Legal Commentary

What Would Leiter Do?

Posted on July 09, 2008
I've been considering here and here how we ought to fill out the US news rankings survey that asks us to rate the "quality" of the "program" of each school. It seems like there are three basic possibilities: rate the school's scholarship program, educational program, or some combination...

The First Line of the FAR and Other Thoughts About the Teaching Market

Posted on July 08, 2008
Over at Co-op, Deven Desai has a good post on filling out the FAR. Those readers going on the market should read both the post and the comments. The discussion reminded me of some comments that I made in response to a post here at Prawfs by Orin Kerr three (gasp!) years ago...

Icahn's Twelve (now with special guest star Steve Ballmer)

Posted on July 08, 2008
Carl Icahn's crusade against the Yahoo board has taken another bold step forward with his release of a letter yesterday to Yahoo shareholders in support of his slate. In the letter, Icahn reveals that he has "spoken frequently with Steve Ballmer, CEO of Microsoft," and that "[s]everal of our conversations have lasted as long as an hour...

Enforcing the Federal Rules in Rhyme

Posted on July 08, 2008
From NPR comes this story of Judge Ronald Leighton of the United States District Court for the Western District of Washington, who sua sponte dismissed (and ordered refiling of) a 465-page complaint as follows: "Plaintiff has a great deal to say but it seems he skipped Rule 8-a...

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State law as the basis for federal constitutional doctrine

Posted on July 08, 2008
Kennedy v Louisiana was the latest SCOTUS decision to survey state legislation as a basis for inferring American constitutional norms. Aside from the Eighth Amendment cases that use state legislation as the basis for inferring a national ?consensus? supporting or condemning a practice, there are several important Due Process cases that survey state laws to infer whether some particular state?s law offends some evolving norm of decency, including Glucksberg, Lawrence v Texas, and Troxel...

Umpires, Judges, and Interpretation

Posted on July 08, 2008
Like many commentators, I thought John Roberts' suggestion at his 2005 Senate confirmation hearing that judges are simply baseball umpires--calling balls and strikes and not making any value or policy judgments and exercising no discretion-was, at best, fatuous...

What are we voting about in US News?

Posted on July 08, 2008
The element of the US News rankings which is far and away the most heavily weighted (25%) is the school's quality assessment from law professors. Right now, it's unclear what criteria faculty use individually, and in the aggregate, the assessment simply replicates previous US News rankings, as Indiana's Jeffrey Stake has shown...

Heller, IP, and the interpretive significance of preambular language

Posted on July 07, 2008
It's always a pleasure to do a guest stint at Prawfs. Thanks to Dan et al. for inviting me back. I thought I'd kick things off by adding yet another post to the deluge of Heller-related thoughts in the interest of making sure that absolutely everything possible has been said about the case...

Summer Parlor Game: Predicting the Next Justices: Obama Edition

Posted on July 07, 2008
With election day less than five months away and the Presidential nominees seemingly chosen, I was going to begin a discussion of prospective Supreme Court nominees, but Doug and the various commenters beat me to the punch. Most of the names that are on my list have come up before, either in the comments to Doug's post, in Tommy Goldstein's extensive discussion last summer, or in other media speculation...

Are courts like military dictators? The case of head scarves & judicial review in Turkey

Posted on July 07, 2008
Truly foundation constitutional decisions are (thank God) no longer made in the United States. To witness life-or-death constitutional decision-making, one needs to go abroad. It is a tribute to the parochial character of American legal academia that the major law blogs have mostly ignored one of the world?s most important constitutional controversies -- the Turkish Supreme Court?s decision to hear a prosecutor?s indictment asking that the ruling AK (?Justice & Development?) Party in Turkey should be banned because it violated Turkish principles of secularism...

And Then There Were Four

Posted on July 07, 2008
As near as I can tell, there are at most four law reviews that do not allow submissions through ExpressO or a website. The Washington Law Review is the most blunt, refusing to accept electronic submissions of any sort. The Texas Law Review website says that it accepts ExpressO submissions, but this appears to be news to ExpressO -- the reference may be to ExpressO's hard copy mailing service...

Stanley Fish, Heller, and Intentionalism

Posted on July 07, 2008
I'm sick of reading about Heller, but then again I'm not, which is probably why I read with interest Stanley Fish's take on Heller in the NY Times. In "What Did the Framers Have in Mind?", Fish observes, "Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v...

Preparing to Vote...for U.S. News

Posted on July 07, 2008
Having just finished my third year at the University of Georgia, I'm very much looking forward to the prospect of getting tenure. For one reason only. Because if I'm lucky enough for it to happen, I will be a "most recently tenured" and therefore be eligible to vote for the US news rankings...

More on Hate Speech from Canada

Posted on July 06, 2008
To no one's surprise, the Canadian Human Rights Commission has dropped its bizarre investigation of MacLean's magazine for printing a chapter of Mark Steyn's book, America Alone. The Commission had brought the case before the Human Rights Tribunal, charging that Steyn's chapter constituted "hate speech" under section 13 of the Canadian Human Rights Act, S...

Technology, porn and a quote for the ages (or should I say the aged)

Posted on July 06, 2008
The New York Times magazine today included this interesting little article about the relationship between technology and porn. Though many parts of the piece could launch many high-brow conversations about technology and human interests, one particular quote reminded me of a not-too-distant past that perhaps only those of a particular generation can fully appreciate: Not getting the chance to quite see porn is the story of anyone?s life who grew up when the adult channels were scrambled...

Obama, the Roberts Court, and the Four Horsemen Analogy

Posted on July 06, 2008
With Senator Barack Obama leading in the polls and general economic conditions favoring the Democrats, speculation has turned to what type of relationship a President Obama might have with the conservative Roberts Court. In what is quickly becoming a common comparison, both George Washington University Law Professor Jonathan Turley and Washington Post columnist E...

Thinking creatively about different SCOTUS short lists

Posted on July 04, 2008
The holiday times, the end of a notable SCOTUS Term, and this new Findlaw article (titled "What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable") have me thinking creatively about what a truly "unpredictable" SCOTUS short list might really look like...

More on Bloggers' Guilt, Plus a Cheap Attention-Getting Apology

Posted on July 04, 2008
Orly had a wonderful post a while back on bloggers' guilt. My own take on it is that blogging is like exercise: once you get out of the habit, it's very difficult to get back into it. The common complaint about blogging, most pertinently about blogging by scholars, is that it can be a thoughtless, trivial enterprise...

The 4th of July

Posted on July 04, 2008
When I was in college, the only colonial thoughts I had on July 4th involved Sam Adams. Later, I began to focus on what we're celebrating, our independence from the British Crown, the birth of our nation, a reason for all of us to be proud. However, now that I teach Race and the Law, I often find myself recalling that when I was a kid in South Carolina, my own family also celebrated Juneteenth, the holiday many African Americans associate with the Emancipation Proclamation...

Where Can Legal Academic Work Flourish?

Posted on July 03, 2008
I don?t really mean this as a metaphysical question. Recently, I have soured on the café as a venue for working. Despite?or perhaps because of?decades of addiction to caffeine, and despite a previously inveterate allegiance to coffee shops, from New York, to Cambridge, to Irvine, and even to the Palo Alto Starbucks at the corner of Stanford Avenue and El Camino Real, I now find myself propelled out of every such institution I enter almost as soon as I have stepped inside...

"Co-opting" "human being"

Posted on July 03, 2008
Emily Bazelon writes here, at Slate, about South Dakota's "unbelievable" abortion law which, among other things, "requires doctors to give patients who come for an abortion a written statement telling them that 'the abortion will terminate the life of a whole, separate, unique, living human being...

"Thou Shalt Not Annoy"

Posted on July 03, 2008
World Youth Day 2008 is being held this summer in Sydney, Australia. According to the event's official web site, "[o]rganised by the Catholic Church, WYD brings together young people from around the globe to celebrate and learn about their faith on a more regular basis...

Lives of Lawyers Revisited

Posted on July 03, 2008
I owe a debt of gratitude, and apology, to Michael J. Kelly, who sent me his recent book, Lives of Lawyers Revisited: Transformation and Resilience in the Organizations of Practice, some time ago. Through no fault of his, I have neglected to mention the book yet on the blog...

District Court: FISA Preempts the State Secrets Privilege for Wirtetapping Suits

Posted on July 02, 2008
Late this afternoon, the U.S. District Court for the Northern District of California released this fascinating decision in the Al-Haramain litigation (a challenge to the warrantless wiretapping program), on remand from the Ninth Circuit (the Ninth Circuit's decision is available here)...

America's Leading Law Review

Posted on July 02, 2008
Slate and Law Professors Has anyone else noticed the enormous amount of writing done by law professors for Slate? Even forgetting features like the annual Supreme Court wrap-up gabfest. I think it?s safe to say that it has become America?s leading law review...

So Wasted from Partying!

Posted on July 02, 2008
So anyway, I have to admit I'm still completely wasted from all the Heller parties I've been attending. Except for Sunday--the official day of rest around here--it's been like non-stop. There was the Crips party on Saturday, a block party in the projects, with everyone joining in except the old women cowering behind doors...

An Anheuser-Busch Puzzle: When is a Classified Board No Longer Classified?

Posted on July 01, 2008
The potentially hostile takeover battle between Belgian brewing giant InBev and American brewing giant Anheuser-Busch is heating up. Last Friday A-B rejected InBev's offer of $65 a share, while at the same time initiating a new plan of cost-cutting and value creation designed to placate shareholders...

Law Prof as Graduate Student

Posted on July 01, 2008
I have a very bad habit of sitting in my office and coming up with things to do that make the relatively straightforward job of being a law professor more complicated. One example is starting up a blog, an extremely rewarding but highly time consuming thing to do...

Rotations

Posted on July 01, 2008
Happy Canada Day everyone! I'm en route to Ottawa to celebrate, but just wanted to drop a note to thank all our wonderful June visitors: Eduardo, Andy, Bill, Tim, Jeff, Katy, Sam, and Jack. Some of them may linger a little bit, but as the month turns I want to thank them for their wonderful contributions...

Taking Heller Seriously

Posted on July 01, 2008
First, an admission. Unlike the other guest bloggers (and here's a shout out to Dan M. for inviting me), I haven't actually read Heller, the S.Ct's pronouncement that yes, Virginia, you do have an individual right to bear arms. But the fact that I haven't read an opinion has never stopped me from offering my own two cents, so here goes...

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