Legal Commentary

SCOTUS decides Iqbal

Posted on May 18, 2009
One of this term's cases that I have been waiting for came down today: Ashcroft v. Iqbal, a 5-4 decision in which the Court held that the plaintiffs, post-9/11 detainees, did not sufficiently plead a Bivens claim as to several high-ranking executive branch official...

Memoir and Memory

Posted on May 18, 2009
Yesterday's NY Times contains this memoir by Reynolds Price recounting and reflecting on his time at Oxford in the '50s as a Rhodes Scholar (yes, yes, it also contains a review of that other book). Price was my teacher at Duke in the early '90s and an absolutely wonderful man...

How Much? How Frequently?

Posted on May 18, 2009
Tying in to Rose's post from earlier today I'd like to raise a related but slightly different question about summer scholarship, and scholarship more generally: how much and how frequently? Early in my scholarly career I had a pretty fixed, even robotic, writing schedule: one article per year...

Iqbal and the death of notice pleading: Part II

Posted on May 18, 2009
Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal: The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint...

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Writing about Diverse Scholarly Interests

Posted on May 18, 2009
Similar to many law professors, I do most of my research and writing in the summer. One challenge I often face in the summer is determining in which field I want to write. I research, write and teach in the areas of property, immigration and citizenship...

Iqbal and the death of notice pleading: Part I

Posted on May 18, 2009
Having now read Iqbal, it's a doozy ("breathtaking" as one poster to the civ pro listserv put it) in many ways and in many areas of law (all of which are of interest to me). Many doctrinal points were killed off or dramatically altered today. I am going to look at them in a series of posts in the next couple of days...

The University of Chicago Class of 2001: A Post by Eugene Kontorovich

Posted on May 17, 2009
I'm happy to observe that 25% of the guest bloggers here were at the University of Chicago law school together. Mark Blitz and I were in the same class, with John Pfaff, a JD/PHD, a year below I believe. This led me to think about my other classmates in academia, and I've realized there are quite a lot of them...

Prop. 8 Redux?

Posted on May 16, 2009
Over the last year the same-sex marriage movement has had as many ups and downs as ... well, a marriage. As I've blogged about in the past, the passage of Proposition 8 in California last November was a bitter defeat for pro-marriage rights forces, especially those, like me, with a personal stake in the outcome...

Criminal Law, Foreboding, and the Forbidden

Posted on May 16, 2009
I had the great fortune to teach criminal law this spring and the even greater fortune to use Joshua Dressler's book. Professor Dressler's book begins with what may be a familiar tract by Henry Hart, wherein Hart argues that what distinguishes criminal from civil sanction is a certain type of community condemnation...

The upcoming battle over New York's public schools

Posted on May 15, 2009
For Albany watchers and other political junkies, the summer?s biggest sporting event is the State Assembly?s impending decision about whether to renew mayoral control of New York City?s schools. The vote is scheduled for the end of June, and, to insure maximum high drama, the vote coincides with Bloomberg?s third-term re-election campaign and precedes the October expiration of the American Federation of Teacher?s contract with the New York Board of Education...

After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!

Posted on May 14, 2009
Scandal! Scandal! I smell a true scandal in the air! After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court...

Radio Interview on piracy and international law (Eugene Kontorovich)

Posted on May 14, 2009
This morning I will be on the air discussing the international legal response to piracy, along with Adm. Kevin J. Cosgriff. The interview will air between from 1003 to 1058 in the morning (CST), on 580 AM, which is heard in the Northern Illinois (including Chicago) and northern Indiana areas...

Blogging and Bar Mitzvah? A Post by Eugene Kontorovich

Posted on May 14, 2009
As careful readers will note, I am not the poster of my posts. I depend on the good offices Ethan and Dan to actually get my words to screen. Herein lies a story, a mystery and hopefully a solution. Dan sent me a link to set myself up an account as a guest-blogger...

Law School Hiring Observation II: Dante's Refining Purgatorial Fire

Posted on May 14, 2009
Professor Kaimi Wenger gives some advice about getting into law teaching without having graduated from a top 5 school. It's all very good and useful, and well worth checking out if you are in the position that he describes. I graduated from Boston University School of Law, and while my experience there was absolutely terrific and I think back on law school very fondly, I think it not unfair to say that BU does not produce many law professors and that there are special challenges facing someone whose JD is not, to say nothing of the top 5, from the...

News: Anti-semitism is alive and well

Posted on May 14, 2009
Because I am related to a number of people that worry a lot about anti-semitism (and use it as part of a defense of policies in Israel that I think are indefensible), I am probably too dismissive about claims of anti-semitism. Unless it is self-serving: I assume that all the students who hate me in their student evaluations are probably anti-semites...

Systematic Reviews and Adversarialism: Truth and Arbitrariness

Posted on May 14, 2009
In my last post, I laid out some of the major arguments for favoring adversarial debates about scientific evidence over independent experts. Now I want to start pointing out how systematic reviews retain the benefits of independent expertise while addressing the concerns raised by the defenders of adversarialism...

Why President Obama Will Not Appoint Judge Sotomayor

Posted on May 14, 2009
Anyone who has been paying attention knows that Judge Sonia Sotomayor is (was?) a (the?) front-runner for Justice Souter?s Supreme Court seat. But along came Jeff Rosen, who questioned the choice of Sotomayor on the grounds that (1) she allegedly does not have the intellectual horsepower for the job, and (2) she?s a bully on the bench and difficult to work with...

Supreme Court Law Clerks from Non-Elite Schools

Posted on May 13, 2009
The New York Times yesterday discussed why news reporters should keep up with Justice Scalia. In his article, "On the Bench and Off, the Eminently Quotable Justice Scalia," Adam Liptak noted some of Justice Scalia's most recent memorable musings. For instance, when asked by a student at the American University Washington College of Law (WCL - my alma mater) what her chances were of getting a clerkship with the U...

Against Appointing Pols to SCOTUS

Posted on May 13, 2009
Given my appalling performance as a blogger -- I've been post-less since March -- I have some nerve calling out other people as unqualified for a position involving lots of writing. But it is exam-grading time, and shame cannot stand in the way of my need for a distraction...

I Am the Law

Posted on May 13, 2009
Turner Classic Movies is airing the 1938 classic, I Am the Law, today. It is one of the first films to feature a law professor as a protagonist. Edward G. Robinson plays law professor John Lindsay, a man who is bored enough with being on sabbatical that he agrees to take on the mob...

When is the Movie Better Than the Book?

Posted on May 13, 2009
Well, for my 40th birthday last month my wife did not get me a Ferrari (do they even make those in an automatic transmission?) but she did get me something almost as good: a rare, perfect condition, first edition copy of Cameron Crowe's 1981 book Fast Times at Ridgemont High: A True Story...

"Can You Explain the Commerce Clause?"

Posted on May 13, 2009
All profs know the sinking feeling we get when we read exams that make us wonder if the student ever showed up for the class. As a colleague of mine reminded me yesterday, describing the exam period, "never do so many show so convincingly that they have learned so little...

Pirate nicknames (only half serious)

Posted on May 12, 2009
Eugene's post about piracy repeatedly makes the point about the heinousness and seriousness of piracy as a crime, which is lost in the mythos of eye patches and bottles of rum and parrots. So that led me to wonder, in only half-seriousness (maybe only 37 % seriousness), whether pirate nicknames for sports team have become inappropriate...

Judicial Supremacy In a Footnote?

Posted on May 12, 2009
In the spirit of Marc's posting on the footnote to Justice Stevens's dissent in FCC v. Fox TV I'd like to comment on a footnote to Justice Scalia's majority opinion in Heller v. Doe. (Thanks to Andy Hessick at ASU for directing my attention to it at Prawfsfest a couple of weeks ago...

Chess and Law

Posted on May 12, 2009
When the brilliant Eugene Volokh mentioned math camp in a posting the other day, I thought I'd put in a plug for one of the greatest human activities ever invented -- chess. Or as some of my friends call it, "Mark's addiction." I've played chess since I was 12 through various cycles of activity...

Media Calls on Supreme Court Appointments

Posted on May 12, 2009
I suppose that one of the downsides of trying to preserve the repuation of a jurist in light of political attacks is that you start getting lots and lots of calls from the media. I am, unfortunately, extraordinarily busy these days, but, because I have sometimes found it helpful just to point callers to various posts, I have decided that I may try, anyway, to continue with a few more thoughts on various aspects of Judge Sotomayor's record...

The Goals of Adversarialism

Posted on May 12, 2009
I want to start to consider how to incorporate evidence-based systematic reviews into the legal system. There are two ways to approach the problem. The first is to think about how to use systematic reviews in a supplmentary way: the parties can still retain their own experts, but the judge and/or the jury can also see what the complete picture is as well...

The Duty (Not?) To Retreat: The Cultural Righteousness of Justification

Posted on May 12, 2009
A few days ago I saw this story from Florida about the duty to retreat before using deadly self-defensive force. Florida is one of a growing number of states that has a "stand your ground" law for all self-defensive force, and permits the use of deadly self-defensive force where the actor "reasonably believes it is necessary to ...

South African v. American Constitutional Law

Posted on May 12, 2009
One last post before I must sign off and do some traveling. If you want to highlight or contrast U.S.Supreme Court gender discrimination or equality jurisprudence, then you could have a class read the South African Constitutional Court's decision in Pres...

I don't mean to brag, but ...

Posted on May 11, 2009
My school has recently adopted a pre-tenure leave (teaching release) policy, of which I will be one of the early beneficiaries this fall. In fact, with classes over for the year, I only have 70 civil procedure exams standing between me and that leave...

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