Legal Commentary

"This is writing ... that restores one?s faith in the legal academy; this is what legal scholarship can be."

Posted on January 13, 2011
The quote in the title of this post comes from this remarkable review by Robin West at Jotwell of an article by my OSU colleague Marc Spindelman. The article being reviewed is Marc's forthcoming piece in the Columbia Journal of Gender and Law entitled "Sexuality?s Law...

After the grades are posted . . .

Posted on January 12, 2011
In courses with anonymous grading, there are usually a few surprises (for me, anyway) when the students' grades are posted. That there are such surprises makes me, I admit, a bit nervous: If student X does a lot better than I would have predicted (based on conversations, participation, past performance, etc...

Inactivity and the Commerce Clause

Posted on January 12, 2011
Opponents of the individual mandate assert that under the Commerce Clause, the federal government can regulate only activity, not inactivity. Yet the federal government regulates inactivity under the Commerce Clause all the time. Consider federal labor legislation that, under certain situations, prohibits employees from striking...

Law School Hiring Thread, 2010-11, Thread Three

Posted on January 12, 2011
NB: This thread will be moved to the front every ten days or so. This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding: a) whether they have received a callback from a law school and/or accepted it and b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves,...

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What's the ideological "lesson" of the Arizona Massacre?

Posted on January 12, 2011
After every deranged shooting, opinion elites engage in a game of Derive-Ideological-Lessons-From-A-Deranged-Shooting Game. The Arizona Massacre was no exception from the DILFADS ritual, and the usual gambits -- more gun control, less political polarization -- were played...

On Counting to Five (Without Justice Kagan) in the Guantanamo Cases

Posted on January 12, 2011
Throughout Justice Kagan's confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court's docket...

Rethinking exam hypos

Posted on January 11, 2011
Welcome back from AALS (for those who went) and to a new semester. I thought I would begin the semester with a question about exam-writing (because it is never too early to start thinking about that). The issue-spotting essay is the staple of law-school exams (alone or in conjunection with other testing mechanisms, such as multiple choice)...

Faction and the Internet

Posted on January 11, 2011
This fall I did a short talk at the Loyola (Chicago) Constitutional Law Colloquium (a great event, btw, that I hope continues) entitled Faction in the Age of Facebook. Somehow, and perhaps inappropriately, this weekend?s tragic events in Arizona got me thinking about the subject again...

Personal jurisdiction returns to SCOTUS

Posted on January 11, 2011
Want to know why civ pro teachers still burden students with Pennoyer v. Neff? Maybe because we have not had anything new to work with in 20 years. The Court today hears Goodyear Lux Tires v. Brown and J. McIntyre Machinery v. Nicastro (in which I signed a scholars' amicus), both of which deal with various issues of jurisdiction over foreign manufacturers...

Degree of difficulty for seminar papers?

Posted on January 11, 2011
OK, so, call me behind the times, but even with a new semester of classes upon us, I am still reflecting on my recent bout of grading. Last semester, I taught a seminar in which students were expected to write substantial papers, which formed most of the basis for their final grades...

Harvard Law Review Misspells the Name of Harvard Law Dean Griswold

Posted on January 11, 2011
Erwin Nathaniel Griswold was one of the giants of American law, rising to become Dean of the Harvard Law School and Solicitor General of the United States. Griswold Hall, at Harvard Law School, is named for him. He was a notorious stickler for detail...

Sen. Udall on the filibuster and entrenchment

Posted on January 11, 2011
Sen. Tom Udall, Democrat of New Mexico, is one of the leaders in the move for filibuster reform; he is the lead sponsor of the recent proposal that would end secret holds and require the filibustering minority to hold the floor and keep talking. In the current online version of Harvard Law & Pol'y Review, Sen...

How to Talk Civilly about Public Employees' Pensions: A Conservatives' Guide

Posted on January 10, 2011
It is now a staple news item that the political winds have shifted against public employees: Everyone -- from Democrats like N.Y.'s Andrew Cuomo to Republicans like N.J.'s Chris Christie -- is piling on, while conservative onlookers cheer. As readers of this blog may know, I tend to think that this scrutiny of public labor costs is a good thing...

Chick-fil-A meets Citizens United

Posted on January 10, 2011
There has been a minor dust-up, largely confined to the internet, over reports that ChikChick-Fil-A was the co-sponsor, along with the Pennsylvania Family Institute, of an event called The Art of Marriage, designed to give couples a chance to examine their marriages and what the Bible has to say about marriage...

Open Thread Re: VAPs and Fellowships

Posted on January 10, 2011
I've received a couple emails asking about the creation of an open thread in which comments can be shared regarding news of appointments to VAPs or similar fellowships like Climenko and Bigelow. So here it is. Have at it.

Constitutional Crisis over Mount Laurel in New Jersey? How excessive complexity can doom constitutional doctrine.

Posted on January 09, 2011
The New Jersey Senate is scheduled to vote tomorrow on whether to approve S-1/A-3447, a bill approved by the New Jersey Assembly that would radically cut back on New Jersey local governments' obligation not to exclude low- and moderate-income housing with their zoning ordinances...

The Agnostic Age: Introduction on SSRN, and Saturday Events

Posted on January 07, 2011
Of the promoting of books, Ecclesiastes writes in the KVJ:DE (King James Version: Director's Edition), there is no end. I am told that The Agnostic Age: Law, Religion, and the Constitution does not officially come out for a few weeks yet. (No reason not to pre-order it: it makes a splendid Valentine's Day gift!)...

Reading the Constitution as Duty and Theater

Posted on January 07, 2011
Understandably, a lot of blog posts have been written about the opening ceremonies of the new Congress yesterday, which included the reading of the Constitution (or some of it, anyway). On his blog, Tim Sandefur writes that "this symbolic move is refreshing to those of us who take the Constitution seriously, and it?s sad to see that some people find it objectionable...

Seeking retributivist reactions to Ohio mass murderers plea deal

Posted on January 06, 2011
As detailed in this post at my home blog, a high-profile Ohio multiple murder case is now a sentencing story after Matthew Hoffman pleaded guilty this morning in the horrific dismemberment slayings of a Knox County woman, her son and a family friend. As detailed detailed in this local story, in addition to mass murder, Hoffman was also child rapist who violated, bound and gagged a 13-year-old girl in the basement of his home after his triple murder...

The Agnostic Age: Law, Religion, and the Constitution

Posted on January 06, 2011
I'm pleased to say that my book, The Agnostic Age: Law, Religion, and the Constitution, is now available from Oxford University Press. The Oxford website for it is here, and the Amazon page is here. If you are at the AALS convention, a copy should be available to peruse at the Oxford booth; I will also be talking about it at the Lumen Christi conference on Saturday...

Reading Madison in Washington

Posted on January 06, 2011
Today's Reading of the Constitution has turned into something of a political litmus test--Republicans love it, Democrats ridicule it as a stunt. The problem is that discussion of the reading is being conflated with the proposed new rule requiring that all legislation cite its underlying constitutional authority, which some liberals and liberal scholar supprt (and even would like to extend, or at least take seriously)...

Tonight!!! The annual Prawfs/Co-Op AALS Happy Hour in SF will be Thursday Jan 6th, 2011, 9pm-1130pm

Posted on January 06, 2011
Bumped to the front for today: Please join us and our pals from Concurring Opinions tonight at our annual happy hour at AALS. This year, we'll be gathering in San Fran on Thursday January 6th around 9pm at the Cityhouse Bar in the Parc 55 Hotel. There will be some drink specials on wine/beer/cocktails; hope you'll join us in the ceaseless joy.

Reading the Constitution in the House: Which provision would *you* pick?

Posted on January 05, 2011
In yesterday's edition of Al Kamen's "In the Loop" column, which appears regularly in The Washington Post, Kamen reported on his conversations with a number of constitutional-law teachers (including me) about the provision they would want to read on the floor of the House...

The First Amendment Politics of the Roberts Court (A Panel Discussion)

Posted on January 05, 2011
Mary-Rose Papandrea has organized and is moderating an AALS panel for the Section on Mass Communication Law entitled The First Amendment Politics of the Roberts Court. I will be speaking on the panel along with Erwin Chemerinsky and Eugene Volokh. We will be discussing, among other things, whether there is unifying theme among the First Amendment decisions of the Roberts Court and what the Court's decisions signify for the future of First Amendment jurisprudence...

Judicial term limits

Posted on January 05, 2011
I am not, as a general matter, a fan of term limits for political offices. I was opposed to the various proposals for legislative term limits when that issue was hot in the 1990s, even recognizing the recent scholarship showing that the voters really don't hold legislators accountable for unpopular policies or poor performance...

For AALS People: Welcome and While You Are Here...

Posted on January 05, 2011
I can't give you all my secrets, but here are some places you might want to try while you are in SF: Bar Agricole (upscale bar food that impresses and interesting cocktails: get the aged r(h)um) Local Mission Eatery (classic SF localvore scene and quality sandwiches for lunch; Knead Bakery at the back will blow your mind if you eat the croissant, the almond twist, and/or the custard thing in a flaky shell with a French name) Flour and Water (our best pizza offering but the whole restaurant shines: go early or late for dinner) Piqueos (Peruvian -- more a...

Filibuster Reform Proposal

Posted on January 05, 2011
The Senate Resolution on filibuster reform, chiefly sponsored by Sen, Udall., has been filed (H/T: Law Courts ListServ). The motion is far narrower than most filibuster critics would have liked. Importantly, it does not change the basic power of 41 Senators to halt all action on legislation and nominees--no conversion from a mechanism of stopping action to one of delaying action, no change to require an ever-decreasing number to invoke cloture in subsequent motions, no elimination of the filibuster on executive or judicial appointments...

Remember Jose Padilla? (Apparently, the Eleventh Circuit Doesn't...)

Posted on January 04, 2011
Bobby's post about the still-outstanding decisions of the Court of Military Commission Review in the Hamdan and al-Bahlul appeals reminded me of another important post-9/11 case that's still under submission -- the appeal by Jose Padilla and his co-defendants of their conviction in the U...

End of Times?

Posted on January 04, 2011
Had I not just finished reading Paul Boyer's fascinating book When Time Shall Be No More: Prophecy Belief in Modern American Culture, I probably would have missed this notable news item. Dead birds falling from the sky by the thousands? Really? Wtf? Where are we on the Homeland Security Advisory Color Wheel? Is this a time for the exercise of emergency executive powers? Supersonic weapons testing? Or does God no longer love America? Seriously, though...

Thursday's Con Law Panels @ AALS

Posted on January 04, 2011
Thanks to the labor strife and a host of other issues, my sense is that there have been a number of last-minute (i.e., post-program printing) changes to the composition of panels at this week's AALS Annual Meeting. One in particular that I wanted to flag (at least partially for selfish reasons) is Thursday's Section on Constitutional Law session on "American Constitutionalism in Global Perspective...

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