Legal Commentary

American Privileges and Immunities

Posted on September 01, 2009
I want to thank Dan Markel and the Prawfsblawg gang for inviting me to guest-blog this month about my work on the historical understanding of the Bill of Rights and the Fourteenth Amendment. It is likely that the Supreme Court will take up both issues when it considers whether to incorporate the Second Amendment...

Rotations

Posted on September 01, 2009
Happy September! September 1 wasn't the happiest day in history, but as the kids song I hear every day now says, the rest of the day is whatever you make it... Anyway, with the new month we have some brand new voices to add to the conversation here at Prawfs...

Prof. Stone (again) on "our . . . Catholic justices"

Posted on September 01, 2009
Prof. Geoffrey Stone returns, here, to the phenomenon of "our . . . Catholic justices." A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Prof. Stone caused some controversy with his assertion that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality", a distinction that "[t]o be sure, ...

The Pleasures of Guest Blogging, Part 2

Posted on September 01, 2009
Let me just say how pleased I am to be guest blogging on Prawfsblawg--the blog with the best (if not the briefest) tag line in the blogosphere. In response to Bennett Capers' post earlier today, it can be argued that his guest blogging pleasure #3 ("One's commitment lasts for just a month") is also arguably a downside...

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Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Posted on August 31, 2009
Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement. After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA")...

Garrido, Parole, and the Criminological Fallacy

Posted on August 29, 2009
Police and parole authorities in Northern California are wracked with guilt and self doubt today as they struggle to understand and explain how a registered sex offender who had been on continuous federal and then state parole for decades could have kept a girl he kidnapped in 1991, and later the two daughters she bore him in captivity, undiscovered for 18 years...

Statistics Problems

Posted on August 27, 2009
During my recent years back at Berkeley and especially the last five as Associate Dean for the Jurisprudence and Social Policy program, I have been struck by the surging interest in quantitative methods among the rising generation of sociolegal students...

The Libel Tourist is dead

Posted on August 27, 2009
Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law). Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed ? and How to Stop It...

Managing the Busy Days

Posted on August 26, 2009
Maybe because a busy fall approaches, two things struck me when I recently read a profile of Atul Gawande -- full-time surgeon, prolific writer, father of three. First, he "saves his writing" for the hours between 7 and 11am and 4 and 7 pm to "capitalize on the body's circadian rhythms...

More on the "Uncasebook Project"*

Posted on August 26, 2009
* (H/T for the term: James Grimmelman and Hillel Levin) Some further thoughts on the idea of dumping the casebook for unedited or self-edited cases and a treatise, including responses to comments both here and in private e-mails. First, there are two separate components that must be made to work and they raise distinct issues...

More Iqbal: What's a plaintiff to do?

Posted on August 25, 2009
I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service. The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police)...

Are Reprints a Sin of Self-Promotion?

Posted on August 25, 2009
Throughout the summer, I have been considering the value of sending reprints to others whose scholarly interests align with my own. To be honest, I don't send out many reprints at all--perhaps 20 or 25. These sometimes generate nice e-mails, but rarely anything more...

Dorf welcomes 1Ls

Posted on August 24, 2009
Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college...

The Meaning of Y

Posted on August 24, 2009
Recently, I?ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa. In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field?s governing body has arranged tests to ascertain her sex...

Law as Undergrad Part II: A Partial Dissent

Posted on August 24, 2009
I appreciate Howard's link below to my friend Mike Dorf's post talking about law school as a continuation of one's undergraduate degree. Mike writes that "Law students who regard their legal education as a continuation of their undergraduate (or in some cases, graduate) studies will be doubly rewarded...

Go Figure: How Pandora works

Posted on August 23, 2009
When I was in high school, one of the New York radio stations had a program gimmick called "Go Figure," in which they would play three songs and callers had to guess the link among the three (which sometimes was pretty esoteric). I was reminded of this while using the Pandora app this morning...

Clothes Make the Man--Part Two

Posted on August 22, 2009
It turns out that Ashby Jones of the Wall Street Journal's Law Blog is also weighing in on this important sartorial issue. (I know this because Ashby emailed me last night to find out my plan of dress.) His take on what a law professor should wear is here...

When the Messenger Shoots Himself

Posted on August 21, 2009
Ok, I've been a one trick pony this summer, but come on, two years (20 months in real) in the slammer for former NY Giant Plaxico Burress in a plea bargain with NY prosecutors announced yesterday (read John Eligon's reporting in the NYTimes). Burress carried a concealed weapon into a New York city nightclub, with the knowledge of the club's security personnel, but in violation of NY law (it would have been legal in Florida where Burress lives most of the year had he not allowed his concealed carry license to lapse)...

Horwitz for School Board

Posted on August 21, 2009
No, the other Horwitz. I'm very proud of my wife, Kelly Horwitz, who's running for the Tuscaloosa Board of Education in District 4. She is an incredibly talented, experienced, and dedicated person who will do a fantastic job representing the interests of all Tuscaloosans...

Except insofar as vandalism is a crime...

Posted on August 21, 2009
...this has pretty much nothing to do with law. But how cool is this and this?

What's a Catholic judge to do?

Posted on August 20, 2009
Prof. Alan Dershowitz accuses Justice Scalia of an "outrage against his church" for observing, earlier this week, that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ?actually? innocent...

Clothes Make the Man

Posted on August 20, 2009
We?ve all heard the expression ?clothes make the man.? But do clothes also make the professor? Especially if the professor looks young enough to be a student, or is female, or a person of color, or LGBT, or some combination of the above? And am I the only one, at the start of yet another school year, thinking about this? One of my favorite quotes from an article I wrote about appearance and the law, Cross Dressing and the Criminal, comes from Allison Lurie...

Risinger vs Allen-Laudan

Posted on August 20, 2009
As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L...

More on casebooks

Posted on August 19, 2009
As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking. Suppose I taught Civ Pro as follows: 1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc...

Are There Constitutional Limits on the Extent to Which the State Can Give Parents Authority over Their Children?

Posted on August 19, 2009
And if so, what are they? I have been thinking about this issue quite a bit lately. I am mainly interested in thinking about whether there are any constitutional limitations on states giving parents the ability to control their children's bodies - specifically in the contexts of medical treatment (therapeutic and non-therapeutic) and corporal punishment (or physical abuse)...

Michael Vick and Plaxico Burress, or, What Would Bentham Do?

Posted on August 19, 2009
Perhaps it?s odd that I?m thinking about Michael Vick, Plaxico Burress, and Jeremy Bentham. After all, Vick, the NFL player who pleaded guilty to offenses arising from illegal dog fighting, finished his sentence of twenty-three months a while ago. (There?s been recent outrage, of course, over the NFL?s decision to reinstate Vick, and the Eagle?s decision to hire him)...

The Pleasure of Painful Scholarship

Posted on August 18, 2009
In keeping with the legal academy's embrace of empiricism and original research, qualitative interviewing has become an increasingly popular methodology in legal scholarship. One of the most wonderful outcomes of qualitative research--the relationship that one develops with research participants--can also be the most terrifying...

Can More Police Equal Less Prisons?

Posted on August 18, 2009
Eric Bailey reports on an intriguing conundrum in today's LATimes, will federal stimulus money channeled to state law enforcement frustrate the state's declared policy of reducing its prison population by sending yet more low level offenders to prison? Of course the law professor's answer is "it depends...

Beware of the Dolphins, My Friend

Posted on August 17, 2009
After this post, Brian Leiter might want to avoid the beaches. Our mammalian counterparts may seek to test out his theory: "Indeed, as far as I can see, killing animals does not harm them at all, as long as it is done painlessly."

"Welcome to law school"

Posted on August 17, 2009
One of the tasks / privileges that is attached to my new (temporary!) administrative designation is the "welcome, first-year students, to law school" talk at orientation. For my own first-year classmates and me, the "now you are off the treadmill" speech our Dean gave was, for better or worse, among the more memorable occasions of our law-school career...

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