Legal Commentary

Should I Be Sad?

Posted on April 02, 2009
So, I recently read somewhere in the blogosphere that the deadline for accepting a visiting position at another law school during the 2009-2010 school year has just passed, and so I'm wondering whether I should feel sad that one more year has come and gone without anyone asking me if I'd like to visit at their nice law school...

The Law School Case Method & How to Assess the Teaching/Learning Process Throughout the Semester

Posted on April 02, 2009
My post yesterday noted that there is a dual feedback problem in law school: The "one exam to rule them all" format means that both students and professors aren't able to assess how the teaching/learning process is proceeding throughout the semester. Well, actually, there is the opportunity for such feedback, but it is often in the moment while the professor is teaching a concept to students through the Socratic method...

What is the Future of Empirical Legal Scholarship?

Posted on April 02, 2009
First, thanks to Dan and everyone else at Prawsblog for inviting me to post here this month. I'm really looking forward to it. I found Jonathan Simon's recent posts about the future of empirical legal scholarship quite interesting. On the one hand, as someone in the ELS field, I found his general optimism about its future uplifting...

Hello and a Conference Announcement

Posted on April 02, 2009
Thank you so much to Dan and PrawfsBlawg for inviting me to post here again. I teach at Gonzaga University School of Law in eastern Washington State, where Mother Nature played a bit of an April Fool's Day joke on us this week by fooling us into thinking that winter had ended...

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Preview on Iowa Gay Marriage Decision

Posted on April 02, 2009
Thanks to the Prawfs Blawg gang for this opportunity to blog. I originally planned to blog about a book I've just had published called "Constitutional Rights in Two Worlds, South Africa and the United States" (Cambridge University Press). But that will have to wait...

The Ungraded Midterm

Posted on April 01, 2009
I would like to thank Dan Markel for having me as a guest blogger here on one of my favorite blogs, PrawfsBlawg, for the month of April. I am an Assistant Professor at The John Marshall Law School, where I teach Evidence, Civil Procedure, and Criminal Procedure...

In Flagrante Depicto: A Conference on Film in/on Trial

Posted on April 01, 2009
My friend and competition in the law & friendship arena, Peter Goodrich, is hosting a fun conference at Cardozo on May 7-8. Take a look at the program here: Download In_flagrante_depicto,_program_updated .

Larry Has Fun....

Posted on April 01, 2009
....here. The blurbs are especially great.

NLRA Trumps ADEA in 14 Penn Plaza; Whither Gardner-Denver?

Posted on April 01, 2009
The Supreme Court has just handed down its decision in 14 Penn Plaza LLC v. Pyett. In a 5-4 decision, lined up according to the traditional liberal/conservative split, the Court held that a union-negotiated collective bargaining agreement (CBA) can force individual employees to arbitrate their ADEA claims against the employer...

Counting (Foreign) States?

Posted on April 01, 2009
The new issue of the Harvard Journal of Law and Public Policy is out, and it includes some papers from the 27th Annual National Federalist Society Student Symposium on Law and Public Policy. As seems common with this fine event, the proceedings include some fantastic short articles by terrific scholars, including especially good pieces by Doug Laycock, Henry Smith, and our own Rick Garnett -- and the paper I discuss below, by our own Rick Hills...

Thanks....

Posted on April 01, 2009
After a wonderful stay, I'm signing off. Thanks to Dan and the other Prawfsblawg regulars for having me, and thanks to the readership for, well, reading. I wanted to post more in this past month, but life has a way of interfering. I hope the spring semester finishes well for all of you students and professors, and look forward to seeing you around the bend...

Rotations

Posted on April 01, 2009
With the onset of the new month, it is time to greet our merry band of new contributors. Please welcome back returning visitors Eric Johnson, Nadine Farid, Mark Drumbl, and Brooks Holland. And appearing here for the first time, we have Rose Villazor, Mark Kende, Greg Bowman, John Pfaff, Charlton Copeland, and Colin Miller! What a lineup...

Does Scalia abandon textualism in Entergy Corp v. Riverkeeper?

Posted on April 01, 2009
I think so. If I am right, then Entergy Corp, handed down today, is a significant defeat for textualism at the hands of its most zealous proponent. The issue in Entergy Corp was whether the EPA could permit power plants to abstain from using the most environmentally safe "cooling water intake structures" on the grounds that the costs of these structures greatly exceeded their environmental benefits...

Harold Koh and The NY Post

Posted on April 01, 2009
Well it's time to sign-off. Much thanks to Dan for my time here. I've enjoyed it. As I sign off, I thought I would briefly highlight a recent New York Post article on Obama's nomination of Harold Koh (Yale's Dean) for the State Department's Legal Advisor...

A poem from Melanie

Posted on March 31, 2009
I've been neglecting my blogging duties, but no more. To jumpstart my posting, I thought I'd share a poem my friend Melanie shared with me this morning. It seems to set the right mood for these uncertain times. The Burning of the Leaves Now is the time for the burning of the leaves, They go to the fire; the nostrils prick with smoke Wandering slowly into the weeping mist...

TRO issued in Pennsylvania case

Posted on March 31, 2009
Order here. (H/T: Jeff Spangler, commenting on an earlier post). Nothing surprising or detailed. The DA argued Younger abstention, which the court rejected for the obvious reason that there is no pending prosecution. The court was admittedly cursory in the merits analysis, emphasizing that this was just a motion for a TRO and the only issue is a reasonable likelihood of success on the merits...

Why Heller Matters (It's Probably Not Why You Think)

Posted on March 31, 2009
A recent New York Times article on Heller?s progeny suggests the hotly debated case is ?firing blanks.? Sandy Levinson (who, in full disclosure, was a professor of mine while I was in law school) is quoted as saying that ?Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists...

Nell Jessup Newton to Notre Dame Law School

Posted on March 31, 2009
I am happy to report the news that the new dean of Notre Dame Law School is Nell Jessup Newton. (Notre Dame's gain is, I know, my PrawfsPal Ethan's loss. The announcement also means, I hope, that I will get to see the lovely and talented Nicole Stelle Garnett, who was on the hard-working dean-search committee, more often...

Lyondell Chemical Co. v. Ryan and Delaware's (Counter-)Cyclical Jurisprudence

Posted on March 31, 2009
Larry Cunningham has posted on the recent Lyondell Chemical Co. v. Ryan opinion from the Delaware Supreme Court. (The title of his post reminds me of this.) He calls the opinion "refreshingly lucid and terse" and states that "for now, Lyondell puts the notion of good faith in something of a coma...

SCOTUS Digs Philip Morris

Posted on March 31, 2009
Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report...

On moral panics and the definition of sexting

Posted on March 30, 2009
I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone...

On Legal Representation I

Posted on March 30, 2009
Last week, Richard Painter offered a series of excellent posts on the Volokh Conspiracy about government ethics reform and other related matters, based in part on a new book by him and in part on his experience as an ethics officer in the Bush White House...

Garnett on "Our Free Speech Fortress"

Posted on March 30, 2009
Our own Rick Garnett has an op-ed in USA Today, um, today, discussing the government's role in religious expression, in light of the recent Summum opinion. Rick argues that the government regularly is involved as a speaker within the walls of our "free speech fortress," and that disputes over things like the public display of the 10 Commanemdments may distract us from more serious questions of religious liberty...

On Legal Representation II: The Case of Kirsten Gillibrand

Posted on March 30, 2009
The other issue concerning legal representation that I want to discuss today has to do with a story the Times ran on Friday about the legal work performed for Philip Morris by now-Senator Kirsten Gillibrand as a young lawyer. The story discusses, at great length, her work in defending Philip Morris in tobacco litigation, which she apparently did very well...

More on Pennsylvania sexting case

Posted on March 29, 2009
Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense...

Why do conservatives like the non-delegation doctrine?

Posted on March 29, 2009
My inspiration for this question is George Will's column denouncing the Emergency Economic Stabilization Act as an excessively broad delegation of power to the Secretary of the Treasury to spend federal dollars. Quoting Gary Lawson and Jeff Rosen, Will repeats the old saw that turning over a blank check to an executive official to spend money as that official pleases violates Article I, section 1's assignment of "legislative" powers exclusively to the Congress...

Sexting, Prosecutors, and § 1983

Posted on March 27, 2009
Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school. In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts...

Weekend Reading: Segall on Tribe's "Invisible Constitution"

Posted on March 27, 2009
Thanks, Dan, for posting the table of contents for the Michigan Law Review's annual books issue; it's always one of the better annual reads. I haven't seen hard copies of this yet. In the meantime, readers may enjoy Eric Segall's review, in Northwestern's Colloquy, of Laurence Tribe's Invisible Constitution...

More on sexting

Posted on March 27, 2009
A commenter on my original sexting post points to a story about a 14-year-old suburban New Jersey girl arrested on child porn charges for posting nude pictures of herself on MySpace. This appears to be the first prosecution to go forward. New Jersey also is the birthplace of Megan's Law sex-offender registry requirements; Maureen Kanka--the mother of Megan--expressed outrage at this use of child-porn laws...

Some thoughts on the timing of the spring submission process for law reviews

Posted on March 27, 2009
It occurs to me that there doesn't really seem to be a good reason for law reviews to change over their boards in late Feb/early March, as opposed to mid-January. And there's an important advantage to all the players (the students and the profs who bow down to them) if the turnover occurred earlier: namely, it lessens the freneticism of having the expedite madness bump up so intensely against both spring break and, more importantly, exams...

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