Legal Commentary

Can federalism be protected from Paul Krugman?

Posted on December 31, 2008
Paul Krugman has recently articulated one of my darkest fears -- that the recession might be used as a pretext to destroy federalism in infrastructure spending. (Okay, I concede that I have a few items higher up on my list of worries -- but, being a federalism nut, that worry about federalism's demise ranks abnormally high)...

What on earth am I here for? Why, to bestow a token of appreciation for letting me sell The Purpose Driven Life in Aleppo, of course.

Posted on December 31, 2008
So, as I've blogged before, I don't always agree with Christopher Hitchens about the application of principles of charitable interpretation. But in two recent essays, Hitchens has persuaded me that Rick Warren, despite his ostensible virtues, is not the right person for the Inauguration, notwithstanding Paul's strong anti-anti-Warren post here...

The Employee Free Choice Act

Posted on December 30, 2008
Those of us teaching Labor Law last semester had a rare treat: a proposal to amend the National Labor Relations Act, in a significant way, made the news. Students brought it up on their own, presidential candidates were discussing it, and my own friends and colleagues were asking me about it...

Exam fun

Posted on December 30, 2008
When I include multiple-choice questions in my exams, I like to sprinkle into the mix a few just-for-kicks questions to give my students a mental breather. I?m enjoying the responses and thought I would share a couple. Here?s one: If the South Carolina School of Law faculty had a theme song, which of the following would it be? (1) "Insensitive Stone Age Guys," Geoff Bartley (2) "Everything Reminds Me of My Therapist," Nancy Tucker (3) "I Can See Your Aura And It's Ugly," Mark Graham (4) "I?m Interested in Apathy," TISM (5) "Shiny Happy People," R...

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So help me (fill in the blank)

Posted on December 30, 2008
Michael Newdow has filed a law suit challenging that part of the oath of office to be administered at the presidential inauguration that contains the words "so help me God." Of course, he will lose. Even if he is found to have standing, this falls into the category of cases that I can be properly dismissed with nothing more than a shrug, grimace and "Dude...

Fictionalizing the Shoah, or Why tenure remains important

Posted on December 30, 2008
I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence...

Is federalism good for local governments?

Posted on December 29, 2008
Dan Markel asked me this question in a response to one of my earlier posts. I am on record as arguing that the feds ought to be constitutionally prohibited from empowering local governments to resist state law. Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from Federal Control, 97 Mich...

Fantasy Prawfs

Posted on December 29, 2008
A few years ago I sat down to write a little Green Bag-esque article where I planned to set out some proposed rules for a fantasy law professor league, based on the popular fantasy sports leagues that lots of people play and can't ever stop talking about--fantasy baseball, fantasy football, fantasy scrabble, etc...

The Detroit Lions: two competitions

Posted on December 29, 2008
I know this has nothing to do with law, and I promise a substantive post on labor law reform tomorrow or the next day, but today I ask that you indulge my posting about the Detroit Lions, the first pro football team to go 0-16 since the NFL went to a 16-game schedule some years ago...

The significance of defining sport

Posted on December 29, 2008
I have written on several occasions about how to define sport and what qualifies as sport, a common game among ?sports-and-____? academics. A frequent response to these posts has been ?so what, what difference does it make?? And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf...

Carol categories

Posted on December 29, 2008
It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways...

What we don't see

Posted on December 29, 2008
One of my favorite blogs (law or otherwise) is Mirror of Justice. Over there, Rick Garnett recently linked to a column by Spengler in the AsiaTimes. The column essentially begins with then Cardinal Ratzinger's notion that "the development of economic systems which concentrate on the common good depends on a determinate ethical system, which in turn can be born and sustained only by strong religious convictions...

(Re)reading the riot acts?

Posted on December 28, 2008
All the news about the rioting in Greece has got me thinking about riots. Back in the day, American statutes provided for communal responsibility for riot harm. These statutes were variations on the English Riot Act of 1714, which imposed liability on local government for riot damage...

Feeley's and Rubin's Argument by Lexicographical Fiat Against Constitutionally Protecting "Federalism"

Posted on December 28, 2008
Malcolm M. Feeley and Edward Rubin have finally set out their theory of federalism in a book: Federalism: Political Identity and Tragic Compromise (University of Michigan Press 2008) presents their theory that federalism is exclusively a means by which people with different "political identities" preserve their autonomy from the central government...

Pacing Classes

Posted on December 26, 2008
The semester-interregnum is the period of grading, planning for next semester, and (hopefully) doing a little writing, as well as whatever holiday and family festivities we have. It also is a good time to look back at the prior semester, figure out what we did right and wrong, and think about how to carry those lessons into the next semester and to the next time we teach that class (often a year later)...

Does Retribution = Orgasm? More on the search for funny footnotes

Posted on December 26, 2008
In some future post to be named later, I hope to weigh in on some of the interesting posts our guest Mike Cahill wrote about retribution earlier this month. In the meantime, I want to continue what appears to my Christmas break tradition of blogging about Occam's dildo and other funny footnotes, especially if they have some tie to the work on retribution that Mike and I are engaged in...

Local Democracy's struggle with ERISA Preemption

Posted on December 26, 2008
San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments...

Gershon Schonfeld Leib

Posted on December 25, 2008
Gershon Schonfeld Leib entered the world on 12.22.08. He joins Clementine Leib Schonfeld to round out our clan. Clem was cuter -- is cuter -- but we're keeping Gershon anyway.

Merry Christmas

Posted on December 25, 2008
Merry Christmas to all our readers celebrating the holiday. Hope you are enjoying the blessings of the season.

A Heartbreaker Named Detroit

Posted on December 24, 2008
As a native Milwaukeean, Detroit breaks my heart. There are just a few cities that you can go that you remind you of home. Chicago and Cleveland are the big two. Cincinnati is reminiscent but a bit too southern. Detroit - or what used to be left of Detroit - was another...

Gershon, Antigone, Madoff, and Punishing Family Status

Posted on December 23, 2008
First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months...

Is an Argument Any Less Valid if You're "Lying?"

Posted on December 23, 2008
Jay's posts have been very enjoyable, and I was intrigued by his post asking how people would feel if a professor simultaneously published "two articles at the same time taking diametrically opposed questions on the same question or issue or set of problems...

"What Do You Mean, 'We?'"

Posted on December 23, 2008
I'd been meaning to write for a while about this comment in the New Yorker by Hendrik Hertzberg discussing the passage of Proposition 8. I don't find the New Yorker's political commentary terribly useful, and this one was no exception, but I found its framing interesting...

Prawfsfest! 4, MVP's, blogging in 2009, and thinking ahead...

Posted on December 22, 2008
After the Prawfsfest! in Miami, and a briefer than expected visit to the treetops of Costa Rica, I have finally returned back to my desk, where, among other things, I'm hoping to do some more substantive blogging the next few months. In the meantime, let me just take a moment to thank Deans Paul Verkuil and Donna Coker at U of Miami for their hospitality and support in underwriting the costs associated with our recent Prawfsfest! workshop at UMiami...

Just Wondering

Posted on December 22, 2008
What would your reaction be if you found out that some law professor had written and published two articles at the same time taking diametrically opposed positions on the same question or issue or set of problems? In other words, to take a rather simple example, say a prawf decided to write one article all about how the Endangered Species Act was unconstitutional as applied to small populations of animals within a single state under the Commerce Clause and a second article about how the Act was completely constitutional under the Commerce Clause when applied to similar populations of animals...

Fed Soc Faculty Conference

Posted on December 21, 2008
Prawfs planning on attending the AALS Annual Meeting in San Diego next month might also be interested in the Federalist Society's (11th Annual) Faculty Conference. More info is available here. Although the website says "invitation only", I'm assured that invitations will be extended to all law professors who write to erin...

Ron Kirk, Hilda Solis, and the Hope for a Grand Bargain on Trade

Posted on December 21, 2008
To the relief of free trade fans like myself (who feared the nomination of Xavier Becarra), but to the ire of anti-globalization constituencies, Obama nominated Ron Kirk, mayor of Dallas, as U.S. Trade Rep. As I noted in an earlier post, the appointment of trade rep is Obama's single most revealing appointment, because Obama's position on trade policy is so obscure...

Is choice free only in a cocoon?

Posted on December 21, 2008
There is much I agree with in Rick Garnett's post about Dahlia Lithwick's concern over what she sees as a selective concern over the rights and autonomy of health care providers, sometimes overweening (the new Bush regulations on conscience protection) and at other times oppressive (mandates to provide certain information to patients seeking abortion), that is, in her view, consistent only in its resistance to the accommodation of the choice to abort...

Conscience?

Posted on December 20, 2008
As the Washington Post reported, the Bush Administration on Thursday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs. Dahlia Lithwick (like many others) is not pleased. In her view, the solicitude for health-care workers' conscience rights (or, as many in the press insist on putting it, conscience rights) is inconsistent with a South Dakota law that requires abortion-providers to tell women, before performing an abortion, that they are about to terminate the life of a whole, separate, unique, living human being with whom she has an existing relationship...

The limits of rot

Posted on December 20, 2008
Over at the Marquette University Law School Faculty Blog, my colleague Jessica Slavin cites to a post by Frank Pasquale on Concurring Opinions which relies, to some extent, on a comment in response to a postthat I wrote on Prawfs. It's a small blogosphere after all...

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