Legal Commentary

A philosopher and a psychoanalyst walk into a classroom...

Posted on January 27, 2011
The other night, I attended a dinner party where most of the guests were fellow law professors. The conversation turned to the best way to handle offensive ideas in the classroom. What role should one's own views play in the response to homophobic, sexist, or racist sentiments, expressed either by students or in the class material itself? It quickly became clear that the guests had several differing views on the matter...

Statutory standing and merits confusion

Posted on January 26, 2011
One aspect of merits/jurisdiction confusion that I have not explored in detail (yet) is "statutory standing"--how Article III standing relates to whether a plaintiff has rights under a statute and whether he can sue to enforce those rights. Is this a question of standing (which, unfortunately, is treated as a preliminary question of Article III jurisdiction) or the substantive merits of a statutory claim? In Thompson v...

It's Jay Wexler's World; We're Just Living in It

Posted on January 25, 2011
Kudos to Jay Wexler of Boston University for his quote in today's New York Times story on a new study on humor by the justices in Supreme Court oral argument. Not for being quoted in the Times, but for the quote itself: "Asked about the [new] study, Professor Wexler said, 'I?m not sure what to think about it, but I?m pretty sure it makes me want to die...

The Gosnell Grand Jury Report

Posted on January 25, 2011
As I'm sure we all know, several days ago, an investigating grand jury in Philadelphia made public its report regarding, among other things, the murder charges against Kermit Gosnell, M.D., for causing the death of women and -- as the Grand Jury put it -- "live, viable babies...

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Undergraduate Majors and Law School

Posted on January 25, 2011
A new book about inadequate undergraduate education has been receiving widespread attention. I particularly noted the following conclusion: The study also found significant differences by field of study. Students majoring in the humanities, social sciences, hard sciences, and math?again, controlling for their background?did relatively well...

Robert George on Obama on Roe v. Wade

Posted on January 25, 2011
I am always sorry that Robert George does not allow comments on his posts on Mirror of Justice, since I often find them worthy of commentary, but not necessarily worthy of a great deal of commentary. Still, I thought I'd link to something of his. Here, first, is President Obama's statement on the anniversary of Roe v...

Posner (Again) on the Bluebook (Again)

Posted on January 25, 2011
While I'm on the subject of light reading, Richard Posner has a new piece in the current issue of the Yale Law Journal. Once again, he takes the Bluebook to task. His points are valid enough, although I question the utility of his having spent more time discussing the Bluebook...

"Christianity and Human Rights" now available for purchase

Posted on January 24, 2011
And now, a report from the shamelessness department: As I mentioned a few months ago, I have a chapter (as do some really good scholars) in the Witte-and-Alexander-edited collection, "Christianity and Human Rights: An Introduction" (Cambridge). I'm sure it would make an appropriately overpriced Valentine's Day present.

Constitutional protection for recording police encounters

Posted on January 24, 2011
In the final part to my article on the important new role of video in civil rights enforcement, I considered what I called the "front-end" question of whether government can prohibit or limit surreptitious recording (audio and/or video) of public encounters with public officials, particularly law enforcement...

Catholic Bishops and Health Care Repeal

Posted on January 24, 2011
Last week the national conference of Catholic Bishops issued a press release summarizing the Church?s public policy goals for the new legislature. The release reasserts the Church?s commitment to both ?the life and dignity of all? and to the support of ?vulnerable and poor persons? during the economic crisis...

Please don't think of the children, or, what we talk about when we talk about bullying

Posted on January 24, 2011
The media frenzy over Tyler Clementi's suicide. The proliferation of the "It Gets Better" videos, featuring everyone from Perez Hilton to the President. The storm of anti-bullying legislation, including the "Anti-Bullying Bill of Rights" (called "the nation's toughest law against bullying and harassment in schools") signed by Gov...

The Most Inexplicable One-Year Delay in Appellate History?

Posted on January 24, 2011
With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday...

NASA v. Nelson: OK, I'll Bite.

Posted on January 23, 2011
The blogosphere is not exactly abuzz in the wake of the Supreme Court's unanimous decision last week in NASA v. Nelson, holding that the questions posed to federal contractors concerning (inter alia) past treatment or counseling for drug abuse do not violate those contract employees' informational privacy rights...

Awesome Civil Recourse Conference at FSU

Posted on January 22, 2011
My apologies for the brief delay in getting notice of this exciting conference up to you all, but FSU is hosting yet another all-star conference this spring, this one organized by the FSU Law Review and my colleague, the inimitable Curtis Bridgeman. The information appears below and after the jump...

Daniel Martinez HoSang's Racial Propositions

Posted on January 19, 2011
I am about to publish a book review of Daniel Martinez HoSang's Racial Propositions: Ballot Initiatives and the Making of Postwar California (UC Press 2010) in the journal CALIFORNIA LEGAL HISTORY, a publication of the California Supreme Court Historical Society...

The Law of Facebook Polarization?

Posted on January 19, 2011
I wrote the other day about varying responses of my Facebook "friends" to the Tucson shootings. It gives me cause to reflect on something I notice every time I turn to my friend recommendations on Facebook. Outside of my immediate network of actual friends who happen to be on Facebook, my friend recommendations tend to be, or seem to be, radically split politically...

Francis Fukuyama-Wrong Again!

Posted on January 19, 2011
No matter how he changes his mind, I always end up disagreeing with Francis Fukuyama. His triumphalism about American-style democracy and capitalism in ?The End of History? struck me as hopelessly crude (as well as self-serving); Fukuyama had put the ideas of the great left-wing Hegelian thinker Alexander Kojeve through a neocon sausage machine...

The Demise of "Drive By Jurisdictional Rulings"

Posted on January 18, 2011
My latest foray into the jurisdiction/merits divide is now available at the Northwestern Law Review Colloquy.

Are there still two "tracks" of professorship?

Posted on January 18, 2011
I have a friend who has been on the market this fall. He's certainly well qualified and credentialed, and has had a number of callbacks, but he hasn't gotten the offer he's hoping for yet. He's now wondering if it would be a good or bad career move to seek out a VAP-type position as a writing/process professor for a year or two and then go through the meat market again...

Permanent Link to The Agnostic Age

Posted on January 18, 2011
I have already posted a link to my new book, The Agnostic Age: Law, Religion, and the Constitution. On the off chance that someone, somewhere, hasn't already ordered the book despite my overheated efforts at promotion, however, let me note that the team of tech wizards at Prawfsblawg has put a permanent link to the book's Amazon page under my name on the right side of our page...

Paging Dr. Bowdler

Posted on January 18, 2011
Consider three conficts. 1) Narrative and dramatic themes and ideas do not change much over time, which is why so much old literature remains relevant today. 2) Lasting literature/threatre/movies/music/art all work by honestly capturing and portraying the moment, including accurate depictions of how people feel, think, and speak--however ugly it might be...

Some not-so-random updates on the scholarship front; or, what I like to tell my deans I did on winter "vacation."

Posted on January 18, 2011
I'm excited to say I've just begun my first semester of teaching leave. While I am excited to tackle some new projects now, I am also clearing some other ones off the decks. (And yes, I hope the leave facilitates some more substantive blogging too.) In any event, for the benefit of my mom and a handful of other folks looking for something to read besides Amy Chua or Ethan Leib or Paul Horwitz's new books, I thought I'd let you know that there are new (and nearly final) versions of a couple pieces of mine up on SSRN and...

Not Brothers and Sisters--Fine. But What, Then?

Posted on January 18, 2011
In Alabama--and elsewhere, too, it seems--there has been a fair of amount of reporting about a speech our new Governor, Robert Bentley (AKA "Dr. Robert Bentley"), gave yesterday at the famous Dexter Avenue King Memorial Baptist Church, where he said that anyone who has not accepted Jesus Christ as his or her savior is not Bentley's "brother" or "sister...

Home-field advantage and the umpire analogy

Posted on January 17, 2011
An article by Tobias Moskowitz and L. Jon Wertheim in the new Sports Illustrated (I cannot find it on-line for some reason) examines the cause of home-field advantage in sports. If the study is empirically sound (and I want to down with some empiricists to help me figure out if it is), the results are groundbreaking...

"The 'Left'"

Posted on January 17, 2011
Over at the liberal New Republic website, Jonathan Chait has a brief but enjoyable post (with a great graphic) observing that he is not a leftist, arguing that the left has minimal impact in current American politics and is therefore, for him, not worth discussing much, and noting that he gets criticized by the left when he disagrees with it and criticized when he ignores it...

Reading generously

Posted on January 17, 2011
When I was a graduate student in comparative literature, I had the good fortune of having a popular, older professor in his last semester of teaching. The course was a seminar on Renaissance poetry. In the decade or so before my studies began there, the comp lit department had undergone intense internal strife over methods of interpretation, and particularly the pervasive influence of deconstructionism at that time...

More on Boycotts and the Commerce Clause

Posted on January 17, 2011
At the Volokh Conspiracy, Ilya Somin, a tenacious opponent of the individual mandate, contends that boycotts are distinguishable from the individual mandate because boycotts are a form of economic activity, and thus subject to regulation under the Commerce Clause: Similarly, consumer boycotts also involve a concerted effort to pressure some firm or government into changing its policies...

Rethinking Proportional Force

Posted on January 17, 2011
In a scene from the 2010 Egyptian film 678, a woman groped by a stranger on a crowded bus responds by stabbing the man in the groin with a switchblade. The film is an examination of sexual harassment in Egypt as experienced by three women of different social classes...

The Jean-Jacques of New Haven: Amy Chua?s Battle Hymn of the Tiger Mother

Posted on January 16, 2011
In the middle of the 18th century, a cranky Swiss intellectual published a manual for child-rearing that became the talk of Europe. As the childless bachelor Immanuel Kant figured out, Rousseau?s Emile was not really a parenting guide at all-it was a complex and subtle work of political and social theory...

Judicial Impeachment vs. Non-retention votes

Posted on January 13, 2011
To follow up on my post last week about the judicial retention elections in Iowa, I thought it was worth pointing out that Bob Vander Plaats (the self-appointed leader of the anti-justice movement) has now initiated a movement to impeach the remaining justices on the state supreme court...

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