Legal Commentary

So long, farewell, and good luck.

Posted on October 31, 2008
Thanks to the good folks at prawfs for allowing me to post over the past few weeks; it has been great fun. For all those headed to the meat market next week, good luck!

Rotations

Posted on October 31, 2008
Happy Halloween! A number of our guests this past month will be sticking around for a bit longer but I wanted to take a moment to thank all of them for their wonderful contributions. We hope to see you back here soon. And as the new month begins, we have another exciting group of new and familiar voices to add to our conversation here...

Berg v. Obama: Finding the proper defendants

Posted on October 30, 2008
One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen...

Bilski and Continued Uncertainty in Patent Subject Matter

Posted on October 30, 2008
Hot on the the heels of my latest post, which discusses algorithms and business methods patents, the Federal Circuit has issued an en banc opinion shaking the tree in In re Bilski. Alas, the opinion does not follow my suggestions in Everything is Patentable, but the decision isn't as far from my views as it could be...

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Mid-Semester Student Evaluations

Posted on October 30, 2008
For the last few semesters, I have asked students to give brief mid-semester class evaluations. It is about that time of year, so I'd like to hear about others' experiences with this and suggestions for shaping the process. I hand out blank index cards and ask students to write down a few things that they like or don't like about the class and to suggest any changes that would improve the class for them...

Copysquare

Posted on October 30, 2008
Creators lack ready access to stock footage, sound effects, soundtrack music, and still photography. By fostering a regime of sharing these media workparts, copysquare aims to provide desktop creators with the means to take on increasingly ambitious projects and to attain new levels of production quality.

Distributive Justice in Law Schools

Posted on October 30, 2008
Sometimes I feel like it's Bill Henderson's world, and I'm just living in it and trying to help connect the dots. So when John McCain talks about "spreading the wealth," I start thinking about distributive justice, specifically who gets what in the law schools that employ some of us, collect tuition from others, and ask still others for money every once in a while...

Launching the IP Colloquium

Posted on October 29, 2008
Doug Lichtman over at UCLA has a new venture that I thought might be of interest to our readers and their lawyer friends of the IP persuasion. The project is called the Intellectual Property Colloquium, and it is essentially an online audio program devoted to intellectual property topics...

Dealing with Controversial Patent Subjects

Posted on October 29, 2008
In my prior posts, I introduced the basic thesis of a forthcoming article: that courts should abandon all attempts to bar particular patents based solely on their subject matter. I also discussed some of the problems, namely inconsistent (and impossible) application of such rules and introduced the solution: rigorous patentability...

Law Schools Competing On Quality

Posted on October 29, 2008
Why should anyone care about the stupid U.S. News survey anyway? According to a commonly held view, the rankings are silly, and the thing to do is ignore them. But I think this view is quite misguided. It turns out ? and this is the basic premise of the Race to the Top project that I helped start recently -- that a major obstacle to the improvement of legal education generally is the lack of competition on quality among peer institutions, and that this lack of competition also leads to other bad consequences for law schools like spending lots of...

Political Haikus

Posted on October 29, 2008
Over at Slate, 55 of the 57 folks who work there and are permitted to vote are explaining why they are voting for Obama. Here's my favorite succinct explanation, in the form of a political haiku by Bill Smee, the exec producer of Slate V.McCain picked Palin...

"Run on the Bank"

Posted on October 29, 2008
A radio interview describing the creation of the FDIC has me thinking about runs on banks. (NPR interview with author Timothy Egan here.) In 1933, Roosevelt closed banks for a five-day "bank holiday" to slow panicked withdrawals. FDIC insurance was part of the response to bank closures and runs on banks...

Criminal Justice and Family Ties in Action

Posted on October 29, 2008
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens...

Prop 11

Posted on October 29, 2008
Although California's Prop 8 is getting most of the country's attention, as a resident of San Francisco I'll have to cast a vote on 22 local ballot measures and 12 state-wide ballot measures. Picking a President and protecting gay marriage are the easy parts of my job as a voter on Election Day! Call me crazy, but I find direct democracy invigorating as a citizen...

Law School in Two Years...

Posted on October 28, 2008
Over the past year, there has been a significant amount of news coverage over two-year JD programs. TIME Magazine ran an article on Northwestern Law School?s newly launched, two-year J.D. program over the summer ("Fast-Tracking Law School"), while the topic has been touched on throughout the legal blogosphere (Leiter, Paul Caron's Tax Blog,, the Volokh Conspiracy, Legal Theory Blog, the WSJ...

Introducing the First Voter's Guide to U.S. News

Posted on October 28, 2008
It's the final days of the election for many law professors: that is, the U.S. News survey asking voters to assess the quality of each school's JD program is due on Thursday. The Race to the Top project, which Dave Fagundes and I started a few months ago, just put out our first Voters' Guide in time for the final voting from the academy, and in advance of the lawyers/judges survey next month...

Who Are Investors?

Posted on October 28, 2008
In the context of possible new regulation in the financial markets, it's worth asking an old and fundamental question: who are the investors? The type of regulation we choose turns in part on the answer. Our current financial woes put pressure on this question, but so does the longer-term trend of institutionalization or "deretailization" of the US markets...

BIDs & my egalitarian neighbors

Posted on October 27, 2008
While my former neighbors back in Michigan wade through autumn leaves, I shuffle through ankle-deep trash here on Court Street in Brooklyn. The thought occurred to me that I ought to start a petition drive for a Business Improvement District -- a BID -- to clean up the menus, fliers, free newspapers, and other urban detritus that afflicts our local commercial strip...

Rigorous Patentability

Posted on October 27, 2008
Given that patentable subject matter rules are very difficult to apply, I make a modest proposal. Rather than relying on judicially made limits on the types of patents allowed, we should instead allow any patent that falls into one of the statutory categories, but then more rigorously apply the other patentability standards: utility, novelty, non-obviousness, and specification...

Elections, Propositions, and Demonstrations

Posted on October 27, 2008
As the New York Times has reported, the battle over same-sex marriage "is raging like a wind-whipped wildfire" in California. Proposition 8 on this year's ballot is an attempt to amend the California constitution and reverse a California Supreme Court decision permitting same-sex marriage...

Oh, Major League Baseball...

Posted on October 27, 2008
As a die-hard baseball fan, of course I'm glued to the World Series. And so I had to write something to note the absurdity of the way MLB is spinning the current rain delay in Philadelphia: "We had to delay the game based upon these conditions, and so we're lucky that Tampa scored in the top of the sixth...

Credit Where It's Due

Posted on October 27, 2008
A few weeks back I had some critical things to say about the Volokh folks' blogging on the election. Although I regret the last line of that post, I thought then and still think that 1) the criticism was itself fair, and it is too trite a defense to say that people can blog about what they like; and 2) they're adults and can take honest criticism...

Greg Mankiw threatens work stoppage if Obama is elected

Posted on October 27, 2008
From Greg Mankiw's blog:Here is a question that you may have been thinking about: How do the different candidates' tax plans affect Greg Mankiw's incentive to work?* * * Let me start with my personal situation: I am a pretty lucky guy. I have a comfortable, upper middle class life style that includes one house, two cars, three kids, a wife, and a dog...

Bleg for readers of Privilege or Punish

Posted on October 26, 2008
The book I'm working on with Ethan and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is ready in draft form, and we'd be very keen to find folks (with interests, if not competence in, in legal theory or crim, family, or con law) who may want to give the draft a read before November 15th...

Some links for Sunday

Posted on October 26, 2008
I've been submerged lately under a mound of deadlines and other tasks, but I thought I'd surface quickly to suggest a few pieces I came across that might be of interest. First, in the context of academic freedom and the proper administration of university goals, I want to highlight two of Peter Berkowitz's recent pieces...

What's so bad about 3-L legal-writing instructors?

Posted on October 25, 2008
Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L's "prevents Penn from having an 'outstanding' JD program". Why should this be true? He elaborates:So Penn, it's time to spend some money on real legal writing professors...

Paranoia among the Theory Class?

Posted on October 25, 2008
Back in early September, I confess that I let my greed triumph over my humanity. I took advantage of my New York academic friends? paranoia by making numerous $100 bets that Obama would not merely beat McCain but would also win in Michigan, the state of my former domicile...

Culture and Inscrutable Science: An Analytical Method for Preliminary Injunctions in Extreme Cases

Posted on October 24, 2008
While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. ... An honest appraisal of the situation reveals that there are many apparently plausible reasons why the culture at CERN and within the particle-physics community could lead to flawed risk analysis.

The Judicial Process - Last Call (for now)

Posted on October 24, 2008
I've been gratified by the responses I've received from folks expressing interest in the judicial process movement. (Prior posts here and here. I promise I'll post about something else next.) I'm not entirely sure what all will come of this, but at a minimum there is now a very strong core group of people who have identified themselves as having a common scholarly interest in matters judicial...

The joy (and agony) of moving (offices)

Posted on October 24, 2008
We are building, at Notre Dame, a really nice new law-school building. The building has occupied, for the 9 years I've been here, an almost religious place in the life and conversations of the faculty ("Someday, my child, there will be a new building, and then the lion will lie down with the lamb," etc...

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