Legal Commentary

What's your classroom song?

Posted on June 25, 2010
At MLB games there is a fun tradition of playing a few bars of a signature song for a player when he takes his at-bat -- it is designed to psyche up the home team players and to rev up the home crowd. Some parks also play musical prank songs to tease visiting team players...

Witness List for Kagan Hearings

Posted on June 25, 2010
h/t RCP / Time: American Bar Association Witnesses Kim Askew, Chair of Standing Committee William J. Kayatta, Jr., First Circuit Representative Majority Witnesses Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School Justice Fernande ?Nan? Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States Jennifer Gibbins, Executive Director, Prince William Soundkeeper Professor Jack Goldsmith, Professor of Law, Harvard University Marcia Greenberger, Founder and Co-President, National Women's Law Center...

Long tennis matches and case-based rulemaking

Posted on June 24, 2010
My interest in sports law always has been about sports-as-law; that is, what can sports tell us about law, legal rules, and legal systems. The latest example is the epic early-round match at Wimbledon between American John Isner (who at 6'9" also has the distinction of being the tallest player around) and Frenchman Nicolas Mahut...

Some jurisdiction/merits clarity

Posted on June 24, 2010
I don't know much about § 10(b) or its extra-territorial application, the subject of today's decision in Morrison v. National Australia Bank. But I was cheered by Part II of Justice Scalia's majority opinion, which held that the question of the extraterritorial reach of § 10(b) does not raise a question of subject matter jurisdiction...

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Book review of "Acting White"

Posted on June 24, 2010
John McWhorter has a nice review of my book in The New Republic. A highlight: Buck?s terrific book is longer on analysis than prescription; but its analysis comprises such invaluable history, and so deftly counters any fears underlying the pretense that the ?acting white? charge is fictitious, that I cannot imagine we will soon see another book so utterly necessary on what used to be called the Race Question.

The SCOTUS Bunker

Posted on June 24, 2010
The secret bunker built during the Cold War for Government officials at the Greenbrier resort is no longer a secret -- today you can go on a tour of that facility. But did you know that the SCOTUS justices had their own secret bunker? (I did not know that until I read the latest issue of Mental Floss - - a magazine we subscribe to that is always a fascinating read...

The Dunning-Kruger Effect

Posted on June 24, 2010
Did you hear the one about the bank robber?get this: 5 feet and 6 inches, 270 pounds?who thought that if he rubbed lemon juice on his face and walked into a bank, no one would recognize him? That he would be completely invisible, even to surveillance cameras? When arrested shortly after the surveillance tapes were played on the local news, the robber was incredulous...

Law and Religion Roundtable

Posted on June 24, 2010
What a great first day at the Law and Religion Roundtable in Brooklyn, courtesy of BLS's Nelson Tebbe, Paul Horwitz, and a wonderful group of participants and presenters: Government speech and social meaning, desert crosses and Ten Commandments monuments, moral freedom and public reason, natural-law-honoring judicial activism and First Amendment protections for atheists, "tragic historicism" and Kent Greenawalt's response to some (friendly and admiring) critics ...

Scalia, At It Again

Posted on June 23, 2010
Last week, the Supreme Court decided Stop the Beach Renourishment v. Florida, a case dealing with the question of whether judicial rulings that curtail property rights constitute a taking under the Constitution. The Court split 4-4 on that question (while ruling 8-0, with Stevens recused, that no change in property rights was involved in this particular dispute)...

The Non-traditional Dean: A Growing Trend? Pros & Cons?

Posted on June 23, 2010
A recent article by Jack Weiss, who is the Chancellor/Dean at LSU law school explores the pros and cons of non-traditional deans, i.e., lawyers and judges whose career paths have been primarily outside the legal academy. Jack, M Weiss, A Causerie on Selecting Law Deans in an Age of Entrepreneurial Deaning, 70 La...

Another sign of the apocalypse

Posted on June 23, 2010
Tongue in cheek: What has been the effect of the vampire craze on the workload of the federal courts? I will allow the press release to speak for itself: Federal Judges and Vampires Teach Student Rights, Wrongs June 21, 2010 The vampire craze recently invaded a courtroom in the U...

Picking Up the Banana Phone

Posted on June 23, 2010
I've had one particular song in my head the last few days. Those of you with small children might recognize it...it's a Raffi special: Ring ring ring ring ring ring ring Banana phone Ring ring ring ring ring ring ring Banana phone I've got this feeling, so appealing, for us to get together and sing...

Federal Law Should Require Online Availability of Instruction Manuals

Posted on June 23, 2010
Congratulations on your purchase of a new consumer product! IMPORTANT: RETAIN THIS INSTRUCTION MANUAL FOR FUTURE REFERENCE. Annoying, huh? Here is a proposal for a new federal law. It's pro-consumer, pro-safety, and pro-environment. The operative provision would be this: All commercial manufacturers of consumer products that are sold with instructions, manuals or other such documentation shall permanently label such products with a URL web address where consumers may download copies of the documentation...

Is it a federal crime to break Israel's Gaza blockade?

Posted on June 22, 2010
Or pay taxes that end up in Hamas' pocket? Or send a remittance check to a relative in the Gaza strip? SCOTUS's decision in Holder v. Humanitarian Law Project suggests as much. These implications suggest that the real story about the "material support" statute is not its effect on freedom of speech but its extraordinary grant of prosecutorial discretion: By criminalizing all activity that simply has the foreseeable effect of aiding a foreign terrorust organization, the statute absurdly makes the entire population of Gaza and the entire European Union into criminals under U...

What matters more in this market: student GPA or favorite baseball team?

Posted on June 22, 2010
The opening lines to this N.Y. Times article tell the story: "One day next month every student at Loyola Law School Los Angeles will awake to higher grade point average. But it's not because they are all working harder." We have discussed this issue around my school too, where we have a fairly tough grade range...

Judicial Takings

Posted on June 22, 2010
I have to admit that I was fearing the worst from Stop the Beach Renourishment, Inc. v. Florida Dept of Environmental Protection, the Court's recent takings clause case, but the result was, to my mind, striking for its reasonableness. The Court unanimously upheld the Florida Supreme Court's decision that Florida's complicated beach renourishment scheme did not take property from beachfront landowners...

Grades and class rank

Posted on June 22, 2010
Folks are talking (Brooks beat me to it) about the article in today' Times on law schools altering their grading curves (sometimes retroactively) to bump students' GPAs, making students look stronger and thus more attractive to employers. We just altered our curve, although not retroactively (one of my colleagues was part of a retroactive revision at his previous school and said it was a nightmare)...

Welcome to CALI's E-Landgell Sponsorship

Posted on June 22, 2010
We are thrilled to welcome the sponsorship of CALI (the Center for Computer Assisted Legal Instruction) for the next two months. CALI is beginning an initiative that should intrigue the Prawfs readership: they are about to begin publishing digital casebooks that can be distributed via readers such as Kindle and iPad and they are keen to have prawfs create and edit content for them to distribute...

Hiring Chairs 2010-2011: Please Announce Yourselves

Posted on June 22, 2010
It's that time again. I've been getting requests from some aspiring prawfs, so here's the post: law school hiring chairs for entry and lateral candidates, please announce yourselves in the comments and please feel free to share who's on the committee and whether the search is limited in a particular way (or not)...

Patent Movies

Posted on June 22, 2010
I just watched a wonderful movie about software patents: Patent Absurdity (Luca Lucarini 2010). It's freely downloadable, and I heartily recommend showing it if you teach Intellectual Property or Patent Law. The best thing about it is, it's pitched at the perfect level for law students...

Batson, or What the F*ck?

Posted on June 21, 2010
From a June 2, 2010 story in the NY Times, page A14: In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case. The district attorney, Robert Broussard, said one had seemed ?arrogant? and ?pretty vocal...

Kagan: The Next Frankfurter?

Posted on June 21, 2010
Progressives have been debating whether Elena Kagan is liberal enough. My view is that she is likely to be the next Felix Frankfurter?another professor from Harvard Law whose tenure on the Supreme Court is viewed today by many progressives as a disappointment...

PrawfsPuzzler: Flip-Flop Puzzles

Posted on June 21, 2010
Using the clues provided, complete the blanks below to create a chain of words, where the next word in the series is formed by adding, deleting, or changing a single letter from the word before. So, for the clue "a musical floor swab," the answer could be "HIP HOP MOP...

Some musings ...

Posted on June 21, 2010
Returned recently from a road trip with la familia that included Portland, OR, and Seattle, WA. Both cities are great places to spend time with the kids, and we even got a beach day in Seattle. While in Seattle I also participated in a couple of interesting events of note...

Today's arbitration decision in Rent-A-Center v. Jackson

Posted on June 21, 2010
Hello, Prawfs readers. I guest-blogged here a couple months ago and wrote about Rent-a-Center v. Jackson. The case concerns who - court or arbitrator - decides an unconscionability challenge to certain aspects of an arbitration agreement, where the arbitration agreement itself purports to assign the decision to the arbitrator...

The Senate has mucked things up--hopefully the House won't follow suit

Posted on June 18, 2010
(This post is by Prof. Gregg Polsky and me.) Yesterday, the Senate passed an amendment that would make punitive damages paid by businesses nondeductible for tax purposes. The nondeductible rule is intended to pay for a 90 day extension of the home buyer's tax credit...

The Perfect Gift for the Law Professor in Your Life

Posted on June 18, 2010
Father's Day is just a few days away. And Mother's Day was recent enough that the regrets are still fresh. (I let my five-year-old son buy a red light bulb for Mom.) And I probably won't be guest blogging in December. So the time is ripe for this question: What are the best gifts for law professors? Please provide your answers in the comments below...

How federalism inevitably trumps takings doctrine -- and a good thing, too.

Posted on June 18, 2010
SCOTUS' decision yesterday in Stop the Beach Renourishment v. Florida Dep't of Environmental Protection once more illustrates the axiom already established by many other decisions: Absent the sort of majoritarian passion that the Fourteenth Amendment was designed to prevent, SCOTUS cannot, should not,and will not centralize the definition of "property" through a vigorous federal takings doctrine...

Juneteenth

Posted on June 18, 2010
Wouldn?t it be nice if more people celebrated Juneteenth? Even if it?s just having a BBQ and cracking open a beer? When I was a kid, my mother?s church would hold its annual picnic on a day to coincide with Juneteenth, which is the third Saturday in June...

Pondering witness behaviors at McVeigh's execution

Posted on June 18, 2010
The date was June 11, 2001. That morning, 10 witnesses in Terre Haute, Indiana, watched McVeigh die by lethal injection. Back in Oklahoma City, 232 more witnessed McVeigh?s final moments via closed-circuit broadcast. But while closed-circuit witnesses recalled that a restless, wary silence pervaded the remote viewing room, live execution witnesses reported a more comfortable, noisy, and positive atmosphere...

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