Legal Commentary

Hot-button Testing

Posted on December 17, 2010
I just returned from a really terrific Con Law roundtable on the Roberts Court at Five, at the University of Louisville, organized by Russ Weaver. I'll be blogging about a few of the topics we discussed of the course of the next week or two. I'll start with a pedagogy point...

Trifurcating the Espionage Act? Me on ACSblog on L'Affair Assange

Posted on December 17, 2010
Over at ACSblog, I have a guest post up about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." In particular, I suggest that yesterday's hearing may have produced the conclusion that the true "answer" to the current problems with the Espionage Act is three different statutes--one for spies, one for government employees and contractors, and one for private citizens with no specific intent to benefit a foreign power...

Christie's War against the Mount Laurel Doctrine: Do Conservatives Really Like Private Property Rights?

Posted on December 16, 2010
Last Friday, the New Jersey Assembly approved A-3447, legislation that would abolish the Council on Affordable Housing ("COAH") and significantly reduce New Jersey municipalities' obligations to accommodate the regional need for affordable housing in their zoning ordinances...

Institutional Failures: Duke Lacrosse

Posted on December 16, 2010
I am happy to announce publication of Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, a collection of essays on the Duke controversy just published by Ashgate (and available on Amazon and in supermarket check-out aisles)...

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All Espionage Act, All the Time...

Posted on December 16, 2010
For those who haven't yet had their weekly fix of all-things WikiLeaks and the Espionage Act, I'll be testifying later this morning at a hearing before the full House Judiciary Committee on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks...

Friend v. Friend

Posted on December 16, 2010
I am very excited to announce the publication of my latest book, Friend v. Friend: The Transformation of Friendship -- and What the Law Has To Do With It (Oxford 2011). It is a meditation on one of our most important social institutions that has too often been marginalized by our laws, our politics, and social science...

The illusory patent quid pro quo

Posted on December 15, 2010
Following up from my previous post on patent language, it often eludes people (even patent lawyers) that much of the intuitive appeal of patents hinges on a rhetorical trick. The intuitive appeal of patents is based on a supposed quid pro quo: the patentee gets the invention that he creates...

The Patent System as an Enforcer of Intensive Parenting

Posted on December 15, 2010
Thanks to Dan and the other permanent bloggers on PrafwsBlawg for having me back. Recently, I have been studying the ways in which the law enforces Intensive Parenting. In an article titled Over-Parenting my co-author Zvi Triger and I show that parenting has changed over the last two decades...

Is a technical background necessary for patent lawyers?

Posted on December 14, 2010
One of the most frustrating things about teaching patent law is dealing with the perception that patent law is somehow "off limits" to people who do not have strong science and math backgrounds. I suspect that most tax professors face the same problem...

Taxes and Marginal Utility

Posted on December 14, 2010
This post by Stephen Bainbridge quotes approvingly from a WSJ editorial entitled "'Billionaires on the Warpath'?": In fact, the desire for higher taxes often seems to justify itself solely by the motive to level down. . . . . For all the talk about "fairness," Mr...

Lesbian Albatrosses

Posted on December 14, 2010
No, this is not a gay man's whiny complaint about how our sisters are holding up our masculine march toward sexual orientation equality. It's really about female same-sex albatross couples. Personally, I wish the couple well and hope that one day their homes on Midway and Hawaii will recognize their union...

Federalism & healthcare: The dangers & benefits of confusing individual rights with federalism

Posted on December 14, 2010
Judge Hudson's opinion holding unconstitutional Obamacare's "purchase insurance" mandate (aka the "minimum essential coverage" rule) rests critically on the notion that there is some fundamental distinction between the feds' forcing action and requiring inaction...

Unanswered questions after Costco v. Omega

Posted on December 14, 2010
The Supreme Court has split 4-4 (Justice Kagan recused) in Costco v. Omega. This is one of those sleeper cases where the Court's decision--when the Court reaches a real decision--will probably affect every American consumer in some way, but nobody will know...

Crush Videos and Obscenity

Posted on December 13, 2010
Last week President Obama signed into law the Animal Crush Video Prohibition Act of 2010, Congress's response to the Supreme Court's decision striking down an analogous (but far broader) statute last term in US v. Stevens. The statute raises a number of interesting issues, but one that struck me off the bat is the concept of "obscene" crush videos...

Ten years after Bush v. Gore

Posted on December 12, 2010
Today marks the tenth anniversary of Bush v. Gore and the end of the 2000 Presidential Election. As Ann Althouse says, what would it have been like to be a blogger at that time. At Election Law Blog, Rick Hasen has a series of reflections on the case from Lyle Denniston, Heather Gerken, Rick Pildes, and Nate Persily...

Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's "punishment"?

Posted on December 12, 2010
As detailed in this ABC News piece, which is headlined "Madoff Son Found Dead On 2nd Anniversary of Dad's Arrest," one of the sons of Bernie Madoff took his own life last night. Here are the basic details: Two years to the day, and almost the precise hour and minute, of his father's arrest by the FBI, Mark Madoff, son of the disgraced Ponzi schemer Bernard Madoff, was found hanged inside his Manhattan apartment, an apparent suicide according to police...

Wikileaks and TMI: A Scholar's Perspective

Posted on December 10, 2010
I've been feeling guilty for not blogging about Wikileaks after the release of diplomatic cables (see my earlier post here). The problem is that the story is so rapidly evolving, and I've been so busy (it is, after all, THAT time of year), that I didn't want to weigh in and just duplicate the thoughts of others or sound off in a way that betrayed a lack of understanding of all the factual nuances of the case...

Sixth Annual "Conference on Christian Legal Thought" (at AALS)

Posted on December 10, 2010
Details after the jump. The gathering includes our own Paul Horwitz. The Sixth Annual Conference on Christian Legal Thought Books on Christianity and the Law Saturday, January 8, 2011 10:30 AM to 6:15 PM Hotel Monaco ? 501 Geary Street ? San Francisco, CA CONFERENCE SCHEDULE Registration 10:30 am Welcome 10:45 am ? 11:00 am First Panel 11:00 am ? 12:15 am Robert Vischer, University of St...

Of capacity, contractual and otherwise

Posted on December 10, 2010
I had just started grading what seems like hundreds of exams, and I got to thinking about contractual capacity. Okay, thinking about contractual capacity is sort of like grading, so I can take a break, right? Okay then. Contractual capacity is typically thought of as the ability to understand the nature, purpose and consequence of the arrangement- are you capable of understanding that what you are entering into is a contract? The law chooses to protect those lacking capacity from entering into binding contacts, and in the case of one such group, our minors, we presume that they lack capacity...

Why Allowing States to Go Bankrupt is a Horrible Idea

Posted on December 09, 2010
At the end of November, an article by David Skeel in the Weekly Standard got many conservative folks a-chattering about letting states go into bankruptcy. The new meme apparently has already had policy ramifications, as James Pethokoukis reports: Congressional Republicans appear to be quietly but methodically executing a plan that would a) avoid a federal bailout of spendthrift states and b) cripple public employee unions by pushing cash-strapped states such as California and Illinois to declare bankruptcy...

Vladeck on Diane Rehm

Posted on December 09, 2010
Our own Steve Vladeck was on The Diane Rehm Show this morning, discussing the WikiLeaks case. The podcast will keep me company on the way home. Congratulations to Steve.

Save the Date: The annual Prawfs/Co-Op AALS Happy Hour in SF will be Thursday Jan 6th, 2011, 9pm-1130pm

Posted on December 09, 2010
Please join us and our pals from Concurring Opinions at our annual happy hour at AALS. This year, we'll be gathering in San Fran on Thursday January 6th around 9pm at the Cityhouse Bar in the Parc 55 Hotel. There will be some drink specials on wine/beer/cocktails; hope you'll join us in the ceaseless joy.

Negotiating with Hostage Takers

Posted on December 09, 2010
Reading media reports, President Obama apparently justified the tax cut compromise by saying that "it is tempting not to negotiate with hostage takers." This, to me, reflects a seriously warped understanding of the proper way to deal with hostage takers...

Happy Thanksgiving

Posted on November 25, 2010
From all of us at Prawfs, I wanted to wish all our readers and contributors a bountiful and blessed Thanksgiving Day. I wanted to revive also a tradition that we let lapse a few years ago. Given the spirit of the day, we should be in the business of praise and thanks to our colleagues...

Happy Thanksgiving!

Posted on November 25, 2010
Although, I admit, my mind at the moment is primarily focused on deep-fried turkey, pumpkin-molasses pie, mocha-pecan pie, ginger-cranberry sauce, chorizo stuffing, corn-and-bacon pudding, garlic mashed potatoes, squash soup, cranberry mojitos, and malbec ...

Son of Con Law

Posted on November 25, 2010
In my previous post I asked why law schools were backing away from requiring constitutional law courses. It's clear from some of the responses that I was not completely clear about what I was getting at, so this is by way of an effort to be slightly clearer...

Petition Drive for Anti-Circumcision Ballot Initiative in San Francisco

Posted on November 24, 2010
News comes to me of a petition drive for a ballot initiative that would ban circumcisions in San Francisco. Its supporters say the law will "make it illegal, except in the case of extreme medical emergency, to circumcise male infants and minor children" in the City and County of San Francisco...

Knowing your audience or getting too cute

Posted on November 23, 2010
Last week, a criminal defense lawyer, Bennett M. Epstein, sent a letter motion to Judge Kimba Wood (S.D.N.Y.) in a case which is due to begin trial on November 29. Styled a "Writ of Possible Simcha," the letter explains that Epstein's daughter is due to give birth to her first child on December 3...

Seemed like a good idea at the time

Posted on November 23, 2010
Early this month, Chris Suellentrop suggested that we all Abandon Ownership! Join the Rentership Society! Suellentrop noted that he and his wife barely broke even on the sale of two condos, while they were able to save money renting, and had the flexibility to adjust to economic downturns...

Midterms

Posted on November 23, 2010
I recently finished grading the midterms from my Contracts I class. It was quite a significant task to make it through all the exams while in the middle of my first semester of teaching. I gave the exam because of my school's policy that all first-year classes give a midterm - one that (for the most part) does not count towards the students' final grade - in the fall semester...

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