Legal Commentary

Parallel (Foreign) Proceedings

Posted on October 08, 2008
In recent years, the number of transnational cases (those involving parties or claims that cross national borders) have increased dramatically. Transnational law is recognized by many law schools as a separate field, and transnational litigation is now almost commonplace...

Cassandras and Subprime Loans

Posted on October 08, 2008
The New York Times recently ran a story about a journalist who asked the most basic, and therefore (?) toughest, question about subprime loans back in 2006: "Why are they lending money to people who can't afford to pay it back?" Eventually NPR News and the radio show ?This American Life? collaborated in a one-hour program called ?The Giant Pool of Money? (audio and transcript here)...

Farewell to my favorite federal judge

Posted on October 08, 2008
Last week, Judge James T. Giles, senior judge and former chief judge of the United States District Court for the Eastern District of Pennsylvania, resigned from the bench after almost thirty years, to become Of Counsel at a law firm in Philadelphia. I had the privilege and honor of clerking for Judge Giles from 1998-2000 (the early stages of his stint as chief)...

The Components of an LRW Program

Posted on October 08, 2008
The first thing that any LRW class should do is state its goals upfront. And, as I suggested in previous posts, the goal should be more than ?to teach you how to write stuff that lawyers write and to research the law.? Rather, the goal should be something like, ?to teach you how to act like a lawyer and to use the law the way that lawyers do to resolve real-life problems...

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Everything is Patentable

Posted on October 08, 2008
Among other posts, I plan to post a multi-part series on an article about patentable subject matter due out in the Tennessee Law Review this Fall. Because the Federal Circuit is due to issue an en banc opinion on the subject sometime this month, I will likely need to make some changes...

How Can I Be Unconstitutional in Daily Life?

Posted on October 08, 2008
Have you ever done anything illegal? It?s not difficult. There are about a million laws you can break. You could throw a snowball at your friend in Topeka, Kansas. Even if it?s on your own property, you could land upwards of five months in jail. See Code of the City of Topeka, Kan...

Reports of the Death of Big Government Have Been Greatly Exaggerated

Posted on October 08, 2008
We've come a long way from 1996.

Why Think of LRW Programs in this Way--or At All?

Posted on October 07, 2008
In my last post, I suggested that we should conceive of LRW programs broadly, as teaching students how to act like lawyers. Why? And why should we (mostly doctrinal faculty) put much thought into LRW programs at all? My sense of law teaching market trends is that doctrinal teaching is becoming a more and more specialized field...

Chopping Down the "Living Tree" -- Or at Least Trimming it a Little

Posted on October 07, 2008
Bradley Miller, at the University of Western Ontario Law School, has posted a paper, Beguiled By Metaphors: The "Living Tree" and Originalist Constitutional Interpretation in Canada, that's worth taking a look at, certainly by my kinfolk to the North and hopefully by others...

Beyond the Traditional Syllabus: Tribal and Canadian Cases

Posted on October 07, 2008
I?ve decided to look further afield for cases that, while still teaching us tort doctrine, would give us exposure to other courts and other systems of common law. So this semester I?m including one case from the Navajo Nation and one case from Canada

A law school hiring thread: 2008-09

Posted on October 07, 2008
NB: Moved to the front and updated after the jump. This thread is for both law professors and people who are on the market this year to become a law professor. We invite those on the market to leave comments (anonymously if they prefer) regarding a range of things: a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked for a candidate's scholarship yet b) whether they have received a callback from a law school and/or accepted it...

Professors showing their political stripes

Posted on October 06, 2008
This presidential election has had much discussion about the voting preferences of academics, particularly law professors--from the legal advisory teams (consisting of many law professors) that every major-party candidate established during the primaries to the joke (made in this forum) about "Law Professors for McCain" holding their meeting in a booth in a diner somewhere between Chicago and South Bend to news and academic studies about where law professors and law faculties donate money...

Arctic Sovereignty, Climate Change, and the Inuit Tapirit Kanatami

Posted on October 06, 2008
Thanks again to Dan for the opportunity to return to PrawfsBlawg as a guest blogger. During this month, I hope to make a series of posts related to transnational and international issues ? my scholarly area of focus. I thought I would start off with a post about Arctic Sovereignty...

What Should an LRW Program Try to Achieve?

Posted on October 06, 2008
There is wide variation among LRW programs. Generally speaking, though, they teach a set of practical lawyering skills that students are unlikely to get from their doctrinal classes. The most obvious of these skills is the ability to produce certain genres of legal documents, usually including predictive memoranda and briefs, and also (in some programs) case briefs, letters, file memos, contracts, or judicial opinions...

McCain's Citizenship Under Scrutiny

Posted on October 06, 2008
Over at Michigan Law Review's First Impressions, there is now a symposium on Jack Chin's article about McCain -- and whether he can constitutionally run for POTUS -- available here (pdf of the entire symposium). Respondents include Stephen E. Sachs, Larry Solum, Dan Tokaji, and Peter Spiro...

Is the Financial Crisis a Black Swan?

Posted on October 06, 2008
I?m reading The Black Swan by Nassim Nicholas Taleb (I know it?s been out for a while ? I?m behind), and I had a thought about the current credit crisis caused by the housing downturn. Is the financial crisis a ?black swan?? Taleb defines a ?black swan? as follows: ?First, it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can convincingly point to its possibility...

Wrapping Up "The Big Squeeze" Book Club

Posted on October 06, 2008
Many thanks to Orly Lobel, Melissa Hart, Noah Zatz, and especially Steven Greenhouse for their terrific participation in our book club for "The Big Squeeze." We touched on a lot of facets of the book, and we were fortunate to get such thoughtful and considered responses from the author...

Chicago Cubs and the Curse of Legal Formalism

Posted on October 05, 2008
On Saturday night, the Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 18-620-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908...

Texaco Redux

Posted on October 05, 2008
Anyone remotely familiar with the Getty-Texaco-Pennzoil ordeal can't help but see a version of it recurring in the Wachovia-Wells Fargo-Citigroup affair. But although the clients have changed, two of the lawyers from the old ordeal seem to be involved in the new affair: David Boies and Wachtell Lipton...

Chafetz on the VP

Posted on October 04, 2008
Josh Chafetz of Cornell has a useful discussion in TNR about the odd moment in last night's debate when both Biden and Palin revealed their lack of understanding about the constitutional status of the office they are seeking.

A Friday afternoon detour

Posted on October 03, 2008
I'm sure that Prawfs bloggers and readers will be able to connect the life and work of Wallace Stegner to any number of interesting legal questions and problems. For now, though, I thought I'd pass on this nice reflection / review ("Changes in the Land"), by Thomas Zebrowski, over at First Things...

Weekend Reading II -- The Economics of "Gooooooal!"

Posted on October 03, 2008
What a pleasure it is to have an empiricist on the faculty. My colleague Fred Vars has co-authored a fair amount of work with Ian Ayres, and he appears to share Ayres's gene for hitting on interesting and surprising issues in an interesting and surprising way...

Weekend Reading I -- Religion and American Politics: Three Views of the Cathedral

Posted on October 03, 2008
If you're looking for something to read this weekend and have already finished Anathem, here's something for you to try out. In Religion and American Politics: Three Views of the Cathedral, I have a go at the classic question of the relationship between religion and politics...

Squeezing Every Penny Out of Regulation

Posted on October 03, 2008
In his terrific book, Steven Greenhouse explores the challenges of workers across industries and classes. As Greenhouse explained in his respond to my previous post, the book is about many different types of squeezes, some about illegal practices by employers and some concerning the social norms that drive high-skilled workers to leading unbalanced lives...

The Bailout and the Hero Politician

Posted on October 02, 2008
Coming as it does less than two months before presidential and congressional elections, the bailout debacle has been inextricably entangled with electoral politics. One issue that seems to have revived is the myth of the indispensable public official, the person who must be present and involved, electoral rules be damned...

An apology for the disconnect between lawyers and law reviews

Posted on October 02, 2008
The other day, I shared some of Jeff Lipshaw's advice for beginning law professors. It triggered this conniption from Scott Greenfield at Simple Justice. Apparently Greenfield was so blinded by rage over the fact that law profs don't always care about whether their scholarship had practical utility to practicing lawyers that he couldn't even accurately read that the advice actually came largely from Jeff (instead of me)...

Kolber Signs Off

Posted on October 02, 2008
My two-month guest blogging stint has come to an end. My thanks to Dan and the rest of the Prawfs for having me!

The U.S. Must Pay a Premium for Toxic Securities

Posted on October 02, 2008
Thanks to all of the Prawfs for having me this month - I look forward to posting on a variety of topics, including some upcoming patent law issues. But first, like Chad Oldfather, I am going to start with something I hadn't planned to talk about: the bailout (how did you ever guess?)...

Gay Rights: Equality or Due Process?

Posted on October 02, 2008
Update: this post originally posted before I finished drafting it. What follows is the full version of the post. Blame it on my technical skills. A while back, Kenji Yoshino and Heather Gerken debated whether gay rights should be based on equality or liberty...

Introducing a Series of Posts on the Role of Legal Research and Writing

Posted on October 02, 2008
I never planned on teaching Legal Research and Writing, but boy am I glad that I did. I taught in Stanford's fellowship program, which is similar to, but not the same as (or, as my seventh grade math teacher always said--when she wasn't saying "I'm from the show me state Missouri, so you'd better show me"--"it's the same but different") programs at Harvard, Chicago, NYU, and elsewhere, in that Fellows teach the first year legal research and writing curriculum while preparing to go on the tenure-track market...

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