Legal Commentary

This season, I am thankful for?

Posted on November 23, 2010
Yesterday, Cravath, Swain & Moore announced associate bonuses that largely match last year?s rates. According to an article in the New York Law Journal, bonuses will range from $7,500 for associates in the firm's 2009 class to $35,000 for senior associates...

Me on ACSblog on Ghailani

Posted on November 23, 2010
Although I'm a bit late to the party, I have a guest post up today over at ACSblog on last week's near-acquittal (that term itself is telling) in the Ghailani prosecution. The post isn't about the result so much as it's a critique of one of the more original responses thereto...

Match-Maker, Match-Maker: The CrimProf Shadow Conference at LSA, SF, June 2011

Posted on November 23, 2010
Here's an email I sent earlier today to the CrimProf Listserve. Please circulate among crimprofs you know. -- If you're thinking of attending the Law and Society Association meeting in San Francisco (June 2-5), here's an idea that may be of interest. With hopes of ensuring better criminal law and procedure-related panels, Miriam Baer (Brooklyn Law School) and I are going to try to help play match-maker for those interested in presenting at LSA...

Con Law, not so much?

Posted on November 23, 2010
As I think I mentioned earlier, I mostly do constitutional history. Specificially, I teach several types of constitutional history. I teach US Constitutional History in a general course for law students and graduate students in history, political science, and related fields; I also teach some more specialized law student/grad student constitutional history courses: I've taught a seminar on civil rights in times of war and trouble and a course that looked at constitutional history through the lens of citizenship...

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Thanksgiving Week Distraction: Obscure numerical literary references

Posted on November 22, 2010
Yesterday, we went to the Miami International Book Fair's Street Festival. We stopped at the booth for Novel-T, which sells "jerseys" for authors and fictional characters, each with a logo on the front and the name and number on the back. There are two teams--the American Canons (great authors/characters from 19th century American literature) and the National Puncs (mix of American and non-U...

The Blogging Persona

Posted on November 22, 2010
Here is a beautiful essay by Carl H. Klaus from the Chronicle of Higher Education called The Put-Ons of Personal Essayists. Although Klaus writes about how essayists invent a persona that seems "personal," I was struck by how applicable his insights are to blogging.

You Keep What You Kill

Posted on November 21, 2010
The New York Times today has an interesting column by Ariel Kaminer about farms that "allow[ ] customers to choose their animals, to witness their slaughter and even, for those so inclined, to wield the sharpened knife. It?s all part of the broader cultural effort to escape the climate-controlled, linoleum-lined artificiality of supermarket shopping, in which meat magically appears all ready for your oven and animals are characters in children?s storybooks...

The (Untenured) Demise of the ALWD Citation Format

Posted on November 21, 2010
Dave Hoffman at Concurring Opinions posted an interesting article about ALWD, a citiation format taught in many legal writing programs. The upshot is that, although similar to the Blue Book citation format, it is not identical and is thus being rejected at many schools because employers desire students who know how to "bluebook" rather than use some other format...

New crush video ban and understanding First Amendment limits

Posted on November 19, 2010
The House this week passed H.R. 5566, the Animal Crush Video Prohibition Act of 2010, accepting the version approved in the Senate in September. This is Congress' response to United States v. Stevens, which struck down as overbroad the prior prohibition on the creation, possession, and sale of certain animal cruelty videos...

Offensive Student Evaluations

Posted on November 19, 2010
It is that time of year again ? student evaluation time. Although the value of student evaluations has been questioned (for example, see here and here), I used to take them pretty seriously. And then I got this one: In response to the question ?What are the best aspects of the course?? the student wrote: Professor is kinda hot ? not bad to look at! In response to the next question, ?What advice do you have for the instructor to improve this course?? the student responded: Lose a few pounds...

A descriptive defense of the new obscenity

Posted on November 19, 2010
I received a phone call from a learned reader in response to my earlier post on the new prohibition on animal-crush videos. The reader suggested that, while hardly slam dunks, the arguments in support of H.R. 5566 may be closer than I suggested. So I thought I would lay out those arguments (as they came through in our conversation) for why Congress thought this would work...

"Choses in Action" and the "Life, Liberty, or Property" Interest

Posted on November 19, 2010
The New York Times recently published an article on institutional investors increasingly investing in private litigation. This development, understandably, is "send[ing] shivers down the spines of general counsels all across the globe,? but even this increase in financing options leaves many parties on the defense side with an inherent advantage...

In Which the Miami Heat Are Shocked To Learn That They Play in Miami...

Posted on November 19, 2010
As a former Miami resident (let alone a former NBA fan), this is absolutely hilarious (and totally unsurprising).

Friday Afternoon Jukebox

Posted on November 19, 2010
As always, three plays for $1. Here are mine: For that car commercial with the kids playing hockey. For the new release. And for the pardon.

Religious hiring and discrimination, again

Posted on November 17, 2010
A hearing is scheduled for tomorrow, before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary, on "Recommendations of the President?s Advisory Council on Faith-Based and Community Partnerships and Other Current Issues...

FIU Law Review Symposium Now On-Line

Posted on November 17, 2010
Podcasts of last week's symposium at FIU, Cure, Botch, or Opiate? Law, Politics, Policies, & the Constitutionality of the Patient Protection and Affordable Care Act, are available. It is worth a listen. The symposium hopefully will be published in Spring/Summer 2011.

New York has Lowest Voter Turnout in the Country

Posted on November 17, 2010
According to a recent article in the New York Times, fewer eligible voters turned out to vote in New York than in any other state. Minnesota, one of only six states where voter turnout exceeded 50%, recorded the highest turnout at 55.4 percent. In other countries, voting is mandatory...

Obviousness and Cumulative Innovation

Posted on November 17, 2010
I've been spending time recently (way too much time, I think) participating in prior art searching for ArticleOnePartners, a company that pays its bounty hunters advisors prizes if they find prior art that invalidates certain patents. The company, in turn, uses the gathered research to license to patent defendants...

Online Teaching, Part 3: Can it be done?

Posted on November 16, 2010
Probably not. Sorry to be so grumpy and negative this morning, I spent an hour on the phone late (at least to my way of thinking) last night trying to work something out with a colleague and I'm more than a little tired. But my feelings about the limits to the possibilities for using online teaching methods to help grad and law programs are not just the result of fatigue...

And your bird can sing

Posted on November 16, 2010
As of today, the Beatles catalog is available on iTunes. I'm unusually giddy about this, even though I own the majority of the band's catalog in various physical formats, and even though the band is five years late to the party. (If you are listening, Mr...

Divided Selves

Posted on November 16, 2010
In a wonderful New Yorker piece, James Surowiecki surveys recent literature on the problem of procrastination. What I found fascinating about the piece is the idea, mostly popular among philosophers, but also some economists and psychologists, that procrastination may represent a conflict between two versions of yourself - your present self and your future self...

The Good News About the Oklahoma Anti-Sharia Law

Posted on November 15, 2010
Today's New York Times has a story about the Oklahoma constitutional amendment, currently stalled in the courts, that would prevent state courts from applying international law or Muslim Sharia law in resolving legal disputes. One unsurprising takeaway from the piece is that the measure was basically a political wedge, designed to get out the votes and increase Republican electoral victories in the state...

Waldron on Religion and Public Reasons

Posted on November 15, 2010
Via Larry Solum, here is a new paper from Jeremy Waldron titled "Two-Way Reason: The Ethics of Engaging With Religious Contributions in Public Deliberation." Here's the abstract: Using as an exemplar, the 2007 "Evangelical Declaration against Torture," this paper examines the role of religious argument in public life...

John Yoo, Demographer and Political Analyst

Posted on November 15, 2010
Mark Tushnet once wrote about the "'lawyer as astrophysicist' assumption, namely that the generalist training of lawyers allows any lawyer to read a text on astrophysics over the weekend and launch a rocket on Monday." We might add to this the "public intellectual as sage" assumption, under which any academic who has achieved a certain amount of general renown or infamy considers himself ready, able, and all too willing to pronounce on any subject, no matter how far outside of his expertise it happens to be...

Op-eds, blogs and other non-article forms of writing

Posted on November 15, 2010
After sending out an op-ed last week, I started to think a bit more about the various forms - and forums - for writing available to new law professors. While I enjoyed the feedback I got on the piece, the editing process took quite a lot longer than I anticipated and I began to wonder whether op-ed writing is worthwhile, especially during the pre-tenure years, given the availability of blogs and other more direct forms for "non-article" writing...

The New Foreword

Posted on November 12, 2010
For some reason, I am driven every year to be among the first to spot and promote the new Supreme Court issue of the Harvard Law Review and its Foreword article. As far as I can tell, it's not up yet on the Harvard Law Review website, which posts PDFs of its full issues; but it is available now on Westlaw...

Design v. Rights

Posted on November 12, 2010
So in my previous post I argued that mass torts are better understood as posing a "property" problem, not, as Richard Nagareda and others have argued, a "governance" property. This is not to say that "property" and "governance" are mutually exclusive...

Must Second Amendment Originalism Account for the Militia Clauses?

Posted on November 11, 2010
Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation...

Habitat for Profanity: Empirical studies and other inanity from the PTC

Posted on November 11, 2010
The first time I angrily disagreed with the Parents' Television Council came in 1977, when nine-year-old me was outraged that the group was trying to get ABC to cancel my favorite television show--Starsky & Hutch--because it was too violent. Well, what already was not one of my favorite organizations has been in the news a lot recently with its usual brand of over-stated nonsense and inanity...

The "clerkship scramble"

Posted on November 11, 2010
"The system for placing [clerks] with federal judges is breaking down," reports the National Law Journal. Are the Wild West days of federal clerk hiring back? That's what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering...

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