Legal Commentary

A Proposed Constitutional Amendment: Protecting the Right to Enjoy Governor Scandals

Posted on July 21, 2010
I propose the following as the 28th Amendment to the Constitution of the United States: No governor of any state may resign or be removed before the end of the term unless 2/3rds of cable television audiences so consent.

Historical Context of Holocaust-era Assets Claims

Posted on July 20, 2010
What judges think of their function and task undoubtedly informs their understanding of their power or jurisdiction. In the most recent Nazi-looted art appeal of Grosz v. MoMA, No. 09 Civ. 3706 , 2010 Westlaw 88003, at *22 (S.D.N.Y. Mar. 3, 2010), the district court viewed itself as confronted ?with a legal, not a historical, question...

Tenth Circuit gets ministerial exemption right, appellate procedure wrong

Posted on July 20, 2010
A decision from the Tenth Circuit last week, dealing with the ministerial exemption to employment discrimination laws, got the jurisdictionality question exactly right, holding that it determines "whether the First Amendment bars [that plaintiff's] claims," which is a merits question and not a question of judicial subject matter jurisdiction...

Should U.S. Attorneys Have Offices in Courthouses?

Posted on July 20, 2010
The Spring Street Courthouse in Los Angeles, which houses the offices of the U.S. Attorney for California's Central District and the chambers and courtrooms of more than a dozen federal judges. In many places around the country, the United States Attorney's office is in the same building as the federal courts...

To access this complete feed in the blog feed reader login or register for free.

The Mystery of Arizona's Racial Profiling Provision-Solved

Posted on July 19, 2010
Kevin Johnson and I wrote an op-ed in the Washington Post reflecting our surprise that anyone who has read SB1070, Arizona's new immigration law, and is familiar with the relevant cases, would read it to prohibit racial profiling when it clearly allows for it...

The Dodd-Frank Act

Posted on July 19, 2010
If you're interested in the Dodd-Frank Act, Congress' 2300-page behemoth legislation which is intended to avoid another economic and financial crisis by regulating financial institutions and various aspects of corporate governance, you can find plenty of interesting commentary on the professor blogs today...

Law Prof Interview Gaffes

Posted on July 16, 2010
In celebration of Friday, here is a fun post. With the FAR form due date not far off, and talk of hiring committees in the air, I thought it might be interesting to focus on academic interview gaffes--relatively minor things that go wrong that while embarrassing at the time become funny in retrospect...

Dispatches from the front, circa 1989

Posted on July 16, 2010
From Fred S. McChesney, "Economics, Law, and Science in the Corporate Field: A Comment on Eisenberg," 89 Colum. L. Rev. 1530, 1530 (1989): As American history demonstrates, the colonization of one territory by inhabitants of another creates at least two problems...

More on the FCC's indecency ban

Posted on July 15, 2010
The following is by my colleague Hannibal Travis, who writes on telecom law. The FCC warns broadcasters that it is illegal to program indecent programming or profane language during certain hours, and that a fine or loss of the station?s license may be imposed as a result...

Amicus Brief by First Amendment Professors in Snyder v. Phelps

Posted on July 15, 2010
Christina Wells of the University of Missouri Law School has put together a group of law professors who teach and write on the First Amendment to file an amicus brief in support of protecting the offensive speech at issue in Snyder v. Phelps. I have joined Chris Wells on the brief, as have Alan Chen, Heidi Kitrosser, Ronald Krotoszynski, Jr...

Why is it a Bad Idea to Prohibit Sperm and Egg Donor Anonymity?

Posted on July 15, 2010
Use of sperm and egg donations is common practice in the United States. Couples or individuals who have trouble conceiving or lack a partner resort to use of donor eggs or sperm. The donors are usually young, often college or medical students. Many donate for financial reasons and some for altruistic reasons...

Making even Iqbal look good

Posted on July 15, 2010
I have not had much good to say about Iqbal, but here is one small thing to recommend it: It did not impose true heightened pleading (or pleading "with particularity" a la Rule 9) in civil rights actions and it trumps any attempts by lower courts to do so...

A good weekend for Goldman

Posted on July 15, 2010
In case you missed it, Goldman Sachs has settled its case with the SEC for 550 million dollars, pending approval by Judge Barbara Jones. Given the fact that the media pundits had previously speculated that Goldman would pay as much as 1Billion or far more, this has to be a good weekend for Lloyd Blankfein, particularly since the firm is not even required to admit the SEC's allegations other than to say that it regretted that its marketing materials were "incomplete" in that they failed to disclose that John Paulson was shorting the synthetic collateralized debt obligations (CDO's) that Goldman...

Steinbrenner Picks Right Year

Posted on July 14, 2010
If you are an heir to a fabulous fortune, particularly the heir to a $1-4 billion group of family businesses like that of the New York Yankees and its associated entities, it is preferable for the property to pass this year. An AP Article summed it up: "If Congress doesn't go retroactive, then [Yankees-owner George Steinbrenner] picked a great year to die," said Robert Steele, who heads of the trusts and estates department at the law firm of Wolf Haldenstein Adler Freeman & Herz in New York...

Tories Preparing to Lead UK Away from Mass Incarceration?

Posted on July 14, 2010
The new UK Justice Minister, veteran Conservative politician Ken Clarke, is roiling British politics by suggesting openly that the UK's massive increase in imprisonment over the last decade and a half is not, I repeat, is not, the main reason for drops in crime experienced there...

Phil Frickey, RIP

Posted on July 14, 2010
Thanks to Brian, I just came across the terribly sad news of Phil Frickey's terribly unripe passing. There's a memorial notice up on Berkeley's website with an affecting and effective video from the April 2010 Festschrift, which you can watch below. If you're a former student or colleague of Phil's, please feel free to share any appropriate personal stories in the comments of this wonderful scholar and fundamentally decent human being.

Some thoughts on willful blindness

Posted on July 14, 2010
Christine Hurt and Stephen Bainbridge are asking whether the ?willful blindness? doctrine, which is also known as conscious avoidance and deliberate ignorance in some jurisdictions, will suffer the same fate as the ?honest services? doctrine. For those who don?t study white collar crime, the Supreme Court recently struck down, in United States v...

Is it good for the Jews?

Posted on July 14, 2010
Forgive me. I have no idea how else to tie these two ideas together, other than that title. First, last night's MLB All-Star Game featured two Jewish players--outfield Ryan Braun of Milwaukee and infielder Ian Kinsler of Texas. I have not looked this up, but it seems likely this is the first time this has happened...

Musings on the Cultural Property Field from Italy

Posted on July 14, 2010
(Not my pic, but I saw it on many, many sites without attribution. It can be found easily using Google Images.) The cultural property field is not just about restitution. It?s also about preservation of monuments, objects, heritage and the archaeological record, among other things...

The Rule of Law Trampled on the Red Carpet

Posted on July 14, 2010
Director Roman Polanski in France on the set of the 1979 film Tess, following his arrest and flight from U.S. authorities. (Promotional photo from Columbia Pictures) Roman Polanski has just been freed by Swiss authorities who were detaining him under house arrest...

Anonymity of Notes in the Harvard Law Review

Posted on July 13, 2010
As is the case with many student-edited law journals, members of the Harvard Law Review may write articles ? called "notes" ? for publication. But unlike most other student-edited law journals, the Harvard Law Review has a peculiar policy of publishing these articles anonymously...

"Judicial Access to the Natural Law"

Posted on July 13, 2010
I'd welcome Prawfsblawg readers' and bloggers' reactions to this review, by my friend and "Mirror of Justice" blogger Patrick Brennan (Villanova), of Prof. Hadley Arkes' new book, "Constitutional Illusions and Anchoring Truths." Probably not all of Justice Scalia's critics are aware that he has some "conservative" critics as well, critics who -- like Arkes -- think that he is wrong to insist that it is beyond the capacity or job-description of federal judges to "give effect to the natural law...

Some thoughts on law firm memoranda

Posted on July 13, 2010
Lately, I have been noticing the extent to which large law firms aid law professors by enabling free access to their client memoranda on the Internet. Although I would never rely on the memoranda as ?authority,? they provide succinct and often useful analyses and summaries of incredibly long and detailed pieces of legislation...

Another video case yields controversial outcome

Posted on July 13, 2010
Last Friday, former BART Police Officer Johannes Mehserle was convicted of involuntary manslaughter for the New Year's Day 2009 shooting of Oscar Grant. The jury declined to convict on the more serious charges of second-degree murder and voluntary manslaughter...

Second Circuit strikes down FCC expletive policy

Posted on July 13, 2010
Opinion here; analysis here. Some thoughts: First, the court spends a few pages of dicta explaining why the foundations of Pacifica no longer hold sway--broadcast television no longer is a "uniquely pervasive" presence in a media landscape that "would have been unrecognizable in 1978...

Brooks' Blooper With Grinds and Princes

Posted on July 13, 2010
Greetings from beautiful Breckenridge. As some of you already know, I like David Brooks as much as most other liberals reading the NYT. Today's column, though, didn't work entirely. In it, Brooks divides the world between charming princes who siphon off resources from the public fisc on the one hand and the boorish grinds, on the other hand, ie...

What does it mean?

Posted on July 11, 2010
In case you missed this: And don't miss the remix either:

Attempting the uncasebook

Posted on July 10, 2010
I previously have written about dropping the traditional casebook in some classes in favor of some combination of unedited cases and supplemental materials (what some readers dubbed the "uncasebook"). Well, this semester I am going to give it a shot in Civil Rights...

The Russian Prisoner Swap

Posted on July 10, 2010
I have a profound sense of ambivalence regarding the ten Russian spies whose prosecutions effectively ended this week when they pled guilty in accordance with a US/Russian agreement, received sentences of "time served", and were deported to Russia in exchange for the release of four prisoners there...

Blogging Abroad: France

Posted on July 10, 2010
I have a confession to make. I am addicted to the Internet. Not just any Internet, mind you. Internet of the high-speed kind. I've been in France for over three weeks now, and I'm suffering serious withdrawal symptoms, despite the fact that I have both laptop and iPad in tow...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.