Legal Commentary

Scriptural Interpretation and Constitutional Interpretation

Posted on May 06, 2010
While I'm on the subject, the Michigan State Law Review has an interesting symposium on scriptural and constitutional interpretation. It can be found here.

Review: Fundamentalism in American Religion and Law

Posted on May 06, 2010
I have a short-ish review of David A.J. Richards's new book, Fundamentalism in American Religion and Law, over at CoOp, the radical Prawfsblawg splinter group. It can be found here.

More on the Terrorist Expatriation Act: The Vagaries of Material Support

Posted on May 06, 2010
As I noted earlier, much attention inside the beltway today has been on the proposed Terrorist Expatriation Act, introduced this afternoon by Senators Lieberman and Brown (along with a host of House members). In my first post, I outlined the most striking problem with the bill -- the fact that it doesn't require a conviction, but rather a mere administrative determination by the Secretary of State that one has provided material support to a designated foreign terrorist organization...

Two Gentlemen of Lebowski

Posted on May 06, 2010
Since Dave has seen fit to mention His Dudeness, allow me to post a link I've been meaning to share for some time: Two Gentlemen of Lebowski, the entire script of The Big Lebowski retooled in Shakespearean language. Alas, the script has been taken down from the Internet, but you can read a snippet here, and TNR has run other excerpts over the last few months.

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Of Veils and Masks

Posted on May 05, 2010
Jean-François Copé, the mayor of Meaux and majority leader in the French National Assembly, has this op ed in today's Times defending the impending bans, in France and Belgium, of the burqa and niqab (not, I should add, of the hijab). He claims that attacks on the banning legislation have been "unfair," and offers two general defenses: the ban is necessary (1) as a "legitimate measure for public safety"; and (2) as a "reaffirmation of our ideals of liberty and fraternity...

Property at the Park

Posted on May 05, 2010
Since becoming a parent, I?ve encountered a whole new realm of social norms involving children in public spaces in my neighborhood, Brooklyn Heights. E.g., the playground rules technically bar food and drink, but both are commonplace and accepted. It?s totally fine to forget a park acquaintance mom?s name, but socially embarrassing to forget her child?s name...

Emory Transactional Skills Conference - Reminder!

Posted on May 05, 2010
Just a quick reminder that Emory Law School's conference, Transactional Education: What?s Next?, is being held on June 4 and June 5. Additional information is available by following the link or contacting Edna Patterson at (404) 727-6506 or edna.patterson@emory...

Judicial Process Course Materials - Version 2

Posted on May 05, 2010
It?s good to be back at Prawfs just in time for another Supreme Court nomination, which is sure to generate all manner of discussion over the proper nature of the judicial role. In order that I might get the blatantly self-promotional portion of my stint out of the way early, allow me to suggest that I have just the thing for those about to participate in those discussions...

Leadership, Judgment, and Reduction at the Harvard Business School

Posted on May 05, 2010
This morning's Wall Street Journal reports that the Harvard Business School has named a current professor, Nitin Nohria as its 10th dean. The article describes Nohria as "a vocal critic of management education and the leaders it produces," and quotes Nohria's recent conference call comment - one that without some unpeeling sounds a little odd: "I believe that management education has been overly-focused on the principles of management...

Advise and Dissent

Posted on May 05, 2010
The New York Times has a story about a new documentary called Advise and Dissent, which discusses the High Court nominations of Roberts, Miers, and Alito. Let me add two comments I found enjoyable from the story. The first is a quote from Manuel Miranda, a conservative interest-group sort, describing his success in securing the Alito confirmation: "Only in America could a guy sitting in his living room put together a conference call and affect the future of the country...

Frederick Douglass, Citizen Interpreter

Posted on May 05, 2010
Let me second Larry Solum's pick for Download of the Week this past weekend: Mariah Zeisberg's Frederick Douglass, Citizen Interpreter. I especially admire two aspects of this paper. 1) It asks good and often overlooked questions about how the citizen's duty of constitutional interpretation may differ from the judge or other public official's duty of constitutional interpretation...

Some Critics Weigh In on Privilege or Punish (Version 2: Yale LJ)

Posted on May 05, 2010
As alluded to almost a year ago, the April 2010 issue of the Yale Law Journal (website) now has links to two very interesting review essays of Privilege or Punish: Criminal Justice and the Challenge of Family Ties, my book with Jennifer M. Collins and Ethan...

Lacrosse and irony

Posted on May 04, 2010
I am interested in this story, given that I am in the process of finishing edits on a book of chapters on the Duke lacrosse scandal. A member of the highly ranked men's lacrosse team at Virginia, George Huguely, has been arrested and charged with first degree murder in the death of a member of the similarly successful women's team, Yeardley Love...

Assistant Attorney General James J. Wells is My All-Time Favorite Movie Lawyer

Posted on May 04, 2010
You can have your Atticus Finch. My favorite movie lawyer of all time only appeared for a few minutes and then went on to hawk Quaker Oats and "die-a-BEAT-us" supplies: Wilford Brimley as James J. Wells, Assistant Attorney General for the Organized Crime Division...

Steamed by Summum, Bemused by Buono

Posted on May 04, 2010
Since Dan has not seen fit to cut off my access to Prawfsblawg just yet, I will just add one more vague, ill-formed parting thought before signing off and moving on to my next guest blawging stint (at The Faculty Lounge). I am somewhat obsessed with the constitutional (and other) issues surrounding religious government speech, and particularly by religious symbolism on government property...

Criminal Regulation of Outgroups

Posted on May 04, 2010
I'm taking an intermission from my series on law reform and custodial sexual abuse to write about the related issue of criminal regulation of "outgroups." My WNEC Law colleague Associate Professor Sudha Setty was quoted yesterday in a Christian Science Monitor article regarding India's specialized terrorism courts http://www...

Smith, "The Disenchantment of Secular Discourse"

Posted on May 04, 2010
I was delighted to receive in the mail the other day my copy of Steven Smith's latest book, "The Disenchantment of Secular Discourse." Run (or, double-click), don't walk, to get yours. As one of the back-cover blurb-ers (ahem, me) puts it, "[t]his book presses us to look harder at closely held beliefs and to question deeply rooted premises and commitments with which we are perhaps too comfortable...

U.S. Supreme Court Announces the Front Doors are Closed to the Public

Posted on May 04, 2010
This recent article from The New York Times summarizes the U.S. Supreme Court's decision to close the front doors. In the future, lawyers and the public will have access through side doors only. Justice Breyer, joined by Justice Ginsburg, issued a statement akin to a dissent)...

Letting Go

Posted on May 04, 2010
Funny things happen when it's time to hit the "send" button on an article or other piece of scholarship. It's not exactly Kubler-Ross but I have noticed that in the last day or two of reviewing, certain stages happen pretty predictability. Bracketed footnotes that I always said I'd get back to suddenly become less important to the integrity of the piece -- out they go...

Identity Economics and Status Anxiety

Posted on May 04, 2010
Every now and again you read a book that makes you see the world differently. A few weeks back, I read Akerlof and Kranton?s Identity Economics, and it had that effect on me. In this book, the authors reject the assumption of traditional economics that tastes and preferences are independent characteristics unrelated to social context...

BP as in Big Picture

Posted on May 03, 2010
The BP oil spill raises a host of issues for environmental law and policy. Do the liability provisions of the Oil Pollution Act lead to satisfactory compensation of victims and sufficient spill deterrence? Are the oil spill prevention, control, and countermeasures required under the Clean Water Act adequate? Does the division of response authority between private oil companies and the Coast Guard lead to optimal containment? What, if anything, does the spill suggest about corporate social responsibility as a method of protecting the environment in light of BP?s carefully cultivated ?green? image? These are all important questions...

Happy to Be Here, Guest Blogging in May-- Amy Landers

Posted on May 03, 2010
Thank you to Dan for inviting me back to Prawfsblawg. The generosity of this open forum is greatly appreciated. I'm an intellectual property prawf who specializes in patent law, at the University of the Pacific McGeorge School of Law. As May begins, like many others I am working through piles of papers that I had "planned to read" with the best of intentions...

Yoo Must Be Joking

Posted on May 03, 2010
For a nice contrast to Greenbaum's article, which I wrote about below, you might check out this op-ed by John Yoo, arguing that the way for Republicans to fix "the broken appointments process" is to filibuster just about anyone Obama nominates to the Supreme Court...

Are Courts Wasted on the Young?

Posted on May 03, 2010
At The New Republic, Mark Greenbaum has a solid article discussing the problems the Senate has with talented young nominees for federal appeals courts. He draws parallels between a currently struggling nominee, Goodwin Liu, and a similarly situated Republican nominee, Miguel Estrada, whose own nomination failed, at incidental but great personal cost...

Dévête-toi!

Posted on May 03, 2010
As France and Belgium march on toward criminalizing headscarves (Religion Clause Blog -- that font of knowledge -- reports that the Belgians are nearly there for the burqa), a federal district court judge in Michigan has dismissed a law suit by a woman against a local judge alleging violations of her religious liberty for related reasons...

Guest Blogger Giovanna Shay: Law Reform & Custodial Sexual Abuse

Posted on May 03, 2010
This is Giovanna Shay signing on as a guest blogger for May. I too would like to thank the folks at PrawfsBlawg for the invitation. I am an Associate Professor of Law at Western New England College School of Law in the Pioneer Valley of western Mass (also home of Shay's Rebellion, but no relation)...

Introducing Commercial Utility

Posted on May 03, 2010
This is the third and final post in a series discussing my forthcoming article Reinventing Usefulness. The other two are here and here. Those posts introduced usefulness and its forgotten history. This post suggests that patents should not issue unless there is evidence that the invention is commercially useful...

Geistfeld on Polsky and Markel's Taxing Punitive Damages

Posted on May 03, 2010
Over at the TortsProf Blog, NYU Prawf, Mark Geistfeld, just posted an interesting set of reactions to the draft of Taxing Punitive Damages that Gregg Polsky and I have posted on SSRN. Thankfully, these reactions appeared prior to publication (go SSRN!!) and so, with some luck and the indulgence of our editors, Gregg and I will have the chance to consider and respond to Mark's comments over the next few weeks as we tweak our draft...

Shooting Fish in a Barrel? The Economic Loss Rule

Posted on May 03, 2010
British Petroleum's oil spill in the Gulf certainly provides ample opportunities to teach or, at this point in the semester, to test the Economic Loss Rule. In fact, it is such a great candidate for an exam hypothetical, it is like shooting fish in a barrel, if you'll pardon the expression...

10 Things I Wish I'd Known Before Starting Law Teaching

Posted on May 03, 2010
Is there a professional job in the world that requires less formal training than law teaching? Perhaps because so much of the hiring process focuses on scholarship, new hires are often placed in front of an auditorium full of law students with little or no teaching experience or formal training...

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