Legal Commentary

Congress and Sports

Posted on July 21, 2009
Over at my non-domicile home at Sports Law Blog, I have a post seeking a metric for when Congress or individual members ought to get involved in matters relating to sports. The trigger for my question is recent efforts by Rep. Steve Cohen to push the NBA to undo its 19-year age limit for entry into the league, which Cohen describes as "discriminatory...

Helter Skelter: The Truth Ain't All That's Out There

Posted on July 20, 2009
The broad fear of "stranger danger" that has characterized American law and society since the late 1960s and the populist punitiveness that goes with it have many origins. Some of them are undoubtedly historical. The gated community may trace its DNA to the experience of European settlement of the continent in the face of often fierce resistance by Native Americans...

The Amazing Metrano, Family Guy, and Fair Use

Posted on July 20, 2009
The acerbic animated show Family Guy often ridicules popular figures harshly and very specifically, so it?s unsurprising that the show has drawn the ire of the targets of its ridicule, sometimes in the form of copyright infringement suits aimed at its studio and creators...

Presidential Popular Constitutionalism

Posted on July 20, 2009
I just received a copy of the March issue of the Fordham Law Review. Probably I was on the mailing list because it includes the proceedings of an interesting ethics symposium and a tribute to my former Dean Mary Daly. What I ended up reading, though, was an article by Jed Purdy, Presidential Popular Constitutionalism...

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To Erie or Not To Erie?

Posted on July 19, 2009
I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching. As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include? The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice...

Hiring Chairs for 2009-10: Announce Yourselves Here Please

Posted on July 17, 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...

Final thoughts on the Sotomayor hearings

Posted on July 17, 2009
In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes). First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This...

Private Law Transactions and Public Law Obligations

Posted on July 17, 2009
When should we allow governments to deploy private law rules in order to circumvent public law obligations? Two cases this year call that question to mind: Summum v. Pleasant Grove and Salazar v. Buono. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment...

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Posted on July 17, 2009
Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump. The Duty to Rescue and the Registry for Caregivers: A Guest PostBy STEPHEN J. DUBNER We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties...

Misunderstanding Judging: Foreign Law

Posted on July 16, 2009
There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point. At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law...

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Posted on July 16, 2009
Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there...

Summertime Interviews with SCOTUS Justices

Posted on July 16, 2009
Update and moved to the front. There's now a new interview between Bob Cohn and Sandra Day O'Connor. I've put the video up after the jump. Perhaps the Justices are a bit sad that SS is getting all the attention at the hearings. How else to explain the spate of interviews with the normally reticent Court's members...

The Wise Prosecutor

Posted on July 16, 2009
In chapter 2 of my book, Governing through Crime (OUP 2009 pap), I describe how the war on crime transformed the political significance of prosecutors: The prosecutor has long been a unique and important officeholder within the American systems of justice and government, with deep but limited powers and a special claim to represent the local community as a whole...

The First Day of an Upper-Level Elective

Posted on July 16, 2009
It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions. I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to...

More news from the Ponzi-sphere

Posted on July 16, 2009
Just when you thought you could forget about Bernard Madoff, the government announced yesterday that his accountant, David Friehling, has agreed to waive indictment and that the United States Attorney's Office in Manhattan will file a criminal information instead...

One More Thought About Conferences

Posted on July 16, 2009
I got a lot of interesting feedback on my post last week about conferences. Last week I talked about formats. Recently, I've been thinking about conference audiences. Most of the conferences I've been to have been geared towards academics. To the extent that the audience is bigger than the conference participants (which is not the case at many of the conferences I have attended), the attendees tend to be other academics...

Notes on Teaching in a Overseas Summer LL.M. Program

Posted on July 15, 2009
I realize, given my usual posting patterns, some may think that I have fallen into the Danube. Some may hope that I've fallen into the Danube. A bit of background. Suffolk offers a LL.M. in U.S. and Global Business Law that is obtainable in three years, with intensive two-week stints each summer in Budapest at the Eotvos Lorand University Faculty of Law, and intervening online courses...

On recusal

Posted on July 15, 2009
One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v...

Summertime Interviews with SCOTUS Justices

Posted on July 15, 2009
Perhaps the Justices are a bit sad that SS is getting all the attention at the hearings. How else to explain the spate of interviews with the normally reticent Court's members... On the heels of Emily Bazelon's interview with Justice Ginsburg in the NYT on Sunday, now we have Bob Cohn's video interview with Justice Breyer on the Atlantic's website.

Bork, Sotomayor, and the Double-Edged Sword of Empathy

Posted on July 15, 2009
My official position toward the Sotomayor confirmation hearings (and all judicial confirmation hearings) is annoyed indifference. When family or friends ask my opinion of how they?re going, I tell them I?ve got no interest in listening to a bunch of senators bloviate self-importantly while a nominee recites painstakingly rehearsed catch phrases designed to communicate as little substance as possible...

Partners in the Law Firm Market Downturn

Posted on July 15, 2009
If you read just about any law journal or Above the Law, you know that associates in big law firms have experienced the brunt of the downturn in the market for law firm services. Associates have been fired, suffered cuts in their compensation, and have seen their start dates deferred...

Full Professor, Without Tenure

Posted on July 14, 2009
At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure. The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level...

Marc Dreier's Sentencing - 20 years

Posted on July 14, 2009
Marc Dreier, the law firm partner who defrauded his hedge fund clients of hundreds of millions of dollars, was sentenced yesterday by Judge Rakoff in the Southern District of New York. Although Dreier's attorney had argued for a sentence of 12 and 1/2 years' imprisonment, the 20-year term that Judge Rakoff imposed was far less than the 145 year term that the government had sought in its filings (available here)...

Sessions on Sotomayor

Posted on July 14, 2009
Jeff Sessions is one of my home-state senators. Never having met him, I have no reason to think he's a foolish man. But in my view, his opening statement at yesterday's Sotomayor hearings says some foolish things. The one that strikes me the most is this statement: Indeed, our legal system is based on a firm belief in an ordered universe and objective truth...

Barros on Advanced Placement for Law School

Posted on July 13, 2009
Just to throw a little more spicy paprika into the "how should we re-engineer law school?" mix, Ben Barros from Widener (otherwise known as PropertyProf) has a post suggesting that basic doctrinal law courses be taught at the undergraduate level, and that students be offered the chance to place out of them when entering law school (akin to the Advanced Placement program that exists between colleges and high schools)...

Toobin Reference at the Sotomayor Hearing

Posted on July 13, 2009
So I've spent most of the morning watching the Sotomayor hearing on CNN (and playing with my new iPhone, which allows me to voice-google factual statements I hear on TV --- how cool is that?!). Though many of the senators' statements are relatively boring, I was struck by Senator Sheldon Whitehouse's comments about Chief Justice Roberts...

Rex v. Djinn

Posted on July 13, 2009
A couple years ago in this space, I wrote about the now-defunct historical practice of haling non-human animals into court for offenses as varied as destroying crops, attacking humans, and even (ew) adultery. This practice raised lots of interesting questions about legal status, but was mostly a historical footnote, and I figured that the practice of suing non-humans (aside from rights-bearing legal fictions like corporations) was more or less defunct...

The Rule of 10

Posted on July 13, 2009
I started last week with the proposition that sentences for violent crime are too long and that overly long sentences for the violent anchors a system of mass imprisonment. I want to come back later to the dynamics that might explain how fear of violence generates support for incarcerating the disorderly, but for now I want to raise a more provocative point...

Levinson on the Vanishing Book Review

Posted on July 13, 2009
Along with my friend Al Brophy (writing at the Faculty Lounge), I've beat the drum quite often here lamenting the relative paucity of book reviews in student-edited law reviews and arguing that student editors should be aware of and remedy this deficit...

Value in hearings after all?

Posted on July 13, 2009
Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole...

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