Legal Commentary

Law Review Submissions: Superstitions and Expeditions

Posted on March 14, 2011
A nascent thread is forming on an earlier post, but I thought it might make sense to create a new one to get more folks on board. I know I have a number of thoughts/concerns/fears about the submission season this year. Maybe other profs and law review editors might want to fill us in on topics like this: Are ExpressO submissions still increasing? Are reviews making deadlines on offers to publish earlier? Are articles still in the 25K-30K word range, or are they creeping up in size? Are law review editors using the special theory of relativity to create more...

The unraveling of the grand coalition on free trade?

Posted on March 12, 2011
It was probably always a pipe dream to think that any cross-aisle coalition favoring free trade could survive the extraordinary levels of political polarization that currently afflict our government. But I confess to nursing a fond and naive hope that Obama's 2008 posturing on trade was merely political theater...

Private Lives of Public Concern

Posted on March 11, 2011
I recently spoke with a group of gay rights advocates -- lawyers and laypersons -- about the First Amendment, gay rights and LGBT law, in general. One comment/question struck me, especially in light of the Supreme Court's recent decision in Snyder v. Phelps...

Some hints (or further confusion) about the state of pleading?

Posted on March 11, 2011
File this under "Always Read the Whole Opinion Carefully": I read this week's SCOTUS decision in Skinner v. Switzer with an eye towards how I will use the case in Fed Courts (because it considers the scope of Rooker-Feldman abstention) and Civil Rights (because it considers the line between § 1983 and habeas and whether some claims seeking DNA evidence are cognizable under the former)...

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How to Present and Answer Questions at Conferences and Colloquia

Posted on March 10, 2011
My thanks to all those who commented here and here on my last post, "How to Ask Questions At Conferences and Colloquia." I was asked if I had any thoughts about presenting a talk and answering questions. Here are five (possibly obvious) tips: (1) Seek first to understand, then to be understood: I gave this suggestion to those asking questions, and it was very well-received...

Where is Tipper Gore When You Need Her?

Posted on March 09, 2011
Not so long ago, David Zaring directed us to an article suggesting that having daughters tends to make judges more liberal on gender issues. As a parent of three daughters ? aged 10, 8, and 8 ? let me also hypothesize that it might tend to make one more conservative on First Amendment issues...

Does your school have "SSRN Norms?" What are they?

Posted on March 09, 2011
A friend from another law school wrote to ask the following interesting questions: I?m trying to get a sense of what other schools? and scholars? ?norms? are regarding SSRN, and would really welcome and appreciate your thoughts. So, at your school: - Is every member of the faculty expected to be a listed author and, if so, is there a staff person or administrator who arranges this? - Is there a working sense about what kind of papers should / should not be put up? Working papers only, or do people arrange to put older published work up as well?...

Two Models of Sociolegal Change

Posted on March 09, 2011
Thanks to Dan and the PrawfsBlawg crew for inviting me back to guest-blog and for allowing me to go overtime to wrap up my posts. You can catch me at either of my two regular blogging spots, the Marquette Law Faculty Blog (surprisingly active for a faculty blog!) and Madisonian...

Inflicting Verbal Pain: Criminal Law and FA Law In Tension

Posted on March 07, 2011
At the risk of overstaying my welcome, and asking for your indulgence, I hope you'll forgive me for sneaking in one last post: In the wake of the decision in Snyder v. Phelps, I have been thinking a little about the contexts in which law recognizes the pain that words can inflict...

Does Virginia Have Standing to Challenge the Individual Mandate?

Posted on March 07, 2011
In an amicus brief (that I co-authored) filed today in the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, a group of pretty distinguished Federal Courts professors says "no," and rather emphatically at that. The brief itself lays out the argument in far clearer detail, but the short version is that states can't (and shouldn't be able to) overcome the bar on parens patriae standing against the federal government merely by passing a state law that provokes a conflict with the allegedly unconstitutional federal law...

"Let Them Use Laptops"

Posted on March 07, 2011
I've weighed in here at Prawfs a few times on the "laptops in law-school classes" issue, sharing my view that, on balance, using laptops the way they (seem to be) used in class is not very good for student learning. Well, Kristen Murray disagrees, in this paper, "Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom...

Stevens and Snyder, empathy and sympathy

Posted on March 07, 2011
In my immediate response to last week's decision in Snyder, I argued that the decision had to be seen as of a piece with last term's decision in United States v. Stevens (striking down a ban on the sale of videos depicting animal cruelty). And I think there may be something to this...

Prawfs challenging jurisdiction all over the place

Posted on March 07, 2011
Steve highlights the scholars' brief he filed today in Virginia v. Sebelius (which I was happy to sign on to) arguing that Virginia lacks standing to challenge PPACA's individual mandate. Also filed today was a separate amicus brief authored by Kevin Walsh (Richmond) for himself...

Fill in the Blank Scholarly Productivity

Posted on March 07, 2011
In gauging scholarly productivity, a book is worth ___ law review articles. Discuss. The back story: A colleague and I were discussing this topic, and my answer was two and the colleague's was five. Upon discussion, we agreed that it mattered whether the book was assembled from previously published articles or whether it was "from scratch," and I revised my answer of "two" up a bit...

Aggressive C&D Letters: Turbulence in the Copyright Phase Transition (Part 3 of 3)

Posted on March 07, 2011
Last week, Nobutoshi Kihara, "the wizard of Sony," died at the age of 84. Kihara was the engineer responsible for a large number of the early electronic gizmos that put Sony on the map: one of the first tape recorders, the transistor radio, 8mm film cameras, digital cameras, and one of the biggest of them all, the Betamax videocassette recorder...

Are We Happy To Say...

Posted on March 06, 2011
I was recently asked to write a paper and present a talk on the general, amorphous and ephemeral concept of happiness. Hedonic economic theory would be an easy discussion point, but as a student of the First Amendment, and given our post-Tucson fleeting interest in so-called civil discourse and the recent Syder decision, I asked myself the following questions: Given the fact that consistent polling shows that we use words like "frustrated," "bad," "mean," "childish," and "corrupt" to describe our government, elected officials and state of politics today, why are we unhappy with politics and do we even have a...

Stuxnet and PsyOps

Posted on March 06, 2011
After reading this post by Jeff Goldberg on the risk of Iranian psyops, I was reminded of this indelible exchange involving Wallace Shawn as Vizzini in the Princess Bride. And this fun Gladwell article on spying in the New Yorker. Happy Sunday.

Good News from Paris

Posted on March 06, 2011
Following up on my post from last week, I'm happy to report that Joe Weiler's travails are more or less over. There's still an avenue of appeal open to the "plaintiff" but the court has ruled in favor of Weiler; moreover, Weiler has even won some ostensibly punitive damages from the plaintiff based on the abuse of process claim...

Will Organ Donation "Save" Death Row?

Posted on March 06, 2011
I just came across this fascinating oped in today's NYT by Christian Longo. Longo is on death row in Oregon, and as, he says, he is guilty of killing his wife and children. As an ostensibly contrite murderer, he is trying to make the best of his situation: he has abandoned his appeals and is trying to persuade prison officials in Oregon to allow him to donate his organs upon his execution...

Class is for the prawfs?

Posted on March 04, 2011
Something I thought of but did not mention in my post about how SCOTUS arguments are increasingly dominated by justices' questions and Justice Kagan's suggestion that oral argument is the chance for the justices to speak (to the parties and to one another): While I do not disagree with her point, there feels like a show-off quality to that attitude...

Chief Justice Roberts and the Ostensibly Boring First Amendment

Posted on March 04, 2011
A propos of this week's decision in Snyder v. Phelps, Steve Shiffrin has an interesting post on the Mirror of Justice blog arguing that Chief Justice Roberts's opinion in that case lacks integrity, because it fails to acknowledge the extent to which the case raised new and/or difficult issues and pretends instead that "nothing new under the sun is contained in the opinion...

Redyip, Expresso, and the Rite of Spring

Posted on March 03, 2011
I?ve reached a point where Redyip?s call and the February/March law review submission season no longer bring the torment that they brought me not all that long ago. But given the angst unfolding in the comments below, I thought I might dip into my Expresso archives to provide one small set of data to those trying to get a feel for the how the process might unfold...

My own thoughts on Snyder

Posted on March 03, 2011
I continue to endorse everything Neil said , which is spot-on. Let me add a few additional thoughts of my own. First, this case is going to be considered of a piece with last term's decision in United States v. Stevens (striking down a ban on video depictions of animal cruelty)...

How to Ask Questions At Conferences and Colloquia

Posted on March 03, 2011
The question-and-answer session that follows most academic talks can surely be improved. Here are five suggestions: (1) Thesis, Thesis, Thesis: While not all good scholarship is driven by a central claim, that's the standard model, and one that you should not depart from lightly...

Saying and Staying

Posted on March 03, 2011
thanks to Dan for his generous invitation to take part in this great law blog. Sorry for my slow start. I hope to chime in on varia, including the ongoing Prop 8 litigation and attendant issues of state constitutional law & politics, state constitutionalism more generally, property & governance, and legal education ...

Snyder v. Phelps Decision Alert

Posted on March 02, 2011
Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials...

Language Arts 101

Posted on March 02, 2011
Thank you to Dan and the PrawfsBlawg community for giving me the opportunity to share in your discussions and for inviting me onto your desks (or desktops), laps (or laptops) or into your hands (or handheld electronic devices). It is indeed a great honor, and I hope we can stimulate discussion and have some fun...

Two Other Papers About Federalism: On Sale Now(ish)

Posted on March 02, 2011
Before I ride off again into the prawfs sunset, let me mention two other projects I hope readers might find of interest. The first tries to tie together three literatures--federalism, charities, and privatization-- that don't usually go together. The basic point is that, while the acccepted rationale for charity assumes that we need the nonprofit sector to give us diversity, experiments, and public goods the median voter wouldn't want, in fact by most accounts federalism can give us that, too...

Are Meritless Claims More Prevalent in Copyright? Part 2 of 3

Posted on March 02, 2011
This is the second of a series of posts considering whether something about copyright's statutory damages remedy is driving an increase in meritless cease-and-desist letters. In Part I I considered the origins of copyright's statutory damages remedy, and concluded that it's not really possible to draw a straight line from movie studio or record label lobbying to the statutory damages we have today...

Someone else's thoughts on Snyder

Posted on March 02, 2011
I just finished reading Snyder v. Phelps and am still gathering my thoughts on the decision (beyond "amen" and "how strange was the oral argument in the case that no one predicted this outcome"). For now, let me recommend Neil Richards' comments, with which I fully concur...

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