Legal Commentary

New York City's patently illegal exclusion of WalMart

Posted on March 26, 2011
Lately, it has not been easy being a conservative Republican. My hyper-polarized co-partisans are just downright embarrassing. Their most recent act of public buffoonery has been to respond with Comedy Club-perfect timing to Bill Cronon's accusation that they behave like McCarthy by, well, behaving like Nixon, with Dirty Tricks-style FOIA requests for Cronon's e-mail records...

Criminal Liability for Unusual Art Forger?

Posted on March 25, 2011
According to this NYT article, Mark Landis has repeatedly forged artwork and presented it to museums as the real thing. The tricky issue for legal scholars is that he donates his paintings: Mr. Landis ? often under his own name, though more recently as Father Scott or as a collector named Steven Gardiner ? has indeed done a lot of traveling over the past two decades, but not for the church...

Type I and Type II errors

Posted on March 24, 2011
Inspired a few years ago from a piece I read of Christine Hurt's, I began using the Type I and Type II error jargon a lot, not only in my writing on punitive damages or punishment theory generally, but also in my teaching, particularly in the realm of criminal procedure rules related to adjudication (the bail to jail class)...

Tech Tech Symposium on Criminal Law & the First Amendment

Posted on March 24, 2011
Texas Tech Law School and the Texas Tech Law Review are holding a symposium on April 8 that focuses on Criminal Law and the First Amendment. I'll be speaking on Cyber Incitement on a panel entitled The First Amendment, the Internet, and Criminal Law. I'm very honored that Professor Arnold Loewy asked me to attend this distinguished symposium, not least because I get to return home to West Texas for a weekend and perhaps consume some great Mexican food or a nice chicken fried steak...

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Blogging Happy Hour @ Ritz DC Tonight at 7PM

Posted on March 24, 2011
Prawfs at ASIL or in DC: An informal bloggers happy hour will convene tonight, Thursday March 24, at 7PM in the lobby bar at the Ritz. I hope to see some of you there!

Subjective Experience and the Federal Sentencing Guidelines

Posted on March 24, 2011
In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment. I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration...

Google Takes One on the Chin

Posted on March 24, 2011
Unless you?ve been living under a rock for the past five years, you?ve heard about Google Book Search, an online database that Google is filling by scanning books from the collections of multiple academic libraries. Google partnered up with the libraries for access to their collections, concluding that it didn?t need to ask permission from copyright owners to copy the books or make them available online (with restrictions at Google?s discretion)...

Rookies Hiring: An Open Thread

Posted on March 23, 2011
I've just been informed that, for understandable reasons, the inimitable Larry Solum will not be doing a Rookies Report this year; accordingly, in the interest of slaking the thirst for this information, we'll have an open thread where folks can report rookie hires to the tenure track at law schools...

Dean as Hercules or hegemon?

Posted on March 22, 2011
Brian Leiter's virtual interview with esteemed evidence scholar and Northwestern law teacher, Ron Allen, about the Van Zandt era at NW Law makes for compelling reading. DVZ is tagged with a reputation somewhere between Machiavelli and Macbeth among his detractors and (*pick up your favorite literary hero*) among empiricists grateful for his machinations and muscle...

Disability in the news

Posted on March 22, 2011
Two stories on disability caught my eye recently and I think/hope have an applicablity to a wider audience. The first is here. In a discussion with a manager of a community mental health program, a New Hampshire state lawmaker said that "the world is too populated," that there are "too many defective people," and clarified that he was referring to "the mentally ill, the retarded, people with physical disabilities and drug addictions - the defective people society would be better off without...

Why do I waste my time teaching the so-called "Rule of Lenity"?

Posted on March 22, 2011
By one of those extraordinary coincidences that making teaching statutory construction a pleasure in the Spring, the Court managed to come down with an opinion today that confirmed my low view of the so-called "Rule of Lenity" the day after I taught lenity in statutory construction...

Friends in the Age of Facebook

Posted on March 21, 2011
The American Scholar has a "Works-in-Progress" feature; the editor asks authors to pose questions to readers about the subjects covered in their recent books. My questions about the subjects covered in Friend v. Friend can be found on page 14 of the Spring 2011 issue, scanned here: Download Document.

A Triangle Anniversary

Posted on March 21, 2011
This week is the 100th anniversary of the Triangle Shirtwaist Factory fire. On March 25, 1911, a fire broke out on the top few floors of the 10-story Asch Building at 29 Washington Place, Manhattan, killing 146 of the 500 employees of the Triangle Shirtwaist Company...

Styling...

Posted on March 21, 2011
I shudder a little when I re-read parts of my first law review article--the verbosity, the prolixity, the obscurantism, the obvious reliance on a thesaurus. . . . I wasn?t entirely sure what I was doing, and I?m grateful to the editors who saw (what I still think is) a good point in all that purple prose--even if that point could in fact be boiled down to three sentences...

Academic Satire Recommendations

Posted on March 21, 2011
It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form. Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past...

Internet Freedom

Posted on March 21, 2011
Here is a review of Evgeny Morozov's The Net Delusion and Tim Wu's The Master Switch from the New York Review of Books that makes me want to run out and buy the latter immediately.

Thanks for Having Me Back...and a "Creative" Question

Posted on March 20, 2011
Thanks to Dan and the other Prawfs for having me back for March. I?m just getting started, so my apologies for being late to the game. One of the things holding me up was attending the American Psychology/Law Society Conference at the beginning of this month...

Which side are you on?: College sports edition

Posted on March 18, 2011
With the NCAA basketball tournaments getting under way, I wanted to post about an issue that comes up this time of year: who's your team? Most of us have multiple teams we could root for: we've been to college and law school; we have friends and relatives from various schools; and there are also hometown teams to consider...

Evidence for non-litigators?

Posted on March 18, 2011
While I?m blogging about the curriculum, let me ask a question. In addition to teaching first-year courses, I also teach Evidence. At Marquette, as I?m sure is the case at many schools, it?s a required course. That, of course, means that many of the students have no intention of ever setting foot in a courtroom...

I've got your intellectual feast right here

Posted on March 18, 2011
Over the course of my now nearly nine years as a full-time academic I?ve taught (at least three times apiece) four of the six courses that are traditionally part of the first-year curriculum (Criminal Law, Constitutional Law, Property, and Civil Procedure)...

Egyptian Constitutional Reform, Take 1

Posted on March 17, 2011
In the midst of tragic and jarring world events in Japan, Libya, and Bahrain, we should not take our eye off of the ball in Egypt as it sets the pace for reform in the Arab world. To open first post-revolutionary chapter in Egyptian history, the Supreme Council of the Armed Forces (SCAF) has set a milestone referendum on 10 new constitutional amendments for Saturday...

faculty recruitment and the big sort

Posted on March 17, 2011
In the midst of a pleasant visiting semester in nyc, and thinking about other substantial time spent at wonderful law schools in rather different areas of the U.S. (noCal, C-ville, soCal, Austin TX, and now nyc), I am intrigued by the following: with the convergence of law school salaries and culture (very roughly speaking, of course) around a certain mean, and controlling somewhat for rankings, isn't it all about location, location, location? Given the enormous variation in municipalities -- a point reinforced in important recent academic work including the Bishop's "The Big Sort" and Glaeser's "Triumph of the City" --...

Public Forum 2.0

Posted on March 16, 2011
If you are interested in social media and/or the First Amendment, you might be interested in the article I just posted on ssrn. The abstract is below, and the link is here. Abstract: Social media have the potential to revolutionize discourse between American citizens and their governments...

Some prawfy options may still be available at FSU

Posted on March 16, 2011
I'm thrilled to say we've hired six lateral and rookie folks for next year but we are still hiring at FSU! So, if you either are someone or know someone who is still interested in an academic law position for next year, either as a visitor or rookie tenure-track position, please let me know asap with an expression of interests and I'll forward it along to the relevant folks...

FIU still hiring, as well

Posted on March 16, 2011
I'll copy Dan's post: FIU also is looking to hire visitors, specifically in Intellectual Property and related courses. If you are interested in joining us next year or know someone who is, please email (or have your friend email) a cv directly to me.

Jane and John Doe

Posted on March 16, 2011
Thanks to Professor Danielle Keats Citron at the University of Maryland Law School, I was given the opportunity to offer written testimony to the Hawaii Senate on behalf of a bill that would protect the privacy of harassment victims so they could bring lawsuits against their attackers...

Eastman v. Roman on Birthright Citizenship

Posted on March 15, 2011
As a follow-up to last month's Prawfs Roundtable on Birthright Citizenship (entries here and here). Late last month, FIU College of Law and FIU Law Review hosted The U.S. Immigration Crises: Enemies at Our Gates or Lady Liberty's Huddled Masses?, which featured a terrific debate between FIU's Prof...

allow me to be (one of?) the first

Posted on March 15, 2011
allow me to be (one of?) the first UTexas-associated faculty member(s) to say "no cheers" to the today's US News ranking bombshell regarding my illustrious school on the Third Coast. So-called Top 14 club is meaningless designation, as Brian Leiter noted a few years back...

William Stuntz, R.I.P.

Posted on March 15, 2011
"William Stuntz, a renowned scholar of criminal justice at Harvard Law School, an evangelical Christian and a teacher much beloved by students and colleagues, died March 14 after a long battle with cancer." More here. He was a great scholar and a deeply good man...

Hello

Posted on March 14, 2011
My name is Michael Waterstone, and I teach and am one of our associate deans at Loyola Law School Los Angeles. Thanks to Dan and the rest of the crew for having me back. I certainly do not consider myself a US News rankings "deep thinker." But in this post, before the new US News rankings come out this week, I wanted to get on my high horse about something...

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