Legal Commentary

Who butters your bread?

Posted on October 22, 2010
On occasion, I have had conversations with colleagues about the idea of law professors seeking outside grant funding. Of course, we prawfs should all be aware of, and extremely grateful for, the fact that, unlike many of our peers in other corners of the campus, we are supported by "hard money," i...

Do we need to impose more "outcome measures" on law schools? Or, what to do with "entrenched cohorts"?

Posted on October 22, 2010
A few months ago, I noted (here) the proposed revisions to Chapter 3 of the ABA's law-school-accreditation standards regarding "student learning outcomes." And, in the course of trying to learn more about the proposed revisions, I came across this submission, from Prof...

Judge Randolph Comes Clean: Boumediene Was Wrongly Decided

Posted on October 21, 2010
In a speech titled "The Guantanamo Mess" delivered yesterday at the Heritage Foundation, D.C. Circuit Judge A. Raymond Randolph launched a quite pointed (if wholly unsurprising, given his own jurisprudence) attack on the Supreme Court's 2008 decision in Boumediene v...

Sketchbook of Legal Pessimisms

Posted on October 21, 2010
I am about half way through Professor Bruce Ackerman's new book, The Decline and Fall of the American Republic, a very well written and passionately argued (as well as invitingly slim and artfully designed) monograph which deals primarily (though not exclusively) with what Ackerman perceives as the threat to the American republic posed by an overly potent presidency...

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The Phone Call

Posted on October 20, 2010
What to say about The Phone Call? "Nothing" would be a prudent response, and so far the legal blogosphere hasn't lit up about it -- but it's early yet. My early returns on Facebook are that my liberal friends believe Virginia Thomas is, to use language used about another woman in another context, "a little bit nutty...

Has Facebook sucked up the law blog comments?

Posted on October 20, 2010
In Paul's post below, he talks about reactions to the Hill-Thomas voice mail -- not in the press or on the blogs, but on Facebook. I'm not on Facebook, but I wonder -- could Facebook be the reason we see far few comments on law prof blog postings? I remember back in the day when you had posts like this one, where the comments from profs numbered in the 70s and 80s...

A new (?) paper on the Roberts Court

Posted on October 19, 2010
Now available on SSRN and, I'm told, due to appear any day in print is a short essay by me entitled A Radically Immodest Judicial Modesty: The End of Facial Challenges to Abortion Regulations and the Future of the Health Exception in the Roberts Era. Short essay, long title...

The Great Unranked: Leiter versus the "Third Tier"

Posted on October 19, 2010
It was nice to see Brian Leiter's critique of the US News rankings' "Third Tier" and "Fourth Tier" classification of law schools. His site's usual focus on "top" schools' scholarly output leaves those of us looking up from below feeling sometimes left out, so much that some go out and do their own studies...

SSRN, WTF?

Posted on October 19, 2010
Perhaps my title is a bit inflammatory but I'll leave it up there until we provoke some response from the powers that be at our friendly neighborhood SSRN headquarters. Below, I'm sharing a lightly redacted thread from Cyberprof concerning SSRN's terms of use...

Zoning for Minority Jobs at 15 Penn Plaza

Posted on October 18, 2010
For all of you zoning aficionados who are looking for skyscraper-high piles of legal and policy issues to pack into a single problem, 15 Penn Plaza may be your dream parcel. The site is owned by Vornado, a major REIT in New York City which has been seeking to build a 1,216-foot Rafael Pelli-designed skyscraper on the Hotel Pennsylvania site opposite Madison Square garden on Seventh Avenue...

On Boredom

Posted on October 18, 2010
I am very bad at being bored. I change casebooks often to avoid boredom, I rarely write an article that builds directly on a previous one, and I sometimes "multitask" in meetings when I should be paying attention. As a result, what I'm about to say is hypocritical...

Web Video and the Academy

Posted on October 18, 2010
This Wed. evening I am giving a TED-like talk in Los Angeles. It?s called BINA ? a fast-paced, thought-provoking evening? with talks that are later uploaded here. I love watching TED talks. Even though it takes longer to listen to the ideas transmitted by video than by the written word, the is something powerful about watching people describe their own work and ideas...

Republic of the Lion

Posted on October 18, 2010
I have always wondered why the founding generation never really looked to the Republic of Venice as a model for republican government. To be sure, America was just in the offing as Venice suffered its coup de grace at the hands of Napoleon. Venice's 18th century history was marked by Sybaritic decline in the form of Carnevale and the Grand Tour -- a kind of Las Vegas for wealthy English and continental gentlemen...

The Reverse "Bill Stuffer"

Posted on October 17, 2010
My favorite lawyer is currently Larry D. Thompson of Houston, Texas. Here's why. If you have a credit card, cable television, or a telephone, you've probably received a "bill stuffer" from your lender or service provider: a notice in your monthly statement that purports to change the terms of your ongoing contractual relationship with the company...

Soft Drinks and Federal Food Assistance: Another Likely Failure from the Laboratories of Bureaucracy

Posted on October 15, 2010
Does federalism promote policy experimentation? Thirty years ago, Susan Rose-Ackerman offered a now-famous riposte to the idea that states are laboratories of democracy. According to Rose-Ackerman, states suffer from a free-rider problem: A governor or mayor bears the political risk that their novel policy experiment will be a flop, but other politicians who stand on the sidelines and wait to see how the idea fares can reap the political rewards simply by copying the idea if the policy turns out to be a success...

Louis Henkin

Posted on October 15, 2010
I am grieved to learn of the passing of Louis Henkin (information available here). In a week in which we suffered the passing of Richard Nagareda after far too short a life, it is some consolation to celebrate a long and well-lived life, but I am sorry for the loss...

Law and Religion's Bayreuth Festival: St. John's Law

Posted on October 15, 2010
Are you interested in law and religion? If so, I hope you can make the pilgrimage to New York, and the additional (and generally very rapid) jouney by camel to St. John's law school and pitch a tent (my office available at a non-usurious rate). Please join us for the following events: - On Thursday, October 21, the Center for Law and Religion will host a roundtable on Christians in the Middle East...

Will the deal get done in time?

Posted on October 15, 2010
Follow the LFC's fate (discussed yesterday) here at the Guardian's Friday live blog. UPDATE: from the Guardian blog: 3.58pm: LIVERPOOL FC HAVE BEEN BOUGHT BY NEW ENGLAND SPORTS VENTURES, Owen Gibson confirms that the deal is done.

"The Perfect Lawyer"

Posted on October 14, 2010
That's what Washingtonian magazine called my former boss, Herbert "Jack" Miller, a lawyer who "[w]orked for Nixon and the Kennedys--and Built a Law Firm the Likes of Which They No Longer Make." I received a nice announcement from some former colleagues of an upcoming event dedicated to Jack's memory, and was reminded -- and confirmed in my view -- that we can hope not only to "live greatly", but also to live well, in the law...

FSU Law Review Exclusive Submission Window

Posted on October 14, 2010
My research assistant, the wonderful Will Ourand, is also the FSU Law Review's Senior Articles Editor. He asked me to post this: The Florida State University Law Review will be conducting exclusive fall article reviews. Any article submitted to this exclusive review between now and October 17, 2010 will be evaluated by October 31, 2010...

International Corporate Warfare in Real Time

Posted on October 14, 2010
Whether or not you are a scouser, I would encourage you to go to this page right now -- now! -- to experience the thrill of international corporate warfare in real time. Yesterday a British court ruled that the board of Liverpool Football Club had the power to go through with its sale of the club to the folks who own the Boston Red Sox...

Baby Boy Markel (2d edition) is now on the scene

Posted on October 14, 2010
With gratitude and joy, Wendi, Benjamin, and I are thrilled to announce the arrival of Baby Boy Markel, who surged into our life last night (10/13) at 7:07pm, weighing 7lb 3oz, and measuring just under 20 inches. Mom and "Dewey" are doing well. If you're in town or able to join us, the bris and naming will take place next Wednesday (10/20) at Congregation Shomrei Torah here in Tallahassee...

The Uniqueness of Usury

Posted on October 13, 2010
Usury -- the practice of lending money at interest -- occupies an unusual place as a historical phenomenon: it is a practice that is condemned in the Jewish, Christian, and Islamic traditions (to greater and lesser degrees), but forms the foundational bedrock of modern capitalist societies...

Interview Tips . . . For Faculty

Posted on October 12, 2010
It's just about meat market time again, and as always the interwebs are filled with advice for candidates, including recent posts here and at the Faculty Lounge. Perhaps it's time we change focus a little by asking what interviewing tips we should offer to hiring committees...

Greg Mankiw is threatening to stop working (again)

Posted on October 12, 2010
Two years ago, Greg Mankiw threatened to stop working if Obama was elected, basically on the theory that his tax rates would go up and his incentives would thereby go down. It was one of those "Going Galt" threats that looks ridiculous in retrospect. Mankiw, of course, is still a professor at Harvard...

Three Quick Meat Market Tips

Posted on October 12, 2010
The Faculty Recruitment Conference--bka the "Meat Market"--is a little less than three weeks away. Of course, there's a ton of great info about it already on the web. Nevertheless, I was a candidate recently (two years ago), and I thought I'd pass on a few quick things that either (1) proved invaluable or (2) I wish I'd known...

Cause lawyering and cause partying

Posted on October 11, 2010
One noteable feature of last week's oral argument in Snyder v. Phelps is that the Phelps side was presented by Margie Phelps, daughter of Westboro Baptist Church founder and pastor Fred Phelps and a member of Westboro Baptist Church (of course, a Ven diagram of Church members and Phelps family members would be a single circle)...

Bluebooking Question

Posted on October 11, 2010
I've never been great at proof-reading or avoiding typos. I was taking another pass at a draft article recently and came across this footnote: 57. See Hammer v. Dagenhart, 247 U.S. 251, 272-73 (1918) (invalidating statute regulating child labor as improper exercise of Congress's Commerce Clause power ;-) Is that the correct citation format? When I looked through the Bluebook, I couldn't find anything about how to use "winky face" emoticons.

Innovation Motivation

Posted on October 11, 2010
Would a post-employment non-compete restriction affect your performance on the job? My collaborator On Amir and I researched this question in an experimental setting. We find that under some circumstances, when the motivation to perform is mostly linked to extrinsic rewards, performance, as measured by task completion, effort and accuracy, falls...

Cause lawyering and conflicting causes

Posted on October 11, 2010
Interesting story in The New York Times yesterday on the rise of Supreme Court specialist practices, including clinics associated with several top law schools, seeking out pro bono cases to bring before the Court. The piece points to several conflicts and problems this creates, including the divergence of interests between cause lawyer and client that I discussed earlier today...

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