Legal Commentary

Remarkably Wrongheaded

Posted on September 29, 2008
Over at Volokh, there's a debate going on about the bailout. Eric Posner's Poof! is in general on the mark in its criticism of Ilya Somin and Casey Mulligan (note: I haven't had time to read Mulligan's post). Somin replies in disagreement. The main point Posner makes is that a potential drop in global stock markets worth $2...

Rethinking debate formats

Posted on September 28, 2008
Full disclosure: I watched only a few minutes at the beginning and end of Friday's debate. I did not expect that I would hear anything different from either candidate than the standard talking points squeezed into an answer that may or may not be responsive to a direct question...

If A Candidate Says Something, Does That Count As Saying Something?

Posted on September 28, 2008
So, back in the primaries, Obama stated that if as president he had information about the whereabouts of bin Laden or his aides in Pakistan, and if Pakistan wouldn't or couldn't act to stop them, then he, Obama, would act, even if it meant violating Pakistani sovereignty...

Innumeracy, the Bailout, US Debt and Apple Pies

Posted on September 26, 2008
Did you know that you can track the US debt to the penny daily through a US Treasury website? Today the total was $9,788,080,661,828.23. And we may hit 10 trillion plus as the Treasury funds its bailout package through sale of Treasuries. I'd trade the accuracy (do we need really need to know about the 23 cents?) for more information about what is included: for instance, does the takeover of Fannie Mae and Freddie Mac affect this number? Now we need to translate into something that can help us picture it...

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Some Vacant Chatter on Deeply Meaningful Melodies

Posted on September 26, 2008
After reading Paul?s post below, I became very concerned that The Volokh Conspiracy might surpass this blog in vacant chatter, so I?ve decided to quickly add some more here so that we (like the Minnesota Twins last night) can once again take a half-game lead...

"The Big Squeeze" Book Club: Update

Posted on September 26, 2008
Many thanks to all the participants in the book club for Steven Greenhouse's "The Big Squeeze." We have a great set of posts. And I'm happy to announce that we're going to keep the book club going at least through the beginning of next week. That means you can look forward to more posts from our commenters and our indefatigable author, Steven Greenhouse...

Back of the Book

Posted on September 26, 2008
We are nearing the end of the fall law review submission season. We already have a post to share information about this, but I wanted to make three notes. Both of them relate to the "back of the book." Law reviews often fill up the "front of the book" with principal articles quite quickly -- and seemingly more quickly than ever...

Vacant Chatter?

Posted on September 26, 2008
The VC has been an incredibly active blog on all things presidential campaign- and bailout-related in the past couple of weeks. I don't tend to agree with a lot of posts on these issues by a few of the bloggers on that site. That's fine; they don't need my permission! Still, I can't help but notice that in the past 36 hours or so, a few pieces of news -- John McCain's decision to "suspend" (or "pretend-suspend") his campaign; his and his subordinates' active pursuit of the campaign in the same period; his discovery that the Republic's survival depends on...

Teaching Legal Reasoning in Substantive Law Courses

Posted on September 25, 2008
I recently taught a Legal Analysis class here at OCU that introduces entering 1Ls to legal reasoning. We used Steven J. Burton?s book on the subject as a text (An Introduction to Law and Legal Reasoning). It worked very well. But one of the things that Burton says in the preface struck me as worthy of some more attention and discussion by professors and students: ?Law teachers challenge students to explain and criticize examples to shed light on the law [from cases on contracts, torts, or whatever the course?s subject is]...

Random Children?s Book Recommendations

Posted on September 25, 2008
One of the benefits of having young children is that it gives me a chance to learn about some terrific children?s literature. While I?m a big fan of many of the children?s books that Hollywood has also discovered (e.g., Harry Potter, Lemony Snicket?s A Series of Unfortunate Events, Holes, and Where the Wild Things Are) there are some great stories that don?t get that kind of exposure...

Pretend Suspend

Posted on September 25, 2008
So far today, we have the following evidence concerning John McCain's alleged suspension of his campaign: His press office is doing its normal thing His talking heads have been on TV He gave a political speech (as if a major-party nominee could give any other type of speech this close to election day) at the Clinton Global Initiative He has claimed that bailout negotiations are going poorly, even though reports suggest the contrary He is supposedly headed to Washington to take part in a White House photo-op (I say "supposedly" because he told David Letterman the same thing YESterday, as...

Possible historical analogy?

Posted on September 25, 2008
I am having a vague recollection that during the 1980 campaign, held during the heart of the Iran Hostage Crisis, Jimmy Carter made noise about not campaigning outside the White House while Americans were being held hostage. The plan was immediately and roundly criticized and the plan eventually abandoned...

Death Penalty for Child Rape: How to Measure Consensus?

Posted on September 25, 2008
A quick visit to the SCOTUS blog revealed that the State of Louisiana has filed its final brief asking for cert regarding Kennedy v. Louisiana, in which the Supreme Court of Louisiana decided that a death penalty for child rape was unconstitutional. The post, and the brief, are interesting in many ways...

Another word for politics is democracy

Posted on September 25, 2008
John McCain's decision to suspend (whatever that means, precisely) his presidential campaign and to call for cancellation of Friday's debate (or perhaps to not show up even if the debate is not canceled) in order to devote his attention to helping pass bailout legislation is unprecedented...

Save the Rainforests and Give Us a Break: Send Less Law School Promotional Brochures

Posted on September 25, 2008
I don't know how you all feel about the avalanche of colorful law school brochures we get in our mailboxes every day. This is somewhat of a minor aspect of the US News ranking frenzy, and of the question how to disseminate scholarship, but I really wish it would stop, or at least diminish...

The Time Squeeze for Lawyers and Others

Posted on September 25, 2008
Orly Lobel takes me to task for drawing parallels in my book, The Big Squeeze, between overworked lawyers who toil seventy hours a week and overworked low-income workers, like hotel housekeepers, who face huge pressures to work harder and faster. I understand -- and sympathize with -- Professor Lobel's statement: "I am hesitant to accept too quickly the parallels drawn between the plights of these two kinds of workers...

Does Litigation Vindicate Workers' Rights?

Posted on September 24, 2008
Matt Bodie asks a smart question about the many lawsuits I write about in my book, The Big Squeeze: Tough Times for the American Worker. I write about various types of litigation that seek to vindicate the rights of mistreated workers, for example, class-action lawsuits against off-the-clock work, Fair Labor Standards Act lawsuits for failing to pay the minimum wage and overtime, N...

Thoughts on Disseminating Scholarship

Posted on September 24, 2008
I was extremely pleased to see that the great new paper by Sonja Starr that I blogged about earlier this month appears to have had an impact in a recent case out of the Northern District of Illinois. Professor Starr?s thoughtful paper advocates sentencing reductions as a remedy for prosecutorial misconduct...

Rankings as Measures of Quality vs. Coordination Games

Posted on September 24, 2008
Given that U.S. News & World Report rankings are probably going to loom large in the minds of applicants, alumni, and some employers no matter what, I?m hopeful that Jason Solomon, Dave Fagundes & co. will succeed in their ?Race to the Top? project ? so that when law schools predictably work to climb as high as possible in the rankings, they?ll have added incentive to improve their educational quality (in those respects that the project can measure)...

"Bad Apples" and the Financial Meltdown - Does the SEC Have a Role Absent Fraud?

Posted on September 24, 2008
Financial meltdowns often seem to lead media and regulators to look for illegal activity, which is why I was not surprised to read that the FBI is investigating Fannie Mae, Freddie Mac, Lehman and AIG for potential fraud. (New York Times story here). This focus on illegal activity has happened elsewhere - in the wake of rising gas prices, for instance, the CFTC investigated price manipulation and fraud...

Let the *Foreign Policy* Debate Go On

Posted on September 24, 2008
As possibly the only person posting here who has a PhD in economics (apologies to anyone I've left out if I'm wrong!), I've wanted to post on the financial crisis. Some of the issues here are simple, but others are quite complicated, and that's why I haven't done posted on this to date...

"The Big Squeeze" and the Uncorporation

Posted on September 24, 2008
I wanted to build a little more on my thoughts about the role of "shareholder primacy" in "The Big Squeeze." The book argues that "[t]he hugely greater importance of the shareholder over the worker represents a sea change in capitalism." It describes how the "shareholders first" mentality that now pervades publicly-traded corporations is harmful to workers...

Addressing Wage Theft and Other Illegalities

Posted on September 23, 2008
In his post, Public Responsibility for Stopping the Big Squeeze, Noah Zatz had some smart and kind comments about my book, and I very much appreciate that. While I wholeheartedly concur with Professor Zatz's call for more law enforcement to stop labor law violations, I nonetheless dissent in part from this statement of his: "Unfortunately, I worry that the overall thrust of Greenhouse's argument leaves us ill-prepared to make the case for government action...

Responsibility for the Big Squeeze: Employers, Consumers, Citizens?

Posted on September 23, 2008
In my earlier post I suggested that The Big Squeeze's focus on employer wrongdoing left us under-prepared to argue for vigorous, and costly government intervention. Melissa Hart's responds by arguing that consumers implicitly are responsible for "the high cost of low prices" and that they will need to pay "one way or another" for change...

Tunes for Job Interviews

Posted on September 23, 2008
Since I quoted from the Death Cab for Cutie song, ?I Will Possess Your Heart? below, I thought I?d highlight another lyric in that song that those of you on the AALS hiring market this year might want to sing in your interviews at the hiring conference in November: ?How I wish you could see the potential, the potential of you and me...

Heller?s First Amendment ? and the Extra Protection it Just Might Provide for Dada and Surrealism

Posted on September 23, 2008
?It is often suggested we may be floating in a sea of radio messages from other civilizations, messages which we do not yet know how to decipher.? (from the book, Godel, Escher, Bach) ?It's like a book elegantly bound, but in a language that you can't read just yet? (from the song, ?I Will Possess Your Heart?) These quotes ? respectively from computer scientist Douglas Hofstadter and the rock band Death Cab for Cutie ? were not, but could have been, about The Codex Seraphinianus...

Are Students Legal Realists?

Posted on September 23, 2008
We are one month or so into classes and I'm worried that my 1Ls have concluded that judges' opinions are determined by what they had for breakfast. (Bell Atlantic's re-reading of Conley v. Gibson first pushed them this way.) Putting aside the concerns that this badly mischaracterizes legal realism, my sense is that this attitude towards judicial decisionmaking gives them an excuse to throw up their hands and refuse to wrestle with lines of cases...

Executing Retributivism in real life?

Posted on September 23, 2008
Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases...

Breyer vs. Brennan

Posted on September 22, 2008
The legal blogosphere is buzzing over this weekend?s NY Times op-ed about the presidential candidates and their likely picks for the Supreme Court. The line in the editorial that seems to be getting the most attention is the following prediction: "As president, Mr...

Not Just One Big Squeeze, But Many Squeezes

Posted on September 22, 2008
I am delighted -- and honored -- to be invited to be a guest blawger for PrawfsBlawg. And I am impressed -- and honored -- by the thoughtful postings about my book, and I plan to respond to them one by one. For starters, I want to say that when I researched and wrote my book, The Big Squeeze, I saw that workers were suffering not just from one squeeze, but from several squeezes...

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