Legal Commentary

Law Schools and the Freedom of the Church

Posted on July 06, 2009
As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money...

Ricci Glitch

Posted on July 06, 2009
The following post was written by my FIU colleague Kerri Stone, who writes on employment discrimination: In Ricci v. DeStefano, the Supreme Court held that ?under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action...

Law Schools and the Freedom of the Church

Posted on July 06, 2009
As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money...

Brady and Prosecutorial Compliance

Posted on July 06, 2009
Brady violations - failures by prosecutors to hand over exculpatory or impeaching evidence to the defense - have been surfacing in the news lately, particularly with regard to federal prosecutions. Ted Stevens' conviction was undone by Brady violations, and in this press release, the DOJ announced it was withdrawing its prosecution of two Alaska officials in a separate corruption prosecution due to Brady-related misconduct...

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Symposium: Establishment and Fairness

Posted on July 06, 2009
Last fall, Notre Dame Law School hosted a roundtable conference dedicated to a discussion of Kent Greenawalt's then-recently-published "Establishment and Fairness." (Here is Paul Horwitz's report.) The folks at Constitutional Commentary were kind enough to publish the (very) short "admission ticket" papers that the dozen-or-so participants submitted in the current (Summer 2008) issue (Vol...

Glad to be Back

Posted on July 06, 2009
Thanks to Dan and the rest of the Prawfs for inviting me back this month. I'm spending this summer working on a few different projects --- the recent increase in federal and state sentencing ranges for the possession of child pornography, the constitutionality of various sentencing factors, and a more doctrinal paper on the Supreme Court's 2007 decision in Kimbrough v...

Mass Imprisonment: The Birth of a Social Problem

Posted on July 06, 2009
Looking around for a dissertation topic in 1986, I followed the lead of my adviser, Sheldon Messinger, and began to look more closely at California's rapidly growing prison system. I came to focus in particular on the parole system that was supposed to guide prisoners back into society, but which instead seemed to keep them cycling back to prison (see my 1993 book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 for the details)...

And Frank Easterbrook Thought the "Law of the Horse" Wasn't Fascinating?

Posted on July 05, 2009
Okay, campers. Somebody please explain this one to me. I decided I wanted to take at least one horseback riding lesson, because, well, I just want to. We'll see where it goes from there. I went up to the Bay Harbor Equestrian Club, where horses seem to live in nicer condos than most people, and I'm due to mount up this Thursday on "Nick," who is supposedly gentle on aging, "City Slicker" wannabe, never-been-on-a-horse-except-the-merry-go-round, where's the kickstand and the ignition key, what was that bubbeh said about Cossacks, rookie...

Quick thought on Sarah Palin

Posted on July 04, 2009
This post is explicitly partisan-political, so I know it may be violating our motto. Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket)...

Happy Fourth of July!

Posted on July 04, 2009
I have a British son-in-law, Simon, whom we all love very much, but it makes for a fun Independence Day. The call went like this: Jeff: "We were thinking of you, Simon, on this day on which we celebrate throwing off the yoke of tyranny." Simon: "Shut up and pay your taxes...

Independence day in our towns

Posted on July 04, 2009
As Frank Capra taught us in movies like Its a Wonderful Life (1946), and Mister Smith Goes to Washington (1939), patriotism is as much about places, towns and cities, as it about the nation. Indeed, if nations are, as Benedict Anderson influentially dubbed them, "imagined communities," than towns are the real nodes from which that imaginary is projected; like Philadelphia and Boston, or Williamsburg, in 1776, or San Francisco in 1934 (July 5th marks the 75th anniversary of that city's famous general strike, read Carl Nolte's reporting on it in the SF Chron)...

Options, but not yet freedom: Happy 4th of July!

Posted on July 04, 2009
As someone who received his green card in the mail literally yesterday, I just wanted to take a moment to note that auspicious arrival and wish all our readers a Happy Fourth of July. In three years or so, I should finally be well en route to citizenship (after almost 20 years of living in the US disenfranchised)...

Constitutional Borrowing

Posted on July 03, 2009
Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more. Lately, I?ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain...

Haberman et al on Madoff

Posted on July 03, 2009
Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor...

Limiting Online Provider Immunity

Posted on July 03, 2009
My last post argued that Section 230 should be reinterpreted to immunize only content that comes from third parties via the interactive service offered by providers. This would clear up many of the conflicts in the law, though providers would still be immune from some reprehensible conduct of its users...

Thinking Like an Entrepreneur or a Lawyer?

Posted on July 03, 2009
If you are interested in the intersection of entrepreneurship and the law, the Kauffman Foundation, the leading sponsor of entrepreneurship development in the country, has funded an Entrepreneurship Law resource on its website, www.entrepreneurship.org...

Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View

Posted on July 02, 2009
At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis. Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i...

Theories of Corporate Compliance

Posted on July 02, 2009
Before I entered academia, I was a compliance attorney at a large, public company. Prior to that, I was a federal prosecutor in Manhattan. It was no accident that the large, public company hired me to work on compliance matters. During my fifth year at the United States Attorney's Office (around 2003-2004), I received several calls from recruiters who were looking for prosecutors interested in taking in-house jobs in "compliance...

The Identity Trail: A Canada Day Book Recommendation

Posted on July 01, 2009
Also by way of commemorating Canada Day (although I'm sufficiently assimilated that I'd forgotten it was taking place, which somehow seems both very American and totally typical of a Canadian holiday), let me recommend a book that has been out for a while but should be of strong interest to many of our readers...

Nice to visit

Posted on July 01, 2009
Happy July, everyone. Thanks to Bernie Madoff, it's been an interesting week for those of us who think about white-collar crime. I can't possibly add to Jayne Barnard's play-by-play account of Bernard Madoff's sentencing proceeding, but I do have my own thoughts about the supposed deterrent value of his150 year term of imprisonment...

Durkheim?s Law and Order

Posted on July 01, 2009
A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more residents on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live...

The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life

Posted on July 01, 2009
Here we are, back for the fourth summer stint on PrawfsBlawg. It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.") Also, Twitter was unknown...

Thanks, Prawfs

Posted on July 01, 2009
Well, June just flew by quicker than I had hoped. I apologize for the slow posting the last ten days or so. I've been drowning in preparations for argument of a summary judgment motion in a pro bono case I'm working on, representing a group of homeowners in a lawsuit against Norfolk Southern over a closed railroad crossing...

Rotations

Posted on July 01, 2009
Happy Canada Day everyone (and particularly, Paul, Rob, Erik, Glenn, Trevor, Austen, and derivatively, Alice)! Here are some reflections on the holiday by notable expats. With the onset of the new month, it's time to thank our guests from June for their wonderful contributions...

Signing Off . . . .

Posted on July 01, 2009
Thanks again to Dan for inviting me to blog here in June. Thanks also to everyone who commented on my posts, either on-line or off -- I'm grateful for the thoughtful feedback. Best wishes to all for a happy remainder of the summer.

Osborne and due process

Posted on June 30, 2009
Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state. First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas...

Going from 'Us' to 'Them'

Posted on June 30, 2009
A few years ago, Nancy Rappaport published a short essay in the University of Toledo Law Review, called "Going from 'Us' to 'Them' in 60 Seconds," in which she described her appointment, relatively early in her career, to an associate-dean post: Scarcely a half-hour after the official announcement had been made concerning my appointment, I was at the faculty copy machine, and one of my colleagues walked in...

Reinterpreting Section 230

Posted on June 30, 2009
My last post identified several puzzling results of current Section 230 jurisprudence, such as immunity for articles written by freelancers, but not by employees. A common suggestion to remedy this and other conflicts is to withdraw immunity for any and all publication decisions by provider...

The ART of Michael Jackson

Posted on June 30, 2009
I've just been talking to a tax colleague, Sarah L., about fascinating and topical legal issues -- no, not the Supreme Court's opinions in the firefighter or banking cases, or Justice Souter's retirement or the new consumer finance agency-- instead, we've been trying to get the full story on Michael Jackson's paternity and the custody of his three children...

Ricci Overturned by Scotus 5-4

Posted on June 29, 2009
H/t to Scotusblog (via Adler), which is live-blogging. The opinion is here. Reactions?

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