Legal Commentary

Why do courts keep getting this stuff wrong?

Posted on August 28, 2008
Before my current video evidence fascination, the focus of my procedure scholarship had been the distinction between subject matter jurisdiction and substantive merits in federal question cases. I have tried to construct arguments for clear distinctions between them, where jurisdiction should not be affected by the ultimate validity of the claim under substantive federal law...

The Morality of Our Friends in Brooklyn

Posted on August 28, 2008
Well, that's not quite the topic under investigation, but some number of the Friends of Prawfs will be hosting or participating in a fascinating symposium at Brooklyn Law School on Friday Sept. 26th on the topic of Is Morality Universal and Should the Law Care? I've posted the description and agenda after the jump...

Co-authorship & Tenure Regs

Posted on August 27, 2008
Hastings has what I take to be an antiquated regulation about co-authorship in its tenure standards: "Co-authored works will be considered to the extent that the candidate's contribution can be separately evaluated." I can only guess that this kind of thinking came out of an age where casebook authors assigned one another separate chapters that could be sent out for review individually...

The symbolism of procedure

Posted on August 27, 2008
It appears I thought more highly of Hillary Clinton's speech than Paul did. I thought she said pretty much all the right things in the right way; there are some more things I would have liked to have been made more explicit, but overall I thought it did the trick...

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Signing off

Posted on August 27, 2008
It's always a great pleasure to do guest stint at Prawfs, and this time was no exception. Thanks to Dan et al. for having me around, and to commenters and readers for being part of the conversation. Of course, no Prawfs visit would be complete without at least a little shameless self-promotion, so let me take this final moment to mention a new work in progress I just posted to SSRN, Property Rhetoric and the Public Domain...

Graceful? Well....

Posted on August 27, 2008
I didn't watch Hillary Clinton's speech last night; I'm not a huge pomp-and-circumstance fan, and in any event I was busy spooking myself (not for the first time) with Jacob's Ladder, and seeing with a parent's eyes just how beautiful Macauley Culkin was as a young child...

Bivens and telecom immunity

Posted on August 27, 2008
I previously have written about the congressional grant of retroactive immunity to the telecommunications companies for assisting the federal government with warrantless domestic surveillance. I have argued that the immunity grant appears constitutionally valid, at least as to a challenge under United States v...

Using Class Blogs

Posted on August 27, 2008
This semester I'm experimenting with a class blog in my civil procedure class. It is primarily for civil procedure in the news and is available only to students in the course. Each student must blog once during their assigned week, but may blog more. They are not graded on their posts...

We've Been Framed

Posted on August 27, 2008
Have you been watching the recent commercials for General Motors? (See here.) In an audacious move to celebrate GM's 100th anniversary, the company decided to stop giving employees a discount on GM cars. Not only that, they are spending millions and millions of dollars to advertise the decision to end (at least for a while) a substantial employee perk...

Measuring Teaching Success

Posted on August 26, 2008
With the start of the new school year, I?ve seen a lot of interesting a valuable discussion about teaching methods, such as whether to use the Socratic method or PowerPoint, or whether to ban or limit laptops in class. What I sometimes wonder most, though, as a relatively new teacher with no formal training in education, is how I should measure my success at achieving my ultimate goal: student learning ? which of course is itself a loaded concept, since from what I can tell different law professors prioritize different things to be learned: doctrine, theory, critical thinking skills, professionalism,...

Why are non-profits, well, not for profit?

Posted on August 26, 2008
I've started a few blog posts on non-profits and politics, but it's hard to get far into that swamp before you end up asking the question, "Hey, what's the point of having these non-profits around, anyway?" So maybe it makes more sense to start at that end...

Anyone Starting with Heller?

Posted on August 26, 2008
The editors of the widely-adopted Stone Seidman Con Law book have decided to frontload Heller -- and include it in their 2008 supplement to read in connection with page 8. That is, before Marbury. Is anyone out there who uses Stone Seidman following their suggestion? I'm not this year: I don't have enough time to get through all I need to in Con Law I -- and all the hype associated with Heller notwithstanding, I can't justify putting it into the course, nor putting it first...

U.S. News and Part-Time Program "Gaming"

Posted on August 26, 2008
The front page of today's WSJ has an article about a possible change in the U.S. News law school ranking formula. The change, which has already been much discussed, might require law schools to count the LSAT scores and GPA of part-time students in schools' overall LSAT and GPA numbers...

Arts as Game

Posted on August 25, 2008
A couple of weeks ago I did a four-part series on the Scrabulous litigation (Part I, Part II, Part III, Part IV), which ended with musings about the relationship between games, expression, and copyright. Games, like copyrightable works, can be "played;" but despite this similarity in terminology, I argued that games are fundamentally different from other forms of expression, a fact that justifies the traditional rule that games are not copyrightable...

In Defense of Biden: A Reply

Posted on August 25, 2008
Wes Oliver, a former Biden campaigner and a prawf at Widener, writes in with the following response to my post on Biden. Here's his reaction, which I also respond to after the jump: First, let me say that I appreciate the invitation to respond. Much like the candidate I went to Iowa to support, I appreciate hard-hitting yet respectful debates...

Laboratories of Democracy: Some questions for skeptics

Posted on August 25, 2008
I ignore this blog for just a couple of weeks, and what do I find gets posted in my absence? Brian Galle's and Joseph Leahy's working paper defending Susan Rose-Ackerman's thesis that state politicians do not innovate because they are risk-averse and seek to free-ride off of each other's innovations...

Request for Information: Changes in American Religious Demographics

Posted on August 25, 2008
I wonder whether I can appeal to my reader(s) -- hi, Mom! -- for some research assistance. I'm looking for basic information on changes in American religious belief -- what religions Americans profess, how deeply, and so on -- over the last 50 years or so...

What We Talk About When We Talk At Length And Tediously

Posted on August 25, 2008
No, that's not a reference to the Socratic-vs.-lecturing debate. Rather, I commend to readers today's "schedule" for the Democratic National Convention, penned by hit-and-miss humorist Christopher Buckley, who hits on this occasion, in the Times. I'm not sure what my favorites are, but up there would have to be the description of the "interfaith gathering," in which "Democrats of many interfaiths" will gather, "just as Republicans do on Sundays in actual churches with spires and vast parking lots," Bill Clinton's "lower-lip-biting demonstration," and, of course, Michelle Obama's keynote address: "Don't You Think I'd Know if My Husband Were a Muslim?"...

A Cautious Dissent On Biden

Posted on August 24, 2008
I hate to pee rain on the upcoming parade, but yesterday morning's news that Obama picked Biden to be his Veep was pretty disappointing to me. Here are any number of things that come to mind as reasons why he shouldn't have been chosen, at least based on my quick and untutored reactions...

The Political Clairvoyance of The West Wing

Posted on August 24, 2008
Like most youngish, over-educated lefties of the past decade, I was a big fan of The West Wing. I even wrote about the many issues of presidential succession that the show portrayed during its seven-year run. This election cycle has been interesting for different West Wing reasons: The show's rough political clairvoyance...

D.C. Cab and Fairness vs. Welfare

Posted on August 24, 2008
My trip home from the airport yesterday was my first ride in a metered D.C. cab. As reported at the CoOp by Larry Cunningham, the D.C. taxi system recently switched over from their infamous "zone" system to computerized metering by time and distance. This produced much bellyaching from cabbies, not because they enjoyed swindling tourists, but rather because they now have to pay taxes...

Notre Dame Law Review symposia

Posted on August 23, 2008
This is a bit shameless, I know, but I cannot help it. The Notre Dame Law Review has released two symposium volumes: "Separation of Powers as a Safeguard of Federalism" and "Stare Decisis and Non-Judicial Actors". (The latter volume also includes our own Paul Horwitz's outstanding paper, "Three Faces of Deference"...

Laptops and perverse incentives

Posted on August 23, 2008
Among those who want to ban laptops because of a dislike of stenographic notetaking, any proposal always includes some mechanism to enable students to obtain mostly-stenographic notes. Eugene Volokh's new policy provides that one volunteer student in each class will take notes that will be made available to the class...

Hi, My Name Is Bruce, and I Use the Socratic Method

Posted on August 22, 2008
If it's August, law professors must be talking about teaching. Much of the discussion this time around has focused on the Socratic method, and almost all of it is negative (Orin Kerr offers that it should at least be part of the mix). This definitely makes me feel a little retrograde and unimaginative, since I use some modified version of the "Socratic method" in almost all of my classes...

PCAOB is constitutional

Posted on August 22, 2008
So says a 2-1 majority on the D.C. Circuit. The 92-page opinion is here. HT to Jay Brown, who already has three four posts up (one, two, three, and four).

Abusive e-mails from students

Posted on August 22, 2008
Gordon Smith has shared a student e-mail and his response over at The Glom. Maybe it is just me, but I was pretty surprised that Gordon has only gotten three confrontational e-mails from students in his time. And I thought the student's e-mail was very mild relative to some crazy student e-mail I've received in my much shorter time...

A Provocative Take on No-Laptop Policies

Posted on August 22, 2008
Doug Berman is surprised by Eugene Volokh's one-laptop policy (in which one student takes notes for the rest of the class): Indeed, though I am disinclined to assert that this alone shows how quickly professorial power can corrupt philosophical commitments, I do find remarkable the dramatic move to collectivism here...

Changing books

Posted on August 22, 2008
It seems like every semester I give serious thought (at least, I tell myself I do) to changing my courses by (among other things) changing my casebooks. But, I almost always end up staying pat. Let's indulge, for present purposes, the hopeful premise that this pattern does not merely reflect laziness...

Is criminal liability always narrower than civil liability?

Posted on August 22, 2008
Is criminal liability always narrower than civil liability and should it be? In a paper recently posted on SSRN, Wendy Gerwick Couture suggests that, when it comes to securities fraud, criminal liability is more expansive than civil liability.

New technology and laptops in the classroom

Posted on August 22, 2008
On the Law Prof Listserv, James Maule (Villanova) talks about the SmartPen (available at Target for about $ 150). The pen allows students to "write" notes on special paper and records what is written for later uploading; it also contains a mini audio recorder and speaker...

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