Legal Commentary

Law Professors and Moot Court Competition Teams

Posted on March 13, 2009
I write to you all from New York Law School, where I'm visiting this week as coach of my law school's labor and employment moot court team. NYLS hosts the Wagner Competition every year, and it's been a lot of fun. It gives me a chance to get back in the game and reactivate my old appellate litigation and L&E experience, and it's nice to get to know the students (or at least two of them) quite a bit better...

Contracts and Friendships

Posted on March 13, 2009
My third big article in my friendship & law research agenda is now available from SSRN. It is forthcoming in Volume 59 of the Emory Law Journal. Here is an abstract: This article aims to give the relational theory of contract some new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship...

TV depicting the law, inaccurately

Posted on March 13, 2009
At CoOp, Corey Yung writes about the increasing inaccuracy of legal shows on TV, wondering whether Law & Order still employs lawyers as consultants and how that inaccuracy affects the understanding of law and the legal system that our students bring into the classroom...

What Does it Mean to Have a Theme Song for a Book?

Posted on March 12, 2009
A few weeks ago, Chris Lund asked whether it was "crazy" to ask what it meant when I pointed out that Mike Newdow, of "under God" fame, had agreed to write the theme song for my book Holy Hullabaloos. I don't think it was crazy to ask such a thing. Let me explain...

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Anti-suit Injunctions and Duplicative Foreign Proceedings

Posted on March 12, 2009
Lots has been written about globalization and transnational litigation. One of the results of the increased number of transnational/cross-border actions -- that has not been written about so extensively -- is the larger number of parallel proceedings that potentially exist (i...

Are Max and Emmy Junkies? Or, Panic in Dragon Park

Posted on March 11, 2009
One of the reasons I haven't been posting so much lately is that I've been spending time (not, I must admit, an equal amount of time compared to my spouse) taking care of our three-year-old and three-month-old. Any parent of a child of a certain age is likely to have had to endure hours upon hours of the television show Dragon Tales...

Gedicks on Candidate Romney vs. Proposition 8

Posted on March 11, 2009
Fred Gedicks of BYU (visiting at Notre Dame) has posted a wonderful paper on SSRN called Truth and Consequences: Mitt Romney, Proposition 8, and Public Reason. It addresses the "deployment of religious truth-claims in electoral politics," and uses two nicely contrasting examples: Mitt Romney's defense of the irrelevance of his Mormon faith to his candidacy for the presidency, and the Latter-Day Saints' advocacy in the Prop...

Justice Thomas' struggle to reconcile textualism & federalism in Wyeth

Posted on March 10, 2009
Last week, the Court struck an unexpected blow for federalism, deciding in Wyeth v. Levine that Diana Levine's state-law claim for negligent failure to warn was not preempted by the FDA's regulation of Phenergan's labeling under the Food, Drug, and Cosmetic Act...

Law profs get results! Connecticut bill tabled (for now)

Posted on March 10, 2009
What Rick Hills (correctly, I think) called "the Connecticut legislature's preposterously unconstitutional attack on Catholicism" appears to have been tabled, for now. And just in time, because the state's legislators were about to receive a sternly worded letter, written by Prof...

Will the "Systemic Risk Authority" be the new sheriff in town?

Posted on March 10, 2009
Proposals for regulatory consolidation are not new - our multiple financial regulators can be thought of as chaotic, redundant and burdensome or as an beneficial source of regulatory competition and an experimental laboratory. But Bernanke's speech to the Council on Foreign Relations today is potentially a bid to emerge as a new macro-regulator, a "systemic risk authority...

Steven G. Gey Call for Papers

Posted on March 10, 2009
On behalf of the AALS Section on Constitutional Law, I am pleased to pass on this announcement: At the 2010 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel exploring the distinction between ?interpretation? and ?construction? in constitutional law...

The Doom Bunker

Posted on March 10, 2009
Two weeks ago I posted about Glenn Beck's "War Room." Last week Stephen Colbert did his own version -- a.k.a. the "Doom Bunker." I was impressed that Stephen Moore had the sense of humor to do both shows. The Colbert ReportMon - Thurs 11:30pm / 10:30c Doom Bunker - Jack Jacobs and Stephen Moore Colbert Report Full EpisodesPolitical Humor Rap BattleNASA Name Contest

Justice Ginsburg's Footnotes

Posted on March 09, 2009
In the shameless plug department, I just thought I'd let the world know that I've posted this piece about Justice Ginsburg's footnotes on SSRN. It's a contribution to a symposium on the jurisprudence of Justice Ginsburg that is being held at the New England School of Law on Thursday...

Jurisdiction, Connecticut, and Freedom of the Church

Posted on March 09, 2009
Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine...

The President's stem-cell-research statement

Posted on March 09, 2009
The Executive Order is here; the President's accompanying statement is here. It is my well considered view that it is immoral to engage in (and I do not believe the government should fund) stem-cell research that involves the intentional destruction (or the creation-for-destruction) of human embryos...

Blind Submissions Revisited

Posted on March 09, 2009
As law review submission season rolls around again, perennial questions about under-representation of women and minority authors in law reviews come up. I am reminded of a passage from Blink, by Malcolm Gladwell, describing the dramatic results when orchestral auditions became anonymous: Screens were erected between the committee and the auditioner, and if the person auditioning cleared his or her throat or made any identifiable sound - if they were wearing heels, for example, and stepped on a part of the floor that wasn't carpeted - they were ushered out and given a new number...

Laptops in the classroom: Now a word from our students

Posted on March 09, 2009
Please Repeat the Question from Amanda Bakale on Vimeo. (H/T: Donald C. Clarke (GW) on the LawProf ListServ).

Follow-up on the Connecticut proposal

Posted on March 08, 2009
Rick Hills beat me to the punch, and called our attention to the "preposterously unconstitutional" proposal in Connecticut that would impose on the Catholic Church new internal-governance structures. As one commenter put it, the proposal -- even if is Alien & Sedition Acts-ish in its unconstitutionality -- does at least have the benefit of spicing up the law-and-religion conversation, which is, I suppose, always in danger of falling into the "what, another holiday display?" doldrums...

On eyewitness testimony

Posted on March 08, 2009
Tonight's 60 Minutes featured a two-part story on the weakness of eyewitness memory and witness testimony, including demonstrations of some of the ways that memory can be wrong. It also presented two good, paradoxical thoughts on how trials (and the law of evidence) operate...

They found a plaintiff and it still didn't work

Posted on March 07, 2009
During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds...

The Connecticut Legislature's preposterously unconstitutional attack on Catholicism

Posted on March 07, 2009
The Judiciary Committee of the Connecticut General Assembly is now considering a bill to re-organize the governance of the Roman Catholic Church. I do not mean simply that the Assembly is considering an ostensibly secular bill that has some subtle and insidious purpose to target the Roman Catholic Church and is, therefore, unconstitutional under Church of Lukumi Babalu Aye v...

Sports and Con Law Explained

Posted on March 06, 2009

Habitually Destroying Other Peoples' Property While Intoxicated...

Posted on March 06, 2009
is not a "habit" within the meaning of Federal Rule of Evidence 406. I thought I'd pass on this gem, Marks v. Marina, a Third Circuit case from 2007, which I discovered last night in preparing for Evidence class today. For each topic in Evidence, I usually try to give my students a modern example that nicely illustrates the policies behind a rule or presents a timely controverted issue regarding the rule's application...

More Purim Spiel

Posted on March 06, 2009
Courtesy of the Forward, I found some great spoofs in time for Purim March Madness on Monday night. My favorite, Rahm Emanuel's parenting tips from his new book, ?I Made You, I Can Break You Just as Easily: Lessons on Parenting From Inside the Beltway," appears after the jump...

Can Punitive Damages Law Inform the Copyright Infringement Litigation?

Posted on March 06, 2009
I'm just now getting a chance to listen to UCLA prawf Doug Lichtman's really cool podcast on the relationship between punitive damages law and the copyright infringement litigation. I haven't gotten to the point yet where my voice pops up, which is all for good since I often cringe at the playback of my recorded voice...

Questions for the Chief?

Posted on March 06, 2009
I'm happy to announce that Beverley McLachlin, Chief Justice of Canada (not "Chief Justice of the Supreme Court of Canada," just like John Roberts is Chief Justice of the United States"), will visit the University of Alabama School of Law to deliver the annual Albritton Lecture on Monday...

Are Workshops on the Chopping Block? Some Modest Proposals

Posted on March 05, 2009

Can I Get Through Without Saying "So . . ."?

Posted on March 05, 2009

More on Urinal Decorations

Posted on March 05, 2009

Prop 8 Oral Argument Reactions?

Posted on March 05, 2009

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