Legal Commentary

Electronic law review supplements and tenure

Posted on May 11, 2009
I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky's Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review's launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow...

Making Information Pay: How the Recession is Changing the Book Business

Posted on May 11, 2009
In the not-too-distant past, academic titles could be published and languish on shelves indefinitely. Now, each title needs to prove its financial value, as well as its scholarly merit. A recent article discusses this trend on the trade side, and even some of the best-known and most established academic publishers are reportedly feeling the pinch...

Piracy & Jurisdiction: A Post by Eugene Kontorovich (NW Law)

Posted on May 11, 2009
I've been writing for several years about piracy, using it as a case study to better understand universal jurisdiction, which originated with piracy and has been extended now to other crimes. The current piracy epidemic in the Gulf of Aden has made all this quite relevant...

"It is what it is": Anatomy of an idiom

Posted on May 11, 2009
As I've begun to go to conferences and to learn what legal academic life is all about, I'm coming to appreciate some of the manners of speech and phraseology that are part of the culture. The pregnant So..., the postmodern "stories" and "narratives" (often offered up inside tellingly non-neutral quotation marks), the orthogonalisms, the acutely self-conscious normative/descriptive parsings, the takings up of the second part first, and so many others...

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Lawyer's Evaluations of Judge Sonia Sotomayor

Posted on May 10, 2009
As a number of people in the blogosphere have noted, Jefferey Rosen's pieces in the New Republic have tried to swiftboat Judge Sonia Sotomayor, and introduce her to the world in a way that distorts the incredible work and achievements of this gifted and accomplished woman...

The Supreme Court, Socio-Economic Rights, and Separation of Powers

Posted on May 08, 2009
The U.S. Supreme Court has issued numerous decisions where it has ruled against implying positive socio-economic rights, though it has not hesitated to find an implied right to privacy, abortion, travel, etc. One of the Court's major arguments has been separation of powers...

Review Essay Review: Abner Greene on Religion Clause Theorists

Posted on May 08, 2009
Via Larry Solum, I saw this review essay by Abner Greene on the recent work of Martha Nussbaum, Christopher Eisgruber and Lawrence Sager, and Brian Barry (though Barry's work is, for Greene, not so much an object of review as an egalitarian counterpoint to the approaches of the other two)...

Monica Redux

Posted on May 08, 2009
I'm not sure it can be called "piling on" to write about Elizabeth Edwards' private life right now, given that she has little apparent hesitation talking about it either -- to Oprah, no less. I don't want to dwell on it. But one statement she made yesterday is worth looking at for a second...

When to Post to SSRN (Junior Edition)

Posted on May 08, 2009
There was a useful exchange at Prawfsblawg a while back - here and here - about when to post to SSRN. Having recently had an article accepted for publication, with a couple of smaller symposium pieces in various stages of disarray, I am nonetheless again confronted with the question of when exactly to post my papers to SSRN...

Update: Prawfs-Co-Op Happy Hour, May 30th, 9pm, Marlowe's Denver.

Posted on May 07, 2009
For those of you planning on attending the LSA meeting in Denver at the end of the month, please mark your calendars for Saturday May 30th at 9pm. The festivities will begin shortly after the end of the LSA reception at the University of Denver, and they will continue into the night...

Co-authoring Strategies; books, etc.

Posted on May 07, 2009
Here's a question: have any of you tried co-authoring a law review article with someone using Google Docs? Is there some other software (preferably easy and free) to use also? I ask because I wonder what the best technology strategies are for collaboration...

The Other Footnote 4 (in Justice Stevens's Fleeting Expletives Dissent) and Its Unintended Consequences?

Posted on May 07, 2009
In the famous Simpsons episode, Marge v. The Monorail (written by Conan O'Brien), Grampa Simpson asks whether the town of Springfield should foolishly put all its eggs in one basket and purchase a multi-million dollar monorail from a singing con man. But the assembled community misunderstands his rhetorical question, and answers with a resounding "yes," carrying him atop its collective shoulders as he protests that he's not for it but against it...

New law schools and old universities

Posted on May 07, 2009
Dan Filler follows-up on my description of recent events in the FIU dean search with an excellent contextual point that we both are sharing: One of the challenges for a new law school working itself into an established university is educating the university about the ways in which law schools are different--explaining differences in compensation, hiring commitments, status, teaching load, scholarship standards, etc...

Conversation about religious liberty and civil unions

Posted on May 07, 2009
As I mentioned the other day, Geof Stone, Martha Nussbaum, Doug Laycock, and others (including me) are having an online discussion about Stone's recent op-ed regarding civil-unions and religious liberty. Check out the latest posts by Geof, Doug, and me...

Test What You Teach, Yes. But Test HOW You Teach? Not Necessarily.

Posted on May 07, 2009
The comments on "bad exams" have been fascinating and useful. As one commenter noted, many law professors know more about the "law" part of the job title than the "professor" part. In some cases, they learn from experience; in others, they simply repeat bad habits over the course of a career...

Law School Hiring Observation I: "Theoretical" is Problematical

Posted on May 07, 2009
I don't really have any advice about the law school hiring process, primarily because I do not think I've been around long enough to have accumulated advice. I did just go through the process and have been malingering around law schools for the past few years in temporary roles, and I do have a few observations that may be peculiar to me and my experience, or perhaps others have noted exactly the same phenomena, in which case I'll just be restating the obvious and adding nothing new...

Chemerinsky on Why We Write

Posted on May 07, 2009
Erwin Chemerinsky has written a foreword to the Michigan Law Review's annual books issue. It's classic Chemerinsky: humble, courteous to other voices in the debate, and written with grace. The title identifies the topic: -- Why Write? It's not exactly a new topic for law professors, at least those who have earned tenure...

A: "No, Senator, I don't know what Barbra Streisand's eighth album was." Q: Was it not, in fact, Color Me Barbra, sir?"

Posted on May 07, 2009
My home-state Senator, Jefferson Sessions, has announced: "I don't think a person who acknowledges that they have gay tendencies is disqualified per se for the job" of Supreme Court Justice. So, that's nice. Thanks, Jeff. But it does raise some difficult questions: 1) Are "gay tendencies" more acceptable than full-on gayness? So, for instance, someone who has cheated on his wife a couple of times with a man, but is still basically on the DL, is a better candidate than one of those typical gay-marrying Mainers? 2) That "per se" bit intrigues me...

A Summary, and a Small Point About Competence

Posted on May 07, 2009
Since I've been posting for a month now about problems with the production and use of empirical evidence, I thought I would take a moment here to (1) briefly summarize my arguments so far and (2) quickly address an issue of competence. First, the points so far: 1...

Bad Testing

Posted on May 06, 2009
I'm delighted to be back for another stint blogging. I'm a little slow off the mark this month, due in part to participating in Prawfs! 5 at FSU last week (though it hasn't stopped Paul and Rob, two of my fellow participants). But I've also been writing -- OK, rewriting and worrying about -- my final exam...

Greetings from the birthplace of pornography!

Posted on May 06, 2009
When you think of Cleveland, what do you think of? Skyrocketing unemployment and rampant real estate foreclosures? The Cuyhoga River burning? Or -- if you're really paying attention -- the site of the first-ever successful near-total face transplant in the U...

Citizenship and the U.S. Territories

Posted on May 06, 2009
Thanks to Dan and Prawfsblawg for letting me stay a little while longer. I have enjoyed blogging about critical race theory, immigration and other law-related matters (here and here). I look forward to blogging some more about race and immigration law as well as my research and writing projects on property rights and citizenship...

Has Hillary Seen Godfather II?

Posted on May 06, 2009
This classic is among 25 films highlighted in an article listing the best films to address foreign policy issues. I like to show film clips in my classes, so this list may provide a few ideas. A colleague of mine likes to show the bank robbery note scene in Woody Allen?s Take the Money and Run, which is hilarious...

Ridi Pagliaccio

Posted on May 06, 2009
Is legal theory a comedy? Is it true, as Sandy Levinson has observed, that legal theory's raison d'etre is commonly thought to be the never-ending supply of "happy endings to legal dilemmas" and the solution of people's problems -- tidily and without disruptive remainder whenever possible? Is legal theory intrinsically "progressive" in the literalist and non-(overtly)-ideological sense that it ought invariably to be concerned with some conception of "progress" -- improvements, resolutions, innovations, rethinkings (blessed neologism), bigger and better policies for happier and more fulfilled times, smarter and more effective and ever-suffused with the odor of doggedly optimistic cheerfulness and...

Greenawalt, Hamilton on the Rule of Law and Religious Exemptions

Posted on May 06, 2009
I learn through Paul H. that there is an interesting exchange between Kent Greenawalt and Marci Hamilton in the latest issue of the Cardozo Law Review. Greenawalt responds to some of Hamilton's arguments in her 2005 book, God vs. The Gavel: Religion and the Rule of Law, and Hamilton replies to Greenawalt's criticisms...

Deans and Sausages: On conducting a dean search in public and correcting the public record

Posted on May 06, 2009
Back in February, I wrote about the early coverage of FIU's dean search, made public by the state's Sunshine Laws. I particularly complained that the coverage was likely to be inaccurate for the same reason much coverage of the judicial process is inaccurate--the press is not very good at capturing niche or nuanced events, nor is it very good at reporting process stories or the effect that process has on outcomes...

Pardon My Language

Posted on May 05, 2009
How often do you find yourself using foul language? Are the occurrences rare, or is your conversation rather peppered with variations on four-letter words? How many times have you slipped up in class (whether teacher or student)? When you hear such language, are you offended by it consistently, at times depending on context, or rarely if at all? The Supreme Court last week upheld the FCC?s implementation of a rule permitting it to levy fines in the event of a one-time profane utterance...

The Next U.S. Supreme Court Film

Posted on May 05, 2009
With all of the discussions of late about the impending retirement of Justice Souter, I began to think about depictions of the U.S. Supreme Court on film. Although there have been many films about law and lawyers, only a few actual High Court cases have reached the big screen...

Is Empathy "Lawless?"

Posted on May 05, 2009
President Obama's statement last week about his criteria for selecting a replacement for Justice Souter garnered a significant amount of attention. Obama said he would "seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book...

Style and Scholarship

Posted on May 05, 2009
Bill Stuntz's recent post on the virtues of nominating Pam Karlan for Justice Souter's seat on the Supreme Court has gotten some well-deserved attention in the blogosphere. Stuntz argues that Karlan, because she is a "spectacularly gifted" writer, would be a good counterweight to Justice Scalia, "whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions...

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