Legal Commentary

Leib & Serota on Statutory Interpretation at YLJO

Posted on July 29, 2010
My recent essay with Michael Serota on the virtues of dissensus in statutory interpretation is now live at The Yale Law Journal's frontpage. While you are there, check out my recently published YLJ essay with Don Dan Markel and Jennifer Collins on family status and criminal justice...

A Different Kind of K-2 High

Posted on July 28, 2010
I saw an interesting article out of Ft. Wayne, Indiana today about K-2, a synthetic herb that is sold for aromatherapy purposes and as incense but is also "marketed" to teens as a way to get high (supposedly it has marijuana-like side effects--but see below--and has a much more powerful high than THC, marijuana's active ingredient)...

Jeff Lipshaw: Things You Ought To Know If You Teach Contracts

Posted on July 28, 2010
I'm going to follow Paul Horwitz's lead and mix resources with opinion. This is simply one person's view; reasonable minds may differ and I invite debate! 1. Four credits or six credits (and other issues of coverage)? The most fundamental question facing a new contracts teacher is whether he or she needs to plan a six-credit course (i...

Hungary's Nazi-looted Art Restitution Record & the Herzog Family

Posted on July 28, 2010
The heirs of Hungarian banker Baron Mor Lipot Herzog, one of the most well-known art collectors of his time, have filed suit in the United States District Court for the District of Columbia against Hungary and some of its museums seeking restitution of their art...

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The Huge, Obvious Problem with the Law

Posted on July 28, 2010
There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming. The problem is this: Our system of justice is absurdly complex and time consuming...

More things to know if you teach civ pro

Posted on July 27, 2010
Scott's post on civ pro provides great information about the many resources for civ pro professors (and scholars) to learn the subject, keep up with new developments, meet fellow travelers, and publicize work and ideas in the area (all stuff I wish I had had in one spot when I started)...

REQUEST: Faculty Responsible for Promoting Entry-Level Law School Alumni

Posted on July 27, 2010
Prawfsblawg, for purely public-minded reasons, has served as a clearinghouse for a variety of information about the teaching process and the job market. I wonder if I can solicit information about another key aspect of the teaching market. Many schools assign one or two faculty members to be responsible for mentoring and encouraging their alumni who are entering into the teaching market...

Things You Ought to Know if You Teach Constitutional Law

Posted on July 27, 2010
I have been teaching constitutional law for about eight years now, both a long version (two semesters, six credits) and a shorter version. Herewith I offer some opinionated views about what one may want to know before teaching constitutional law. Unlike Scott's post on civil procedure, this one will be light on resources and heavy on opinions...

We Have a Winner!

Posted on July 27, 2010
The winner of the PrawfsPuzzler flip-flop puzzle contest is Marquette Law School's Bruce Boyden, who e-mailed all the correct answers last night. He will receive the grand prize of Chippers - chocolate-covered potato chips from Widman's in Grand Forks, ND...

An argument for waiting to go on the academic market

Posted on July 27, 2010
Years ago, when I was contemplating going on the academic market, I did what lots of people do: I called my friends, visited with mentors, and consulted the law prof blogs. If you are new to this world, then you might as well start with Brad Wendel's piece, which includes a number of links to additional articles and blog posts that offer helpful advice for those interested in academic teaching...

"We're Here to Help": Another Constitutional Problem With Arizona's "Mirror Image" Immigration Enforcement Theory

Posted on July 27, 2010
Arizona's new immigration law, SB 1070, raises many issues, but one question that has been central to the litigation and much of the public policy discourse is whether states can pursue more aggressive immigration policies so long as they "mirror" federal law...

Colin Miller: Things You Oughta Know If You Teach Evidence

Posted on July 27, 2010
The following is a list of resources which you might want to consult if you teach Evidence: ·EvidenceProf Blog is a blog maintained by Colin Miller of The John Marshall Law School. Co-bloggers are Joelle Moreno of the Florida International University College of Law, Myrna Raeder of the Southwestern Law School, and ?blogger emeritus? David Leonard, formerly of Loyola Law School Los Angeles...

Sorkin says Goldman is telling the truth about hedging

Posted on July 27, 2010
In case you don't read the New York Times' Business Section on a routine basis, on the left-hand side of page B1 today is Andrew Ross Sorkin's column, in which he reports that recently released emails demonstrate that Goldman Sachs was telling the truth when it argued that it considered itself hedged against what could have been AIG's collapse...

Open Wounds after War

Posted on July 26, 2010
A UN-Tribunal convicted and sentenced Duch today, the first major Khmer Rouge figure defendant to be brought to justice. I believe post-war prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again...

Kagan, the Court, and Religious Liberty

Posted on July 26, 2010
Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases. A bit: . . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty? As she told the Judiciary Committee, the...

More Flip-Flop Puzzles - For Fun and a Fabulous Prize!

Posted on July 26, 2010
Here it is! Another set of prawf-themed flip-flop puzzles! (Previous installment here.) And this time, I'm giving away a prize! The first law professor to e-mail me with the correct answer to each of the three flip-flop puzzles below will receive a box of CHIPPERS - chocolate-covered potato chips made right here in North Dakota at George Widman's candy shop in downtown Grand Forks!!! Open to all U...

Pentagon Papers II?: Wikileaks and Information Control in the Internet Era

Posted on July 26, 2010
Wikileaks.org obtained and released six years worth of Pentagon reports on the progress of the war in Afghanistan, and today stories based on the leaked information appear in the New York Times, the Guardian, and Der Spiegel. It is impossible to read of this new "leaks" case without thinking of the 1971 Pentagon Papers case, when Daniel Ellsberg released documents, specifically a 47-volume government report, concerning U...

In case you missed it . . .

Posted on July 25, 2010
Today's New York Times charts the conservatism of the Roberts Court.

People Are Not Institutions -- or Tests

Posted on July 24, 2010
Sandy Levinson calls the question of whether President Obama will nominate Elizabeth Warren as head of the new Consumer Protection Agency "an acid test as to whether the Obama Administration really does have backbone." Brian Leiter agrees. I have no position on whether she ought to be appointed -- not because I have any reason to think she shouldn't, but because it's way outside my wheelhouse...

Scott Dodson: Things You Oughta Know if You Teach Civil Procedure

Posted on July 23, 2010
There are some things you should know if you are a newbie civil procedure professor. Feel free to disagree or supplement in the comments! Resources: Bookmark the Civil Procedure & Federal Courts Blog, maintained by civ pro prawfs extraordinaire Robin Effron, Cynthia Fountaine, and Adam Steinman, which has useful information about recent cases and scholarship...

The "Things You Oughta Know if You Teach ___" Series

Posted on July 23, 2010
A couple weeks ago, our guest blogger extraordinaire, Eric E. Johnson, put up a helpful post entitled "Things You Oughta Know if You Teach Intellectual Property." Eric's post inspired my former con law study partner and now one of our young prawfy readers to ask, hey, there oughta be a whole freakin' series of these written by folks in different fields...

Again, pretty far from my topic, but I was wondering what people think about this:

Posted on July 23, 2010
Rape Conviction and Prison for Lying about Ethnicity in Connection with Sex. The article is scant on the full facts, but what do you think?

Cultural Property Headlines

Posted on July 22, 2010
Here's my top 10 (or so) of headlines from the past two days or so in the fast-moving field involving objects often thousands of years old: 1. Settlement of the first modern-era Nazi-looted art case, a civil forfeiture claim to Egon Schiele's Portrait of Wally...

MLEA Annual Meeting October 8-9, 2010, at University of Colorado Law School

Posted on July 21, 2010
FoP Scott Moss just reminded me of an unusual way to celebrate John Lennon's birthday (and mine) in glorious Boulder. See after the jump for the CFP. I won't be able to make it -- baby #2 is slated to arrive just after then and that same weekend FSU's hosting a big ol' hoe-down which I hope the public law folks can join us for -- but Wendi and I were just in Boulder with Scott this past Friday, and all I can say is: if you've not been there before, you should certainly exploit this travel opportunity attend this...

Dodd-Frank and whistleblowers

Posted on July 21, 2010
As noted in the National Law Journal and in the Workplace Law Prof Blog (which in turn quotes the analysis of the Employment Law Group's Whistleblower Blog), a portion of the Dodd-Frank Act attempts to shore up whistleblowing incentives by offering between 10-30% of the proceeds, at the discretion of the SEC, of any monetary sanctions in excess of $1 million for instances where whistleblowers come forward with "original information" derived from the whistleblower's independent knowledge...

How Do We Go From Off the Wall to On the Wall? With the first jump...

Posted on July 21, 2010
If you've not seen it yet, head over to Balkinization and check out Jack's interesting take on Randy Barnett's constitutional activism. Sharing ambition to engage in a form of constitutional "innovation," though disavowing any suggestion that I'm making a "frivolous" argument, I've persuaded myself, more or less, that the best understanding of some recent Supreme Court cases requires some radical restructuring and review of punishment under the Eighth Amendment...

Direct to Consumer Genetic Testing - The Need for Early Filtering of Genetic Information

Posted on July 21, 2010
Genetic testing for adult onset diseases used to be mainly a medical service. In most cases a person who had a certain genetic disease that was prevalent in her family would go to test fo see if she carries the genetic mutation. For example, a woman who had several cases of breast cancer in her family would test for the breast cancer genetic mutation BRCA1/BRCA2 to see is she carries the mutation and has a high probability of getting the disease...

The "Culture Wars": A Dialogue

Posted on July 21, 2010
While I'm on the topic, those who are interested in the so-called "culture wars" may enjoy a couple of posts on the wonderful Law, Religion, and Ethics blog. The first is from my friend Steve Smith at USD, who worries about the culture wars. I find the comments on his post quite revealing; is America really "rotting from within?" I doubt it -- or at least, I see nothing more in the current supposed "rot" than the eternal changes and disputes about those changes inherent in a living culture -- but others, no doubt on both sides of the political...

Reactionaryism, Reynolds, and the Journolist Story

Posted on July 21, 2010
I try to avoid political posts -- these days, as I try to finish my books, I try to avoid posting altogether -- but occasionally something will get under my skin. The last couple of days have given me a couple of log-sized splinters. The first was a recommendation by a Facebook friend whom I respect for a post by Glenn Reynolds...

Professor Wasserman, why do you hate freedom of speech?

Posted on July 21, 2010
The Senate yesterday passed the latest version of federal libel tourism legislation, the SPEECH ("Securing the Protection of our Enduring and Established Constitutional Heritage Act"*) Act, which now goes to the House, where passage is expected. The bill has bipartisan support in both the House and Senate, which is always a bad thing...

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