Legal Commentary

June Wedding Announcements

Posted on June 05, 2009
Gay marriage is, once again, in the news. As of Wednesday, New Hampshire became the 6th state to allow same-sex marriage, and gay marriages can be officiated there as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay marriage is something the states should work out; and some 18,000 same-sex California marriages are legal, even though same-sex marriage is otherwise illegal in the state...

Questionnaire Answers from Judge Sotomayor

Posted on June 05, 2009
Judge Sotomayor's answers to the Senate Judiciary Committee's questionnaire are available here.

Signing Off

Posted on June 05, 2009
Many thanks to Dan and the Prawfsblawg crew for hosting me in the past month. As always, it?s been a very enjoyable stay. I?d hoped to write primarily on law teaching and technology but things don?t always go as planned, and I found I had more to say about music and baseball...

Is "Fine-Grained" Always Better?

Posted on June 04, 2009
A couple of days ago -- it feels like light-years in blog time -- Professor Richard Epstein posted a column at Forbes.com on the Sotomayor nomination. Epstein had already made clear his disagreement with some of Sotomayor's rulings; this time, he turned his attention to "the serious intellectual weakness in the conservative [as opposed to libertarian] case against her confirmation...

To access this complete feed in the blog feed reader login or register for free.

Paternity Leave

Posted on June 04, 2009
If it's June, it must be PrawfsBlawg. Thanks to all the Prawfs regulars for sharing their space with me for another guest stint. I thought I'd kick off my visit by talking about my experience this past semester of life on paternity leave. When we had our first son, two years ago, I was in my first year at Cornell, without tenure, eager to get to know people and make a good first impression...

Scholarship, Relevance, and Division of Labor

Posted on June 04, 2009
I recently read these pungent remarks by Brooklyn's Aaron Twerski in connection with his receipt of the Robert C. McCay Law Professor Award from the Torts and Insurance Section of the ABA. Twerski observes and endorses criticisms of contemporary legal scholarship as "out of touch" and "lack[ing] relevance to the work" of judges and lawyers...

Still more on Iqbal and Twombly

Posted on June 04, 2009
The prolific folks at Drug and Device Law responded to my post, arguing why Iqbal/Twombly is the right approach to pleading. I would respond by pointing to two points on which actually, somewhat, agree. First, they criticize Conley for allowing plaintiffs to get away with complaints that say "Defendants violated my rights" or "Defendants injured me" or claims "an FDA violation...

Tuesday Night Music (and Philosophy) Blog

Posted on June 03, 2009
Law review authors occasionally use rock song lyrics to make a point. Alex Long has written insightfully about their tendency to do so. (And I am guilty of it in this recent article on First Amendment law and virtual reality). This led me to wonder what happens when things work in reverse: Which law review articles are cited the most in rock music? Are the same law reviews that are highest in court and scholarship citation counts ? according to the Washington and Lee rankings ? also the most frequently cited in angst-ridden rock lyrics? Unfortunately, it seems that rock...

Sytematic Reviews and the Scientization of Law

Posted on June 03, 2009
So far I have looked at how to incorporate systematic reviews into our current legal framework, whether through court-apppointed Rule 706 experts or through special masters or technical advisors assisting judges in their Daubert or Frye decisions. In both cases, however, partisan experts remain...

Dave Matthews Band, Bootlegs, and Network Economics

Posted on June 03, 2009
In honor of the release of the latest Dave Matthews Band album, and my upcoming concert visit, I thought I would blog a bit about an area of interest that I don't often get to write about. As the title implies, this topic combines three areas of interest: DMB, Bootleg Trading (which prefer to call concert trading, as I don't really view permissive recording of concerts to be a bootleg), and network economics...

Rethinking music videos

Posted on June 03, 2009
Marc has made music the order of the day, so I decided to follow up on that. My post has nothing to do with law, unless there is some question about transformative use, or philosophy (I don't think). Anyway, there is a series of "Literal Videos" making the rounds on YouTube...

WiPping Your Articles Into Shape

Posted on June 03, 2009
I've just returned from Marquette's first Works in Progress Workshop of the summer. I know many other law schools have similar programs, but the format has worked so well for us that I thought I would give it a plug here for faculties that are not yet doing it...

Discovery, burdens, risks, and Iqbal

Posted on June 02, 2009
The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here)...

Come Back, Little Jeffrey

Posted on June 02, 2009
As reported here and elsewhere, one upshot of the kerfuffle over Jeffrey Rosen's initial article on Sonia Sotomayor -- about which, if I recall correctly, our guest-blogger Rob Kar had something to say -- is that Rosen has sworn off blogging. In the story I linked to, Rosen stands by his initial story, although he dislikes the headline his editors chose and wishes the story had shown more nuance; but he adds that he was dismayed by how his article was treated by people "of both ideological stripes," and says the fuss has made him reconsider blogging at all...

Canons to the Left of Them, Canons to the Right of Them...

Posted on June 02, 2009
Most readers probably do not follow the bumper crop of recent SCOTUS opinions that deploys canons of statutory construction, but they are personal favorites of mine. Indeed, I taught a couple of them from the '07 term of the Court this Spring. Although most people would not regard United States v...

Sotomayor, Cardozo, and the "Hispanic" Question

Posted on June 02, 2009
Hey all. Great to be back at Prawfs again. I was going to post something less legal, and probably more interesting, for introductory purposes, but yesterday this item in the NY Times caught my eye. I?m certainly not the first person in the blogosphere to mention this, but the issue is: if Sonia Sotomayor were confirmed, would she really be the first Hispanic justice? The possible problem is that there was already a jurist of Portuguese descent on the Court that you may have heard of: Justice Benjamin Cardozo...

Judge Sotomayor and the First Amendment

Posted on June 02, 2009
If you're looking for some more insight into Judge Sotomayor?s approach to solving constitutional problems, consider her dissent in the First Amendment case of Pappas v. Giuliani, which involved a police officer fired after he had been discovered to have mailed anonymous racist materials to various nonprofit organizations that had sent him fundraising solicitations...

Rotations

Posted on June 01, 2009
With the onset of the new month, I want to take a moment first to thank all the wonderful contributions over May and April from Mark Kende, John Pfaff, Marc Blitz, Marc DeGirolami, Rose Cuizon Villazar, Brooks Holland, Chad Oldfather, Jessie Hill, Bill Araiza, Hillel Levin, and Brian Galle...

SCOTUS on Collateral Estoppel in Criminal Cases

Posted on June 01, 2009
I'm grateful to Dan for inviting me back for a third stint on Prawfs. I'm not sure whether I should be pleased or chagrined, but I've found in recent years that when I meet new people at AALS, they are more likely to recognize my name from Prawfs than from my law review scholarship...

Signing off with Souter

Posted on June 01, 2009
Somehow or other this guest-blogging stint didn?t quite come together the way I anticipated back when I signed up. You know how it goes ? May seemed far off. Plus, what is there to do in May anyway? Just writing and grading some exams. There?ll be plenty of time to blog, I thought to myself...

Parenting Advice

Posted on June 01, 2009
I?m delighted to start my posts on PrawfsBlawg in June because June is THE most popular month for weddings. Almost 11% of the 2.4 million weddings each year occur in June, while just under 5% occur in January (my reliable source for these statistics is the National Mail Order Association, which has lots to gain by being right on this)...

Hello Again and Bilski Redux

Posted on June 01, 2009
Thanks for the welcome, Dan, and thanks to Prawfsblawg for having me back. I have a variety of areas I want to post about this month. But first, it is good timing that I am guesting this month, as the Supreme Court just granted cert. in In re Bilski (now Bilski v...

Signing off

Posted on June 01, 2009
It has certainly been a pleasure to post, however sporadically, at Prawfsblawg for the month of May. I wish everyone a productive summer. -- Jessie

The Chrysler bankruptcy case & Indiana's "takings" lawsuit

Posted on June 01, 2009
Last night, Bankruptcy Judge Arthur Gonzales approved the section 363 sale of Chrysler to Fiat. This morning, Judge Gonzales refused to transfer Indiana's constitutional claim against the deal to federal district court. Here's a question for the prawfs interested in takings: Is there any merit to the Indiana pension funds' claim that, by ignoring the absolute priority of secured creditors, the bankruptcy court has "taken" those creditors' security interest without just compensation in violation of the Fifth Amendment? The claim has inspired the usual outrage or applause from the usual suspects: George Will praises Indiana's lawsuit as plucky opposition to...

Late-Night Lawyers

Posted on June 01, 2009
It was an honor and a delight to join PrawfsBlawg as a guest in May. Where did the time go? In other (much more famous) news of transitions, we all know that Jay Leno signed off on the Tonight Show on Friday, and Conan O?Brien takes the helm today, which led me to think about the relatively small number of lawyers who have joined either show as guests over the years...

Signing Off

Posted on June 01, 2009
Thanks once again to Dan for allowing me to blog during this very eventful month. And thanks to everyone who joined in the conversation. Have a productive summer, and don't forget to have some fun.

Some belated thoughts on Iqbal, empathy, and Sotomayor

Posted on May 31, 2009
Fittingly for what is probably my last post on Prawfs for a while, I thought I'd tie together some of the threads that have been running through Prawfsblawg this month, specifically those pertaining to "empathy," the nomination of Sonia Sotomayor to the Supreme Court, and the Court's recent decision in Ashcroft v...

Takaki on "Revolutionary" Thinking

Posted on May 31, 2009
Since a good deal of attention on Judge Sotomayor has focused on her youthful and subsequent interest in "identity politics," and since some scorn has been cast on her helping to start a course at Princeton on the history and politics of Puerto RIco -- scorn that probably finds its reductio ad absurdam in the blog comments linked to here -- I thought it might be worthwhile to quote from a slightly different take on the nature of courses arising from identity politics...

Giving students feedback on exams

Posted on May 31, 2009
I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important...

Signing off

Posted on May 31, 2009
Thanks to Dan and Prawfsblawg for inviting me to blog. I enjoyed blogging (albeit not as frequently as I had hoped I would) and look forward to seeing many of you at various conferences, symposia and workshops. Have a great and productive summer!

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.