Legal Commentary

Sotomayor Confirmed

Posted on August 06, 2009
The vote was 68-31; nine Republicans joined 59 Democrats (Sen. Kennedy did not vote).

Cubby Markel's Got a Name! Or two... or three.

Posted on August 06, 2009
The following is the text of some remarks shared at today's "Brisening" for Baby Boy Markel. Beloved family and friends, Rabbi Asa, thank you for joining us from far and near on this auspicious day! We extend to you our warmest greetings and heartfelt blessings...

Gedicks on Group Rights

Posted on August 06, 2009
Via Larry Solum, I see that Fred Gedicks of BYU has posted an interesting new paper on SSRN called The Recurring Paradox of Groups in the Liberal State. It's an interesting read for those of us, including Rick and I, who have written on questions involving group rights, First Amendment institutionalism, religious group autonomy, and so on...

I bet you always wondered....

Posted on August 06, 2009
I'm delighted to be invited back to PrawfsBlawg -- and very impressed that Dan has managed to stay on top of the monthly rotations, what with a newborn baby confiscating his sleep these days. Why, I believe Dan has even claimed to have an empty inbox at the moment...

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On Writing "Small"

Posted on August 06, 2009
Yesterday I posted about the SEALS panel I participated in on advancing your scholarly career. (Of course I claim no special qualifications in this regard.) I'd like to continue discussing these issues, and the other panel I participated in, on promoting your scholarship, over the next few posts...

Final Version of Executing Retributivism is Now Available

Posted on August 05, 2009
Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009))...

First Assignments

Posted on August 05, 2009
The first assignment I give in Civil Procedure is likely the first regular class assignment ever for the incoming 1Ls (one aspect of teaching an 8:30am Monday morning class!). Although we spend most of the first class on an problem/discussion that works well, for the last few years I have also assigned Marshall v...

John Brown, Dred Scott, Obama, and Citizenship

Posted on August 05, 2009
There is very little to do in the small Connecticut village where my partner and I have a summer house, and when there is something on the local calendar, we treat it as an event. Yesterday's event was Tuesday's at Six, a weekly lecture, and yesterday's topic was John Brown, the abolitionist...

On SEALS and Strategy vs. Humility

Posted on August 05, 2009
I'm back from one of those tough rigorous trips that characterize law prof conferences: the annual conference of SEALS, the Southeastern Association of Law Schools, at the Ritz in West Palm Beach. Naturally, given the name of the association, the attendees come from schools such as Indiana, Seattle, Hofstra, Brooklyn, and Windsor...

Fagundes & Masur on Costly Screens and the Creation of IP

Posted on August 05, 2009
In the (self-ag-)grand(-izing) tradition of Prawfs visits, I wanted to use my last post here to mention an article I just posted to SSRN along with my co-author Jonathan Masur. Titled ?Costly Screens, Value Asymmetries, and the Creation of Intellectual Property?, the paper uses costly screen theory to push back against substantive critiques of the copyright and patent vesting systems, and to explain why positive law creates such different thresholds for vesting these exclusive rights in information...

A new Ten Commandments case

Posted on August 05, 2009
A few days ago, the U.S. Court of Appeals for the Tenth Circuit denied an en banc rehearing in a Ten Commandments case. (A panel of that court had invalidated a courthouse-lawn display in Stigler, Oklahoma. (HT: Prof. Friedman). Several judges filed interesting dissents from the denial of rehearing (available here)...

At the Big 10 Aspiring Scholars Conference

Posted on August 04, 2009
Thank you very much for the warm welcome, Dan. I'm very happy to be joining Prawfs for this month. I am writing tonight from Champaign, IL, where I attending the Big 10 Aspiring Scholars Conference, a very helpful gathering where untenured professors as well as VAPS, fellows, and others seeking to join the legal academy can share works in progress...

Law School Hiring Thread, 2009-10, Thread One

Posted on August 04, 2009
NB: This thread will be moved to the front every ten days or so. (FAR forms are due soon; feel free to pose q/a's about it). While the first FAR form has not yet been circulated yet, this thread is for both law professors and people who are on the market this coming year for becoming a law professor...

Health-care protests and free-speech models

Posted on August 04, 2009
Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense...

Federal Court Orders California to Reduce Its Prison Population to 110K

Posted on August 04, 2009
In a historic ruling certain to move quickly to the Supreme Court, the 3 Judge court of the Northern and Eastern districts of California, operating under the Prison Litigation Reform Act in the consolidated cases of Coleman v. Schwarzenegger (NO. CIV S-90-0520 LKK JFM P) and Plata v...

Horne v. Flores: The Roberts Court Takes Aim at Institutional Reform Litigation

Posted on August 03, 2009
In the rush of significant decisions handed down by the Supreme Court in the last week of June, little attention has been paid to Horne v. Flores (No. 08-829). It may be because the 36 page majority opinion by Justice Alito, and the 48 page (with appendices) dissenting opinion by Justice Breyer are a heavy schlog through a 17 year old litigaiton raising claims under the Equal Education Opportunity Act of 1974 and most recently involving application of Federal Rules of Civil Procedure 60(b)(5)...

Medical Versus Legal Education

Posted on August 03, 2009
I'm going to sneak in here one last time (before Dan cuts off my access) to record some reactions to the University of Michigan Medical School White Coat Ceremony, which, as a commenter to my earlier post noted, was indeed quite moving. (If you hadn't guessed, that's Matthew the student-doctor in the middle, and Alene, on his left, is where he gets his good looks...

Rotations

Posted on August 03, 2009
I've been a bit, um, occupied the last few days so I apologize for the delay in getting this up, but I wanted to use the occasion of the new month to thank all the wonderful guests we've had in the past month; some of them may linger as they get a few last things off their chest, and I think Jonathan Simon will be staying on the whole month...

IKEA Meditations

Posted on August 01, 2009
One of the charms of being able not to retire and teach is being just a little unstuck in time with respect to my professional peers. While Dan and Wendi get ready for the bris of their little boy, I'm in Ann Arbor helping the boy through whose bris I kept my eyes tightly shut move into a new apartment as he prepares to start medical school on Monday, following his White Coat Ceremony tomorrow...

An argument for law school recruitment and hiring

Posted on July 31, 2009
This is a joint post with Nelson Tebbe: As a matter of chance, we both have been guest-blogging this month, we have offices down the hall from each other, and we are both serving on our school?s entry-level appointments committee. So we thought we would join forces and dedicate our final post to a few reflections on the unusual market conditions this year...

System Externalities

Posted on July 31, 2009
Traditional welfarist analysis considers whether a given change in law is optimal by considering the incentives and disincentives it will have on affected actors. Take cap and trade for example. If we give carbon emission credits to domestic industries and allow them to buy and sell them, we can limit emissions, efficiently distribute the production of those emissions, and generate revenue for low-pollution industries?apparently a Pareto-optimal move...

SEALS Panel: Enforcement of Foreign Defamation Judgments

Posted on July 31, 2009
For those of you at SEALS and looking for something at 4:30 to build an appetite for dinner, there will be a very good panel on the enforcement of foreign defamation judgments, the anchor panel for the two-day First Amendment Workshop. Speakers will critique the pending Free Speech Protection Act of 2009 (a subject I have written about previously) and general principles of how the First Amendment should affect domestic enforcement of foreign judgments against speech, where that speech is fully protected under U...

Some Parting Thoughts on Research Assistants for Junior Profs

Posted on July 31, 2009
Since beginning my law teaching career, I have had a number of research assistants, whom I have asked to perform a variety of types of projects for me. As I see it, an RA position should benefit both the prof and the student. Perhaps because these goals are at times in conflict, I have not yet hit upon an RA model that seems to work particularly well...

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

Posted on July 31, 2009
By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?" The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme...

Results of laptop ban survey

Posted on July 30, 2009
After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump: My apologies for the formatting; I could not get them to line up...

Planning and Promoting Your Scholarly Career

Posted on July 30, 2009
Next week is the annual conference of the Southeastern Association of Law Schools, or SEALS, which will be held in lovely Palm Beach, Florida. I will be appearing on two panels. Sunday's panel is: ROUNDTABLE DISCUSSION: PLANNING YOUR SCHOLARLY CAREER This panel will examine ?scholarly paths,? and includes a variety of perspectives on that topic...

baby boy markel

Posted on July 30, 2009
Wendi and I welcomed a little and delicious 7 lb 5 oz baby boy into the world last night at 1058 PM. Everyone is flourishing. The baby naming ceremony and bris will take place next week on Thursday in the Hassee. More details and pics to follow. With gratitude and blessings, Wendi Adelson and Danny Markel

Two Cheers for COPS

Posted on July 29, 2009
Behind the scenes both the Obama Administration and Police Unions must have winced over last weekend as Gates-gate (as Thomas Frank among others dubs it) built, knowing that Tuesday would be "police day" in the national recovery program, with Vice President Biden and AG Holder headlining the roll-out (AP Coverage) of 1 Billion in "stimulus" funding for cities to hire or not-lay off police officers...

Law Schools, Law Firms and Skills

Posted on July 29, 2009
The posts on legal education (both here and elsewhere) have been very interesting, particularly for a professor beginning her second year of tenure-track teaching. Like most people on the academic job market, my primary interests were theoretical, albeit with a practical bent...

Conference for Aspiring Law Profs

Posted on July 29, 2009
The recent posts about the fall teaching market have reminded me about a conference for aspiring law professors that Arizona State will be hosting on October 17th. The conference is designed for people who are currently working as VAPs or Fellows, and who intend on going on the job market this fall...

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