Legal Commentary

Prop 8 and buck-passing

Posted on January 04, 2011
The three -judge panel sitting on the Prop 8 case has decided to certify the standing issue to the state Supreme Court. For those of us who were watching the oral argument, it was clear that the panel was very proud of itself for having found this further delay tactic...

What are potential "objective" metrics for assessing President Obama after two years?

Posted on January 03, 2011
As I was doing my exam grading this season, I started thinking about what grade might be justifiably given to President Barack Obama at roughly the mid-point of his first term in office. And, in thinking about this question, I struggled to come up with potential "objective" metrics for grading a president...

Happy New Year of Conferences!

Posted on January 03, 2011
Thanks to Dan for inviting me back, again, inexplicably. To kick off my current guest-blogging stint, and the new year, I'll pose this question: What anniversary conferences are we going to see in 2011? What's the over-under on conferences commemorating: The 50th anniversary of Mapp v...

That Time of Year

Posted on January 03, 2011
I handed in my grades today, and although my 1L class probably performed as well as any class I have ever taught (for reasons I may explain in a later post), I still had one of those heart-wrenching moments that we all have from time to time. When I finally saw the names that went with the exam numbers, I realized that there were students who consistently worked extremely hard, came to my office for extra help, and had me review written practice exams but nonetheless didn't perform up to potential...

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Teaching Dreams ... and Nightmares

Posted on January 03, 2011
Happy New Year, everybody! I'm delighted to be back at Prawfs for January and am looking forward to seeing other law profs at AALS. Although I won't be dressed in black, I will be mourning the imminent death of my fall sabbatical. Spring semester must be approaching, because I had my first teaching dream in months...

Rotations and Sundry

Posted on January 02, 2011
Happy New Year everybody. It's hard to believe Prawfs will be turning six this spring. How did *that* happen? Sunrise, sunset... In truth, it would be impossible for this sprezzatura to exist without the wonderful guests who join us each month to share their wit and insight...

Judicial Retention and the Missouri Plan: Thoughts from Iowa

Posted on January 02, 2011
Thanks to Dan and crew for inviting me back, I?m thrilled to be here. I am just about to send out a short online-type piece explaining some of my thoughts about the judicial retention elections last month here in Iowa. As you probably know, a coalition of social conservatives managed to vote out the three Iowa Supreme Court justices that were up for retention last month...

The corrupting effect of anti-corruption campaigns

Posted on January 01, 2011
Yesterday's New York Times featured two stories, one from Russia and the other, from New York, that illustrate the corrupting potential of anti-corruption prosecutions. A Russian handed out six extra years of imprisonment to Mikhail Khodorkovsky, former billionaire magnate chief of the now-defunct oil company Yukos...

Signing Off

Posted on January 01, 2011
As always, thanks to Dan and everyone who commented on my posts, for making Prawfs such a wonderful community. Best wishes for the New Year!

Signing off

Posted on December 31, 2010
My month-long stint here is up. Thanks to Dan and the others for having me. This has been fun, if exhausting. Happy new year to everyone.

Prawfish New Year's Resolutions

Posted on December 31, 2010
I am interested to hear the New Year's resolutions of my fellow law professors. Inspire me! For many years I believed New Year's resolutions were a waste of time, but I now welcome the chance to reflect on whether I'm doing what I ought to be doing. I also believe that making your commitments public helps you meet them...

The Good Old Days of Grading (Not!)

Posted on December 30, 2010
With nearly all my students doing exams on computer now it's easy to forget how awful the very act of reading exams used to be. Horrible handwriting -- not skipping lines (despite my clear instructions) -- in pencil -- or marker that bleeds through the page -- which the students wrote on both sides on -- with infinite cross-outs and arrows pointing me God-knows-where...

Here's to you, President Adams

Posted on December 29, 2010
In reading a review of several books about John and Abigail Adams I learned that there's an Adams Memorial planned for Washington, D.C., somewhere near the White House. It has to be an official effort -- there's legislative authorization for a foundation, which has a website (though to judge from it, apparently not much else yet)...

Searching for realism in popular culture

Posted on December 28, 2010
I have written before that one of my pet peeves is the woefully inaccurate portrayal of lawyers and the legal system in popular culture, to which others have pointed out that the problem is one of having specialized knowledge. Thus, physicists are similarly likely to be bothered by gravity on the Starship Enterprise...

Um, just one little question before our interview is over: what exactly are your worst law review article(s) and why?

Posted on December 27, 2010
If you haven't seen it, Kim Krawiec from the Faculty Lounge asks (yet) another fascinating question of law professors. The comments are also very interesting. Check it out.

Conditional Spending and the Australian Experience

Posted on December 27, 2010
Following up on my prior post on conditional spending grants, I would like to note a closely analogous experience in another country. In Australia, which also has a federal constitution with enumerated powers (with unenumerated powers reserved to the states), the states are basically the slaves of the federal government...

Provisional AALS Section on Transactional Law and Skills petition

Posted on December 27, 2010
From Tina Stark- Hello everyone. If you are attending the AALS Meeting, please come to the organizational meeting of the provisional AALS Section on Transactional Law and Skills and sign the petition in favor of creating the new Section. The meeting is being held on Wednesday, January 5th from 2:00 p...

How much should I worry that in-class exams reward speedy thinking and writing more than clear thinking and writing?

Posted on December 27, 2010
My least favorite holiday tradition is grading my 1L exams, and it is not only the drudgery of reading many dozens of answers to the same question. What makes me least happy about grading in-class 1L exams is the persistent nagging feeling that those who are able to think/write faster in the compressed time I give them to answer my questions do consistently better that those who may think/write more clearly but do not get their thoughts on paper as quickly...

'Tis the season... for grading gems

Posted on December 27, 2010
I am knee deep in exam grading, snowed in with stir crazy kids, so maybe I am laughing a bit too hard at some of my exam "gems." For your consideration: "A good argument could be made that the agent had no authority." That's the end of the discussion on that point...

Limits on Congressional Power in the General Welfare Clause

Posted on December 27, 2010
Randy Barnett and David Oedel have an article in the Wall Street Journal (subscription, but can circumvent though Google) arguing for a rather radical limit on Congressional spending. According to Barnett and Oedel, a particular item of federal spending must benefit the "welfare of the people of each and every state" in order to count as providing for the General Welfare of the United States...

On "The Literature is Vast"

Posted on December 26, 2010
For the book manuscript I'm working on with respect to First Amendment institutions, I included today a short discussion of the rules-vs-standards debate, with a typical footnote beginning, "The literature on this topic is vast" and followed by a set of canonical cites...

Legislative Preferences, Levels of Generality, and Meaning

Posted on December 22, 2010
My earlier post on discerning majority will when contradictory preferences exist on different levels of generality has led to a long and interesting exchange with Orin Kerr. The sum of our disagreement seems to come down to whether a legislature (or demos) can ever really have contradictory preferences, or at least express contradictory preferences in legislative enactments...

First Amendment Rules and Standards

Posted on December 21, 2010
My contribution to the con law professor roundtable I blogged about here consisted of a short piece that considered Citizens United, US v. Stevens and Humanitarian Law Project v. Holder from the perspective of rules and standards in First Amendment doctrine...

Constitutional Authority for Legislation in the 112th Congress (the House, Anyway)

Posted on December 20, 2010
Making the electronic rounds over the weekend was a proposed rules change by the incoming Republican leadership in the House, to require any new bill to include a statement identifying the particular source of constitutional authority for the substance of the legislation...

Surreal CLE moment: Can one get CLE credit in Illinois for auditing a class that one simultaneously teaches?

Posted on December 20, 2010
In Illinois, at least, one can get CLE credit for "Part-Time Teaching of Law Courses" at "an ABA-accredited law school" -- but only if one is a lawyer who is "not employed full-time by a law school." Illinois MCLE Board Rule 795(d)(6)(i). According to the same rule, "[f]ull-time law teachers who choose to maintain their licenses to practice law are fully subject to the MCLE requirements established herein, and may not earn any credits by their ordinary teaching assignments...

Levels of Abstraction in Majoritarian Will

Posted on December 20, 2010
Alexander Bickel coined the term "counter-majoritarian difficulty" to describe the legitimacy problem faced by courts when they strike down popularly enacted statutes. While it is definitely a problem, I am not sure that it is very often necessarily a problem of counter-majoritarianism, though sometimes it is...

The Beatles = Sandy Koufax?

Posted on December 18, 2010
Hey, it's a slow Saturday morning. This idea comes from several recent cultural releases: The Beatles music coming available on iTunes (I was listening to Sgt. Pepper while running this morning); an old documentary about the Beatles that TiVo found for us; the recent 30th anniversary of Lennon's murder; and the well-received new documentary Jews and Baseball: An American Love Story, which features an interview with Koufax (who agreed to appear in the film only when convinced that the story of the Jewish-American love affair with baseball cannot be told without him)...

What does it mean to have a theory of federalism?

Posted on December 17, 2010
At the risk of being tediously repetitious, I have to take exception to an assertion by Jason Mazzone in today's New York Times. According to Mazzone's op-ed piece, Judge Hudson's distinction between action and inaction in his decision striking down the "minimum essential coverage" rule is "a limit that makes sense of past cases, is steeped in the law?s traditions and allows the court to complete the task it began a century ago...

Nation Braces for Productivity Boom from Randian Economists

Posted on December 17, 2010
Since the election of President Obama, Americans have lived with the fear that libertarian economists across the country would no longer have the same incentives to write, consult, or otherwise contribute to the economy. The president's promise to end the Bush-era tax cuts for the wealthy, along with the expiration of restrictions on the estate tax, had raised concerns that these uber-productive members of society would take their talents and withdraw from society...

A Question of Style

Posted on December 17, 2010
Is there ever a legitimate reason to use the word "firstly" rather than "first," or "lastly" rather than "finally"?

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