Legal Commentary

The Educational Quality of Law Schools: What's the Relevant Data?

Posted on July 15, 2008
Yesterday, I laid out conceptually how we might think about comparing the "value added" for students across law schools in order to fill out the U.S. News survey. A critical component of this, of course, will be relative educational quality, and one obvious question is how exactly to get at that...

New Yorker Cover

Posted on July 15, 2008
People are talking about this week's New Yorker cover, too many to try to link to. Both Barry Blitt, the cartoonist, and New Yorker editor David Remnick responded to the immediate outcry on Huffington Post. The Obama campaign called the cartoon "tasteless and offensive...

The Law and Economics of "Thomas the Tank Engine"

Posted on July 14, 2008
One of the nice things (one of the only nice things) about recovering from surgery is that my two-year-old daughter has been very sweet and patient about my "boo-boo," and is happy to spend time on the bed with me watching TV -- provided she gets to control the program...

Piety vs. Originalism

Posted on July 14, 2008
Nate Oman has a nice post at CoOp talking about originalism and the "virtue of constitutional piety." Referring to a recent address by Larry Kramer in which Kramer denies that he is an originalist "if by originalist you mean that we should do something just because that is what the founders said or intended," Nate says that Kramer is responding to "a straw man in so far as judicial or academic originalists are concerned," but thinks that there might be something to be said in defense of this kind of piety, in the broader context of "popular originalism...

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Detainees and judicial minimalism

Posted on July 14, 2008
The Supreme Court's decision in Boumediene v. Bush was almost a month ago and most the good commentary already has been made. But a thought I had while running this morning (I know, I know, I need to get some music on my iPod) leads to this a-bit-late post...

Sports and National Pride

Posted on July 14, 2008
Europeans love their football (i.e., American soccer) teams. The lasting effects of an international victory on the collective spirit were evident last week when I spent a few days roaming the streets of bubbly Barcelona. A German friend who was showing me around the Catalan city described the link between spectator sports and national spirit as even more significant for the new Germany...

How To Compare Value Added Across Law Schools

Posted on July 14, 2008
Last week, I made the case for creating a race to the top of the law schools on "value added" for students by using the U.S. News survey of academics ? and lawyers and judges, for that matter -- to assess schools on this basis. The basic reaction I?ve gotten so far has gone quickly to the second-order questions about how exactly to do this, with skepticism about it even being possible...

Michael Heller's The Gridlock Economy

Posted on July 14, 2008
This past weekend, I read Michael Heller's new book The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends...

Mark Your Calendars: Prawfs! Happy Hours on July 24th and July 31

Posted on July 14, 2008
Greetings! If you're in NYC on Thursday, July 24th, I hope you'll come join a group of prawfs to raise a glass of good cheer at one of the seasonal Prawfs happy hours. At least a dozen or so of us who are participating in Prawfsfest! at Hofstra will be there...

Trial lawyers' beef with my "pact"

Posted on July 13, 2008
I should have seen it coming: Scott Greenfield, over at Simple Justice, takes my proposed pact on judicial nominations to be a slight on trial lawyers with experience in the trenches. This is what comes of treading near to the edge of the Culture War between Academia and the Bar: One risks being misunderstood...

Reflections on the politics of SCOTUS and personhood of its members

Posted on July 13, 2008
As one might expect, Linda Greenhouse's (last?) New York Times column about covering the Supreme Court for 30 years is lovely and moving and insightful. And, as we all look ahead to a new occupant in the White House (who might have a chance to appoint more Justices than any President since FDR), I found two passages from the piece especially significant...

Anti-Non-Aggression

Posted on July 12, 2008
I guess I'm not convinced by Rick's post that there's any particular need for a "non-aggression" pace for law professors who are judicial nominees. I certainly would like to see the heat turned down on judicial nominees in general -- not off, by any means, but down...

John McCain and Natural Born Citizenship

Posted on July 12, 2008
So it turns out John McCain was not a citizen at birth, and therefore is not a natural born citizen. My analysis is in this essay, reported on by Adam Liptak in The New York Times. The essay responds to the 0pinion of Professor Laurence Tribe and former Solicitor General Theodore Olson that Senator McCain was a natural born citizen, both 1) by statute, and 2) by birth under the allegiance and loyalty of the United States...

Developing an innovative pre-law school summer reading list

Posted on July 12, 2008
An always useful topic for collective discussion is what should a person read the summer before starting law school. Of course, One L by Scott Turow is the modern classic, and it is still probably worth a read even though it is now a bit dated. One of my favorite recommendations is Broken Contract by Richard Kahlenberg, which does a nice job exploring how law school turns motivated public-spirited individuals into amoral solvers of legal problems...

Professors' non-aggression pact on judicial nominations?

Posted on July 12, 2008
Since Andy Siegel has proposed the "summer parlor game" of speculating about whom President Obama might appoint to the SCOTUS, this seems like as good a time as any for me to promote my perennial hobby horse -- a professorial non-aggression pact on judicial nominations of professors...

Selling Partners on the Job Market

Posted on July 11, 2008
A query from a job candidate reader: When you go on the market, what is the best way to raise the issue of a partner who'll need to find a university-related job outside of the law school? Suppose the partner is a sociologist, an investment analyst, or a radiologist...

Spatial Attitudinalism & Phillip Morris v. Williams

Posted on July 11, 2008
It is routine for political scientists to employ a "spatial attitudinalist" model of judicial decision-making, in which a judge's votes are predicted by the judge's non-legal ideology (often measured by the political party of the President who appointed the judge)...

Best Fiction for Conferences

Posted on July 11, 2008
Greetings from a plane somewhere over Europe. I am on my way back to Tel-Aviv after a week in Barcelona and Paris. In Barcelona, I attended a conference different from the ones I usually go to. It was the XIII International Conference on the Foundations and Applications of Utility, Risk and Decision Theory (FUR), which took place at the IESE Business School, University of Navarra...

Revisiting Cost Internalization and Punitive Damages after Philip Morris

Posted on July 11, 2008
More than a year ago, the Supreme Court handed down its decision in the Philip Morris case. I blogged about it at least a couple times. It's on my mind again, since I'm spending this month, among other things, revising my Retributive Damages article (coming soon to a Cornell L...

The Legacies of U.S. News's Robert Morse, AALS's Susan Prager, and Us

Posted on July 11, 2008
Can we use the annual U.S. News survey of law professors to create a race to the top in legal education? In prior posts, I've explained why we should do it -- now I want to talk about who can do it and how. At the 2007 AALS workshop on rankings, one of the breakout sessions was entitled: "if you can't join 'em, beat 'em," referring to the creation of rival rankings systems to U...

Where's the "Zazz?"

Posted on July 10, 2008
I enjoyed Dave's post immensely, even if I'm not sure I've ever heard the word "zazz" before. I would note that Dave doesn't distinguish too much between legal writing that has operative force in the real world, such as a court's order, and legal advocacy, such as a brief, and legal scholarship...

Davis Through a Religious Liberty Lens

Posted on July 10, 2008
Since the Supreme Court last month struck down the so-called ?millionaire?s amendment? to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates, debates have been proliferating over just how much the Davis v...

Taking Law Lightly

Posted on July 10, 2008
Howard?s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I?m not alone in thinking that most legal writing, however smart and insightful it might be is ? well, rather dry...

The Rise and Fall (and Rise Again?) of a Law Professor

Posted on July 10, 2008
Last fall I stood dumbfounded in front of my law school mailbox, a copy of the Supreme Court Economic Review in my hands. The first item in the table of contents of this illustrious, Chicago-based annual law journal was a note from the editors retracting in full a previously published article...

I Kissed a Girl

Posted on July 10, 2008
According to NPR, the catchy pop song "I Kissed a Girl," sung by Katy Perry, is the current number one song in America. You know, the one with the refrain: I kissed a girl and I liked it The taste of her cherry chapstick I kissed a girl just to try it I hope my boyfriend don't mind it Anyway, for the record, I'm not turned on at all by the prospect of two girls making out--it's not my scene--but I do love the fact that this is a big hit among teens, those voters-in-waiting...

Do We Need to Further Incentivize Scholarship, not Education?

Posted on July 10, 2008
In prior posts, I've been trying to figure out how to fill out the U.S. News survey of academics. I'm inclined to think we should be assessing the quality of a school's education, or more broadly, the "value added" for students training to practice law...

The New York At-Any-Times

Posted on July 09, 2008
The New York At-Any-Times Continuing my Times blogging, there was a story the other day that reminded me of a game a few friends and I played in college. The Times has never had the type of facility with snappy headlines that encapsulate a story like good tabloids (For a list of the best ever tabloid headlines, click here, with the New York Post?s ?Headless Body in Topless Bar,? and the Daily News?s ?Ford to City: Drop Dead? vying for the title of all-time best)...

Why Doesn't Bloomberg Have a Successor

Posted on July 09, 2008
There is a fascinating story in the Times today about the efforts of New York City business leaders to find someone to run on roughly the same platform as incumbent Mayor Michael Bloomberg, who is barred by term limits for running for a third term These leaders ? including superlawyer Marty Lipton, financier Steven Rattner and developer Jerry Speyer ? are having difficulty finding a viable candidate who espouses the same set of policies as Bloomberg...

The anemic spending power of the States

Posted on July 09, 2008
As the resident federalism nut on this blog, I feel obliged to offer a federalism scorecard for the Roberts Court's '07-'08 term. My tentative assessment is that the Court has gutted the states' spending powers Exhibit A for this thesis is a comparison between the Court's opinion in Chamber of Commerce v...

An American in Paris: Why I am mystified by the French Government?s attitude towards the Lisbon Treaty

Posted on July 09, 2008
As I noted in an earlier post, all of the biggest constitutional news this summer comes from abroad. Apart from the Turkish Supreme Court?s apparent coup d?etat against the AKP in the name of secular Kemalism, the constitutional fight that tops all other stories is the rejection of the Lisbon treaty by Irish voters...

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