Legal Commentary

Padel's Resignation from Oxford

Posted on May 26, 2009
The AP via NYT reports: Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel, the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708...

One Small Victory

Posted on May 26, 2009
I don't have strong views about the merits of President Obama's decision to nominate Judge Sotomayor to the Court. But I am pleased that now she will not be defined by the speculation that's swirled around her over the last few weeks. I don't know her, and don't know her judicial work, but she's obviously highly accomplished with an extraordinary personal story...

Debating the Guidelines

Posted on May 26, 2009
In my posts so far, I have simply assumed that there exist reliable quality guidelines to measure the quality of empirical work, and then I have looked at how these guidelines should be used. To understate things, this is a substantial handwave. These guideline can be quite difficult to develop, and in this post I want to touch on some of the important issues raised by these challenges, particularly for litigation...

Six (!) Catholics on the Court?

Posted on May 26, 2009
So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter. Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")? Poor Chris Hitchens! And now for some bold punditry: I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.

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How Should We Play the [Sotomayor] Game?

Posted on May 26, 2009
So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames. Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been...

Initial Thoughts on the Prop. 8 Decision: Back to Where We Started?

Posted on May 26, 2009
The California Supreme Court has issued its decision in the Prop. 8 case, upholding (on a 6-1 vote) the validity of Prop. 8 as an amendment to (rather than a revision of) the California Constitution, but also upholding (on a 7-0 vote) the validity of the approximately 18,000 same-sex marriages (including mine) entered into between June and November, 2008...

Pssst: it really isn't that hard of a job.

Posted on May 26, 2009
Okay, so I was a little off. Stunningly wrong, actually. This is why they don't pay me the big bucks. Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks. I want to ask the prawfs community a question. We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more...

Some Quibbles With Rick

Posted on May 26, 2009
Rick has posted a well-written comment on the National Review's Bench Memos blog, which I've already had occasion to speak ill of once today. I stand by that, by the way, not because it's conservative but because I think too many of the bloggers there are reflexive, rabid, and, well, silly -- Rick (and a perfectly fair post by Gerard Bradley) excluded...

More on religious freedom, exemptions, and SSM

Posted on May 24, 2009
Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot")...

Books of Brilliance

Posted on May 24, 2009
Since Paul has already identified the truly important material in this week's NY Times book review, it remains for me to note David Brooks's piqued reaction to Simon Schama's "The American Future: A History." Brooks disdainfully places it in the "brilliant book" category -- "the sort of book written by a big thinker who comes to capture the American spirit while armed only with his brilliance," and one can feel the indignant irritation radiating off the screen...

The Best Books in the New York Times Book Review...

Posted on May 24, 2009
...often aren't among the books reviewed that week. They're the self- or vanity-press-published books advertised in the Review. Some of these books, it should be said, go on to enjoy larger fame and have been picked up by major presses for substantial advances...

Law school hiring observation III: the Prawfs hiring thread

Posted on May 23, 2009
This post is not so much about the hiring process itself as the hiring thread that Dan and the other co-bloggers were gracious enough to organize and host. As before, these are only my own thoughts and I think it worthwhile in this context especially to emphasize that they may well reflect the point of view of exactly one person...

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

Posted on May 23, 2009
I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response...

Signing off

Posted on May 22, 2009
I hate to blog and run, but after weeks of exams and grading, it's time for a vacation before I return to the computer and a new article. I have thoroughly enjoyed the past month-plus on Prawfs, and I'm grateful to Dan et al. for allowing me to stay on a bit longer than usual...

Defining Partnership

Posted on May 22, 2009
Due to the personal situation of a close friend, I've been giving a lot of thought lately to the hospital visitation rights of same-sex and heterosexual, non-married partners. As reported in the NYT several days ago, the Human Rights Campaign recently released its Healthcare Equality Index, a report on the treatment of those in the GLBT community by healthcare facilities...

Advice for Getting a Job on the Law Teaching Market

Posted on May 22, 2009
Thanks to a great resource by Michael Risch (WVA), one of our past and future guests, I thought I'd reprise some of the links people have found helpful in the past regarding the process of getting a teaching job in law. TeachLaw-Resources for Lawyers Who Want to Be Law Professors (cache) Considering Law Teaching - Cornell (cache) Leiter's Law School Reports: Professional Advice (cache) Leiter: Law school hiring practices (cache) Concurring opinions: Law School Hiring (cache) PrawfsBlawg: Teaching Law (cache) Conglomerate Blog on law schools and lawyering (cache) Becoming a law professor - Eric Goldman (cache) Goldman blogswarm (cache) So...

Actuarial Criminal Policy

Posted on May 22, 2009
A student of mine sent me this article from the Wall Street Journal about efforts in LA to develop an actuarial model to determine what children are most at risk of joining a criminal street gang. It is exciting to see state officials say things such as this: Previously, city officials depended on what they concede was a patchwork of information to build gang-prevention programs, often using anecdotal tips from local beat cops or high school teachers...

Teaching about Writing by Doing

Posted on May 22, 2009
I am just back from an arduous "vacation" with to Disneyworld with my husband, my toddler, and my preschooler (hence the blogging hiatus), to find that all hell has broken loose, at least, as Howard Wasserman has been describing, where notice pleading rules are concerned...

Reality Imitating Art, or Vice Versa?

Posted on May 21, 2009
I just saw an interesting question on The Chronicle of Higher Education?s site about fictional professors that have served as influences in the lives of actual faculty. Much like L.A. Law or Boston Legal may have inspired people to go to law school, there are certain teachers and professors on television and in films who probably inspired us to go to the Head of the Class...

Prawfsblawg Gets Results: A Post by Eugene Kontorovich

Posted on May 21, 2009
I recently criticized in print and more extensively on this blog, Spain's highly selective prosecution use of universal jurisdiction. Spanish courts have pursued charges against foreigners involved in highly complex, politically charged scenarios and not even in their custody; that they have gone so far as to order the release of captured pirates, the paradigm international criminals...

Systematic Reviews, Conflict Resolution, and Party Control

Posted on May 21, 2009
In a recent post, I argued that systematic reviews are perfectly compatible with at least two goals of our adversarial system: finding the truth and avoiding arbitrary outcomes. In fact, I believe that they advance these goals better than adversarial procedures (putting aside for now--I will address this in my next post--the critically essentially issue of where the review's guidelines come from in the first place)...

Conscience, Speech and TIAA-Cref Advice

Posted on May 21, 2009
There's been a lot of talk recently about conscience exemptions: exemptions from generally-applicable laws based on religious or more general moral concerns. President Obama called for one for medical personnel opposed to abortion, and the idea has been gaining currency that similar exemptions could be part of some sort of compromise on the same-sex marriage issue...

Against Prediction as Control: Of Boulders and the River

Posted on May 21, 2009
The times recently have witnessed a dizzying flurry of predictions about whom President Obama might next nominate to the Supreme Court and about how that someone might interact with, affect, and be affected by the Court's current denizens over time. In one of the comments to Hillel Levin's posting, Christian Turner offered the highly evocative image that attempting to predict who will influence whom, and in what ways, is like choosing among boulders to throw into a rushing river in order to give it, over time, the proper shape...

Pleading and the evolution of federal court litigation

Posted on May 20, 2009
Some random thoughts on Iqbal and its future effects, particularly in light of the very interesting exchange that has attended this post. First, over the weekend I finally read Richard Epstein's paper on Twombly from last spring, which was coincidental to Iqbal being released Monday...

Textbooks on Kindle

Posted on May 20, 2009
I had a chat with my publisher today, and he raised the issue of offering textbooks on Kindle. There are myraid pros and cons, but I thought I might send a post to see what others think of the idea. Would you permit your work to be offered on Kindle? Should textbooks be available for students to purchase in this format?

The Establishment Clause and the Test of Time

Posted on May 20, 2009
Via the absolutely indispensable Howard Friedman, I see this story out of Oklahoma. It appears that a bill has now been signed by the governor (it had passed 83-2 in the OK House of Representatives) to erect a Ten Commandments monument at the state capitol (for those who may not be familiar with Professor Friedman's Religion Clause blog and who are interested in this area, his blog is a superb place for the latest)...

Iqbal III: The Death of Supervisory Liability

Posted on May 19, 2009
Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo...

Amazon's "Tag Suggestions"

Posted on May 19, 2009
I was curious what happens when you tell Amazon that you want to write a review, so I clicked on the relevant link on my book's Amazon page, and it took me to a screen where I could enter a review (no, I didn't actually enter a review of my own book)...

How Far We've Come, and the Rhetoric of Evidence Based Policy

Posted on May 19, 2009
Just two short comments today. First, last month I talked a bit about the technological revolution that has taken place in computing over the past several decades. Thanks to io9, I came across this article, which is not only a tribute to 1960s stock photography, but a great reminder of just how far we've come...

A Real Thriller

Posted on May 18, 2009
I can?t think of any law school who could pull this off singlehandedly, but a group at the College of William and Mary managed quite a feat on April 19 ? a world-record number of people completed the infamous dance sequence en masse from Michael Jackson?s Thriller...

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