Legal Commentary

Congressional Hearing on Stevens and the Future of "Crush Video" Legislation

Posted on May 25, 2010
Tomorrow at 10:00 a.m., I'm scheduled to testify at a hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, on the implications of the Supreme Court's decision in last month in United States v...

The ACORN Case and the Bill of Attainder Clause

Posted on May 24, 2010
In a few weeks, the Second Circuit will hear argument in an important test case for one of the less-frequently litigated constraints on Congress's power--Article I, Section 9's Bill of Attainder Clause, which generally prohibits the legislative imposition of "punishment...

Welcome to France, Leave Your Fakes at Home

Posted on May 23, 2010
I arrived at Paris De Gualle airport on Thursday, a bit tired as I walked through customs after collecting my luggage. I couldn't help notice a prominently placed sign warning visitors that importing a fake watch or handbag could subject the carrier to up to three years in jail or a 300,000 euro fine...

JSD?

Posted on May 23, 2010
I've just finished up a JSD degree and thought it might be useful for some of this blog's readers to hear one person's perspective about whether it is worth it for those interested in law teaching jobs to pursue this course. A JSD or SJD is a degree offered by a few law schools, ostensibly aimed at and designed for people who are interested in an academic legal career...

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Style points and exam-grading

Posted on May 23, 2010
This post is a follow-up to Bill's, from a few days ago ("The Very Mixed Blessings of Word-Processed Exams"). In first-year classes, what I do with exams is (I gather) pretty typical: word-processed, open-book, and word limits. Also (and maybe this isn't typical?), I tell the students in the instructions that a part (a very small part, as it happens, but still a part) of their exam score will be based on style, organization, grammar, syntax, and spelling...

"Trade is to Culture as Sex is to Biology"

Posted on May 22, 2010
That's a quote from an article by Matt Ridley in this morning's Wall Street Journal summarizing new theories about why human culture began to dominate (evolutionarily speaking) when it did. This should get the free market people pretty aroused. The theory attempts to deal with evidence that individual and small groups capabilities existed before before and after the culture and technology explosion that began in Africa about 45,000 years ago...

How Not to Write an Article

Posted on May 22, 2010
I am very good at making my life more difficult than it needs to be, so much so that my good friend says of me that never was so much good advice wasted on one person. It tells you almost all you need to know about me in this regard that I intentionally had a baby the year before coming up for tenure...

Lady Kaga Sings the Blues

Posted on May 22, 2010
Not sure if anyone else picked up on this from reading today's NYT, but I thought the photo appending Charlie Savage's piece on Elena Kagan and her views on executive powers was execrable. Why on earth would editors of a paper select a picture where the person has her eyes closed? Really! Are we supposed to believe that this photo was the only one available from yesterday? The fact that the pic was with Sen...

Reasonableness and Community

Posted on May 21, 2010
A few years ago, while looking for cases to recast as hypotheticals for my Torts students, I came across an interesting example of juror confusion about the application of a reasonableness standard in People v. Calitina, 2002 WL 31820336 (Cal.App. 1 Dist...

How Do You Spend Your Summer (Vacation)?

Posted on May 21, 2010
I woke up this morning and realized I had no compelling reason to go into the school today, so I didn't. I also had an appointment this afternoon in connection with one of my two (printable) pastimes, my last riding lesson of the school year.* I realized about noon that I had already started what is my particular pattern for summer days...

The Cultural Cross

Posted on May 21, 2010
With the attention on Salazar v. Buono (a case that didn't resolve much of anything), Americans sometimes miss where the real action is on cross-related issues. That's Italy, and the decision of the European Court of Human Rights last year in Lautsi v...

Out-of-Theater Capture (or, Why Maqaleh's Narrow Reasoning Sweeps So Broadly)

Posted on May 21, 2010
Entirely appropriately, the big legal news of the day has been the D.C. Circuit's 3-0 decision in Maqaleh, rejecting the jurisdiction of the federal courts to entertain habeas petitions by non-citizens detained at Bagram. There's lots to say about Chief Judge Sentelle's opinion, much of which has already been said by others...

Federalism and Libertarianism

Posted on May 21, 2010
Everyone is by now aware of Rand Paul's comments criticizing Title II (the public accommodations provision) of the Civil Rights Act of 1964, as well as his very quick walkback that he does not endorse repeal of the act and would have voted for the package deal had he been a senator in 1964...

Earned credits with deans

Posted on May 21, 2010
For the last three years, I've served a term as the Associate Dean for Academic Affairs at my law school. It's fascinating work. I'm not a newcomer to the school, but I saw a lot of new things as dean that I never saw as a faculty member: "Wow, I've been here for years and I never knew that we ...

LSA Happy Hour, Thursday May 27th @9pm. Place TBD. Watch here for this space.

Posted on May 21, 2010

Governor Schwarzenegger and the "Devolution Solution" (to the Prison Crisis)

Posted on May 21, 2010
I've argued for a long time that county government, with its more realistic view of crime and local knowledge, can hold the key to resolving our endless prison crisis if they can take back their prisoners and the resources locked up in state prisons. Hidden in the depths of his "May Budget Revisions" (the adjustments to the annual January budge proposal that is based on actual revenue returns during April tax season and thus considered far more realistic) California Governor Schwarzenegger has included a proposal to have some state prisoners serve their time at the county level...

The Very Mixed Blessings of Word-Processed Exams

Posted on May 21, 2010
Having completed another round of exam grading (including, on an Admin Law exam, a delightful misidentification of Vermont Yankee v. NRDC as Yankee Candle), I am recalling a discussion on Prawfs some time ago of spelling and grammar on exams. I forget the details of that exchange, so maybe it was mentioned back then, but I was struck this exam cycle by the difference in eloquence between word-processed and handwritten exams...

VOPA v. Reinhard and Ex parte Young: Why Cert. Should (and Will) Be Granted

Posted on May 20, 2010
For Federal Courts fans, one of the more intriguing cases in which a cert. petition is currently pending is a little-noticed lawsuit out of the Fourth Circuit, Virginia Office of Protection & Advocacy v. Reinhard. In Reinhard, the Fourth Circuit, in an opinion by Judge Wilkinson, held that state-created public agencies are not entitled to invoke the Ex parte Young exception to Eleventh Amendment immunity in suits against state officials in their official capacities--that sovereign immunity in general precludes the federal courts from resolving such "intramural" conflicts, even those arising under federal law...

Fontana on the search for postradical liberal prawfs

Posted on May 20, 2010
David Fontana (GW) argues in The Chronicle of Higher Education that President Obama, Sonia Sotomayor, and Elena Kagan all were part of the postradical generation of law students at Harvard and Yale. Fontana makes two points from this. First, it explains the reputation of all three as more-moderate conciliators, who were influenced either by more-conservative faculty members or liberal-but-not-radical (i...

Lord Devlin and the Veil: Revenge of the Fallen

Posted on May 20, 2010
Reasonable people today believe that H.L.A. Hart had the better of Patrick Devlin in the debate over the criminalization of homosexuality. An over-simplified little re-cap. Lord Devlin, one of the arch-legal-moralists of his day (though much of what he stood for was said earlier, and far better, by Sir James Fitzjames Stephen), believed in the vital importance of some common, fundamental moral agreement for the survival of a society...

Rand Paul and the Civil Rights Act

Posted on May 20, 2010
The flash tempest about Rand Paul and the Civil Rights Act of 1964 suggests that we may be in store for some interesting constitutional argumentation in the run-up to the midterm elections. One might have thought that the most interesting issues were going to surround some of the (alleged) policy innovations of the last couple of years, from TARP to health care, innovations not just about policy but about the power of government...

Ideoblog Merges With and Into Truth on the Market

Posted on May 19, 2010
Larry Ribstein, pictured left, whom I joined as a co-author on the fourth edition of Unincorporated Business Entities, the world's premier casebook on non-corporate business associations (note that I didn't simply say "my co-author Larry Ribstein" because it would unfairly reflect our respective contributions), has announced that he is shutting down his six-year old blog and joining Truth on the Market...

The Fair Report Privilege in NJ: "Misappropriate" = "Steal"?

Posted on May 19, 2010
In Salzano v. North Jersey Media Group, 2010 WL 1849852 (May 11, 2010), the New Jersey Supreme Court addressed important issues regarding the scope and application of its fair report privilege. First, the court held that defendants may receive the benefit of the privilege when repeating allegedly defamatory allegations taken from ?initial pleadings,? such as a filed complaint in a civil case...

The European Union and More about Facebook

Posted on May 19, 2010
Last week, the European Union's data protection authorities sent a letter to Facebook a letter stating that it was unacceptable that the site changed its default settings to reveal information that the user may consider private. The EU stressed that access to user information, whether by search engine or other means, be made at the explicit choice of the user...

BP as in Big Punishment

Posted on May 19, 2010
A recent congressional proposal would retroactively raise the cap on economic damages under the Oil Pollution Act (the Big Oil Bailout Prevention Act). The proposal bristles with an angry enthusiasm for punishing BP that seems designed to capitalize both on public outrage about the spill's environmental harms and a more general anti-corporate sentiment (the press release previously linked to announcing the legislation also lists oil company profits and notes that there is "no such thing as 'To Big to Spill'")...

It's Not About the Optics

Posted on May 19, 2010
Lisa Belkin has published an article in the New York Times magazine quoting commentators who ask whether it "sends the 'wrong' message" to girls and young women to nominate single, childless Kagan for the court. Belkin quotes Peter Beinart's post at "The Daily Beast," saying that he thinks Obama should have chosen Judge Diane Wood, because she would provide a better "role model" for the young women of America who want children...

Lost on the Supreme Court

Posted on May 18, 2010
In a recent post on MoJ, Steve Shiffrin writes: "Robby George was able to identify only two justices (White and Black) appointed by Democratic Presidents in modern times that he could approve ? those who he said applied what he calls ?constitutionalist? premises...

More on Comstock and Graham

Posted on May 18, 2010
Like Rick (see the post below), I'm interested in the light that these two cases shed on each other. Both cases involve practices that are now widely available in the statutes of most U.S. jurisdictions. In Comstock, this is civil commitment on steroids, triggered by a range of sex crimes, including some relatively minor ones...

Comstock's Folly

Posted on May 18, 2010
The SCOTUS's holdings in Comstock and Graham together illustrate my F.U.S.S. theory of federalism -- that is, my theory about the inevitable Failure of Unitary Societies and States. This theory consists of four hypotheses -- viz.: (1) Deferential judicial review of the national legislature's implied powers allows the national legislature win cheap and short-term political applause with unnecessary and oppressive national regulatory regimes -- say, federal civil commitment for sexually dangerous ex-convicts; (2) The Court?s efforts to enforce centralized theories of rights to temper such laws inevitably founder on the cultural divisions within a large, heterogeneous, and politically polarized nation...

Against Coherence (Eighth Amendment Version)

Posted on May 18, 2010
Below, Dan gives a little statement of the Graham case and some links. And he also expresses hope that Graham augurs the end of Justice White's view in Coker that "death is different." I've always thought that there were two sides to this coin. First, there is the proposition that the death penalty ought only to apply where the defendant has killed...

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