Legal Commentary

Richard Nagareda, RIP

Posted on October 11, 2010
I'm stunned and saddened to post the news here of Richard Nagareda's untimely death this past Friday. The Vanderbilt notice is here. I didn't know Richard very well but everything I knew about him impressed me; he was a model of decency, dignity, diligence, and smarts...

Conference at Cardozo Law School on "Twenty Years After Employment Division v. Smith"

Posted on October 11, 2010
I just returned from a wonderful conference on "Twenty Years After Employment Division v. Smith" at Cardozo Law School. Perhaps my only complaint is that the wireless internet access at my hotel was extremely spotty, so I wasn?t able to report on the conference until I got home...

Hiring Chairs 2010-2011: Please Announce Yourselves

Posted on October 11, 2010
N.B. This will get bumped to the front every now and then. It's that time again. I've been getting requests from some aspiring prawfs, so here's the post: law school hiring chairs for entry and lateral candidates, please announce yourselves in the comments and please feel free to share who's on the committee and whether the search is limited in a particular way (or not)...

It's a Good Thing Carl Paladino Doesn't Live in Alabama

Posted on October 11, 2010
Gubernatorial candidate Carl Paladino today defended his remarks on gays and lesbians yesterday, reiterating that although he opposes discrimination against gays and lesbians he continues to oppose gay marriage. Not having seen the interview, I don't know whether he stood by his remarks that children ought not be "brainwashed" into thinking homosexuality is "acceptable," which is a far harder line than simply opposing same-sex marriage...

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A Clearinghouse for Questions

Posted on October 11, 2010
N.B. This thread will get bumped to the front every 10 days or so. The first second batch of FAR forms were distributed the other day and so we can officially say that the new year's hiring market has begun. We'll have two posts to get things started...

Law School Hiring Thread, 2010-11, Thread Two

Posted on October 11, 2010
NB: This thread will be moved to the front every ten days or so. This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding: a) whether they have received a first round interview at a school, and if the school mentioned the areas they were looking into, and whether the interview offer was accepted b) a callback from a law school and/or accepted it and c) whether they have...

Revamping the 1L Curriculum

Posted on October 11, 2010
How do law school justify their curricula in a world where tuition keeps rising and employment rates for grads keep falling? In response to this question, and at the nudging of our curriculum committee, several of my colleagues today began discussing what should be done to revamp the 1L curriculum...

The Progressive Commitment to Pornography

Posted on October 09, 2010
In a previous post, I speculated briefly about the nature and strength of "progressive" legal theory, and the absence of any powerful "counter-progressive" alternatives. But I noticed the following line in Dahlia Lithwick's review of the recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, in a section where Lithwick assures the reader that this book is no hagiography: "Anyone who wants their liberal heroes to hold bone-deep progressive views will be frustrated by a Brennan who hated pornography but ruled it was permissible, and disapproved of abortion but protected it...

The FSU/ACS Criminal Justice and the Constitution in 2020 Conference: Streaming Here

Posted on October 08, 2010
If you're not available to be here in the Hassee for the Criminal Justice and the Constitution in 2020 event, you can watch it with an 8 second delay right now over at this link. Coming up this afternoon: Jack Chin (right now); Wayne Logan; Richard Myers, Bernard Harcourt, Sharon Dolovich, Reid Fontaine, me, and Doug Berman.

Everything Duke and lacrosse is not "Duke Lacrosse"

Posted on October 08, 2010
By now, everyone has heard about the "senior thesis" in "horizontal academics" that a 2010 Duke grad wrote as joke, a spoof thesis presentation describing the performance of thirteen Duke student-athletes (seven of them happened to be lacrosse players) with whom she had sex during her time in school...

Wanted: Despisers of the Law

Posted on October 07, 2010
Here's a curious little interview with Yale Law School's Associate Dean of Admissions, Asha Rangappa, about what the admissions office just can't abide: "a person who really loves THE LAW," and is unwise enough to say so in a personal statement. This "law zombie" is forecasted to be prone to "muttering Supreme Court holdings under his breath" and "randomly shouting 'SCALIA!' very loudly" to unsuspecting decent folk...

Whither Snyder or wither the First Amendment?

Posted on October 07, 2010
Having read the transcript in Snyder v. Phelps, I have no idea how this is going to come out (I never do, but this one feels different). Calvin Massey (who says he learned long ago not to predict case outcomes) nevertheless predicts a 6-3 Court (Kennedy for the Court; Ginsburg dissenting for herself, Sotomayor, and Kagan) will remand for a new trial under a standard that permits liability if: the victim is a private person, the speech invades the victim's reasonable expectation of tranquility at a moment of vulnerability, and the speech (taken as a whole and considered from the...

Oral argument in Snyder v. Phelps

Posted on October 06, 2010
This morning, the Supreme Court hears oral argument in Snyder v. Phelps, a case I (and others, including Lyrissa) have written about repeatedly. At issue is the validity of a multi-million-dollar civil judgment for invasion of privacy against Westboro Baptist Church for its protest near the funeral of a soldier killed in Iraq...

The Left's Dilemma over Preemption in the Arizona Immigration Case

Posted on October 06, 2010
Williamson v. Mazda Motor (i.e., the seatbelt preemption case)and U.S. Chamber of Commerce v. Candelaria (i.e., the Arizona immigration law case) nicely illustrate how any consistent position on preemption will tend to rub up against one's political loyalties...

NASA v. Nelson Oral Argument Aftermath - What Should the Majority Opinion Look Like?

Posted on October 06, 2010
Earlier today I posted an analysis of yesterday's oral argument in NASA v. Nelson, which focused on the approach that Justice Scalia is likely to take: holding that the Constitution does not protect a right to informational privacy. As I explained in that post, it does not appear that Justice Scalia has more than two or three votes for his view...

NASA v. Nelson Oral Argument Aftermath - What Will Justice Scalia Do?

Posted on October 06, 2010
The Supreme Court heard oral argument in NASA v. Nelson yesterday, its first constitutional right to information privacy case in a generation. The oral argument transcript is here, and SCOTUSBlog has a write-up here. I analyzed the case earlier here. Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees...

"It's like putting on a wet bathing suit."

Posted on October 06, 2010
No, that's not how I would describe my guest blawging return to Prawfs - in fact, I'm quite delighted to be invited back! Thanks to Dan and the others for extending the invitation once again. But that phrase -- "like putting on a wet bathing suit" -- is how I once heard a colleague from another department describe the experience of returning to a piece of scholarship that one has set aside for too long...

Law Review Placement and Other Rookie Questions

Posted on October 05, 2010
One of my favorite expressions about what it feels like to begin any new endeavor is the so-called Rule of 99: for every one thing you learn, you also learn that there're 99 things you don't know. I certainly think that's true of law practice. And I also think it's true about becoming a prof...

On Casebooks & the Invisible Author

Posted on October 05, 2010
I received three casebook royalty checks this week. I'm very grateful for the checks, but let's just say I won't be quitting my day job any time soon, and calculating my hourly rate for casebook writing would be downright depressing. As a result, I probably should be reflecting on why I write casebooks at all, but instead I've been thinking about how to write casebooks...

Slicing the snacks thinly

Posted on October 05, 2010
During my weekly seminars, I gently "assign" a week for each student to bring snack(s!) so that the learning experience is a bit more festive and fattening. Today, one of my students brought Baby Ruth candy bars (halloween size), and it is was my first time eating one...

Keeping DL on the DL?

Posted on October 05, 2010
One of the pieces of advice I received early on as a law teacher from a senior colleague was to never, ever, admit that a recording of your class could substitute for a live presentation. If that notion gained widespread acceptance, the number of full-time teaching jobs out there would surely fall, and your own might be one of the ones that ends up on the chopping block...

"Counter-Progressive" Legal Theory?

Posted on October 05, 2010
The George Washington Law Review recently published an interesting symposium with papers commenting on two books on judicial review, one of which was this reaction by G.E. White to Philip Hamburger's book, "Law and Judicial Duty." In his comment, White characterizes the book as part of a "counter-Progressive" line of American legal history which, he claims, is "nearing the status of orthodoxy[...

A Farewell For Now and a Question

Posted on October 04, 2010
Thanks to Dan for letting me post a few in September. As I leave Prawfs behind, I?d like to leave a meditation on Susan Kuo?s question about dealing with sensitive issues in the class room. She is concerned about students who make remarks revealing, e...

Watch as We Make Conservative Mean "Evil"

Posted on October 04, 2010
I like both Dahlia Lithwick and Barry Friedman, but I was really disappointed in their latest article for Slate. In "Watch as We Make This Law Disappear", Friedman and Lithwick endeavor to explain to the average Slate reader how the Supreme Court has managed to hide its conservatism...

Constitutional structure, politics, and political parties

Posted on October 03, 2010
Thomas Friedman writes today about the need for a meaningful third party in 2012. He writes: We have to rip open this two-party duopoly and have it challenged by a serious third party that will talk about education reform, without worrying about offending unions; financial reform, without worrying about losing donations from Wall Street; corporate tax reductions to stimulate jobs, without worrying about offending the far left; energy and climate reform, without worrying about offending the far right and coal-state Democrats; and proper health care reform, without worrying about offending insurers and drug companies...

Goodbye, Facebook (and, hello Prawfs)

Posted on October 02, 2010
I recently left Facebook for good. I haven't been on too long (maybe a year or two) and I was never very good at it. And leaving right now, at a time when everyone seems to be celebrating social networks of various kinds and the glorious democratic ethos that Facebook exemplifies, seems even to me a little churlish and backward...

Addressing Sensitive Issues in the Classroom

Posted on October 01, 2010
Many of us find it difficult to address issues of race, ethnicity, gender, and sexual orientation in the classroom. Yet, we must be mindful of these issues as well as others that can be especially sensitive for students. When an issue arises ? for instance, when a student makes a comment that involves assumptions about a particular racial group ? it is important to find effective methods for responding...

Interview with Mandel Bhandari LLP on Friend v. Friend

Posted on October 01, 2010
I did an interview with Mandel Bhandari LLP on my forthcoming book, Friend v. Friend. You might enjoy the back-and-forth with the New York law firm that specializes in business disputes. And the blurbs are now in -- which you can find at the OUP page...

hi and happy Friday

Posted on October 01, 2010
Thanks to Dan et al. for having me this month. Hope everyone's weekends are off to a good start. The highlight of my day so far has been getting outlawyered by my four year-old daughter. She was pinching her little sister in the car and I told her to knock it off...

Rotations and sundry

Posted on October 01, 2010
Happy Simchas Torah, and happy world vegetarian day too. It's also a new month so it's time for some rotations here at Prawfs. First, many thanks to the stellar crew of guests who were here through the month of September, and second, welcome to our new visitors for the month of October...

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