Legal Commentary

?Van Buren to Pennsylvania: Drop Dead?

Posted on August 21, 2010
In these troubled fiscal times, it would be fitting to remember President Martin Van Buren who presided over the nation during a similar economic crisis. Like President Obama, Van Buren came to the Presidency right at the onset of a financial panic due to the bursting of a real estate bubble (the Panic of 1837)...

Judicial Independence

Posted on August 20, 2010
Here's a story about a law professor/federal judge nominee whose net worth is $20 million.

First Day of Torts

Posted on August 20, 2010
My first day of Torts is on Monday, and despite the fact that I'm teaching it for my fifteenth or sixteenth time, I'm still anxious about setting the right tone and pitching the material at the right level for the new 1Ls. I try to cover a variety of topics at some point in the first week, including what a tort is, what tort law is supposed to be for, alternatives to the tort system, what common law is, the various levels of courts in the American system, stare decisis and the hierarchy of authority, the limits of studying appellate...

Friedman on Stealth Overruling

Posted on August 19, 2010
I have done some of my blogging away from my usual home recently. Here is one example: my review, on the Jotwell blog, of Barry Friedman's new article, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona). I commend the article, although I also set out some criticisms of it and offer my own analysis of stealth overrulings and their relationship to broader currents in constitutional law...

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The case against academic tenure

Posted on August 19, 2010
Brian Leiter has been making intemperate attacks on critics of tenure lately. His immediate target is Mark Taylor, whose proposals to abolish tenure won him a lot of academic ire. Brian and I both dislike the style and substance of Taylor's type of philosophical work, so I attribute some of Brian's sharpness of tone to the admitted egregiousness of his target's prose...

The benefits of retrying a criminal case

Posted on August 19, 2010
Retrying a criminal case after a mistrial is often a good bet for the government. If the prosecutor knows how and why the jury split in the prior trial, it can adjust its game plan for the next. Sometimes, the government presents additional witnesses, who can better tell the prosecution's story and corroborate witnesses whose testimony was questioned in prior trials...

Snottiness or Theoretical Innocence about Republicans' Federalism at the Times?

Posted on August 19, 2010
Is it just me, or is the New York Times' normal self-satisfaction about the rightness of its politics becoming even less self-critical than usual? I find myself provoked to such irascibility by what strikes me as an insufferably smug and snotty front-page piece implicitly criticizing Alaskan Republicans for taking the federal dollar while criticizing federal spending...

Proposed Quote of the Day

Posted on August 19, 2010
"[C]onvicts who might once have been in prison now walk among us unrecognized?like pod people, or Canadians." From the Atlantic, Prison Without Walls.

"Sarah Palin" is an Idiot

Posted on August 19, 2010
I'll write about the "Ground Zero" "mosque" (neither term being quite accurate) shortly. But I am piqued by this story (yes, I read TV Guide) about Sarah Palin's reaction to Dr. Laura Schlessinger's decision to give up her radio program after what has been described as an "N-word rant" on the show last week...

Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee

Posted on August 18, 2010
A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog)...

Hasen on the stay in Perry

Posted on August 18, 2010
Rick Hasen has a guest post at ACSBlog on why we cannot and should not try to draw any conclusions about the outcome of the appeal in Perry based on the Ninth Circuit motion panel's stay order. Hasen makes three points for why there are no tea leaves to read: 1) different decisionmaker, unless some or all of the motion panel members happen to be selected at random for the merits panel; 2) the motions panel was probably motivated more by a desire to preserve the status quo of no same-sex marriages, a point I agree with; and 3) granting...

Law School Hiring Thread, 2010-11, Thread One

Posted on August 18, 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 b) whether they have...

A Clearinghouse for Questions

Posted on August 18, 2010
The first batch of FAR forms were distributed last week and so we can officially say that the new year's hiring market has begun. We'll have two posts to get things started. This one, the first one, will be a place where wannabes can ask questions anonymously (assuming they are not especially offensive or otherwise improper), and prawfs or others can weigh in, also anonymously if they choose, but note that while I won't actively moderate this discussion forum I will feel free to delete any cases of misinformation or anything else I find outside the bounds...

More on HP

Posted on August 17, 2010
There has been a terrific discussion on The Conglomerate about HP's Code of Conduct and its newly deposed CEO, Mark Hurd (who reportedly walked away with a severance package of 12MM cash plus options that could bring the entire package up to about 40MM)...

Fun with "Mad Men"

Posted on August 16, 2010
I have to flag last night's Mad Men, which touched on three things of interest to my scholarship and blogging. In the opening scene, Don Draper and Roger Sterling are on a conference call with the head of "Lucky Strike" cigarettes (their largest account), discussing how to handle new Federal Trade Commission limitations on cigarette advertising, limitations (including a ban on broadcast advertising) that today would trigger a First Amendment challenge...

Ninth Circuit grants stay in Perry

Posted on August 16, 2010
The Ninth Circuit has granted a stay of the judgment in Perry pending appeal (H/T: Rick Hasen). The order in full: Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district courtâ??s order of August 4, 2010 pending appeal is GRANTED...

Standing on the brain

Posted on August 15, 2010
Some semesters are particularly good times to teach some subjects. Steve Gey has told me about teaching Federal Courts at Florida State during the heart of the 2000 Election and Bush v. Gore; it became a class on that dispute and all the issues it triggered...

Peter Schuck's response to Rick Hills' complaints

Posted on August 15, 2010
I (Rick Hills) am posting the following response to my earlier criticism of Peter Schuck's op-ed, e-mailed to me by Peter: "I am indeed surprised -- not that you disagree, but that you disagree without having read a book-length treatment of this issue: : Peter Schuck and Rogers M...

Peter Schuck on Immigration & the 14th Amendment: C'est magnifique, mais ce n'est pas la loi.

Posted on August 14, 2010
Peter Schuck's op-ed on the Fourteenth Amendment and "soil citizenship" contains an interesting and important historical point, a possibly sensible policy suggestion -- and a really unpersuasive legal interpretation. Peter might be right that citizenship should be denied to infants until they reach an age where we can say that they have a "genuine connection" to this country...

Perry: Injunctions, stays, and appeals

Posted on August 13, 2010
Judge Walker denied a motion (by the proponents of Prop 8) to stay his judgment pending appeal. He ordered entry of the judgment, delayed until August 18, giving either the State or the Prop 8 proponents a chance to get stay from either the Ninth Circuit, Circuit Justice Anthony Kennedy, or the full Supreme Court...

Where are we now with copyrights?

Posted on August 13, 2010
I'm wondering if post-tenure, I should stop being willing to assign my copyrights to the law reviews/university presses, etc, and just insist that they publish it under a creative commons license or, more traditionally, that I hold the copyright and they can have the relevant licenses and warranties, and if they don't like it, I'll publish elsewhere...

Pipeline Program at National People of Color Legal Scholarship Conference

Posted on August 12, 2010
Kudos to the organizers of the Third Annual National People of Color Legal Scholarship Conference for including a program aimed at potential entrants to the legal academy. How to Enter the Legal Academy: Pipeline Program, will take place on September 9th from 11am to 3pm, and takes place along with the rest of the Conference at Seton Hall Law in Newark...

Category Confusion and Public Forums: CLS v. Martinez

Posted on August 11, 2010
How many constitutional categories of public forums are there and what are their names? This should be an easy question to answer, right? In the recent case of Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court majority stated (and the dissent did not dispute) that there are three categories: traditional public forums, designated public forums, and limited public forums...

Random plugs

Posted on August 11, 2010
I find that I'm often overly critical as a reader of other scholarship, so that's one of the reasons I really like the idea of JOTWELL. It helps us find really good pieces and allows you to say so unashamedly. The problem with JOTWELL, however, is that we're all busy and sometimes it takes too damn long to explain why something is good, especially when you're not an expert in the area but you just think: Hmm, that was really good...

Here's one way to quit your job

Posted on August 10, 2010
This assistant quit with a bang.

Want to Improve Your Teaching?: Watch This

Posted on August 10, 2010
This video of a lecture by Dr. Robert Duke explains many precepts of good teaching that too many law professors are unfamiliar with or ignore. ?Here's one of my favorite quotes from the video: "If you're teaching something that has to do with change, it is probably interesting...

William Lerach's proposed "Community Service": Teaching a class at UC Irvine

Posted on August 10, 2010
There's some talk in the blogosphere about disgraced former plaintiffs attorney Bill Lerach's attempt to use a proposed class at UC Irvine's law school as part of his required community service for his federal criminal sentence. The federal judge who heard his motion was particularly upset with Lerach, voicing discontent with Lerach's apparent lack of remorse (in contrast to the remorse he allegedly showed at sentencing) and with the general nature of Lerach's community service to date...

The Ethics of Expediting

Posted on August 10, 2010
I was having a conversation with my colleagues recently about how the ease of submitting law review articles through ExpressO has affected the law review submission process. Gone are the arduous days of mailing out paper copies with individual cover letters; now it is a simple matter...

On the Evolution of Law Porn.

Posted on August 09, 2010
Earlier today, I received an email from Denver U's law dean sharing recent developments there. Quintessential Law Porn, but in my email inbox, rather than snail mail. It was the first time I've received this so far as I can recall. Anyway, I'm not sure if it was a general email or targeted to folks like me for USNews b/c i'm most recently tenured on the faculty...

Writing Guilt and Gender

Posted on August 09, 2010
The most interesting aspect of Lyrissa's fine post, below, is to me not the distinction between men and women who work and raise children. Nor is it the distinction between working with or without parental guilt. Those distinctions are probably alive and well, but my suspicion is that the guilt or guiltlessness gap has narrowed...

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