblawg readers with posts about my experiences teaching a seminar -- both at the University of Chicago and at Notre Dame -- on "Catholic Social Thought and the Law." (Here, for example.) I am now upping the shamelessness ante by calling readers' attention to an upcoming conference, "Catholic Social Thought and Legal Education", to be held on Sept...

Pleading and al-Kidd

Posted on September 09, 2009
Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal...

Babies and Cleaning Ladies

Posted on September 09, 2009
Yesterday I posted about Japan's recent proposal to pay couples yearly bonuses for having children and I questioned whether such a plan could succeed without other substantial changes. I mentioned job flexibility and gender equality as potential solutions but I recently became aware of another solution, immigration...

On Not Gaming the System in Law School

Posted on September 09, 2009
The other day the New York Times ran a set of op-eds from various well-known academics offering advice to students who are starting college. It's mostly boilerplate stuff, and in some cases the byline enables one to predict with high accuracy every word of the op-ed...

Policing Judicial Campaigns: A Story From Wisconsin

Posted on September 09, 2009
Although my principal interest is in law and religion, one of my charges at Marquette is to stay engaged with local policy issues and, as part of that, I have followed the Wisconsin Supreme Court, developing a course on the Court and state constitutional law...

Official liability for abuse of material witness warrants

Posted on September 08, 2009
Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities...

Why does not Obama promulgate new "don't ask, don't tell" regulations?

Posted on September 08, 2009
President Obama has angered gay and lesbian supporters by delaying efforts to repeal Section 571 of the 1993 National Defense Authorization Act, 10 U.S.C. section 654, which codified the infamous "don't ask, don't tell" policy, requiring the discharge of service members from the armed forces who engaged in homosexual conduct or states that they are gay...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.