Legal Commentary

Thoughts on Day Two

Posted on June 30, 2010
Some themes and thoughts that jumped out at me from Day Two, the first substantive day, of the Kagan Hearings, where criticism of Justice Marshall gave way to important considerations of Jews eating Chinese food on Christmas. 1) Sen. Grassley is interested in law school curriculum reform...

Gone With the Wind

Posted on June 30, 2010
On this date in history . . . in 1936, Gone with the Wind was published . . . and in 2010 Tom Baker's June stint as a guest blogger on PrawfsBlawg came to an end. I enjoyed it. Thanks to our hosts, particularly Dan Markel, Rick Garnett, and Howard Wasserman...

Kagan Fatigue?

Posted on June 30, 2010
Here is an op-ed about the confirmation hearing and statutory interpretation that I published with Michael Serota in USA Today. Michael and I are publishing a related Essay in the Yale Law Journal Online soon; a draft is available on SSRN.

It's the empathy, stupid

Posted on June 30, 2010
Empathy was back yesterday, with Republican Senators again trying to push the nominee to adopt or disavow President Obama's stated vision of judging. This time it was Senator Kyl and the following exchange: Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate...

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Signing off for 2010

Posted on June 30, 2010
Thanks to Dan and the others here at Prawfs for allowing me to share their space this past month. As I sign off during these confirmation hearings, which are setting a new bar for boredom (apart from Kagan's occasional jokes), I will link to this column I wrote for Fox News's web site...

Vischer on the CLS case

Posted on June 30, 2010
I was very disappointed by the decision in the CLS case. (Disclosure: I submitted an amicus brief in support of CLS.) Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters...

My Principles for Great Law School Architecture

Posted on June 30, 2010
Part 3 of a series: Architecture & Law Schools [1] [2] [3] If someone said they wanted to see "a picture of [a certain] law school," it would be clear that they would be talking about seeing a picture of the campus, that is, the school's architectural embodiment...

Your asterisk footnote

Posted on June 29, 2010
Do you have some boilerplate language you use in the asterisk footnote of your articles? Does it preemptively cover copyright permissions? My plea is that you give the matter some thought and attention. My own nominee for the best copyright statement is Larry Solum, who teaches intellectual property among other courses at the University of Illinois College of Law...

How/When/Where Do We Write?

Posted on June 29, 2010
For the past week and a half, I have experienced a welcome period of productivity and synthesis on my book project. It's not that I wasn't writing before, it's just that something has changed; there is an ease of thought and composition that wasn't there previously...

That Old-Time Fundamental Rights Religion

Posted on June 29, 2010
It comes as no surprise that the SCOTUS held in McDonald that the Fourteenth Amendment incorporates the Second Amendment against the states. But it is deeply laughable that the Court continued to reject cost-benefit balancing in the definition of the right...

Subjects v. Substance in Supreme Court hearings

Posted on June 29, 2010
With the meat of the Kagan hearings getting underway this morning, I read the fine new study by Lori Ringhand (UGA Law) and Paul Collins (North Texas Political Science). They coded the subjects of all questions, answers, and comments from hearings going back to 1939 into fairly precise categories ("Civil Rights," "Criminal Justice" "Judicial Philosophy/Interpretive Methods," etc...

Please Help, if You Can

Posted on June 29, 2010
I'm reading Larry Lessig's new book Remix. He discusses the differences between commercial economies and sharing economies. He explains that friends do favors for one another in a sharing economy, and corporations and customers use cash as the medium of exchange in a commercial economy...

A new study of Senate Judiciary Committee Hearings on Supreme Court Nomineees

Posted on June 28, 2010
A remarkably timely empirical study purports to examine all the questions and answers given by SCOTUS nominees who appeared before the Judiciary Committee since 1939. The authors are Lori Ringhand (U. Ga. law school) and Paul Collins (U. N.Tex. Political Science)...

Cyberbullying and School Administrator Jurisdiction

Posted on June 28, 2010
The New York Times ran a disturbing/interesting piece about "cyberbullying," and the challenges that school administrators face in fighting an old war (bullying) on a new technological dimension and plane. Brannon Denning (Cumberland School of Law) and Molly Taylor wrote a fascinating article, Morse v...

Open Thread for Prawfs on Free Enterprise Fund v. PCAOB

Posted on June 28, 2010
Below is the BNA squib, and the opinion can be found here. Any reactions? Free Enterprise Fund v. Public Company Accounting Oversight Board,No. 08-861. Provisions in the Sarabanes-Oxley Act of 2002 setting out the mechanism for removing a member of the Public Company Accounting Oversight Board violate the Constitution's separation of powers because they unduly restrict the president's constitutional authority over an inferior (as opposed to a principal) executive officer...

Open Thread for Prawfs on Christian Legal Society Chapter of UC-Hastings v. Martinez

Posted on June 28, 2010
Here's the BNA capsule on the Hastings case, just decided and opinion here. Christian Legal Society Chapter of University of California, Hastings College of the Law v. Martinez, No. 08-1371. A public law school did not violate the First Amendment rights to free speech, expressive association, and free exercise of religion of a Christian legal student group by requiring the group to accept as members those who do not share the organization's core beliefs about religion and sexual orientation...

Open Thread for Prawfs on McDonald v. Chicago.

Posted on June 28, 2010
McDonald v. Chicago, No. 08-1521. The Court says the Second Amendment, applies to the states. Five justices agree on the result, but disagree on the rationale; four dissent. What say you? Signed comments please.

Bilski and (Thankfully) Continued Uncertainty in Patentable Subject Matter

Posted on June 28, 2010
Thanks again to the folks at Prawfs for allowing me to loiter long enough to post about today's opinion in Bilski v. Kappos. The title of this post is nearly identical to the post I wrote when the Federal Circuit ruled (see that post if you have no idea what Bilski is about) - with the addition of thankfulness...

Shorter Senators' opening statements

Posted on June 28, 2010
In case you missed them: Everyone: "We know how awful, inane, and particularly vacuous the hearings were last year. We plan on doing better this year, because then-Professor Kagan told that we, and she, should be more substantive. So we will be more substantive this year...

Did McDonald Overrule Apodaca?

Posted on June 28, 2010
No. But today?s decision in McDonald v. City of Chicago did include an interesting footnote that stood out to my criminal law-focused mind, dealing with the unanimous jury requirement under the Sixth Amendment. In applying the Second Amendment to the States through the Due Process Clause, the majority in McDonald rejected the argument that ?incorporation? can provide a ?watered-down? version of federal rights...

Was Justice Scalia Disrespectful to Justice Stevens on Stevens' Last Day?

Posted on June 28, 2010
Justice Scalia is known for his witty, and sometimes sharp, language in his opinions. Adam Winkler recently commented here, "Pot, meet kettle," when Justice Scalia reportedly decried the lack of respect in the world. I have thought that Justice Scalia's opinions, for all their brilliance, don't always model the ideal in civil tone, especially to young lawyers and law students who still are finding their professional voice...

The More the Second Amendment Changes . . .

Posted on June 28, 2010
Today's decision in McDonald v. Chicago marks a major change in constitutional doctrine but one that will likely have only a minimal effect on gun control. For the first time, the Supreme Court held that the Second Amendment serves as a limit on what regulation state and local governments can impose on the right of individuals to have guns...

Who Will Join Lessig Against the Forces of Plutocracy?

Posted on June 27, 2010
Via FB, I just came across one of Larry Lessig's recent presentations--this one to a law school audience--enjoining listeners to "Fix Congress First." It is characteristically sharp and witty and uses Lessig's powerful Powerpoint techniques.

Annual Law and Religion Roundtable

Posted on June 27, 2010
Rick mentioned the first Annual Law and Religion Roundtable the other day. It finished up on Friday, and was a fantastic two-day event. I was a co-organizer, but most of the hard work was done by Nelson Tebbe of Brooklyn Law School and Rick himself. There seems to be a lot of important and valuable work going on in law and religion these days, and in particular I hope folks are putting pennies away in their piggy jars or hoarding their PDFs, because it looks as if a lot of very interesting books about law and religion should be coming...

You know you're an internet addict when . . .

Posted on June 27, 2010
I arrived in Paris over a week ago and am now in Montpellier, where I'm teaching Business Torts (yes, in both places). My hotel in Paris had no WiFi access, and my two older children and I almost couldn't handle it. We ended up going to McDonald's more than once for the free WiFi, though actually I was glad to pay for food that the kids would actually eat...

A "Tort"uous Question...

Posted on June 25, 2010
My apologies for the bad pun. I have a legal challenge for all you folks. Back in the prehistoric days of this century, when I was in the throes of law school, I seem to remember that in my torts class we covered cases with objects in the case name, often cars, such as Smith v...

Le Corbusier and Certain Pro Se Litigants

Posted on June 25, 2010
An open area in a Le Corbusier apartment complex in the Rhône-Alpes region of France. Part 2 of a series: Architecture & Law Schools Recently, I've been taking a peek at the writings of Le Corbusier. He's one of history's most celebrated architects, and he has had a profound influence on the modern cityscape...

Why Kagan Is a Risky Choice

Posted on June 25, 2010
The nomination of Elena Kagan was a risky choice for President Obama. While she is likely to have views more or less sympathetic to the President's -- although she's probably more of a free speech hawk than him -- she presents the President with political risks...

New C-SPAN poll on the Kagan Nomination

Posted on June 25, 2010
The Kagan confirmation hearings begin Monday morning. C-SPAN conducted a poll this week to assess popular opinion. What is public awareness of the hearings and the nominee? What is the Court's approval rating? A few highlights of the results and a link to the poll after the break...

When the Jury is Out (Visiting)

Posted on June 25, 2010
I've always thought that the McVeigh jurors' Oklahoma City visit is one of the most interesting chapters in the Oklahoma City bombing story. Juries are fascinating institutions--their behaviors are at once so visible, and so private. And as visually accessible as they are during trial, jurors are regarded as "off limits" during and often after litigation as well...

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