Legal Commentary

Anti-Green ($$) Shareholder Resolutions ? A Remedy to Citizens United?

Posted on May 11, 2010
A number of corporate governance proposals have surfaced to prevent undue corporate influence of elections following Citizens United v. Federal Election Commission. My former colleague, Ciara Torres-Spelliscy, offers a proposal from the Brennan Center for Justice that would require inter alia shareholder approval for corporate political expenditures (in this same vein, see also The Shareholder Protection Act, H...

Random thoughts on the Kagan nomination

Posted on May 11, 2010
In no particular order: 1) I want to echo Jack Balkin's comments: This is all "dreary and tiresome." Which is not to say I am not going to follow (and write about) the confirmation hearings. But the noise on all political sides and the posturing really is wearying--and it only has just begun...

Scholarly Categories and Moods

Posted on May 11, 2010
Below this post, Paul points to Larry Solum's reaction to Daniel Solove's claim that no one really believes that judges are neutral or that they do not make law, but rather "find it." Paul is right to say that no one could believe in "perfect" neutrality, and that this means that we are all legal realists now "to some degree...

One (or More) of These Things is Not Like the Others

Posted on May 11, 2010
In response to a post by Dan Solove about the Kagan nomination, Larry Solum has an interesting and impassioned response, one that valuably reminds us that there are dissenters from the conventional wisdom. Larry writes: Law is a practice, an artefact of human culture...

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

Casebooks and Collective Action

Posted on May 11, 2010
The good Professor Bainbridge is bemoaning his lack of market power as a casebook author: Change is coming. The major law school casebook publishers are working on game changers like eBooks and textbook rentals, while trying to do so unilaterally within the confines of standard form contracts designed for the 19th Century...

The Proper Kagan Quote for the Occasion

Posted on May 11, 2010
Following up on my posts yesterday about the confirmation process for Elena Kagan, many of the people who have written on this subject have picked up on Kagan's review essay for the University of Chicago Law Review, "Confirmation Messes, Old and New," in which Kagan writes that it is appropriate to ask substantive questions of judicial nominees...

Tejas y California

Posted on May 11, 2010
The article from this past Sunday?s New York Times magazine on Julian Castro, the young Latino mayor of San Antonio, brought back memories. I?m from San Antonio, and I remember calling home from college to get the results of Henry Cisneros?s historic candidacy for San Antonio mayor in 1981...

A Corporate Insider's View of Political Funding: A Response to Katrina

Posted on May 11, 2010
I started to write a comment in response to Katrina's question in the preceding post, and it began to take on a life of its own (possibly because I am now into full-fledged grading procrastination mode, and taking a break after doing a dozen or so exams)...

SSRN's Search Engine

Posted on May 11, 2010
A few weeks ago, I posted a paper to the SSRN website, Ordinary Creativity in Patent Law. This morning, I had a few extra moments to catch up to read recent articles and so I ran the word "Patent" through SSRN's search engine. When I re-ordered them by date to find the most recent ones, I discovered that there were only fourteen results for 2010...

The Either/Or Dilemma

Posted on May 11, 2010
This, from Marc's last post, is a lovely statement: Neither group believes in anything "perfect" about these scholarly categories. Or if they do, they've allowed their allegiance to these abstractions to get the better of the way the world actually runs (find me a judge who is either a mechanical jurisprude or thinks he can do whatever he wants, no matter what the law says)...

Harvard and Yale on the High Court

Posted on May 10, 2010
With the national media (and Tom Goldstein) reporting that the President will announce his nomination of Solicitor General Kagan to the SCOTUS in an hour, there is simply nothing else to post about this morning. The N.Y. Times coverage notes something that may be of particular interest to readers of this blog: if Kagan is confirmed, the Court will be composed exclusively of graduates of Harvard and Yale law schools...

Wise (and Nuanced) Advice on Corporate Governance

Posted on May 10, 2010
The problem with nuance is that it is boring. It's far more exciting to hop on the availability heuristic (prediction of the frequency or prevalence of an event or characteristic based on how easily examples can be brought to mind, not the actual data) bandwagon, particularly when the targets are well-paid, like corporate executives (full disclosure: I was one, so take this appeal to wishy-washiness FWIW)...

On Kagan and HLS Hiring, Again...

Posted on May 10, 2010
I've been off the box the last few days but, as I'm catching up, I see that there's a bit of a tempest lately over the hiring record of Elena Kagan while she was Dean at Harvard Law School. A year ago, as Kagan's name was on the shortlist for the seat that would become Sotomayor's, I called attention on this blog to some comments from apparatchik Wendy Long, who argued that Kagan shouldn't receive credit for creating intellectual diversity on the HLS faculty since only 3 of her hires were conservatives or libertarians (Goldsmith, Vermeule, and Manning)...

Behavioral Analysis and the Dramatic Arts; Or, Not All Famous Actors Are Morons

Posted on May 10, 2010
If I may break cover as an ardent reader of TV Guide, this item recounts that actress/singer Kristin Chenoweth was ticked off by a (silly) article in Newsweek arguing that gay actors can't believably play straight men, and sent off a sternly critical response...

Sessions on Appropriate and Inappropriate Questions for Supreme Court Nominees

Posted on May 10, 2010
Like my last post, this post examines what the senators themselves, rather than the nominees, believe are appropriate or inappropriate questions for nominees to be asked or to answer. The subject of this post is Senator Jeff Sessions. As with Senator Cornyn, Senator Sessions has been quite clear that as a matter of principle -- and thus, absent a principled distinction, notwithstanding anything Elena Kagan has said about the confirmation process -- nominees should not be asked, and should not answer, questions that are designed to reveal a nominee's views on issues that may come before the Court...

Cornyn on Appropriate and Inappropriate Questions For Supreme Court Nominees

Posted on May 10, 2010
I hope to post shortly on the question of Elena Kagan's own statement about what kinds of questions nominees should be expected to be asked and to answer. In the meantime, I think it is important to consider not only what Kagan believes a nominee should or shouldn't be asked by the Senate, but what the senators themselves think...

Not a Pretty Picture: The Status of Women Lawyers at Large Law Firms

Posted on May 10, 2010
TechnoLawyer Blog has some depressing statistics about women lawyers in large law firms. Is it really possible that one-third of women PARTNERS report being bullied by colleagues? Or that three-quarters of the top firms have no women partners in their top money-making tiers? [Yes, it is...

"Suck It Up"

Posted on May 09, 2010
I spent the last several days in Ann Arbor with my son, Matthew, and visiting an old friend who has been under the weather, flying back to Boston this morning. This is complicated, but I had a plan to do Alene a favor for Mother's Day which involved getting myself from Logan to where she was playing tennis in order to pick up the car (don't ask why, but it helps her arrange her day)...

In defense (or praise) of PowerPoint

Posted on May 08, 2010
No, not me. This piece by the tech columnist at Slate, making the basic point that the problem is not PowerPoint but bad PowerPoint. He argues that PowerPoint is appropriate only if two conditions are met: 1) You are speaking to a large audience and 2) Your topic must be one that benefits from visuals; absent those conditions (which is true for most law classes and most legal-scholarship presentations), do not use PowerPoint...

Opacity again

Posted on May 08, 2010
Since the opportunity came around, I thought to give Paul a chance to make me feel better. This Linda Greenhouse "opinionator" has got it all: the ineffable parsings of the President's every word -- searching for that oracular, hidden bon mot, now or in speeches past, that will unlock his inner mind; the honorific epithet "constitutional law professor" (swift-footed Achilles never had it so good); and best of all, the sort of willfully unnatural interpretation of the President's remarks that can only occur when one wants desperately wishes to hear what was not actually said (we need Greenhouse's constructions, she...

Just Getting Along (About Federal Criminal Law)

Posted on May 07, 2010
Last week I blogged about the possibility that bipartisan suggestions that the Arizona immigration law is unconstitutional might help unfreeze the right-left divide that occupies so much of our public life, including our discussions of constitutional law...

In Defense of Foreplay

Posted on May 07, 2010
Dan?s recent posts about the forthcoming PrawfsFest VII (wow, VII?how time flies) brought up many fond memories of ?Fests past. Truly, it is both a fun and productive event. Past participants will recall well one of the distinctive features of the paper discussions at PrawfsFest, the ?no-foreplay? rule...

In Praise of Opacity

Posted on May 07, 2010
Transparency is a holy word. One cannot go more than one or two paper presentations these days without hearing it -- usually intoned with the assumption that we've obviously now reached a subject that is inherently virtuous. Transparency holds the status of words like "conscience" or "equality" -- what kind of monster would oppose them? But transparency is in a different league even than these, because transparency is suitably procedural for modern sensibilities -- comfortably thin...

The Legal Job Market: What Will We Tell the Students?

Posted on May 07, 2010
Throughout this year, I've been thinking about whether I need to change the advice I give my law students based on the bleak job prospects for lawyers I guess I'm not the only one. Now there's a report in the ABA Journal stating: "The chairman of an ABA commission studying the impact of the economic downturn on the legal profession has some advice for would-be law students: You may want to reconsider...

Things We'd Be Better Off Without

Posted on May 06, 2010
The Washington Post recently asked ?a dozen writers, thinkers and doers to each suggest one thing we'd all be better off without.? The results, which range from fine print to lawns to the Congressional Budget Office, are here. Having given the matter a full ten minutes? worth of thought (that?s how one does it in the Internet age, right?), I?ve concluded primarily that I am well on my way to being a grumpy old man...

Acting Like a Reasonable Woman

Posted on May 06, 2010
I?m going to (ab)use(?) my stint on PrawfsBlawg to air something that niggles at me every time I make my way through the reasonable personal standard in my Torts course. The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances...

Why the Terrorist Expatriation Act is Unconstitutional: Early Thoughts

Posted on May 06, 2010
D.C. is atwitter today with news of Congress's latest foray into counterterrorism policy: the Terrorist Expatriation Act of 2010, a measure introduced by Senator Lieberman (with bipartisan and bicameral support) that would provide for the denaturalization or expatriation of a U...

We Need to Talk...

Posted on May 06, 2010
The U.S. Patent & Trademark Office has recently posted public comments that responded to its Request for Comments on Enhancement in the Quality of Patents. After reviewing several, I found many of the suggestions intriguing. One resounding theme was the view that more applicants want earlier substantive discussions with patent examiners in the examination process...

Lebowski in Law Wiki-land?

Posted on May 06, 2010
Not too long ago, I was trying to find an online version of Near v. Minnesota, and the first google hit I got was a Wikipedia entry about the case. I noticed that Wikipedia describes Near as ?a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication...

Restoring Access to Court: Combatting Custodial Sex Abuse Part II

Posted on May 06, 2010
On Monday, I began a series of posts about law reform efforts to combat custodial sexual abuse and prison sexual violence. In that installment, I wrote about the model standards proposed by the National Prison Rape Elimination Commission, which currently are under consideration by the Attorney General...

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