Legal Commentary

"An artificial perfection of reason": Intimations from Hamburger

Posted on May 31, 2009
I have been making my way through Philip Hamburger's truly magnificent book, Law and Judicial Duty. There is a great deal in this book in the way of assiduously researched detail -- but many of the delicate ornaments and historical baubles are placed in the service of several broad themes; the sweep and significance of the book is very much more than the sum of its details, and it has much to say about the way in which we think about the role of the judge and the institution of "judicial review...

Does EFCA's Defeat Show the Death of Organized Labor as a Political Force?

Posted on May 31, 2009
While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor?s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the ?card check? legislation) was pronounced dead...

Hispanic or Not, The Man Could Write

Posted on May 29, 2009
All the recent talk about whether Justice Cardozo was in fact the first Hispanic justice gives me a chance to share what I consider one of the great lines in the U.S. Reports. In 1936 the Court decided two companion cases dealing with equal protection challenges to a New York milk marketing law...

Final version of How Should Punitive Damages Work? now available

Posted on May 29, 2009
Via the Tarlton Library email at UTexas, I just saw that the final version of my recent piece on punitive damages is now out. It's called How Should Punitive Damages Work?, and it's the second in a projected 4 part series of articles designed to rethink punitive damages policy and doctrine...

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LSA, etc

Posted on May 29, 2009
Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference. As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels...

New info on Lex Opus; an alternative to Expresso?

Posted on May 29, 2009
LexOpus (http://lexopus.wlu.edu) is a recently launched service at Washington and Lee Law School offering free online submissions to law journals. The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers...

Urgent Sponsored Announcement from University of Tusla

Posted on May 29, 2009
THE UNIVERSITY OF TULSA COLLEGE OF LAW is urgently seeking a visitor to teach Environmental Law in either Fall 2009 or Spring 2010. The College of Law is particularly interested in talking to candidates who are also willing to teach International Environmental Law, European Union Law, International Law, Antitrust, Banking, Corporate finance, Securities or other business related courses...

Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change

Posted on May 29, 2009
There?ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does ? and should ? play in judicial reasoning. There?s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I?m sure many others I haven?t read)...

Is "Business Litigation" a "Background in Business Law?"

Posted on May 29, 2009
Note: The initial version of this post mistakenly attributed the post I discuss below to Brian Tamanaha rather than to Bernard Harcourt. My apologies! I've revised it accordingly. Anent the Sotomayor nomination, natch, Bernard Harcourt has an interesting and impassioned post at Balkinization taking David Frum to task for arguing that Sotomayor has only an "abstract and academic" experience of business law...

Medical Restraint

Posted on May 29, 2009
Atul Gawande has a terrific piece in this week's New Yorker about medical costs. Gawande travels to McAllen, Texas, which he suggests has some of the highest per-person medical costs in the country. On his analysis, McAllen may have fancier care than one might expect, but it does not have better care, as measured by actual patient outcomes...

Getting Real about "Legal Realism": Sotomayor ain't no "Realist"

Posted on May 29, 2009
There are posts -- the Wall Street Journal and Leiter's blog, for instance -- suggesting that the usual law professor's self-hatred might be clouding the question of how one evaluates SCOTUS opinions. In particular, the notion that Sotomayor is a "legal Realist" because she believes that judges' backgrounds affect their decisions so trivializes actual legal Realism that it is hard for a non-self-hating legal academic like myself to stomach...

In the Mail: Looseleaf Casebooks!

Posted on May 29, 2009
In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System...

The Walls They Are A-Changin'

Posted on May 28, 2009
I have been teaching Art Law for a number of years, so an article in the WSJ about White House art caught my eye. It seems that along with a changing of the guard comes a changing of the walls. There are also a number of law schools and firms with impressive (if not renowned) collections...

Ricci v. McCormack

Posted on May 28, 2009
Some of the attention focused on Judge Sotomayor's position in the Ricci case has discussed the likelihood that the Supreme Court will take the opposite view within the coming weeks, in the middle of the confirmation process. If that is so, I imagine some writers will take the view that being reversed in a high-profile case says something pertinent about whether Sotomayor is worthy of confirmation, or that it is a deliberate public blow against Sotomayor by the Court, one that is warranted or unwarranted depending on one's viewpoint...

A Tour of New York City's Zoning Dysfunction

Posted on May 28, 2009
I live in the Cobble Hill area of Brooklyn, giving me easy access to one of my favorite running routes ? a roughly five-mile stretch of waterfront on the Upper Bay and East River that I call the ?dysfunctional zoning tour.? Starting at the IKEA store in Red Hook and running past the Fairway Grocery, I can make my way north along the waterfront on Connoyer, Van Brunt, and Columbia Heights to Furman (right under the Brooklyn Heights Promenade) and on into DUMBO...

What's Your Family's Catch Phrase?

Posted on May 28, 2009
Did anyone else here catch the show that was on the other night which counted down the fifty top funniest phrases in TV history? It was a pretty funny program, although the absence from the countdown of either Good Times' "Dyn-o-mite!" or Different Strokes' "What you talking 'bout Willis?" was really inexcusable...

"Federal Court? Wow. Never Thought of That."

Posted on May 28, 2009
The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court. (Ethan blogged about this lawsuit yesterday.) One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit...

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

Posted on May 28, 2009
For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here)...

What, and Who, is a "Good" Justice?

Posted on May 28, 2009
In a previous post I asked whether brilliance is necessary for a justice, and whether more intelligence = better judging. I intimated that my inclination was that beyond a certain (very high) level of intelligence, I saw no evidence that yet more intelligence led to better judging...

More on the Olson-Boies Lawsuit: Responses to Comments

Posted on May 28, 2009
I appreciate the responses to my original post on the Olson-Boies lawsuit. I tried to post the following comments in reply but for some reason I got rejected (rejected by my own post -- hah!) Apologies for using the post format as a reply mechanism. But here goes: 1...

We are all Realists - but don't tell anyone

Posted on May 28, 2009
One of the things that?s always struck me about judges is how reluctant nearly all of them are to acknowledge the extent to which there is a lawmaking role to the job (at least at the appellate level), and more generally how underdetermined an awful lot of legal questions are...

Sotomayor <> Miers: A Brief Rundown

Posted on May 27, 2009
I've heard this comparison enough (Dreher, Ponnuru, Buchanan on MSNBC) that I thought a quick bullet-point presentation might be in order: Sotomayor is not a close friend and counsel to the President; Miers was. Sotomayor has the most federal judicial experience of any Supreme Court nominee in over a century; Miers had none...

Classroom Twitter Pages

Posted on May 27, 2009
Many of us already use a variety of electronic resources in the classroom, but what about using Twitter? Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point)...

Deborah Hellman on Prop 8 decision, Peter Westen, & Equality

Posted on May 27, 2009
Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below: "Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right...

Affirmative Action in Michigan & the Hunter-Seattle Doctrine

Posted on May 27, 2009
What should a law professor think of judge?s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question...

Trial experience, pleading, and the Supreme Court

Posted on May 27, 2009
One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues...

Can a Run Really Count When the Runner Never Crosses Home?

Posted on May 27, 2009
So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game: With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory...

And Now for a More Plausible Challenge to Prop 8 . . .

Posted on May 27, 2009
I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on. I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve. But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite...

Alex Acosta to be dean at FIU

Posted on May 27, 2009
I am thrilled to report that R. Alexander Acosta, currently U.S. Attorney for the Southern District of Florida and former head of the Civil Rights Division at DOJ, will be the new dean of FIU College of Law. Acosta graduated from Harvard College and Harvard Law School and clerked for Samuel Alito on the 3d Circuit (my old circuit)...

The symbolic stakes of the Establishment Clause

Posted on May 27, 2009
It seems to me that the Establishment Clause, at least as it is viewed by the Supreme Court, it increasingly about symbolism. What I mean by this is that more and more, the Establishment Clause disputes that tend to make it to the Supreme Court are over religious speech, symbolism, and the like, where no real financial or other "concrete" stakes are involved...

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