Legal Commentary

Online Antitrust Symposium at Truth on the Market

Posted on April 28, 2009
The folks over at the Truth are having a three-day online symposium entitled: "Section 2 and the Section 2 Report: Perspectives and Evidence." Here's the relevant info: The proceedings will begin on May 4 and continue officially through May 6. We?ve organized the symposium across the three days so that each day will have a different emphasis...

Law School Auctions Benefitting Public Interest Law Fellowships

Posted on April 28, 2009
Many of us are either writing or grading exams these days. As others have already noted, grading and writing exams are certainly not the most interesting two of the more challenging parts of our jobs. For some of us, the end of the semester is often the time when we host events that we "donated" to our law school's auction...

Assigning Cases Decided Mid-Semester?

Posted on April 27, 2009
In constitutional law this week I'm teaching a Supreme Court standing case from this Term, Summers v. Earth Island Institute, to supplement the students' casebook. I decided the case was valuable enough to add it, even though we will cover it well out of turn from our other coverage of standing, which our casebook placed at the start of this semester...

The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences?

Posted on April 27, 2009
From the movie Clueless : Mel: Cher, what's this all about Cher: My report card? Mel: The same semester? Cher: Uh-huh. Mel: What'd you do? Turn in some extra-credit reports? Cher: No. Mel: You take the mid-terms over? Cher: Uh-uh. Mel: You mean to tell me that you argued your way from a C+ to an A-? Cher: Totally based on my powers of persuasion...

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Great Idea of the Day

Posted on April 27, 2009
Fly a large airplane in the morning over lower Manhattan with a fighter jet escort, all for "photo-ops," and with no advance notice to the public. As a Newsweek blog described it, "Air Force One Photo-Op Scares the Crap Out of Manhattan."

Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

Posted on April 24, 2009
In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence...

Undocumented Immigrants and Loss of Parental Rights

Posted on April 24, 2009
The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers. One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft...

Multiple-choice exams: Clean copy of the rules?

Posted on April 24, 2009
Colin's terrific series of posts (too many to link to) about exams and grading suggests this is a good forum to raise an issue about exam set-up: In a multiple-choice and short-answer exam in rules-based classes (in my case Civ Pro and Evidence), should you provide students with a clean copy of the rules and statutes? I have been doing M/C in Evidence for six years now and never have provided copies of the rules; my justification has been that I am trying to simulate trial, where quick response is required and there is no time to flip through a...

Legal Scholarship Jams

Posted on April 24, 2009
Let me set the scene for you. It?s Friday night. I am in my office, and no one else is in the building. I am trying to get psyched up and energized to move forward with the law-review article I am writing. So what do I do? Diet Dr. Pepper? Check. Socks pulled up all the way? Check...

A Consequentialist Justification for Torture?

Posted on April 23, 2009
The New York Times wonders whether history might judge the Bush Administration's repeated use of torture (including 266 applications of waterboarding on two al-Qaeda detainees) favorably if it could be shown that torture yielded high-value information that kept the U...

Colorado death-penalty vote

Posted on April 23, 2009
The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty. According to this story, the person who cast the last and deciding vote, Rep. Ed Vigil, did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado...

The Flex (or Variable Credit) Course in Law School: A Viable Option or Oil and Water?

Posted on April 23, 2009
Last month, I was talking to a colleague who is on my law school's curriculum committee when he raised a topic that took me back to my days as a law student: the dearth of 2-credit law school classes. He noted that a number of students had raised the concern that they only needed to add a 2-credit course to graduate or complete their dance card for a particular semester, but there were no 2-credit courses that filled the bill...

Iowa Gay Marriage -- the Latest

Posted on April 23, 2009
The gay marriage dispute is still a big deal here in Iowa as next week approaches when such marriages can actually occur. Some county recorders have indicated they may refuse to grant marriage licenses to gay couples despite the Iowa Supreme Court decision, and despite the fact that new official forms have already been drawn up (referring to Party A and Party B, and leaving the reference to bride or groom optional)...

What is Quality Empirical Work, Part 2

Posted on April 23, 2009
In my previous post, I examined the difficulty of defining what quality means for the type of (observational) work that makes up much of empirical legal scholarship. Here I want to turn my attention to the problem of measuring quality even if there is an accepted definition...

A Casual Casebook: The Canon of American Common Law

Posted on April 23, 2009
This summer I am planning to put together a casebook that is for leisurely reading, rather than a law-school course. My tentative title is "The Canon of American Common Law." It is an idea of mine that started with the thought that it would be exciting to give a special award to the first-year law student with the highest combined grade-point average in the three common law courses: Contracts, Property, and Torts...

Can I Say "Hullabalooza?"

Posted on April 22, 2009
So, I'm in Moscow, hoping that I'll get over this stomach bug in time to give a series of talks about church/state matters around town on Friday. It should be interesting, and if something comes up that seems worth sharing here, I certainly will. My current concern, however, is this...

What is Quality Empirical Work, Part 1

Posted on April 22, 2009
In this post, I want to start to flesh out some answers to the challenges posed by evidence based legal empirical scholarship I raised earlier, or at least examine how to go about addressing them. The key problem we face is the methodological complexity of observational work...

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Posted on April 22, 2009
Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials...

An interesting church-state anniversary

Posted on April 22, 2009
Henry VIII acceded to the throne of England 500 years ago today.

The "Seminar Exception": Is It Defensible To Remove Smaller Law School Classes From The Grading Curve?

Posted on April 22, 2009
Here's something that gets the goat of many law students: uncurved law school classes. At most law schools with grading curves, students taking classes with roughly more than 30 students will be graded according to the grading curve. Students taking classes with about 30 students or less will not be graded according to the grading curve...

University Bookstores and the Intellectual Life of Campus

Posted on April 22, 2009
My school, the University of North Dakota, recently declined to renew its contract with Barnes & Noble to run the campus bookstore. Instead, they?ve signed up with Follett. So we are in the midst of transferring control of the bookstore from one megalithic operator to another...

A Major Election, A Court, and (on another note) the Holocaust

Posted on April 22, 2009
Today is election day in South Africa. This is significant as South Africa is an economic and military powerhouse in Africa. The African National Congress, Mandela's party, is likely to win but it's presidential candidate, Jacob Zuma, has some "skeletons" in the closet...

A Bit More Bubbie Blogging and an Amichai Poem

Posted on April 21, 2009
The funeral this afternoon was brief but powerful, a testament to a life well-lived. After the jump are some reflections I had the chance to share about my extraordinary grandmother. Bubbie Helen was a woman of valor, and thus by our tradition, someone to be cherished especially and deeply so...

Acknowledging What Harvard Law Owes to Slaves

Posted on April 21, 2009
The three sheaves of wheat on the Harvard Law School coat of arms (top), derived from the family crest of Isaac Royall (bottom), may be fairly said to represent the labor of slaves. Harvard Law School was founded with money amassed through slavery. This is a fact that HLS, my alma mater, does not try to hide...

A Modest Proposal Regarding Blind Grading

Posted on April 20, 2009
Why does blind grading rule the roost in law school? (Even Justice Stevens noted, in McIntyre v Ohio Elections Com'n, 514 U.S. 334, 342 n.5 (1995), that the practice of grading law school examinations "blindly" is "now-pervasive."). The most common rationale that I have heard is that "blind grading is meant to ensure, at least in part, that a student's actual performance on the exam, and not any improper influence, is the exclusive factor in determining her final score...

State action and the Yankees lawsuit

Posted on April 20, 2009
In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America...

Weekend Trivia Challenge: The Only State Without a Law School

Posted on April 20, 2009
Which is the only American state without an ABA-accredited law school? Answer below the fold ... Alaska Here's a bonus question: Which law school publishes the Alaska Law Review, a publication sanctioned by the Alaska Bar Association? The answer is here.

More (Early) Notes re: U.S. News Rankings

Posted on April 20, 2009
The early list is out (HT: Paul Caron at TaxProf, via The Faculty Lounge, which also has info on specialty rankings). And, to follow up on Rick's post on peer assessment: Brian Leiter offers the 2009 'reputational' scores here. Query whether politics (in terms of a school being viewed as liberal or conservative), if it does play a role, does so with respect to schools after the top 50--or are those schools' political leanings, if categorized as such, immaterial?

New (better?) conference formats?

Posted on April 20, 2009
I participated on Friday and Saturday in a very rewarding and interesting event, organized by the James Madison Program in American Ideals and Institutions (sorry, Mr. Rich!), that was billed as a "consultation" on the topic, "Law and Religion: Historical and Philosophical Perspectives...

That Feeling, Revisited

Posted on April 20, 2009
I appreciated the many thoughtful comments on my earlier post regarding the CoOp symposium, and the comments on Orin's excerpt from my post on CoOp. I assume Dan Solove's post yesterday regarding CoOp's comment practices is either coincidentally timed or that the comment policy during the symposium, which I was reacting to, is part of a larger ongoing conversation at CoOp about these issues...

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