Legal Commentary

Civilian Contractors and the Limits of Military Jurisdiction

Posted on January 21, 2009
With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone...

A question for IP folks

Posted on January 21, 2009
If you are the photographer who took this photo, would you have any claims against the artist who made this image without your permission or license? Further information over at Swampland. A quote from the photographer: "As gentlemen we can work this out...

How specific the oath?

Posted on January 21, 2009
A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order...

Selflessness

Posted on January 21, 2009
Given the latest news, I thought it might be an opportune time to tell the folks at Cornell, Harvard, etc., that I am willing to teach constitutional law there, if necessary. This was not an easy decision to make, but the new emphasis on personal responsibility reminds me that sometimes sacrifices must be made.

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New Semester, new ideas

Posted on January 20, 2009
Just back from a fascinating weekend in NOLA, where, among other things, I attended much of this amazing Black-Jewish dialogue group. I came home with a cold, an abiding appreciation for Black Catholic masses, and a belly full of beignets. Clearing out my inbox this morning, I just stumbled upon Simon Stern's thoughtful draft syllabus on law and literature, which he helpfully posted on SSRN here...

Who was president while Perlman fiddled?

Posted on January 20, 2009
At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p...

Civics and Corrections: A Reminder

Posted on January 19, 2009
As we get ready to watch the momentous transfer of power on Capitol Hill tomorrow, I thought we'd ponder for a moment about the rationale behind excluding prisoners, and in some cases ex-felons, from the right to vote.Four years ago, released prisoners on parole, and probationers, were surprised to find out that they had a right to vote in California...

How Should an Originalist President Pardon? (By Bernie Meyler, Cornell Law School)

Posted on January 19, 2009
The culmination of a presidency marked by as expansive a view of executive power as that of George W. Bush should be an expansive exercise of that most unchecked of executive capacities, the power to pardon, shouldn?t it? As the days of Bush?s time in office draw rapidly to a close, speculation mounts about whether he might pardon actors from his administration, including Vice President Dick Cheney himself or others, before they have even been indicted for any offenses...

An Inaugural Scrooge

Posted on January 19, 2009
Paul's post on the iinaugural spectacle prompts me to confront my own reaction which is, for the most part, one of bemusement. It all strikes me as too much by half. Of course, the election of an African-American president is a significant event. I was not one of those who doubted that the U...

Peaceful Transitions

Posted on January 19, 2009
A fuller response to Hadar's query: At 11:50 a.m. EST tomorrow, I will dismiss my civ pro class (we usually go until 12:15 and I can make the 25 minutes up in our next meeting). I will tell them that class is dismissed because in ten minutes, political power will be transferred peacefully (barring anything truly unforeseen) to a different executive from a different political party planning to bring about a [ed: hopefully very] different governing agenda...

U Who?

Posted on January 19, 2009
Not to be too much of a party-pooper, but I confess to some ambivalence, with a couple of important caveats, about the triumphalism of yesterday's concert and the substantial involvement of various celebrities in it. In particular, and it may sound odd coming from a Canadian citizen and US permanent resident, but I am ambivalent about the fact that U2 was one of the performing acts yesterday...

A Guide to the Presidential Oath

Posted on January 18, 2009
In its inauguration package, the New York Times has a short piece on the Presidential oath. Hey, here's an idea! While you're at it, why not also look up my recent piece in the Northwestern University Law Review's Colloquy called Honor's Constitutional Moment: The Oath and Presidential Transitions...

Query: Hold Class on Inauguration Morning?

Posted on January 18, 2009
I hear that many colleagues in various departments across the country might be canceling classes to allow students to watch the inauguration ceremony, which at Hastings we're showing on a large screen in a big hall.The ceremony is 9:00 Pacific time. I teach at 9:40...

Silly Writing: A Weekend Roundup

Posted on January 17, 2009
Here, for your non-edification, are a couple of articles that appeared yesterday. In the first, Noam Scheiber discusses how Harvard beat Yale in the Democratic Party. He argues that the differences in behavior between the Clinton and soon-to-be Obama administrations in the transition period reflects, in part, "the elite institutions that socialized them -- namely Harvard and Yale, [and] their respective law schools...

Exclusionary rule and qualified immunity

Posted on January 16, 2009
I do not know enough about exclusionary-rule doctrine. But a question for those who do: Is the long-term upshot of Herring v. United States that the Court brought the exclusionary rule into line with qualified immunity: An officer's reasonable mistake (of law or fact) about some underlying issues (here, whether the arrest warrant on Herring was still outstanding) that justified an unconstitutional search or seizure does not trigger the exclusionary rule despite the constitutional violation...

Endowed coaching positions

Posted on January 16, 2009
Something I just discovered this week: The head coaching positions for Stanford's football and men's basketball teams are endowed. Football coach Jim Harbaugh is the Bradford M. Freeman Director of Football; Basketball coach Johnny Dawkins is the Anne and Tony Joseph Director of Men's Basketball...

Empirical Legal Bulls?

Posted on January 15, 2009
I've been thinking recently about the parallels between the three periods in which empirical research on law and legal institutions seemed to reach particular peaks: the mid '20s, the mid '60s and the period that began in the late 1990s and may have ended now...

Beware the extra "http://"

Posted on January 15, 2009
A word to Typepad users: the new format now puts in an "http://" at the beginning of the link in the prompt box. I'm expecting to see a lot of http://http:// links in the near future. Any other comments on the new format are welcome. I myself find the slower delete key very aggravating.

"You Can Call Me Ray. Or You Can Call Me Jay. Or You Can Call Me..."

Posted on January 15, 2009
We had an interesting series of posts recently about whether to call students by their first or last names. (See, for instance, here and here.) An active commenter on the second post was Profesor Liz Glazer, who argued in favor of a policy of calling students by their first names...

Who is the Ideal Law School Graduation Speaker?

Posted on January 15, 2009
Forgive me if this is a topic that has already been discussed at length in the blawgosphere, but I'm interested in what people out there think about your typical law school graduation speaker. It seems, from my experience, that the typical speaker is a lawyer who has "made it to a prominent position in public life" (though perhaps you cannot tell, I am saying this in a sort of mockingly overly serious and grumpy manner)...

Sad News

Posted on January 15, 2009
Via Larry, I just came across this abstract. Assuming the evidence holds up, it's very sad, and probably confirms the intuitions most people have about the implications of skin color...Joni Hersch (Vanderbilt University Law School) has posted Skin Color, Discrimination, and Immigrant Pay on SSRN...

Down goes Geithner?

Posted on January 15, 2009
TaxProf has been all over the Geithner tax-payment story, which has morphed from a Zoe-Baird-esque household-help issue into a much bigger catastrophe. His failure to pay taxes from his IMF income seems more and more troubling as details come out. These revelations from Byron York seem particularly damning: Documents released by the Senate Finance Committee strongly suggest that Geithner knew, or should have known, what he was doing when he did not pay self-employment taxes in 2001, 2002, 2003, and 2004...

Ecclesiastical Immunity

Posted on January 15, 2009
Last month, a trial court in Connecticut applied the ministerial exception to dismiss a defamation claim brought by a charitable organization against the Catholic bishop of Connecticut. In brief, the vicar of a Connecticut parish had organized a charity in his native Tanzania and, among other things, raised funds for it from his congregation...

Personal information as true threat

Posted on January 14, 2009
Richard posts about a map that same-sex-marriage advocates have created showing names, addresses, and locations of people who donated to the Prop 8 campaign, and points to some discussion about whether this somehow constitutes a threat. The purpose of the map presumably is to enable some type of public shaming, or protest, or boycott against those who supported Prop 8...

Same Old Song

Posted on January 14, 2009
I've just received my copy of Philip Hamburger's Law and Judicial Duty, and it's a tremendous work so far. I just wanted to highlight an early passage: Ideals often seem unrealistic and unsophisticated, and this is how academically inclined lawyers have long viewed the common law ideal of law and judicial duty...

We know where you live

Posted on January 13, 2009
Opponents of Prop 8 have put up a map purporting to show where donors to the "Yes on 8" campaign live. You can get the name, occupation and amounts of donation for each mapped donor. While you can't get the exact address, it would be quite easy to use the map to find the homes of donors...

More thoughts on classroom technology

Posted on January 12, 2009
With the new semester upon us, let me start it off with several thoughts on classroom technology. First, after much talk, I finally banned laptops from my classroom for the coming semester--favorable tenure votes are almost as good as alcohol for giving one courage...

If You Want to Make an Omelette . . .

Posted on January 12, 2009
As many of us head back to our offices and classrooms this Monday morning, here is another little quiz from the Freshness of Legal Discourse Department. How many results does a Westlaw "allcases" search for "Humpty Dumpty" turn up? Answer after the jump...

Federalism & Cop Shows: The Case of "The Wire"

Posted on January 12, 2009
After Rick Pildes and other colleagues assured me that HBO's The Wire transcended all TV formulae for cop shows, I rented the first season and watched it sporadically with my wife. Artistically speaking, the show is outstanding. But naturally I am more interested in looking at what the show has to say about fundamental matters -- which, for me (of course) means federalism...

The Weird Politics of Post-Heller Gun Regulation

Posted on January 12, 2009
What I found most fascinating about the 2008 elections was the shift in political allegiances as issues changed and interests realigned. The bailout was one example: criticism and support of the $700 billion loan plan cut across traditional political and economic allegiances...

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