Legal Commentary

Eric Posner versus the Heritage Foundation...

Posted on December 20, 2008
... on whether the TARP funds can be used for an auto bailout. The Heritage Foundation says no, Eric says yes, and the whole question turns on whether a car company is a financial institution. All of us who teach statutory construction, take note: This is a great classroom problem.

Which side are you on?

Posted on December 20, 2008
Search me. One reason I chose to be an academic is to gain the right to choose my positions a la carte rather than from the prix fixe menu of Left-Right vacuities that dominate the punditocracy and blogosphere. So, for instance (to pull a random example out of thin air), it strikes me as inane to have a general ideological position on unions, as if one should endorse or condemn together the baseball players' union, the corrections officers union in California, the Teamsters, or District Council 37...

Common courtesy in the criminal justice system

Posted on December 19, 2008
I've been reading up about courtesy summonses -- a topic of interest among some lawyers in my state. In South Carolina, a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons...

Altria v Good and SCOTUS' battle over preemption

Posted on December 19, 2008
SCOTUS's decision in Altria v. Good, handed down on Monday, is great news for friends of federalism. The Court held that the federal cigarette labeling act does not preempt private actions to enforce Maine's Unfair Trade Practices Act (MUTPA) against cigarette manufacturers who advertise that their cigarettes are less dangerous because they are "light" on tar...

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The Republic Sit Down Strike: A Response to Joseph Slater

Posted on December 18, 2008
Returning the favor (although I go by Rick). I certainly recognize - and even occasionally thrill to - the use of protest to achieve a desired political result. While the occupation of private property is always problematic, I would not have had the same reaction if the outcome was successful pressure placed on Republic or amendment of the WARN Act...

A Jew on Christmas

Posted on December 18, 2008
Dahlia Lithwick has a fun piece on Slate about which Christmas specials Jewish parents do and do not allow their children to watch. Our three-year-old does not like to watch TV all that much, so we have not had this particular problem. But she has been trying very hard lately to understand about this holiday that we do not celebrate but that so many other people (including two of her best friends) do celebrate...

What's Next?

Posted on December 18, 2008
Is the current phase of the same-sex marriage movement over? More specifically, have advocates for marriage equality lost this round? I worry that the answer might be yes. California's Prop 8 is a major blow to the marriage equality movement. Of course, the California Supreme Court still has to rule on the legality of Prop 8, and my sense is that the court could conceivably invalidate it...

Ashcroft v. Iqbal: When courses come together

Posted on December 18, 2008
I am fortunate enough to have a shmackage (Civ Pro, Fed Courts, Civil Rights, Evidence) that is precisely what I was looking for when I went on the market, coherent (although some contest the presence of Evidence) and overlapping, and tied to at least a portion of my scholarly agenda...

Public Employees the Recession

Posted on December 17, 2008
New Yorkers, I have gradually learned, refer to the Recession of 1973-75 in hushed tones of fear as the time that NYC nearly became Cleveland. Will this recession be just as bad? Since last spring, the Independent Budget Office has been predicting dire tax losses from rising unemployment, falling property values, and a frozen credit market...

What's Your Shmackage?

Posted on December 17, 2008
Most readers will know this already, but for those who don't, here's a little inside information about the terminology we law prawfessors use in our day to day lives: we use the word package to refer to the set of classes that we are teaching or will teach in any given year...

Self-Metrics and Blog Metrics Using Google Reader

Posted on December 16, 2008
If you're still reading blogs the old fashioned way, by separately accessing your "favorites" on a regular or irregular basis, you sure are missing out! The days when you had to understand what an RSS feed was in order to subscribe to blogs are done thanks to user-friendly applications like Google Reader...

"Suspicion is the beginning of wisdom, and of madness" -- Mason Cooley

Posted on December 16, 2008
James Lindgren strikes me as a somewhat suspicious guy -- suspicious of others, that is; I'm not saying I find him suspicious. For instance, when the President-elect's office states that the President-elect had no contacts with Gov. Blagojevich or his staff over the Senate appointment, and that his staff was not involved in inappropriate discussions with the governor or staff over the appointment, Jim writes, "Would it have killed them to admit that there were contacts between the Obama staff and Blagojevich and his staff ...

Another call for the appointment of legal academics

Posted on December 16, 2008
Back in July, when I made a pitch for the appointment of legal academics to the bench as a bipartisan move, I got a mostly skeptical response. Scott Greenfield even accused me of elitism, and my academic colleagues all engaged in a lot of self-hate, doubting whether they were worthy of presumptive Article III honors...

The Church (or Mosque?) of AIG

Posted on December 16, 2008
The Thomas More Law Center has filed a complaint on behalf of a Michigan resident against Treasury Secretary Paulsen and the Board of Governors of the Fed. It alleges that the bailout of AIG violates the Establishment Clause. Now, I have had many misgivings about the ongoing orgy of bailouts...

What makes a law professor "successful"?

Posted on December 16, 2008
Having submitted my tenure application two weeks ago, I've been thinking a little about how to measure one's "success" as a law professor, partly in the context of contemplating how (and how well) the tenure process gauges one's performance, but much more in the context of contemplating the next 30-plus years of my career...

A metric on Truth and Reconciliation?

Posted on December 16, 2008
A few weeks ago, I suggested the need for a metric to determine when we should convene a truth-and-reconciliation or other fact-finding commission as opposed to prosecution (or, I would add although I did not mention originally, civil litigation). This issue arises as the incoming Congress and Obama Administration must figure out whether and how to investigate alleged wrongdoing by the Bush Administration with respect to warrantless surveillance, torture, and detention, as well (potentially) as the politicization of the Department of Justice...

Communal drug testing

Posted on December 16, 2008
One of my students recently sent me a link to an article about a method developed by researchers at Oregon State University and the University of Washington to measure levels of drug by-products in sewage. Apparently, researchers can easily test for all sorts of substances, including crystal meth, cocaine, and marijuana...

The Republic Sit-Down Strike: A Response to Richard Ensberg

Posted on December 16, 2008
Sure, I could have left this in the comments to Richard?s post, but since I?m a guest-blogger too, I?ll make a separate post. Plus, I?ve always wanted to be a part of some "A Response To . . ." debate. Richard writes: Neither BOA nor any other bank can survive by making, not merely a poor - but an insane "loan" in response to political pressure...

Our Schmittian Bailout Bill?

Posted on December 16, 2008
Eric Posner has a very nice post on Volokh asking whether the Treasury department has authority to bailout the auto industry after Congress rejected the bailout bill. The answer turns on the right interpretation of the term "financial institution" in the Troubled Assets Relief Program ("TARP")...

Honor's Constitutional Moment

Posted on December 15, 2008
I wrote a while back about how timely a moment it is for legal scholars to think about the nature of presidential transitions, and the questions of constitutional and administrative law and policy that surround them. I'm very grateful to the Northwestern University Law Review Colloquy for publishing my thoughts on the relationship between the Presidential Oath Clause and presidential transitions, Honor's Constitutional Moment: The Oath and Presidential Transitions...

Legal education bubble?

Posted on December 15, 2008
Staggering year-to-year price increases fueled by easy access to credit (partly as a result of government subsidization), followed by a resounding crash ... does this describe the legal academy's not-too-distant future, as well as the housing industry's immediate past?I deliberately phrase this post as a question, because I have no particularly strong (and certainly no particularly informed) sense of this, but I'm wondering whether other people have thoughts about (1) whether legal education is (over?)due for some sort of "market correction," and if so (2) what form it might take, and (3) whether that would, on the whole, be a...

A Palate-Cleanser

Posted on December 15, 2008
If you're between exams -- or between grading exams -- and looking for some light reading, here's something: a short review of Laurence Tribe's new book The Invisible Constitution. It's under four pages, so it's hardly exhaustive, but you might enjoy reading it as a break from other work...

A Quick Tip for New Prawfs

Posted on December 15, 2008
Here's a little piece of advice to you new prawfs that you may not have heard before. If your school is one of those where the students put on a musical every year to poke fun at law school life, including the professors, it is in your best interest to take affirmative steps to avoid being portrayed in a negative light during the show...

Minority College Football Coaches and Civil Rights

Posted on December 15, 2008
The new-old controversy in college football is the lack of Black head coaches in Division I-A college football. With recent firings and resignations, there are four Black coaches (out of 119 schools) in a sport in which approximately 46 % of players are Black...

The Modern Sit-Down Strike (re-post)

Posted on December 14, 2008
[Here's the post I accidentally deleted for the sake of an Accurate Archival Record. Thanks to Dan M. for finding it in the netherworld. More new content soon!] Some labor historians have a tendency to romanticize and exaggerate the importance of certain forms of worker "militancy...

Xavier Becerra and Obama's challenge on trade

Posted on December 14, 2008
Obama's most important cabinet pick so far has been Xavier Becerra as United States Trade Representative. Becerra, a Los Angeles Congressperson, is a bit of a mystery on trade issues. He voted for NAFTA but later apologized for the vote; he voted for the Peru Free Trade Agreement, but he opposed the Central American Free Trade Agreement...

Obama's Revenge of the Nerds

Posted on December 13, 2008
For those of you who care about housing policy -- I teach land-use regulation -- Obama's choice of Shaun Donovan as Secretary of HUD is wonderful news. Donovan is Bloomberg's head of Housing Preservation & Development and has won widespread praise for his efforts to increase New York's housing supply...

Will the Holder DOJ bring sanity to "material support" prosecutions?

Posted on December 13, 2008
The "Material Support" provision of the Anti-terrorism and Effective Death Penalty Act of 1996, 18 U.S.C. §2339B(a) is a troubling measure. The provision makes it a serious criminal offense to "knowingly provide[] material support or resources to a foreign terrorist organization," thereby creating something akin to a strict liability "abetting" offense...

Good result for the wrong reason

Posted on December 12, 2008
I am not the right guy to play Scrooge this time of the year, but why is the resolution of the Republic sit down strike something to be applauded. I understand the plight of the employees. State law entitled them to notice and pay that they were not about to receive...

R.I.P.: William Stevens, Law and Baseball Author

Posted on December 12, 2008
I'm surprised the other law blogs I read haven't publicized this yet, but the New York Times today prominently features an obituary of William Stevens, who as a law student at Penn authored the famous "Aside" on The Common Law Origins of the Infield Fly Rule...

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