Legal Commentary

Bye Bye (and a McSweeney's Piece for the Road)

Posted on July 13, 2009
I just wanted to say farewell for now, as this will be my last Prawfs post for a long while, though I expect to be back for another guest stint in December. Thank you to Dan and all the Prawfsers for letting me hang out here long after I ran out of anything to say...

The Attorney-Client Privilege and the Collateral Order Doctrine

Posted on July 13, 2009
It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far. Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term...

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Posted on July 13, 2009
Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there...

Dear Orin...I Mean, Sen. Cornyn

Posted on July 12, 2009
Senator John Cornyn of Texas has very generously collected all of his daily questions for Judge Sotomayor on his web site in one place. Some of them are quite good, some not so good. Many of them are questions in the same way that "questions" at faculty workshops and public appearances (watch C-SPAN's book channel some time) are questions, which is to say, they consist of a number of controvertible premises and an over-simplification of the opponent's position, and then tail off into, "So, um, tell me what you think about all that...

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Jo Reggelt from Budapest

Posted on July 12, 2009
That's good morning. This is not a language for amateurs. A word on the danger of tight international connections. Northwest's first A330 in Detroit destined for Amsterdam on Friday night decided it was broken, so the company flew another one in from Minneapolis, which was fine, except that my Amsterdam connection to Budapest was one hour and twenty five minutes, and we left one hour and twenty minutes late...

Something else I wish I had written

Posted on July 11, 2009
Dahlia Lithwick perfectly captures everything I think and believe about the Kabuki theatre that is the upcoming Sotomayor hearings before the Senate Judiciary Committee. Of course, I have agreed to be a guest commentator at ACSBlog this coming week, so I need to find something to say other than "this is a ridiculous charade...

CTA9 rejects pharmacists' religious-conscience claims

Posted on July 11, 2009
The Los Angeles Times has the story, here, about the decision in Storman's v. Selecky: The right to freely exercise one's religion "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," the 9th Circuit panel wrote...

Sheila B. Scheuerman on Markel's "Retributive Damages"

Posted on July 10, 2009
Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence...

In Defense of Law Schools, by JB Ruhl (FSU Law)

Posted on July 10, 2009
N.B. This post is by JB Ruhl, a colleague of mine at FSU. There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty...

Beazer Homes and the skewed signals of deferred prosecution agreements

Posted on July 10, 2009
Floyd Norris has an article in the New York Times today criticizing the Deferred Prosecution Agreement that the Department of Justice recently announced between Beazer Homes and the United States Attorney for the Western District of North Carolina. According to the Information filed by the government, Beazer Homes engaged in a number of accounting frauds, which of course hurt home buyers and shareholders alike...

Searle Young Legal Scholars Research Fellowships

Posted on July 10, 2009
I thought this opportunity might be of interest to some Prawfs readers: The Federalist Society is pleased to invite applications for Searle Young Legal Scholars Research Fellowships. Up to two junior tenure-track faculty members will receive funding to take a semester-long research leave in order to make major progress on an important scholarly article...

Excluding Religion

Posted on July 10, 2009
Should government be able to specifically exclude religious actors and entities from its support programs? I have argued that, to a greater degree than is commonly supposed, officials ought to have constitutional latitude to decline to support religion, even when they fund comparable activities...

Leib v. Gerken/Elmendorf on Electoral Reform Design: 4 years later

Posted on July 10, 2009
About 4 years ago, I went back and forth here and on Balkinization with Heather Gerken (Yale) and Chris Elmendorf (UC Davis) about Canada's innovative approach to electoral reform: the Citizens' Assembly. Canada gathered together a group of lay citizens to deliberate about a new electoral system for British Columbia...

Walking the Fine Line Between "Wide-Ranging" and "Shallow"

Posted on July 10, 2009
I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing. Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers)...

Court of appeals reverses injunction on pharmacist regs

Posted on July 10, 2009
This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections...

Puzzles and Prescriptions

Posted on July 09, 2009
When I was first preparing to go on the teaching market, a wise elder told me that all law papers had to answer the question ?what should I do?? In other words, she said, the sine qua non of a legal academic paper is that it must conclude by stating some normative prescription...

Our Intro Freaky Post

Posted on July 09, 2009
Over at the NYTimes' Freakonomics Blog, Ethan, Jennifer Collins and I have an introductory post up discussing our new book, Privilege or Punish. A reminder: if you use the Promo Code 27878, you get the book at 20% off. And if that's still too much for you or your library -- which is understandable since the hardcover is still pricey -- just shoot me an email and I'll happily send you a free PDF of the book so long as you use/read it for personal use only...

Religion and the Politics of Eminent Domain

Posted on July 09, 2009
Should religious landowners enjoy special protection from eminent domain? A controversial federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), already applies a presumption of illegality to all zoning and landmarking restrictions that substantially burden religious land use...

Reconsidering the Punishment of Violent Crime

Posted on July 09, 2009
For those of us who believe that America imprisons too high a portion of its population, recent years have seen mixed progress. Many states have adopted measures that aim to move drug-addicted offenders involved in drug and property crime from jail or prison toward treatment under the threat of jail...

Responsive musings on conference formats

Posted on July 09, 2009
Carissa raises some good points about the different types of conference formats. I wanted to add some comments here. First, another conference format to consider is the roundtable or moderated discussion, in which there are no prepared papers or remarks, but an open-ended (and hopefully freewheeling) conversation among the panelists, usually with a moderator guiding the proceedings...

Musing About Conference Formats

Posted on July 09, 2009
Having spent part of the day planning a trip to DC for an upcoming conference, I?ve been thinking a bit about conference formats. Off the top of my head, I can think of four major conference formats: Half-Baked ideas ? presenters speak briefly (usually on a relatively general level) about a new project & then the attendees give feedback and/or advice Workshop ? presenters submit drafts, which everyone reads beforehand, and then the conference is largely devoted to their comments Commentor ? authors present a paper and the conference supplies a formal commentor, who has read the paper prior to...

Fun Civ Pro fact of the day

Posted on July 08, 2009
So there is a reason to watch Jeopardy other than when Paul is on: You might learn things, even about civil procedure. Yesterday, I learned that Tennessee Williams (a St. Louis native) used to work at International Shoe--according to the question (answer?), it was while working there that Williams met a man named Stanley Kowalski...

Wargaming Iran

Posted on July 08, 2009
My friend Peter Berkowitz has a fascinating piece in the July 13th issue of the Weekly Standard about the internal deliberations within Israel regarding a strike against Iran's nuclear facilities. Peter was just there for a few weeks schmoozing with a variety of high-level analysts and security officials; the report he offers of these conversations is quite interesting...

More on Brady violations

Posted on July 08, 2009
Earlier in the week, I blogged about Brady violations and theorized that now might be the time to improve the DOJ's compliance on such matters by changing its Office of Professional Responsibility. In response, some commentators worried that I might be relying too much on internal mechanisms to do the job...

Yankee Stadium "God Bless America" lawsuit settles

Posted on July 08, 2009
The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here. According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees...

Marc Dreier's Sentencing

Posted on July 08, 2009
The WSJ law blog is reporting that lawyer-turned-fraudster Marc Dreier is scheduled to be sentenced Monday by Judge Jed Rakoff in Manhattan. After Madoff's sentencing, Dreier's own judgment day seems anti-climactic, and perhaps that is to his benefit...

Budapest

Posted on July 07, 2009
Starting next week, I'll be reporting from Budapest, where I will be teaching U.S. Securities Law in 20 hours over two weeks at Eötvös Loránd Tudományegyetem (the Faculty of Law at Eötvös Loránd University), where Suffolk University Law School offers an LL...

Litigating the War on Terror # 1: Telecom Immunity

Posted on July 07, 2009
Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week. Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No...

Are You a Lawyer?

Posted on July 07, 2009
A couple years back in this very space, guest prawfsblawgger Liz Glazer invoked Bob Slydell?s immortal line from Office Space (?Just what would you say ? you do here??) to frame a discussion of the challenges of explaining to non-lawprofs ? well, just what it is we do here...

Future Dangerousness and Burdens of Proof

Posted on July 07, 2009
I have been thinking recently about the role of punishment in preventing future crime. Criminal law theorists tend to express unease with the idea of punishing behavior that creates only a risk of harm rather than a harm itself (think drunk driving laws or laws prohibiting felons from owning firearms)...

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