Legal Commentary

"Jon & Kate (+ 8)" are great--at least for generating interesting legal questions

Posted on August 16, 2009
There is no doubt that triplets, quadruplets, and other higher-order multiples (HOMs for short) attract attention. Taking our 23-month-old triplets out is always, well, a trip. People who venture out with us are always surprised by the attention that we draw, which runs the gamut from congratulatory to curious to downright rude...

How I spent my first day of the new semester?

Posted on August 16, 2009
Sitting in the jury selection room at the United States District Court for the Southern District of Florida. I assume I will be cut loose after tomorrow once I explain the burden of showing up everyday for two weeks during an academic term. I also don't see either side putting me on a jury once they learn what I teach...

Is Mass Incarceration the New SUV?

Posted on August 15, 2009
How fast things can change in American. One day you feel punked not to have an Expedition or Sequoia to drive to the mall in, and a couple of years later, you wonder who left that unsightly gas guzzler in your garage. Is mass incarceration about to flip? I've posted on its legal problems, but consider its cultural profile...

Is Using a Casebook Ever Justified?

Posted on August 15, 2009
I have been teaching Civil Procedure for about five years now, and every time I begin prepping again, I am overcome by a distinct sense of discomfort with my casebook. Of course, I have looked at, and considered using, various civil procedure casebooks (and believe me, they are legion)...

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Predicting Fraud

Posted on August 15, 2009
Here's an interesting tidbit from this weekend's New York Times magazine profile of Bruce Bueno de Mesquita, a political scientist who uses game theory to predict political and corporate outcomes. The Times reports that Bueno de Mesquita offered to use his predictive software for Arthur Andersen "to predict which of Arthur Andersen's clients - including, at the time, Enron - were likely to engage in financial fraud...

Is Silence the Better Part of Valor?

Posted on August 14, 2009
In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization: A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court...

Hiring Chairs for 2009-10: Announce Yourselves Here Please

Posted on August 14, 2009
N.B. This has been bumped to the front, and will be every couple weeks or so. As is customary around this time of year, we are hoping law schools will use this space to share some relevant information regarding hiring for the coming year. Specifically, if you're a prawf, please share the following information related to the Fall 2009 and/or spring 2010 hiring season: a) your school, b) who's the chair and who are the members of your appointments committee (please also identify whether entry levels are separated from laterals, etc) and, c) if there are any special areas you're...

Text Book on Mass Incarceration: Coleman/Plata v. Schwarzenegger

Posted on August 14, 2009
The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state?s counterproductive parole system...

No Causal Relation

Posted on August 14, 2009
So, I leave Southwestern Law School in 2007. In 2009, actor Jerry O'Connell apparently decides to attend Southwestern as a student. I'm sorry to be deprived of the pleasure of teaching him. Although he still owes me for the four hours I just spent re-watching The 60s on VH1 over the last two nights, and a semester of my Legal Profession class would have more or less constituted a fair exchange.

Elgar Encyclopedia of Labor and Employment Law and Economics

Posted on August 14, 2009
Fresh out of the oven, just got hold of the hard copy: Labor and Employment Law and Economic, Kenneth Dau-Schmit, Seth Harris and Orly Lobel. Elgar decided last year to transition its popular Encyclopedia of Law and Economics (Posner has a great forward in it) to specialized volumes, and the labor and employment law volume is one of the first of these subject-specific books...

The Lost Art of Dictation

Posted on August 13, 2009
I have been interested in learning the lost art of dictation ever since I watched a judge dictate cogent and linear opinions, unscripted, from the bench. Clearly that requires impressive smarts, but I also think it has its roots in years of dictating memos, motions, etc...

On Crying Students

Posted on August 13, 2009
At the Chronicle of Higher Education website, there is an interesting column titled "When Students Cry." Actually, scratch that. The column is reasonably interesting -- well-written, but you've probably seen it before. The responses to the column, on the other hand, are fascinating...

Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc

Posted on August 13, 2009
Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs]...

Our duty to keep law schools amphibious...

Posted on August 13, 2009
For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job...

The strange death of political sanity in America?

Posted on August 13, 2009
Has there been a secular trend over the last fifteen years towards political hysteria on both Right and Left? Perhaps Richard Hofstadter was correct that we Americans have always been addicted to conspiracy theories and hyperventilated political hyperbole...

Yale Execs Nix Pix

Posted on August 13, 2009
Here is an interesting reprise of the controversy over whether to publish parodic cartoons that depict Muhammad. The New York Times has this story about Yale University Press's decision not to publish those cartoons, and other images of Muhammad, in a forthcoming book called "The Cartoons That Shook the World," after consulting with the university and with several authorities on Islam and on counter-terrorism...

Recouping Bonuses From Innocent Executives

Posted on August 12, 2009
This post, the second in a series about recouping executive compensation, looks at the SEC's recent action to recoup bonuses from an executive who was not charged with misconduct. This SEC action is the first to use the SOX 304 clawback provision this freestanding way...

Woodstock and the Legal Academy

Posted on August 12, 2009
With the fortieth anniversary of Woodstock fast approaching, I've been getting nostalgic these last few days. Not nostalgic about the concert, since I wasn't there. But nostalgic about the music, which always takes me back to when I was first introduced to the music in college...

Shall we ever rid ourselves of bogus "town" meetings on national policies?

Posted on August 12, 2009
The spectacle of President Obama's town meetings on healthcare reform inspires my question. President Obama did not invent this device -- it really hit its stride in the 1990s, when the Clintons discovered its potency as a stage for an empathetic politico -- but I wish that Obama would forego its use...

Evelyn Coke is dead. Long live Evelyn Coke.

Posted on August 11, 2009
Having spent much of my blogging career obsessed with Coke v. Long Island Care at Home, I was sad to see that Evelyn Coke died. Her obituary was done very thoughtfully by the New York Times. Thanks to my boy T-Bone (aka T-Mac) for the pointer.

Fielding Commentary from "Concerned Citizens"

Posted on August 11, 2009
As I enter my third year in what is pretty much the best job possible, it seems to me that, with the exception of publishing "hot topic" law review articles, being a law professor is most often a position where timing is not essential. One exception to that general rule, however, are those moments where we are called upon for media commentary in response to some pertinent news item...

Recouping Executive Bonuses

Posted on August 11, 2009
Executive bonuses are in the news again, with the SEC complaint against Bank of America for allowing Merrill Lynch to pay up to $5.8 billion in discretionary bonuses, despite proxy statements suggesting that no bonuses would be paid. Bank of America and the SEC agreed to a settlement, but these settlements are subject to judicial approval for being "fair, reasonable and adequate...

John Brown, Dred Scott, Obama, and Citizenship--Part Two

Posted on August 11, 2009
As I mentioned in an earlier post, last week I attended a talk about John Brown, and found myself thinking about Dred Scott, Obama, and citizenship. This post elaborates. The Supreme Court?s decision in Dred Scott incensed John Brown. Not only was there Chief Justice Taney?s statement that blacks were ?beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect...

Judicial Character (and Does it Matter)

Posted on August 10, 2009
I'll have a few more posts about scholarship derived from my SEALS panel, but let me take a break and actually do something that was the subject of one of those panels: promote my scholarship. I have posted a new paper on SSRN titled Judicial Character (and Does it Matter)...

Marijuana Law

Posted on August 10, 2009
There is something growing this summer in cities and counties across California. Its not as pungent as the cannabis being cultivated in the dry hills, but for socio-legal scholars it may be just as exciting; its marijuana law. In 1996 Californian's passed Proposition 215, the Compassionate Use Act, which exempted from existing state possession and use laws those who: "use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic...

Arthur and the Law

Posted on August 10, 2009
As Dan adjusts to life with Cubby, the great question is how we balance scholarship with parenthood. One possible answer: You never know when legal scholarship will appear in unexpected places. Case in point: Today on Arthur (my daughter's post-nap show of choice), an expensive cake plate was broken in the living room and a video/audio recording seemed to show that the plate had broken while Arthur and his friend were throwing a baseball around on their way to play outside...

(In)Fertile Thoughts

Posted on August 09, 2009
With all this talk of babies lately, the time seems optimal to describe my own article in progress, tentatively entitled "Common Misconceptions: Closing the Gap Between Legal Constructions of Women in the Infertility and Abortion Contexts." The idea for the article came to me as I was reading a law review article written in 2000 in which the author stated that infertile women, desperate to conceive, were basically prone to irrational decision making in opting to undergo fertility treatments, particularly in vitro fertilization, and thus may lack capacity for informed consent: Hungry for information, these patients are well-educated regarding the...

Does Legal Scholarship Have Any International Rock Stars?

Posted on August 07, 2009
Occasionally in my research I happen upon a book or article written by a legal scholar from England, Australia, or Canada that is germane to my own research. The author is often someone I have never heard of and that I have not (that I remember) seen cited elsewhere on the topic...

Malcolm Gladwell and Atticus Finch: Neither Goes Far Enough

Posted on August 07, 2009
I know I promised to continue my earlier post John Brown, Dred Scott, Obama, and Citizenship, but since I?m of the generation that?s easily distracted?actually I?m a bit older, but who?s counting??I?m claiming license to write about something entirely different: Malcolm Gladwell and Atticus Finch...

Scholarly "Dead Ends"

Posted on August 07, 2009
Today, following up on my posts based on my SEALS panels on planning and promoting your scholarly career, I want to talk about a subject that most of us know something about but few of us discuss in the detail it deserves: the scholarly dead end. The thoughts here are my own, but they're inspired by the wonderful talk on this subject at SEALS by Prof...

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