Legal Commentary

House Dems trying to kill DC vouchers. Sneakily.

Posted on February 25, 2009
Ugh. That is all.

Entry Level Hiring Report at Legal Theory Blog

Posted on February 24, 2009
For those of you with relevant information on the hiring of entry level profs, please visit the Legal Theory blog of our friend Larry Solum to share the info.Larry reports he is going high-tech this year:This year, I will be using surveymonkey to collect the data...

New Voices in Criminal Law Scholarship at Law and Society, 2009

Posted on February 24, 2009
Having survived her unsparing tutelage, I, along with my friend and sparring partner, Alice Ristroph, have put together a conference within a conference at Law and Society in Denver in late May 2009. We'll have about 8 panels with approximately four panelists per session on a variety of subjects...

Cert Grant in Salazar v. Buono

Posted on February 24, 2009
I'd like to post more later on the Supreme Court's recent cert grant yesterday in Salazar v. Buono. There is so much going on with that case, it's hard to write a paragraph-long post. To sum up, there was a cross in the Mojave National Preserve (government land), which is pretty clearly unconstitutional under the Court's precedents...

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The corruption of federal anti-corruption prosecutions

Posted on February 24, 2009
On Monday, the Court denied cert in Sorich v. United States, 08-410. Justice Scalia was correct to dissent: The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption...

Conference on Fiss, Against Settlement

Posted on February 24, 2009
Fordham Law School and Fordham Law Review will host a terrific symposium, Against Settlement: 25 Years Later, a look at Owen Fiss' groundbreaking argument against the increasing focus on settlement, especially in public-law litigation. It will be on Friday, April 3, all day, at Fordham Law School...

Salazar v. Buono...

Posted on February 24, 2009
So earlier today I mentioned the cert grant in Salazar v. Buono -- the Mojave Cross case. It's going to be an interesting one, with difficult questions not just about the Establishment Clause, but about everything else -- from standing to the nature of the reversionary interest in property law to the courts' power to issue injunctions that impose costs on third parties...

Monday TV Quiz (with associated legal point)!

Posted on February 23, 2009
OK, here's the quiz: name the two hour-long dramas in the history of television (I think) that were spinoffs of half hour sitcoms. Answer, and associated legal thing, after the jump. The answer is (1) Lou Grant, spun off from Mary Tyler Moore; and, more controversially, (2) Trapper John, MD, spun off from M*A*S*H...

Friends as Fiduciaries -- Final Version

Posted on February 23, 2009
I've learned from our competitor and friend blawg that my article, Friends as Fiduciaries, is now available in its final form at the Wash U Law Review. Read it and weep.

Everything You Ever Wanted to Know About Presidential Transitions

Posted on February 23, 2009
The Northwestern Law Review Colloquy has seized the moment and published several interesting new pieces on the underexplored topic of law and presidential transitions. They're all worth looking at. Aside from my own modest contribution on honor and the presidential oath, the Colloquy has recently published an excellent piece by Jack Beermann of BU, who has written some terrific work in this area, called Combating Midnight Regulation...

Evidence excluded in Bonds trial

Posted on February 22, 2009
Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence...

Is Kiyemba Cert.-Worthy?

Posted on February 22, 2009
My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go)...

A workable compromise on SSM/civil unions?

Posted on February 22, 2009
SSM opponent David Blankenhorn and SSM supporter Jonathan Rauch have co-authored a New York Times op-ed laying out a culture war "compromise." They propose:: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage...

Hold the Soup: a new movie in DC at the NGA

Posted on February 20, 2009
My fellow Dorot alum Faye Lederman has, over the last few years, embarked on a career of producing and directing a number of provocative and moving films. I just received word that Faye and her collaborators will be screening a new movie of theirs in Washington DC this weekend...

From Choice of Law to Choice of Currency?

Posted on February 20, 2009
In their new book, The Law Market, Larry Ribstein and Erin O'Hara show that states increasingly act as hawkers of legal rules in a "market for law." These competing systems give individuals choice over the legal regime they find most desirable. According to Ribstein and O'Hara, parties should be able to use choice-of-law contracts in order to choose which "law" they most prefer...

Legal responsibility vs. Relational responsibility

Posted on February 19, 2009
Loyola law prof Samuel Pillsbury has posted a review essay, Learning from Forgiveness. Here's the abstract: Many have argued that contemporary American criminal punishment is overly harsh and unforgiving, especially in its use of mandatory minimum penalties...

A for Effort?

Posted on February 18, 2009
The Times has an article on the attitudes of college students that if they put in the time and real effort in class (doing all the read, showing up for class), they should get at least a B, regardless of the quality of their papers or exams. A recent study found that 1/3 thought showing up for every class was sufficient for a B and 40 % thought doing the reading (presumably while also showing up) was enough...

Of Phelps and Poker

Posted on February 18, 2009
Given my interest and recent posts about Michael Phelps and professional poker, there was no way I could not link to this.

USA TODAY: Don't Investigate Bush Administration ?Excesses? (read: alleged monstrous crimes)

Posted on February 18, 2009
USA Today?s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many ?excesses? of the Bush team. We?re reminded that such decisions are ultimately political, not legal...

Workshops and Wine

Posted on February 17, 2009
Like many schools, we at BU have a weekly workshop in which someone from the faculty or someone invited from outside presents a work-in-progress, takes questions, defends their arguments, says "So . . ." and then reformulates the question to suit their purposes before responding, etc...

Lawyers out of work? Time to relax the conflicts rules!

Posted on February 17, 2009
Yesterday the ABA house of delegates voted to revise Rule 1.10 to allow the screening of lawyers whose past representation of a client would otherwise create a conflict that would be imputed to any firm that the lawyer joined -- i.e., conceivably I could be representing plaintiff, then switch in the middle of the case to the firm representing defendant...

Religious Liberty and Conscience at Villanova

Posted on February 17, 2009
Readers might be interested in attending Villanova Law School?s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova?s main campus. The theme of the conference is ?Liberty of Conscience and Religious Equality,? and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M...

Some More Thoughts on Michael Newdow

Posted on February 17, 2009
Jay Wexler has a post below discussing how Michael Newdow will be doing the theme song for his book -- am I crazy to wonder what that means? -- and asking what people think of him. For me, it brought back some memories about the oral argument in the Pledge case...

When they say they don't want to politicize sport . . .

Posted on February 17, 2009
Shahar Peer of Israel, the # 48-ranked women's singles player, was denied an entry visa to the United Arab Emirates to play in this week's Barclays Dubai Tournament, citing security fears of having an Israeli playing in Dubai in the wake of the recent military conflict in Gaza...

Final and New Drafts

Posted on February 16, 2009
I hope everyone had fun celebrating Valentine's day, or not, if that's your preference. Among other things, I had the chance to see the Clint Eastwood movie, Gran Torino. I thought the acting was a bit forced at times (I'm not sure growling counts as acting), but the movie crescendoes in a very powerful way, especially, I imagine, for fans of Christology...

Eight is Enough.

Posted on February 16, 2009
N.B. This post is by Naomi Cahn (GW) and Jennifer Collins (WFU).If children are cheaper by the dozen, then how much for 14? Nadya Suleman is the mother of the new California octuplets (and 6 other children, all under the age of eight). She loves children, and she is very happy about the situation...

Monday Afternoon Music Blog

Posted on February 16, 2009
Yesterday's New York Times had a nice profile of the musician M. Ward. Ward's new and really cool album is coming out tomorrow (Tuesday). You can hear bits and pieces here and here. And I'm a huge fan of She and Him, Ward's collaboration with actress/singer Zooey Deschanel (more tracks here)...

What do you say to the book buyer?

Posted on February 16, 2009
What is the upstanding law professor's proper response to the book buyer who periodically darkens our doorway? Is there something unethical (or even illegal?) about selling review copies of casebooks that we never asked for and cost us nothing? If there's nothing wrong with selling them, should we at least feel some sort of obligation to give the proceeds to some worthy law school-related cause?

What is the Second Amendment for? (Part Four)

Posted on February 16, 2009
This multi-part post canvasses possible accounts of the Second Amendment?s purpose (a matter that I have discussed in greater detail in a recent article). Justice Scalia?s opinion in District of Columbia v. Heller doesn?t answer this question, beyond saying that the right to bear arms is tied to a natural right of self-defense...

Mike Newdow is Doing My Theme Song, etc.

Posted on February 16, 2009
Hello. I would like to echo Dan's Happy Valentine's Day or Not message. Unlike Dan, though, I didn't get to the movie theater. Indeed, the last time I actually saw a movie in a theater was about a year ago when I saw the awful "21" in the theater on the bottom floor of the Palace of Culture and Science in Warsaw...

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