Legal Commentary

Living Outside the Paradigms

Posted on July 29, 2009
Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines. (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it...

The Benefits (and Costs?) of Inactivity

Posted on July 29, 2009
I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don?t have to be a bar member to work as a law professor...

The law-jobs market: What is to be done?

Posted on July 28, 2009
While I do not think there's any reason people should have noticed the absence, I regret being such a double-plus ungood Prawfsblawgger this summer and appreciate all the great stuff others have been writing. (Blame it on Arizona, and Jackson Hole, and the North Cascades...

Elmendorf and Leib on Citizens' Budgets

Posted on July 28, 2009
We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes...

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Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?

Posted on July 28, 2009
This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation...

Law School Hiring Thread, 2009-10, Thread One

Posted on July 28, 2009
NB: This thread will be moved to the front every few weeks. While the first FAR form has not yet been circulated yet, this thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding a range of things: a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked...

Late Summer Law Review Submissions

Posted on July 27, 2009
I was speaking with a few colleagues recently about the late summer law review submission window, and it seemed that we each had different understandings about when exactly the window is. One of us thought it ran from the second week in August to the first week of September, another thought the window began in late July, and the third thought that the window opened a week before classes began and closed in late September...

Baseball, punishment, and Pete Rose

Posted on July 27, 2009
Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year...

How Not to Be a Lawyer - Theatrical Version

Posted on July 26, 2009
I'm immeasurably proud of all my children, including James, who comes home next week from his summer as a teaching assistant in the EPGY program at Stanford, and Matthew who starts med school at Michigan next week (where we'll be attending his White Coat Ceremony), but today we focus on my daughter, Arielle (Columbia, MFA, Dramaturgy, expected '10, pictured, in the middle between director Jeremiah Matthew Davis and playwright Daniella Shoshan), who combines an actor's creative instincts, leadership, and an amazing ability to organize things as the producer of Tell It to Me Slowly, one of the plays featured in...

Taxing Punitive Damages, etc.

Posted on July 26, 2009
It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there...

Advice for Those Travelers with Bottles of Palinka or Other Souvenir Spirits, and Observations on the Endowment Effect

Posted on July 26, 2009
You have already checked your bags and gone through security in an airport in Europe such as Budapest's Ferihegy Airport. You have 7,000 or so Hungarian forints ($35) just burning a hole in your pocket, so you decide to invest in a bottle of Zwack Sándor Nemes Pálinka (barack flavor - and that's not a tribute to our President - it's Hungarian for apricot, pronounced "bar-RATZK"), which you have sampled, and find to be a delightful way to anticipate your gulyas or your csirke paprikas...

President Obama and the Paradoxes of Police Power

Posted on July 25, 2009
The end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper)...

More on the Gates Arrest

Posted on July 25, 2009
Paul and Dave have both written very interesting posts on the Gates incident, and they have me wondering about policing and class. In particular, I'm interested in how police interact with middle and upper class citizens (and vice versa). My own interactions with police officers have sometimes been quite unpleasant --- not because the officers were wrong to stop me or because I had been subject to any sort of profiling --- but rather because the officers treated me with such a lack of respect that I felt angry and humiliated...

Concluding Thoughts on Teaching in a Summer LL.M. Program

Posted on July 24, 2009
For the first time in two weeks, I've actually relaxed a little before class, in part because I know what I'm going to do today - the last of ten consecutive weekdays in which I've taught a two-hour long class in federal securities regulation to non-U...

Memo to the bond market

Posted on July 24, 2009
Ok, I know nothing about bonds (its basically a loan, right?), but I have watched California prisons grow steadily over the second half of my now 50 years. While it looks certain that the California legislature will pass, and the governor sign, the complex budget compromise (read the SFChron coverage), if I were loaning money to the state on the basis of there budgetary projections, I would start worrying now...

What's in a (Jewish) name?

Posted on July 24, 2009
Ron Rosenbaum at Slate pens an open letter to Jon Stewart, urging him to use his given surname of Leibowitz professionally (Stewart's given name is Jonathan Stuart Leibowitz). Rosenbaum's argument is that Stewart's decision early in his career to change his name reflects the remnants of the now-antiquated, 20th-century belief that Jewish performers needed less-identifiably Jewish names to gain acceptance from the (subtly anti-Semitic) mainstream American society...

Cambridge Police

Posted on July 23, 2009
I have been thinking for a few days about the Gates incident, trying to decide if I wanted to comment. I am somewhat astounded at the number of people who are willing to be triers of fact on pretty sketchy evidence; my take on the world is more things like this arise out of fear, miscommunication, confusion, pride, and escalation than racism or bad intent...

Art, Licensing Markets, and the Limits of Unauthorized Appropriation

Posted on July 23, 2009
Doug Lichtman?s IP Colloquium has already been mentioned on this site. It?s a great series of conversations about contemporary issues in intellectual property featuring guests from academia (including PrawfsBlawg?s own Dan ?Dan? Markel), law practice, and the entertainment and technology industries...

Establishment and Fairness

Posted on July 23, 2009
I just received printed copies of pieces that arose out of a roundtable on Kent Greenawalt?s important book, Religion and the Constitution: Establishment and Fairness. Constitutional Commentary hasn?t yet posted the table of contents, but the pieces themselves are available on Westlaw if you search for ?Symposium: Establishment and Fairness? in the JLR database...

Trying Terrorism Suspects in Article III Courts

Posted on July 23, 2009
In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere...

BlackBerry Fines

Posted on July 22, 2009
Maureen Dowd has a column in the New York Times today criticizing the practice of using a cell phone while driving (regardless of whether it is hands-free). In fact, she begins the column by telling a personal story of how, driving home from visiting her mother in the hospital late at night, she checked her cellphone messages, ran a red light and caused a very minor accident...

Overturning Twombly and Iqbal

Posted on July 22, 2009
Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard. This is a welcome move, even if I do not see it going anywhere...

"You have no idea who you're messing with": Another view

Posted on July 22, 2009
I began to write a comment in response to Paul?s really interesting post about the Henry Louis Gates arrest, but it ended up growing a bit long, so I decided to develop it as a separate post. To begin, I share Paul?s general reaction to the phrase "You have no idea who you're messing with" (which Gates may or may not have said; the reports appear conflicting)...

Read my lips, "no early releases from prison"

Posted on July 22, 2009
As day light breaks over the second day of California's epically ugly budget compromise there are signs the deal may yet fall apart on the way to a legislative vote later this week. The problem is not that draconian cuts in social services to the poor and disabled, the open thievery of county revenues, or the very obvious gimmicks like moving the dates of pay days from one fiscal year to another, its the possibility that some California prisoner, somewhere, may leave a prison early...

Welcome to the World, Military Commission Reporter

Posted on July 22, 2009
Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction)...

The Shoes

Posted on July 21, 2009
I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and teaching two hours a day in the heat of the afternoon just about did me in. My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend...

My God! It's Full of Stars!

Posted on July 21, 2009
From the Times, here's the story of an amateur astronomer who discovered "a new hole the size of the Earth in Jupiter?s atmosphere, apparently showing that the planet was hit by something large in recent days." Here's a picture: The amateur astronomer is quoted as having said: ?If anything like that had hit the Earth it would have been curtains for us, so we can feel very happy that Jupiter is doing its vacuum-cleaner job and hoovering up all these large pieces before they come for us...

Monitoring External and Internal Corporate Security

Posted on July 21, 2009
The WSJ law blog has a new story up about a corporate security scandal at Deutche Bank, wherein the Bank's private detectives engaged in a number of acts that, in retrospect, sound either loopy (sending a dead microphone hidden in flowers to the COO to see if he would notice it) or more serious (spying on a board member suspected of leaking information to a journalist)...

Review of Hamburger's Law and Judicial Duty

Posted on July 21, 2009
Marc DeGirolami has already written on this page about Philip Hamburger's wonderful recent book Law and Judicial Duty. I've written a short (and favorable) review of that book for Engage: The Journal of the Federalist Society's Practice Groups. It can be found here...

On "You Have No Idea Who You're Messing With"

Posted on July 21, 2009
On the basis of the police report, news accounts, and Henry Louis Gates's own account, I think the police were clearly wrong to arrest him, particularly once they confirmed that he was who he said he was and was where he was supposed to be. Whether it was a result of simple racism, or of taking unwarranted punitive action because the police found Gates difficult and arrogant, or abuse of authority, or some combination of all of these, I can't say...

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