Legal Commentary

Boilerplate in Law Enforcement Contracts (Part Two)

Posted on August 21, 2008
I want to follow up on my last post on boilerplate by suggesting that boilerplate in law enforcement may function as an alternative to rulemaking and as a way to avoid more formal processes. Below are the two SEC settlement provisions that first sparked my interest...

Great Ping-Pongers in the Law

Posted on August 20, 2008
Inspired by this little video calling the Pos to a duel on the green, I think it's well-past time for the prawfs tournament of champions to take place in the royal *sport* of ping-pong table-tennis. Perhaps my FSU colleagues Dave Markell (former Delaware juvie champion) and Adam Hirsch will volunteer to set up their own table tennis grudge-match contest -- or face off in doubles(?) against Richard and Eric Posner, or any other dynamic duo at the AALS meeting in San Diego...

Toujours l'audace? Peut-etre non.

Posted on August 20, 2008
A commenter writes, a propos Dan's post about possible gender bias at law reviews (a question I don't take up here): [E]ven if it turns out that women are less prone to audacious scholarship than men, what possible bearing should that have on whether the academy prefers audacious scholarship? if people with brown hair are more audacious cooks than people with blond hair, should we denigrate audacious cooking because of it? That comment of course raises the question whether we should prefer "audacious" scholarship in the first place...

Don't Be a Menace

Posted on August 20, 2008
Despite the digression on [legal residencies](http://prawfsblawg.blogs.com/prawfsblawg/2008/08/menace-or-threa.html), the main point of my [original post](http://prawfsblawg.blogs.com/prawfsblawg/2008/08/menace-2l-socie.html) was to ask a different set of questions...

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The administrative state- for bad and for good

Posted on August 20, 2008
Hitler's extensive use of the administrative state has been widely acknowledged as something that set apart the Holocaust from prior genocides. This observation is, of course, not to trivialize other genocides, but to draw attention to the ways in which the use of the state machinery facilitated the seeming efficiency of the horrors perpetuated against Jews, gays, Roma stinti, communists, and others during WWII...

Of Course the Errors Are Yours!

Posted on August 20, 2008
Not infrequently, law review articles contain a "*" footnote that acknowledges a list of people who gave useful feedback and then adds a disclaimer like, "Any remaining errors are my own." Well, of course any errors are your own! Does anyone see any value to such disclaimers (which appear frequently in academic books in other disciplines as well)? I think I understand the motivation behind the admonition...

Does the Third Amendment Prohibit More Than Just Quartering?

Posted on August 19, 2008
There's an interesting -- if somewhat self-indulgent -- student note recently posted to SSRN that argues that everyone's other favorite forgotten constitutional provision (the Third Amendment) might actually do more than simply prohibit the quartering of troops in private homes during peacetime (and require congressional authorization for such conduct during wartime)...

Congrats to Elie Mystal, the new editor at Above the Law

Posted on August 19, 2008
Ever since I started using Google Reader in the last few weeks, I have been (more) efficiently limiting my exposure to the blogosphere, yes, certain threads here notwithstanding. In any event, one of the sites I normally peruse is AbovetheLaw, which has until now been edited by my friend from college, Dave Lat...

Your *Least* Favorite Supreme Court Justice?

Posted on August 19, 2008
Obama and McCain announced their choices yesterday at the Saddleback Civil Forum. Nothing too surprising about the choices, including McCain?s apparent block characterization of Justices Stevens, Souter, Ginsburg, and Breyer as legislators from the bench...

Gender, Authorship, and the History Boys

Posted on August 19, 2008
Thanks to Al Brophy's train-spotting abilities**, I was alerted a week or so ago to a new paper by Brooklyn Law School's Minna Kotkin. Professor Kotkin, who blogs over at "Clinicians With Not Enough to Do," has just posted on SSRN a draft of a paper examining gender bias at the top law reviews...

Casebook Selection and Ideological "Boycotts": An Update

Posted on August 19, 2008
You may remember I tried to blog about professors who select their casebooks in part because, for ideological reasons, they don't want to subsidize particular professors -- not because of the casebook's ideology, but because of the professor him- or herself -- but got, um, sidetracked...

Literature as Scientific Endeavor

Posted on August 19, 2008
In the Sunday New York Times Book Review, Walter Kirn reviews James Wood's new book How Fiction Works. According to Kirn, Wood views literature as a scientific endeavor to credibly capture human nature. It seems to me that there is a growing strain of legal thought that tries to do something similar...

Student Tutors

Posted on August 18, 2008
At my school, student tutors typically are assigned to each 1L course. These tutors are chosen and compensated by the SBA. The SBA seems to try to assign tutors who took that professor for the particular course, but this alignment isn?t always possible...

Liveblogging My Annoyance

Posted on August 18, 2008
I'm watching the NBC coverage of the women's beach volleyball game. Why is it "Walsh" this and "Walsh" that, if they use her name at all -- but every other sentence features the words "Misty May?" Not just "May," or "May-Treanor," for that matter, or even "Misty," but "Misty May...

The F.A.R. is here

Posted on August 18, 2008
There are, the good folks at AALS tell me, 592 registrants in the first distribution of the 2008-09 Faculty Appointments Register. I'm curious: what do people with more experience than I have in the appointments-trenches think of the F.A.R. form? I'd also welcome thoughts from those who have filled it out recently ...

More Advice to 1Ls

Posted on August 18, 2008
Lesley's post below offers an old chestnut of a topic: advice to 1L's. A good topic, especially because they will soon enough face advice, usually of a different order, from 2L's and 3L's, and we have but a brief window in which to either confirm that advice or inoculate them from it...

The AALS Speaks -- Sort Of (UPDATED)

Posted on August 18, 2008
If you're a law professor, you've probably already received in your email in-box a letter from Carl Monk of the AALS containing a "Statement Adopted by [the] AALS Executive Committee," responding to the proposed boycott of the site of the AALS annual meeting because the hotel's owner "has contributed money to a ballot initiative designed to overturn the California Supreme Court's May decision in favor of same-sex marriage...

Menace or Threat?

Posted on August 18, 2008
The discussion of my post last week about what it takes to teach a field went off in a different direction than I expected. I'll circle back to my original intended theme tomorrow, but for now, I'd like to follow up on a theme from the comments. Has a law school failed if its graduates are dangerous without supervision? It's not clear to me that the answer is "yes...

Boilerplate in Law Enforcement Contracts (Part One)

Posted on August 18, 2008
Boilerplate in commercial contracts (e.g., credit card agreements) has received significant academic attention. But I've been thinking about boilerplate in what could be called "law enforcement contracts": settlements with the SEC or deferred prosecution agreements with criminal prosecutors...

once and future 1Ls

Posted on August 18, 2008
Morning everyone. The start of the new school year is close (next week for us) and I was tapped to speak to the 1Ls about how to succeed in law school. I know this is a topic that has been covered before, both on this blog and others, but I thought now might be a nice time to reopen it...

8 Gold Medals: Congrats to Michael "McLovin" Phelps

Posted on August 17, 2008
H/t: Jack Lerner. (Sorry if the image is a bit small. You may need to click on it to enlarge).

Laboratories of Democracy?

Posted on August 17, 2008
In our last exchange, Verity asked if I can really be serious about national regulation of corporations. (Note: Verity is, as best I can tell, a real person and not a Socratic personification.) That's a complicated debate, so I don't think we'll wrap it up in a blog post...

Greetings from the anti-PowerPoint bunker

Posted on August 17, 2008
Dave's partial conversion means there is one less of us remaining in the bunker against PowerPoint--last one out, shut the lights. But Dave's realization (if not epiphany) of three good uses triggers the question that I believe is at the heart of the debate: Is it about PowerPoint per se or is it about using visual back-ups to the conversation? It seems to me that two of Dave's three uses (all but # 3, more on that below) can be achieved as well (albeit perhaps more crudely and obviously less permanently) with an outline, chart, or diagram on the dry-erase...

A staunch PowerPoint opponent converts (sort of)

Posted on August 16, 2008
PowerPoint may not be entirely ubiquitous, but it?s getting pretty close to industry standard in both teaching and presenting. This is particularly true in my field, which I attribute to the tech-savviness and ?enthusiasm of IP folks. That said, I?ve resisted using PowerPoint ever since I started teaching...

The Toronto Star on "friendship & the law"

Posted on August 15, 2008
The Toronto Star, Canada's largest daily newspaper, just did a story on friendship & the law.

Hiring Chairs 2008-09: Announce Yourselves!

Posted on August 15, 2008
Update: Note that this will be moved periodically to the front of the page. As is tradition here, it's time for law schools' appointments committees around the country to congregate here and share: a) the name of the chair (s) of the committee b) the law school c) whether your school divides work between entry-levels and laterals, and if so, who's responsible for which segment d) the names of other persons on the appointments committee(s) e) any particular subject matter expertise you're focusing on f) other information you think might be relevant...

Freaky-Deakies Need Love Too

Posted on August 15, 2008
My final post on the NYT's Freakonomics blog is up. This one is about juror unanimity.

Bleg for people who read death penalty cases...

Posted on August 15, 2008
The last two weeks or so I've been revising my second installment of the Retributive Damages series, this one entitled, How Should Punitive Damages Work? (An earlier working version was called Implementing Retributive Damages, but I've since reframed the discussion--I hope Jason Solomon proves correct!) In any event, I also wrote from scratch (for the first time in a long while) a new essay that argues that the reasoning in the Supreme Court's decision last year in Panetti v...

My Gift to the Nation's Law School Hiring Chairs

Posted on August 15, 2008
I wouldn't normally do this sort of thing, but I have a lot of debts to repay to my own mentors, and when you come across a gem you want everyone to see it shine. All this is by way of saying that if there are any schools out there that might be interested in a tremendously strong, well-published candidate on the teaching market who specializes in criminal law, professional responsibility, and law and religion, and who I think holds out the prospect of contributing significantly to all these fields as a scholar and teacher, do please feel free to...

Is retroactive telecom immunity unconstitutional? No

Posted on August 15, 2008
Frank Pasquale at CoOp quotes Gleen Greenwald at ACLU Blog asking that question. In short, I believe pretty clearly the answer is no--an unfortunate no, but no nevertheless. But it is worth considering Glenn's arguments.

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