Legal Commentary

Lawyers as CEOs

Posted on May 18, 2010
The May 2010 edition of the ABA Journal has as its cover story a feature on the nine lawyers who happen to be CEOs of Fortune 50 companies. The article, I think, wants to argue that there's something systemic about this in the growth of regulation of businesses beyond the traditional home of lawyer-CEOs - financial, insurance, and pharmaceutical industries...

Experience and Analysis

Posted on May 17, 2010
A week ago today I posted about how, if Solicitor General Kagan is confirmed, every Justice on the SCOTUS will have attended Harvard or Yale law schools. In an article in the National Law Journal, I was quoted as saying that I was concerned about diversity of experience on the court, and barriers to entry at these few, elite "feeder" schools...

Graham's significance

Posted on May 17, 2010
Earlier this evening, I had a chance to read the new SCOTUS opinion in Graham (invalidating life without parole sentences for juveniles convicted of nonhomicidal crimes) and it's a doozy. I'm supposed to write something up on Graham over the next month for the Federal Sentencing Reporter, where Michael O'Hear is hosting a gathering of folks to offer some short reflections on the significance of Graham...

Lilla's Core Conservatism

Posted on May 16, 2010
Mark Lilla is often depicted -- sometimes caricatured -- as a dyed-in-the-wool secular liberal. Readers who take this line point to the separationist melodies of The Stillborn God and his occasional denouncements of the Sarah Palin-opulist right wing...

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Your (best friend's) very own Google Scholar Alert

Posted on May 16, 2010
From the helpful folks at FSU's Law Library/Research Center, I just came across this helpful post regarding Google Scholar Alerts, which you might want to set up for your children and best friends...Google Scholar's wonderful functionality can be illuminated with respect to the task of "brand management...

Law and . . . Cosmology?

Posted on May 16, 2010
I don't want to gloat but I just finished submitting the grades for my second class (102 exams total in both classes), so other than two, count 'em, two, make-up exams, I'm done. I'm sitting here with a class of Sancerre, and just fished out of my backpack the copy of Discover magazine I "borrowed" from the gym the other day...

Sports Illustrated Curse - Short-Term Version

Posted on May 15, 2010
As long as I'm on a sports theme, the Sports Illustrated curse reared its head this week, I think, with a Boston connection in both cases. Just to give it an academic spin (for a law professor blog), the SI curse is probably one of the best known examples of the behavioral psychology phenomenon known as the availability heuristic (conclusion based on the availability, not the correctness, of the data)...

Religion Clause Issues in the Strangest Places

Posted on May 14, 2010
Later in the same walk I blogged about yesterday I was brought up short (ok, no more self-referential links) by something I saw on the dashboard of a New York City Department of Buildings car parked on the street. It was a prayer card of the type I remembered from my childhood...

Choosing a Book, for Me

Posted on May 14, 2010
I will be picking a new book for my professional responsibility class next year (sorry future students!) because I just can't tolerate the touchy feely, problem-oriented approach of the book I picked this year. I picked it because I thought, "Well, I don't write in this area, and perhaps it will be better if I go easy on myself with a subject about which I know comparatively little and my students, nearly to a one, find agonizingly, exquisitely dull...

What is the Opposite of "Parochial?"

Posted on May 14, 2010
At the radical splinter blog CoOp, Nate Oman has some thoughts about the Kagan nomination. As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts?s umpire analogy...

Judge Brown's Sleight-of-Hand in Al-Bihani--And Why It Matters...

Posted on May 14, 2010
It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it. Thus, I thought I'd take a minute to blog about the Government's very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v...

Supreme Mom

Posted on May 14, 2010
Earlier this week, I posted a short rumination about my disappointment that we are likely to soon face a mom-less Supreme Court. Today, Ann Gerhart takes up the issue in the Washington Post (The Supreme Court Needs More Mothers). Her article, which touches on a number of the points raised in my post (we cite to the same NY Times interview of Justice Ginsburg), also covers new ground...

How Baseball Has Changed

Posted on May 14, 2010
This has nothing to do with law or lawyers (other than me), but I'm procrastigrading. In honor of the passing of Ernie Harwell, I pulled out my "Year of the Tiger 1968" CD and listened to most of it on the ride home from Costco (where I was picking up the summer supply of doggie Prozac for Annie, the wacko golden mix, right)...

Beyond "Beyond IRAC": Even More Exam Taking Tips

Posted on May 13, 2010
In December 2008, I posted something called "Beyond IRAC: Law School Exam Taking Tips." Over at Legal Profession Blog, we have a steady, if smaller than PrawfsBlawg, readership, but as happens when Above the Law picks up and links to us, I'm pretty sure we set a one-day record for discrete page hits on that one...

Reprints and Revealed Preferences

Posted on May 13, 2010
Thanks to the folks at Prawfs for allowing me to hang around a bit this month so I can blog about the Bilski decision when it finally issues. In the meantime, I thought I would revisit a commonly discussed issue - reprints and what to do with them. For the uninitiated, reprints are copies of law review articles (just one article, not the whole issue) that professors like to send to each other...

P v. D = Non-Formalist v. Formalist?

Posted on May 13, 2010
Here?s a proposition that I don?t think I?ve seen articulated, but which rings true to me: Being on the D (both civil and criminal defense) side of litigation tends to involve urging courts to engage in formalist analysis, while being on the P (plaintiff & prosecution) side tends to involve advocating some version of non-formalism...

A Response to Robert George

Posted on May 13, 2010
In a recent post on Mirror of Justice, Robert George graciously responds to an earlier post of mine regarding the views of senators on questioning judicial nominees. He writes that given my description, "I'm glad to know that Senator Charles Schumer agrees with me that questions about issues such as abortion, marriage, and the role of religion in American public life are appropriate; I'm disappointed to learn that Senator John Cornyn believes that they are not...

Kagan and Civil Procedure

Posted on May 13, 2010
Via Adam Steinman comes this post from Elie Mystal at ATL describing his (shall we say, unique) experiences as a student in Elena Kagan's Civ Pro class at Harvard. Quite funny. First, I agree with Mystal about the Socratic Method, or at least the Socratic Method combined with cold-calling...

Announcement: Third Annual Junior Federal Courts Faculty Workshop

Posted on May 13, 2010
I'm very pleased to post the following announcement from my friend and colleague Jamelle Sharpe from the University of Illinois. My colleague Amanda Frost and I put on the "first" of these shindigs two years ago, and it's a real joy to see the continuing success of this venture: The Third Annual Junior Federal Courts Faculty Workshop The University of Illinois College of Law is pleased to announce that the Third Annual Junior Faculty Federal Courts Workshop will take place at the Club Quarters, Central Loop, 111 W...

Congrats to Grads -- Of the First Year

Posted on May 13, 2010
Walking out of the Brooklyn Law School building yesterday I saw a large group of the first-year section I taught Con Law to, milling around. One of my students told me they had just finished their last exam of the year, though from their faces I didn't really need to be told that...

Newsflash: Kagan Not from Idaho

Posted on May 12, 2010
I want to add another random thought about the Kagan nomination to Howard's list. Ok, it is not quite as random as the fact that she does not hail from the Gem State, but it is quite likely to land me in some hot water. So I'll just blurt it out, provide a little (hopefully protective) explanation, and then run for cover: I find myself a little deflated that neither Justice Sotomayor nor nominee Kagan is a mother...

George on Judicial Nominations, With a Response

Posted on May 12, 2010
For more on the issues I've been blogging about here, you might surf on over to the Mirror of Justice blog, which has an interesting post by Robert George, to which Rick Garnett has graciously posted a reply from yours truly.

Judicial Neutrality

Posted on May 12, 2010
I?m a little late to the judicial neutrality party, having locked myself out of the Internet yesterday afternoon to get some grading done, but thought I might still weigh in on the Solum/Solove/Horwitz/DeGirolami discussion. One of the aspects of that discussion that seems worth highlighting is the distinction between the descriptive and normative aspects of the interaction between ideology (or non-legal factors more broadly) and judicial decision making...

More on Cornyn and Judicial Nominees

Posted on May 12, 2010
I would also like to add some materials on Senator John Cornyn of Texas and his considered and presumably principled views on what is appropriate or inappropriate for judicial nominees to be asked, and more broadly how confirmations of Supreme Court Justices should be conducted...

Senator Schumer on Questions for Supreme Court Nominees

Posted on May 12, 2010
Continuing in my inquiry into what particular senators themselves think are appropriate or inappropriate questions for Supreme Court nominees, let me switch the focus to the Democratic side of the aisle for a moment. Our subject today is Senator Charles Schumer...

All Three Branches: Custodial Sex Abuse Part III

Posted on May 12, 2010
This morning I am taking a break from googling various questions relating to the Kagan nomination to post the final installment of my three-part series on national developments regarding custodial sex abuse and prison sexual violence. If Solicitor General Kagan is confirmed, one of the cases awaiting her at the SCOTUS next term will be Ortiz v...

Hurt on the Law School Exam Post-Mortem

Posted on May 12, 2010
This inspired post from Christine Hurt at Conglomerate on how to conduct the post-exam discussion with a student is both laughing out loud funny and so true. While you are over there, her categorization of blogosphere commentary on the Kagan nomination is also worth a chuckle.

More on exams

Posted on May 12, 2010
Many of us have been talking about exams from our point of view. Well, how about from the students (H/T: My colleague Matthew Mirow, via a law prof in France):

The Id, The Ego, and Randy Newman

Posted on May 12, 2010
An article in the Arts (!) Section of today's New York Times recounts research done into a possible link between height, weight, beauty and the likelihood of committing a crime. It cites research concluding that "shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts...

Software Patents in Europe-- G 3/08

Posted on May 12, 2010
Today, the Enlarged Board of Appeals of the European Patent Office (EPO) issued the long-awaited G 3/08 opinion that considered software patentability standards under the European Patent Convention (EPC). The decision considered several questions referred by the EPO President concerning the meaning of Article 52 EPC, which includes an exclusion for computer programs as such...

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