Legal Commentary

Whose "Right" on Crime?

Posted on January 27, 2009
In his NYT column yesterday declaring the era of conservative dominance begun by Ronald Reagan to be over, Bill Kristol offered the following eulogy for that era:"Conservatives have been right more often than not ? and more often than liberals ? about most of the important issues of the day: about Communism and jihadism, crime and welfare, education and the family...

David Shipley: Calling Rick Hills to the NYT?

Posted on January 27, 2009
Not sure how I missed this earlier, but I've just seen that William Kristol is stepping down from his somewhat short-lived perch at the NYT op-ed page. Here's the news story. This makes sense. Kristol wasn't terrible on the NYT page, but he was rarely the source of both true and surprising views that Brooks and Safire often are/were for the rightish side of the aisle...

Law Review Submission Season

Posted on January 27, 2009
Has it begun? It's probably a bit early for Redyip, the great bird of the gods of Zarcon, to send its glorious signal. But have folks begun submitting? And have reviews started reviewing? I've heard rumors in the past that the submission season has crept up to late January.

The "Seinfeld" of law-review articles

Posted on January 27, 2009
That's how I like to describe my latest paper, "Attempt by Omission." It's about nothing! To clarify, the article is about imposing criminal liability on someone who neither performs any act nor causes any harm. It's not unusual for criminal law to punish action without harm (attempt, or more generally, "inchoate" liability) or harm without action (omission liability), but it might seem odd or even troubling to punish where there is neither action nor harm...

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Health care magnet?

Posted on January 27, 2009
Last January, I published a piece in WI Interest, the journal of the Wisconsin Public Policy Research Institute, arguing that the drafters of a plan called Healthy Wisconsin ? or any similar program purporting to enact a universal entitlement to health care in a single state ? could not constitutionally impose a residency requirement, creating the risk of health care migration and the associated problems of adverse selection...

The holiday formerly known as Good Friday

Posted on January 27, 2009
The Madison-based Freedom From Religion Foundation has sent a letter of complaint regarding the recognition of Good Friday as a campus holiday by fifteen of the state's sixteen technical college, apparently pursuant to a collective bargaining agreements with instructional staff...

The Shaming of John Thain

Posted on January 27, 2009
In this morning's NYT, one of my favorite writers there, Clyde Haberman, goes to town on John Thain, the Merrill Lynch CEO who's been recently deposed. I understand the sense of frustration and anger; indeed, I'm a shareholder in Bank of America, which bought ML late in 2008 and has since declined precipitously...

Junior-faculty juggernaut

Posted on January 27, 2009
In Dan Patrick's immortal phrase, you can't stop the Brooklyn Law School VAPs; you can only hope to contain them. And if one of them is entering a writing competition, everyone else had better look out. (Or as Keith Olbermann would say, they will beat you like a rented goalie!)First Deborah Widiss won the AALS Scholarly Papers contest with her forthcoming article in Notre Dame Law Review about judicial interpretation of statutes that override prior judicial decisions...

Blurb-o-Licious

Posted on January 26, 2009
So, I'm in the process of trying to get some blurbs for my book, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, and it's stressing me out. Blurbs, of course, are those little quotes from famous people on books, telling you that the book is worth reading...

A Question for Readers

Posted on January 26, 2009
Brian Leiter links to a paper by a group of law professors, writing through the Center for Progressive Reform, raising concerns about Cass Sunstein's likely role as the head of OIRA. I was interested in this sentence, which the authors offer up in the course of criticizing Sunstein's skeptical views about the precautionary principle: "It is difficult to think of a single public health or environmental threat that with the benefit of additional research has not proven even more dangerous over time...

Conversation for a Sunday morning

Posted on January 25, 2009
Via TNR, JamesBio Magazine presents a complete ranking of every Beatles song, # 185 (Revolution 9, only played forward, I presume) to # 1 (A Day in the Life). I agree with four of the Top 5 (yes on Hey Jude; Golden Slumbers medley; I Am the Walrus; and Day; not so much on She's Leaving Home)...

Law Enforcement and Corrections: A Message from the New Administration

Posted on January 25, 2009
The new White House website is attracting some attraction (some of it from bloggers comparing it to the previous version which, in all fairness, was made eight years ago). Given Jonathan Simon's statement, that no American politician has ever gotten elected on a platform of being soft on crime, it is interesting to state a few things about the new administration's criminal justice policy...

Is the Obama Administration More Geek Friendly Than Any Previous Administration?

Posted on January 23, 2009
The title of this post was roughly the topic of conversation I had two weeks ago with a reporter from the UK's Times Higher Ed, just as I was headed to San Diego for AALS. Of course, by "geek friendly" I simply mean prone to use more academics instead of folks in the "real world...

The Difference A Day Makes

Posted on January 23, 2009
I wrote yesterday that President Obama should wait a day (or more) before acting to rescind the so-called "global gag rule" on abortion, rather than acting on yesterday's anniversary of Roe v. Wade, because doing so would reject the treatment of abortion as a symbolic rather than a substantive and serious issue, would deprive both sides of the culture wars with the traditional symbolic victory (or defeat) that they use to continue fund-raising, and would help restore abortion to the status of a serious issue that demands discussion and is above the politics of symbolism...

Legislating the Curriculum: The Podcast

Posted on January 23, 2009
At AALS this year, I was part of a great panel about incorporating legislation and regulation courses into the first-year curriculum. We did a terrible job publicizing the panel -- and the speakers' names weren't included in the main packet. In the event that you have an interest in the subject, the panel's podcast is available here...

Religion in public places

Posted on January 23, 2009
An unsettled question in the law of limited purpose public forums is whether forums that are made available for broad purposes can exclude religious worship. In a trio of cases culminating in Good News Club v. Milford Central School, the Supreme Court has made clear that religious uses that are within a forum's purpose cannot be excluded because they are religious...

Harmless error, unconstitutionality, textualism, and the oath kerfuffle

Posted on January 23, 2009
Two (typically) good Balkinization posts on the oath controversy, one from Jack Balkin and one from Mike Paulsen. Paulsen is trying to explain why the misstated oath does not matter. But he makes the argument in the course of distinguishing what the Constitution requires from the consequences of failing to abide by the text...

What the retake looked liked

Posted on January 22, 2009
Mike Dorf has one thought. This is what I think it sounded like:

Developing a law faculty: diversify, or build on strength?

Posted on January 22, 2009
I guess I held out pretty well on my New Year's resolution to stop blogging. But now that I've fallen of the wagon, I hope to start posting more again. Anyway, as a member of my school's appointments committee this year, I've been thinking about how a law school should set its general agenda for hiring...

"The Meanings of Religious Freedom in America"

Posted on January 22, 2009
This conference -- "Freedom of, Freedom for, or Freedom From Religion: The Meanings of Religious Freedom in America" -- should be great. If you are anywhere near South Bend on Feb. 4 and 5, consider coming. Panelists and speakers include Mark Lilla, Nick Wolterstorff, Bill Galston, Michael Zuckert, David Campbell, Dan Philpot, John McGreevy, and Mark Noll (and me)...

Abortion, Symbolism, and Waiting a Day

Posted on January 22, 2009
At MoJ, Michael Scaperlanda links to an NPR story suggesting that President Obama may well take the occasion of today's 36th anniversary of Roe v. Wade to reverse some of the previous administration's executive orders on abortion, most prominently the rule prohibiting foreign aid to international family planning groups that also perform or "promote" abortion...

The Curious Case of "Benjamin Button"

Posted on January 22, 2009
What's curious is not that The Curious Case of Benjamin Button has garnered 13 Oscar nominations, including one for Best Picture. No, what's curious is that David Fincher, who directed Zodiac, among other exceptional movies, is responsible for this movie, which struck me exactly as Forrest Gump meets Titanic...

Capturing the Obamas: The Global Village Gets Smaller

Posted on January 22, 2009
Via Ted Frank on Facebook, I just came across this amazing set of photos.

Regulation and the Religious Voice

Posted on January 22, 2009
So here's a half-baked idea for a project that I've been thinking about doing for a long time but have never gotten around to. Maybe if I put it out there, someone can tell me how bad an idea it is, and I can put it to bed forever. Or maybe people will have good ideas that will spark me to get going on it...

Great Conference on International Criminal Tribunals

Posted on January 22, 2009
For those of you able to come join us in the Hassee, you should try to clear some time next week on Jan 29-31 to attend an exciting symposium entitled: International Criminal Tribunals: Problems and Prospects. Justice Richard Goldstone will be one of the several distinguished speakers...

Waiting for the Future: Some Realism about Empirical Legal Studies

Posted on January 22, 2009
?For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.? (The Path of the Law, 1897)No figure was more iconic for the small group of academic lawyers who thought of themselves as ?realists? than Justice Oliver Wendell Holmes (1841-1935, Supreme Court 1902-1932) and no statement better exemplified his appeal to them than his bold prediction quoted above...

Blawg rankings

Posted on January 21, 2009
Paul Caron's 2008 law-blog rankings are up and available, here. As usual, no one comes close to Reynolds, and Prawfs is in a tight cluster of 6 (with Leiter, Bainbridge, Balkin, etc.) in the "top 14" (sounds like the U.S. News rankings, doesn't it?). Any thoughts about, or reactions to, the list? What does it say (if anything) about the state and future of the law-blogging "thing"?

Now playing in the non-law-prof blogosphere

Posted on January 21, 2009
A couple of non-law-prof things worth taking a look at. Noam Scheiber in the New Republic considers the stylistic and pedagogical differences between Harvard Law School and Yale Law School and how their different law school experiences affect the respective governing styles of Barack Obama and Bill Clinton...

The Rorschach Address

Posted on January 21, 2009
Somewhat in the spirit of some of Orin's posts, I agree with Frank at CoOp that "this is a president who takes his words seriously, and whose oratory deserves attention for its deep substance." Although, curiously, Frank zeroes in on language in the inaugural address in which the new President says that "the market can spin out of control" and "a nation cannot prosper long when it favors only the prosperous...

What makes for a good Associate Dean for Research?

Posted on January 21, 2009
Over at the Faculty Lounge, Danny Sokal writes:At the AALS annual meeting, I had a a chance to catch up with friends and compare experiences across schools. From our perspectives, perhaps the most important person on the faculty for the untenured is the Associate Dean for Research...

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