Legal Commentary

Obama's Legal Nominees

Posted on April 10, 2009
The blogosphere is buzzing with the Harold Koh and Dawn Johnsen nominations. Scott Horton offers the following assessment as to WHY these two well-respected law professors have triggered such negativity among certain constituencies: it's all about transparency and accountability for torture policies...

The "Court"

Posted on April 10, 2009
The Big "C"Why do law professors use lowercase ?court? for the most part, but capitalize the word when referring to the U.S. Supreme Court? It makes American legal scholarship seem sort of parochial, and, correspondingly, a little silly, don?t you think? But more than that, I worry that we?ll end up giving the ?Court? a big head...

A Misguided Philosophy of Science

Posted on April 09, 2009
In my last post, I discussed the first key problem empirical work is facing: an explosion in the number of empirical studies, with the likely effect that average quality is declining. In this post I want to turn to the second major problem that I think ELS is facing, namely an incorrect philosophy of science...

The Most Important Thing About Demographics and Distrust

Posted on April 09, 2009
One more thing I forgot to mention about my Demographics and Distrust paper, on which I blogged earlier -- embarrassingly, because I thought this was so boastworthy: It is the first law review article I am aware of to cite Brian Fantana in analyzing an Eleventh Circuit opinion (or anything else, for that matter)...

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Are You A Backwards, Forwards, or Sideways Grader, and How Does Your Grading Style Correlate With Your Writing Style?

Posted on April 09, 2009
Last fall, Gordon Smith did a post over at The Conglomerate about writing backwards vs. writing forwards. In other words, some professors do all of their research before writing a law review article and dutifully fill in footnotes as they write the body of the article...

Admit it! It Sucks! Law Prawfs Version

Posted on April 09, 2009
Fans of Joe Queenan will recall a series of articles he wrote for Spy Magazine in the early 90s called "Admit it! It Sucks!" in which he skewered various things--jazz, "San Francisco"--that all good serious cultured intellectuals are supposed to say they love but that, if they were honest with themselves, would admit actually suck...

Self-Archive Your Scholarship

Posted on April 09, 2009
Scholarly articles should be freely available on the internet ? downloadable, without charge, at a click. And legal scholars should see that this happens for their articles. Let?s face it. As academics, we are in an enviable position. Others pay us to engage in scholarship ? largely to write law-review articles...

Comparative Con Law v. State Con Law

Posted on April 09, 2009
Professor Paul Horwitz's illuminating post on Prawfs Blog yesterday entitled "Of Canapes and Comparativism" struck me as exactly right in arguing that the perceived lack of prestige in doing state constitutional law work is one reason the field lags behind the trend favoring global comparative constitutional law...

25 Years for Peru's ex-President Fujimori

Posted on April 08, 2009
It may take a while, but increasingly international criminal law will catch up with you. And the verdict doesn't have to be delivered by an international institution, or by a foreign court, or through universal jurisdiction. Hence, none of the typical controversy...

"Contracts and Friendships" Revision

Posted on April 08, 2009
I've uploaded a revised version of my "Contracts and Friendships" here. This version incorporates discussion of the business school literature on businesss friendships, as well as some very relevant economic sociology that goes beyond the Macaulay 1963 work that is traditionally utlized within relational contract theory in law schools...

Stimulus Blogging: A Cameo

Posted on April 08, 2009
Greetings again to Prawfs readers. I'm here as unofficial guest-blogger to say a few words about the recent efforts by (republican) governors to turn away some of the money marked for states in the recent stimulus legislation. The act has the euphonious acronym "ARRA," for reasons you don't really want to know...

Cert Deni ? zzzzzzzzzzzzzzzz

Posted on April 08, 2009
Why put ?cert. denied? after a circuit-court citation and then cite to the United States Reports page denying the cert? Who cares?? What a frikin? newsflash ? the Supreme Court decided not to hear the case. To quote my three-year-old son: ?That makes me bored...

Of Canapes and Comparativism

Posted on April 08, 2009
Eric Posner has a short post at Volokh asking whether law schools should offer courses on state constitutional law, and observing that "[l]egal scholarship has ignored state constitutional law for decades, though this is gradually changing." I think they should, but I also think the question deserves some refinement...

Caseload Relief for NYC Public Defenders ~ But at a Cost?

Posted on April 07, 2009
Encouraging news for New York City public defenders?the new state budget authorizes the Chief Administrative Judge to set caseload standards for public defenders. Throughout the country, overwhelming caseloads have undermined public defenders? ability competently and diligently to represent all of their clients, and the current fiscal crisis may have exacerbated this problem...

An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone

Posted on April 07, 2009
I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore: How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i...

15th Anniversary of the Rwandan Genocide

Posted on April 07, 2009
Thanks to Dan and others for the kind invitation to guest blog here at Prawfs. Not to start out on too somber a note - but it bears mention that we find ourselves at the 15th anniversary of the Rwandan genocide. On April 6, 1994, a radical faction usurped power in Rwanda and implemented previously conceived plans for genocide...

The Technical Revolution in Empirical Analysis

Posted on April 07, 2009
I want to start my discussion of the dangers empirical work in law (and the social sciences more generally) faces by looking at how we got to where we are today, and what it means for the future. Empirical analysis as we think of it today is a remarkably young field...

Valuing Deaths Differently

Posted on April 07, 2009
Via the SSRN "spam," I just came across Kip Viscusi's new paper on "Valuing Risks of Death from Terrorism and Natural Disasters." Here's the abstract: This paper uses a random utility model to examine stated preferences for the valuation of public risks of fatalities from terrorist attacks and natural disasters...

Conference on Religion -- Summary

Posted on April 07, 2009
This past Saturday, April 4, the Drake Constitutional Law Center held its annual symposium. The topic was "Global Perspectives on Religion, the State, and Constitutionalism." Prawfs Blawger Rick Garnett was among the first rate speakers. The papers will eventually be published in the Drake Law Review...

Media depictions of lawyers and the civil justice system: Not good

Posted on April 06, 2009
For those of you looking for television breaks, may I recommend the new season of In Treatment on HBO (initial airing Sunday from 9-10 and Mondays from 9-11, with lots of reairings throughout the week). A running plot line this season will be a malpractice lawsuit brought against the central character (a therapist) by the estate of one of his client's from last season, a Navy aviator who killed himself upon return to duty, the therapist having signed off that the patient was fit and ready to return...

The "Open Everything" Exam: Why (or Why Not) to Choose it Over the Closed Book, Open Book, or Partial Open Book Exam

Posted on April 06, 2009
Before teaching my first class, I knew that the first question I had to answer before even choosing the casebook or deciding which topics to cover was what type of exam I should give. And central to that question was whether that exam would be closed book, open book, or partial open book (students can only use materials that they had a hand in preparing, students can use rule books but not supplements, etc...

Demographics and Distrust: The Eleventh Circuit on Graduation Prayer in Adler v. Duval County

Posted on April 06, 2009
I can think of no better way to celebrate Prawfsblawg's fourth anniversary than by trying to serve the value that has animated the blog ever since its inception: namely, shameless self-promotion. (Plus, you know, open dialogue, scholarly community, etc...

Happy 4th Anniversary Prawfs!

Posted on April 05, 2009
Today (Sunday) marks our 4th anniversary of blather, bloviation, and blogging at Prawfs.com. In case you're looking for a trip down memory lane, here's a link to some material from our first few weeks. My genuine thanks go to all of the PrawfsPals and readers who have helped transform this space into a meaningful one for me, and I hope some others too.

How the No-Establishment Rule does (and does not) protect conscience

Posted on April 05, 2009
This short piece of mine, at "Public Discourse," has some thoughts on the matter. A bit: The ?freedom of conscience? is, as Prof. Steven Smith has observed, ?central to the modern discourse of religious freedom? and, indeed, ?to the modern self-understanding generally...

Weekend Trivia Challenge: First Regular Professorship of Law for Non-Undergrads

Posted on April 05, 2009
Which U.S. school established the first regular professorship of law for students other than undergraduates? Answer below the fold ... The University of Transylvania in Lexington, Kentucky, in 1798. Today, Transylvania University is a liberal-arts college, with no law-school program...

Greetings from the Critical Race Theory 20th Anniversary Conference

Posted on April 03, 2009
Thank you to Dan and to Prawfsblawg for inviting me to guest blog this month. I am an Assistant Professor of Law at the SMU Dedman School of Law where I've been teaching since August 2006. I will soon be joining Hofstra University School of Law this coming September as an Associate Professor...

Will work for . . .

Posted on April 03, 2009
Thank you to Dan and the Prawfs community for inviting me back. I?m really glad to be here. I?ve had a number of conversations with students recently about post-graduation job prospects, deferred start dates, and the like. These conversations have sparked/renewed several concerns, to which I?ll devote this post and a few others...

First Thoughts on Iowa Gay Marriage Decision

Posted on April 03, 2009
I have had a chance to quickly read the Iowa gay marriage decision. Here are some initial thoughts (subject to correction or revision upon further reflection!). First, people here that I've talked to are generally surprised that the court was unanimous and that it fully endorsed same sex marriage, not something like civil unions...

For whom do courts write?

Posted on April 03, 2009
One thing that struck me from reading the Iowa Supreme Court decision holding that the limitation on civil marriage only to opposite-sex couples was the tone of the writing. It was very much a public-directed document, intent on explaining itself to the public, as opposed to the parties or to a primarily legal audience...

Daley's confusion

Posted on April 03, 2009
In this op-ed, "An uneasy mix of religion and politics," Bill Daley attacks Chicago's Catholic archbishop, Cardinal George, for criticizing the University of Notre Dame's decision to honor President Obama with the commencement address and a ceremonial degree...

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