Legal Commentary

"Education and Soulcraft"

Posted on November 25, 2008
Paul discussed, a few months ago, Stanley Fish's new and much-remarked book, "Save the World on Your Own Time." The review of Fish's book in a recent issue of First Things magazine, by Gilbert Meilaender ("Education and Soulcraft") got me thinking more about Fish's argument that the task of university teachers is instruction, not formation...

Honor's Constitutional Moment: Now Downloadable

Posted on November 24, 2008
I posted earlier a link to my new paper, part of an online submission on presidential transitions to appear in the Northwestern University Law Review's Colloquy. SSRN was experiencing download problems earlier, so lots of folks clicked on the abstract without being able to download...

Truth and Reconciliation or Prosecution?

Posted on November 24, 2008
Danielle Citron comments on news reports of the apparent decision by the incoming Obama Administration to pursue an independent commission investigation (a la the 9/11 Commission) of the Bush Administration's counterterrorism policies, including the use of torture and domestic spying, rather than to pursue criminal investigations and prosecutions against administration officials who approved and carried out those policies (potentially made impossible anyway by the chance of President Bush issuing a blanket pardon on his way out the door)...

End-of-Semester Exhaustion

Posted on November 24, 2008
So it's the end of the semester again and I'm exhausted. Is it something about 14 weeks that naturally leads us to be spent at the end? I presume not; instead, I presume that it's the knowledge that the semester is coming to a close that makes one more tired...

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Hillary Clinton and interbranch rotation

Posted on November 22, 2008
It apparently is a done deal that Hillary Clinton will be Barack Obama's Secretary of State--and that we will be hearing a lot from Doris Kearns Goodwin. One of the discussion points during the last couple weeks has been why Clinton would give up the chance to remain in the Senate for life and to amass institutional seniority and broad policy power (following the primaries, several people compared Clinton to Ted Kennedy after his failed 1980 presidential bid, when he settled in the Senate and emerged as a powerful liberal voice) to spend perhaps as few as 3-4 years as...

Creeping consequentialism and insidious economics, part III

Posted on November 22, 2008
Thanks again to commentators for offering thoughtful responses to my last post. Some reactions: 1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism. And Aaron Williams suggests that calling something intrinsically wrong is "just dogma...

Weekend Reading: Honor's Constitutional Moment

Posted on November 21, 2008
Ask and you shall receive. Just after the election, I wrote on Prawfs that one of the legal issues that is especially pertinent at this moment, and that deserves much more attention, is the law -- constitutional, administrative, jurisprudential -- that surrounds presidential transitions...

Stonewall 2.0?

Posted on November 21, 2008
One of the effects of the passage of Prop. 8 has been a great deal of blogospheric and journalistic criticism of mainstream gay rights organizations, especially political (as opposed to legal) organizations, and especially the Human Rights Campaign. One of the major themes in this criticism is that the mainstream groups have been sitting on the sidelines while bottom-up Web-based organizers and activists have been grabbing the baton and organizing the community -- most notably with the marriage rights marches this past weekend...

Job Posting at USCIRF

Posted on November 21, 2008
Jobs in the law and religion field are hard to come by. So I thought I'd just flag some openings, for those that may be interested, at the United States Commission on International Religious Freedom (USCIRF). As I understand it, the Commission was created by Congress to monitor and make recommendations about religious freedom abroad; the Commissions makes recommendations to the State Department about various countries (whether they should be on the "countries of particular concern" list), recommendations that the State Department sometimes accepts and sometimes doesn't...

Another Legislative Prayer Controversy...

Posted on November 19, 2008
Recent news -- a 70-year old man was arrested Monday night for interrupting a City Council meeting by praying loudly over the Council's moment of silence (HT: Religion Clause). It's unclear from the story, but the man seems to have been protesting the Mayor's decision to stop having prayer and to go with a moment of silence...

An abortion "compromise"?

Posted on November 19, 2008
As Jack Balkin notes, given the election of Sen. Obama, it is quite unlikely that Roe / Casey will be overturned anytime soon, and it is certain that the pro-abortion-rights position will be strongly and ably represented, and advanced, in the Obama Administration...

Creeping consequentialism and insidious economics, part II

Posted on November 19, 2008
Thanks to those who posted thoughtful comments on my earlier post. There are many reasons why the methodology that I critiqued, a comprehensive balancing of positive and negative consequences, is problematic. And the comments pick up on a number of these...

Fed-Soc Fest

Posted on November 18, 2008
So, this week is the Federalist Society's annual National Lawyers Convention in Washington, D.C. (Program here.) I'm participating in, and looking forward to, a panel discussion about the International Religious Freedom Act. I'm curious to see whether the overall vibe will be gloomy and self-loathing, or have instead a more plucky, "well, this should be interesting!" kind of tone...

What happens on a callback? What should happen?

Posted on November 18, 2008
There's a lot of ways different schools conduct callback interview days. I thought I'd invite some discussion in the comments about "best practices," starting with an example of what we often (but not always) do at FSU. Evening before talk:5:55 p.m.: X arrives in Tallahassee...

The View from the Bottom (of the Alphabet)

Posted on November 18, 2008
Much was made during the presidential election about the potential of a "Bradley effect" in which it was predicted that Barack Obama might suffer anywhere from 3-6 point penalty on election day because of his race. It's questionable whether such an effect occurred in this race or, indeed, whether it actually ever existed at all...

The Ethics of Popular Constitutionalism

Posted on November 18, 2008
Suppose you -- as constitutionally-sensitive activist -- think that California's gay marriage ban violates the federal Constitution's protection of "equal protection of the laws" -- and think that Romer v. Evans is a close enough precedent to make your view plausible in the eyes of doctrinalists...

Message to Crim Prawfs re: 2009 Law and Society in Denver

Posted on November 17, 2008
Dear crim profs or aspiring crim prawfs:If you're planning to attend the Law and Society Association meeting in Denver (May 28-31, 2009), here's an idea that may be of interest. With hopes of ensuring better criminal law-related panels (including punishment theory, criminal procedure, and related areas), Alice Ristroph (Seton Hall) and I are trying to play match-maker for junior (or newish) voices in criminal law fields...

Gotta Go Fill that Scholarship Aquarium ...

Posted on November 17, 2008
... if you haven't read The Backbencher lately, here's some of what you've missed: my write-in campaign for the office of vice president on a platform of using lasers to eliminate wasteful government spending, my suggestions for reforming the Democratic National Convention to make it more competitive against other reality television shows, my wrap-up of the Olympic Games' biggest losers, my gloating over changing Massachusetts bowling law, my considered analysis of Ohio's minimum prices for beer, and my exposé of Fox News' foray into selling porn.

Creeping consequentialism and insidious economics, part I

Posted on November 17, 2008
OK, the title is hyperbolic. But here is what troubles me. You are teaching or analyzing legal rule A. Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C. For example, the legal rule is: "D must pay compensatory damages to P when D's unreasonably risky conduct harms P...

Black Holes and the Law: This is the End

Posted on November 16, 2008
Immunity for intergovernmental organizations may, in general, be benign. Applied to CERN, however, I find it troubling. Unlike most intergovernmental organizations, CERN is engaged in a category of activities ? even putting black holes aside ? that clearly qualifies as ?abnormally dangerous? and ?ultrahazardous? under American common-law doctrine

Constitution-talk at the March

Posted on November 16, 2008
I went out yesterday to exercise my First Amendment rights at the L.A. version of the nationwide marches for marriage equality. If you haven't attended a protest march in a while it's something you ought to consider doing. My sense is that we do in fact bowl alone a lot more nowadays, and that goes for political expression, too...

Kind of feels like being an Article III Judge . . .

Posted on November 14, 2008
I am thrilled/surprised/relieved to report that the faculty at the College of Law has recommended me for tenure. I mention this to echo and add to Bill Henderson's comments at ELS of how he addressed blogging in his tenure materials. The statement I included in my submission, similar in some respects to Bill's (although I have not been as prolific or high-profile a blog writer as he), is after the jump...

The World Series of Poker

Posted on November 14, 2008
(If poker does not amuse you, by all means skip this post...) So, besides the election, there were two big media events I was looking forward to in November. The first did not happen, and the blame for that I put squarely on the shoulders of He Who Must Not Be Named...

Young and Stupid ... Forever?

Posted on November 14, 2008
The New York Times reports that applicants for a job in the Obama Administration will have to disclose an enormous amount of information, from the usual income and tax information to information about domestic help and, most interestingly, information about applicants' Web presence...

Why 30 Rock's Kenneth Would Make a Great Law Student

Posted on November 14, 2008
From NBC's 30 Rock, aired last week: JACK Say you're in a lifeboat ... the boat holds eight people, but you have nine on board. Either you will capsize, and everyone will drown, or one person can be sacrificed to save the others. Now, how do you decide who should die? KENNETH Oh, I don't believe in hypothetical situations, Mr...

Mathiness

Posted on November 13, 2008
My nerdy and pedantic colleague Christian Turner sent around an email pointing out an error the Supreme Court made in an opinion yesterday -- in math. Christian, it's worth noting, has a Ph.D. in math from Texas A&M so we're all prone to trusting him on this one...

Oral Argument in Summum

Posted on November 13, 2008
After a post on the background of the case and one about its weirdness, I wanted to note some interesting things about the oral argument (well, at least I find them interesting). Whole transcript available here (HT: Religion Clause). For other background info on the case, see here and here...

The Prop 8 Litigations

Posted on November 13, 2008
I was interviewed for this NPR story on Morning Edition today on the Prop 8 litigations.

A Better Bar Exam

Posted on November 13, 2008
The worst thing about studying for the bar, for me, was the feeling that I was wasting two months of my life learning fictional law. The Multistate Bar Exam, in order to be useable by any state, does not test the law of any state. Instead, its questions on contracts, criminal law, real property, and torts are based on ?fundamental legal principles,? and not on the actual law...

A) Well-Meaning? B) Patronizing? C) A Little Sad? D) All of the Above? E) None of the Above?

Posted on November 12, 2008
This is a sensitive one, but I think well worth writing about. In her column this past Sunday, Maureen Dowd (of whom I am generally no great fan) writes about the scene in Washington -- and elsewhere across the country -- after the election:I grew up in the nation?s capital, but I?ve never seen blacks and whites here intermingling as they have this week...

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