Legal Commentary

Judicial writing, court structure, and the judicial process

Posted on May 05, 2009
Chad wrote yesterday about Bill Stuntz's argument that writing ability is an important (but overlooked) factor in selecting a Supreme Court justice because writing ability--as much as smarts and experience--define judges' influence. Let me take the point in a slightly different direction: How much should writing ability be considered in the scholarly literature on appellate decisionmaking? And how can it be taken into account as a variable? I just finished reading an intriguing essay by Tracey George and Chris Guthrie (forthcoming in Duke Law Journal) arguing for a change to the structure of the Supreme Court, primarily by expanding the...

On the Brilliance of People like Judge Sonia Sotomayor and Barack Obama

Posted on May 05, 2009
Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person. Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person...

Students and Prawfs' Politics

Posted on May 05, 2009
Last week, Eric blogged about an experiment in which he surveyed the students in one class to find out what they perceived to be his political leanings. He found the students were all over the map. The post received some good comments to the post, some pointing out the benefits to the experiment and one commenter stating he would have demanded a refund for a "ridiculously self-important exercise in conceit...

A Survey Request from Hadar Aviram

Posted on May 05, 2009
I am conducting a web-based survey, examining how people respond to interpersonal problems. The survey is anonymous and confidential and can be completed in a few minutes. It consists of reading a short hypothetical scenario and answering a few multiple-choice questions...

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Good Article!

Posted on May 05, 2009
Via Arts & Letters Daily, here is a fine article on the revival (and overuse?!) of the exclamation mark. The author suggests that the rise of ! is a creature of the Internet age. He quotes a recent book on the etiquette of email, which notes as a possible explanation that "Email is without affect ...

Most Unusual Law Prof. Travel Experiences...

Posted on May 05, 2009
Given the immediate alternative of writing my law school exam, I would prefer to procrastinate and ask the following question: What have been the most unusual experiences that law professors have had traveling to or from conferences or other similar events? Here's my answer, but I invite others to procrastinate as well...

Actuarialism, Individualization, and Fairness

Posted on May 04, 2009
It is perhaps not surprising, given my strong support of evidence based practices, that I am an advocate of actuarial models. So it is easy to imagine my despair (or at least irked annoyance) when I came across the following passage in an appellate opinion from Indiana (which I read while preparing for this): The use of a standardized scoring model, such as the LSI-R, undercuts the trial court's responsibility to craft an appropriate, individualized sentence...

Transformative Pragmatism and a "New" Constitution

Posted on May 04, 2009
Having written several posts on the South African Constitutional Court's socio-economic rights rulings, I want to suggest the Court has adopted an interpretive methodology that can be called "transformative pragmatism." Richard Posner, Dan Farber, and Suzanna Sherry are perhaps the most well known American adherents to a pragmatic constitutional methodology...

Stuntz argues for Karlan & the importance of writing skills

Posted on May 04, 2009
Bill Stuntz recently put up a post advocating in favor of Pam Karlan for Justice Souter?s seat. In the course of his advocacy Stuntz makes the case for writing skills as an important (and generally overlooked) component of a justice?s influence. I think he?s onto something...

Rotations

Posted on May 04, 2009
With the new month, we have a great new cast of contributors with both fresh and returning voices. For the first time here, we have Eugene Kontorovich (Northwestern), Kelly Anders (Washburn) and Marc Degirolami (Catholic en route to St Johns). And returning, we have Jessie Hill (Case); Bill Araiza (now at Brooklyn); Marc Blitz (Okl City); and Chad Oldfather (Marquette)...

The Study of 'Social Justice' in a Law School

Posted on May 04, 2009
I have been very fortunate to teach as a VAP this past year at The Catholic University of America, Columbus School of Law. I will be forever grateful to the school and the wonderful people there -- Dean Miles, my colleagues and friends, and my students -- that gave me my first chance...

Social Justice Agonistes

Posted on May 04, 2009
In an earlier post, I blogged about the course that I taught this spring at Catholic University -- "Social Justice and the Law: Introduction to Catholic Social Thought" and some of the possibilities and challenges that it presented. I want here to discuss how I approached the course, what worked, and what did not...

Sunday Music (Cover) Blog (or Against Novelty Too)

Posted on May 03, 2009
Many thanks to Dan and company for inviting me back. I'm planning to spend most of my time here this month blogging about law teaching and technology. But Marc DeGirolami's terrific post below inspired me to join the rebellion against "the ideology of novelty" in a different way -- by opening a thread on favorite cover songs...

The Purpo$e of Judicial Nomination$

Posted on May 02, 2009
I have written about this before, but the Souter vacancy seems as a good a time as any to reprise this theme. Of course judicial nominations are about the substance of the judge who is nominated, his or her judicial vision, how that vision reflects and affects partisan and ideological differences about policies, methodologies, and so on...

Workshops as They Could Be

Posted on May 02, 2009
I'm grateful to my co-blogger Dan for organizing Prawfsfest, which was held over the last couple of days at FSU; I'm also grateful to the administration and the administrative staff, who hosted such a wonderful conference. I do think, for purposes of the "asterisk footnote," that the name of the conference might be different, so that it sounds good in the section of the footnote that says, "This paper was presented at workshops at...

The Review Essay (or, Against Novelty)

Posted on May 02, 2009
The review essay is widely deemed an inferior piece of legal writing to the full-fledged article or even to the essay full-stop. I have often wondered why. I think the review essay is disparaged primarily because it is derivative. It isn't as original as the article...

Justice Souter to Retire

Posted on May 01, 2009
So says AP, NPR, and Bashman. So who is his replacement going to be? I call Sonia Sotomayor of the Second Circuit--Latina woman, 55 years old--or Diane Wood of the Seventh Circuit. Comments open, as always.

Ye Olde Exam Archive

Posted on May 01, 2009
I've really enjoyed guest blawging this month. In signing off, allow me to promote my archive of past exams. There are exam materials for torts, various IP classes, and media and entertainment law. Maybe you will find some of them useful as problems. As a warning, my exams tend to be heavy on plot and subpar photoshopping...

Me for Supreme Court Justice

Posted on May 01, 2009
So, it looks as if Justice Souter will be retiring. That's a shame, but of course it will make life very interesting for those of us in the legal academy who will spend endless hours thinking about and debating who should be/will be the next Supreme Court justice...

The Death of Portfolio

Posted on April 30, 2009
I hold here in my hands the last issue of Conde Nast's Portfolio. Fittingly, the lead article on its website is "The End" by Michael Lewis. To me, both that article and the magazine created much higher expectations than they actually fulfilled. The website is still encouraging readers to "SUBSCRIBE NOW," but you get this prompt if you try to...

Poetic Justice

Posted on April 30, 2009
One of my colleagues here at SMU, Tom Mayo, reminded me that today is "Poem in Your Pocket" Day. To honor this day, please share by posting or citing a legal opinion that includes a poem. Here's part of the opinion in a 1986 criminal trespass case in New York, People v...

Prawfsfest! in the Hassee

Posted on April 29, 2009
Tonight marks the onset of Prawfsfest! 5, our roving public law/legal theory workshop for early works in progress. The gathering takes place this semester here in Sweet Sassy Tallahassee over the next few days at FSU. I'm very grateful to Deans Don Weidner and Wayne Logan and the administrative support team here at FSU for their help and energy...

A Law School Oral (Argument) Exam: Should an Oral Component be Added to the Law School Examination Process?

Posted on April 29, 2009
This will be my last post here at PrawfsBlawg, and I again want to thank Dan Markel for having me as a guest blogger for the month of April. I also want to thank the PrawfsBlawg readers for your helpful comments on my posts. In the wake of the Carnegie Report, law schools and law professors across the country are funamentally re-evaluating the way that legal education is being conducted...

In-Class Exercise: Guess My Politics

Posted on April 29, 2009
A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them...

Adversarial Journalism

Posted on April 29, 2009
Dan Solove writes, quite pessimistically, about the death of newspapers and a collateral effect of the death of newspapers: the loss of serious, objective, neutral journalism, being replaced by a largely partisan press. Dan cites the argument that this marks the return to the journalism of the early Republic--when there was a Federalist press and Republican press--and away from what really was a late-19th century/20th century development...

The Old Switcheroo

Posted on April 28, 2009
In light of Senator Arlen Specter's decision to switch parties, readers may enjoy this list, which is now in need of updating, on senators who have switched parties during their terms of office. In the modern era, they include Strom Thurmond (although my laptop is giving me an error message for putting "modern" and "Strom Thurmond" in the same sentence), Richard Shelby, and Ben Nighthorse Campbell, all of whom switched from Democratic to Republican...

How the Law and the Sciences Think About Knowledge

Posted on April 28, 2009
In my posts this month, I have looked at how to improve the way social scientists and empirical legal scholars produce empirical knowledge. I want to focus this week on the legal side of this issue. Those who buy the arguments I have made so far should agree that evidence based systematic reviews are a superior way for academics and policy makers to assess what is known about a particular problem...

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Posted on April 28, 2009
Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. Oxford University Press is offering a 20% off deal with this promo on its website. Amazon is also selling it here...

Socio-Economic Rights III (and mandatory ADR)

Posted on April 28, 2009
As I have written earlier on this blog, the South African Constitutional Court has issued probably the world's most significant cases enforcing socio-economic rights. In my first post, I described how the South African Constitutional Court in 2000 ruled that the government had a constitutional obligation to develop a policy to protect the homeless, rather than abandon them...

Law Professors: Lou Dobbs is on Our Side

Posted on April 28, 2009
A couple of weeks ago, Lou Dobbs discussed what he called "an apparent threat to America's sovereignty," namely certain remarks made by U.S. Supreme Court Justice Ruth Bader Ginsburg. I will warn you, her words are shocking. But I feel you need to see them...

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