Legal Commentary

Shh! One Last Post on Choosing a Corporate or Litigation Career

Posted on July 01, 2008
Dan Markel has graciously allowed me to sneak back in to mention that, in response to a reader question, I've posted over at my home Legal Profession Blog some things for law students to consider in choosing between transactional and corporate legal careers...

Preserving the Right of Resistance

Posted on July 01, 2008
I'm pleased to be returning to Prawfsblawg for a stint of a couple of weeks! Thanks to Dan for inviting me back. I will be cross-posting at my new blog, findandreplace.blogspot.com. Before entering into some comments about Justice Scalia's stance in Heller, I wanted to point those of you not familiar with it already to fellow guest blogger Adam Winkler's excellent article on standards of review in state gun-law cases, which Justice Breyer cited in his Heller dissent...

The Same Sex Marriage Fight in California ... and a Sign Off

Posted on June 30, 2008
Now that same-sex marriage in California is two weeks old this might be a good time to reflect on how the initiative fight is going to shape up. One of the most interesting things to me about the first few days of same-sex marriage here was the character of the coverage by radio and TV...

Writing a Tune

Posted on June 30, 2008
I was pleased to see in Adam Liptak?s Week in Review piece, The Chief Justice, Dylan and the Disappearing Double Negative (based on an article by Alex Long at the University of Tennessee), that Bruce Springsteen ranks as the third most-cited rocker in judicial opinions...

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Rachlinski from Cornell to Cornell

Posted on June 30, 2008
A while back, Brian Leiter started noting faculty retentions in addition to his usual catalog of lateral moves. I think this was a very useful innovation, because simply taking note of successful lateral hires obscures our perception of faculty loyalty, where it exists...

One Last Random Association and Then "See Ya"

Posted on June 30, 2008
A British scholar, Emmanuel Voyiakis, posted on SSRN a response (Contracts, Promises, and the Demands of Moral Agency (CURRENT LEGAL ISSUES: LAW & PHILOSOPHY, Freeman & Harrison, eds., Oxford University Press, 2007)) to Seana Shiffrin's The Divergence of Promise and Contract (HT Larry Solum)...

An Exceptional Account of American Institutions, Cultures, and Policies--All in a Single Volume

Posted on June 29, 2008
Peter Schuck and James Q. Wilson have edited an impressive one-volume collection of essays on American insitutions, cultures, and policies. Understanding America: The Anatomy of an Exceptional Nation (Public Affairs 2008) is an extraordinary collection of essays by leading scholars covering a broad range of topics, including the political, legal, and economic systems; political and popular culture; religion; the media; family; immigration; race; education; health care; criminal justice; and drug policy...

Paying Tribute: A Couple Sunday Observations

Posted on June 29, 2008
I haven't been able to blog too much the last little while as I've been on the road and feverishly trying to make progress on a few projects. But I wondered just now if any of you caught the SNL tribute to George Carlin last night of the first episode ever, which Carlin hosted? I had a couple reactions: First, the show seems to have started very poorly and haphazardly...

A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide

Posted on June 28, 2008
Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions. I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night. Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice...

If (Like Me) Guns Don't Get Your Blood Pumping . . .

Posted on June 28, 2008
I spent most of yesterday online answering questions from readers of the local paper about the Heller decision and found myself surprisingly unworked up. Usually, the end-of-the-term blockbusters elicite either elation or anger, but Heller left me strangely cold...

Is Winter v. NRDC an agency politicization case?

Posted on June 27, 2008
Last week, the Supreme Court granted cert in Winter v. NRDC, a case involving, inter alia, the Navy?s compliance with environmental review requirements under the National Environmental Policy Act (NEPA) prior to its use of sonar in a manner allegedly harmful to marine mammals off the coast of California...

Boomers and their Children

Posted on June 27, 2008
Hello again. I just wanted somebody else to put up the first non-Heller post before I resuscitated this chestnut that has been stuck in limbo on TypePad. "What's most interesting to me is that this is one of the few bona fide culture gaps between most contemporary law students and their reasonably tech-savvy professors: you guys didn't have the internet in class when you were in school...

More good news from U.S. News ... Not!

Posted on June 27, 2008
U.S. News and World Report has announced that it's thinking about changing its law ranking methodology in two ways. To quote their blog: "The first idea is that U.S. News should count both full-time and part-time entering student admission data for median LSAT scores and median undergraduate grade-point averages in calculating the school's ranking...

Should Statutes of Limitation for Child Sexual Abuse be Eliminated?

Posted on June 26, 2008
Cardozo Law Professor Marci Hamilton--author of God vs. the Gavel: Religion and the Rule of Law (Cambridge U. Press 2005)--has a new book. In Justice Denied: What America Must Do to Protect Its Children (Cambridge U. Press 2008), Hamilton argues forcefully that statutes of limitation for child sexual abuse should be abolished...

Criminal Implications of Heller

Posted on June 26, 2008
As usual Doug Berman has an interesting sentencing take on the day's criminal law news. Today he considers the implications of the Court recognizing a right to bear arms to those currently incarcerated for gun crimes. Here's an excerpt. As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms...

The Rhetoric of Judicial Activism

Posted on June 26, 2008
Andy makes a great argument that the divide on the current Court really is about substantive constitutional vision, and not about the role of the courts in enforcing and implementing those competing visions. He also points out, rightly, that the rhetoric--on the Court, in political debate, and in the MSM--has not caught up to this substantive reality...

A Shared Vision of the Judicial Role

Posted on June 26, 2008
Now that the Supreme Court term is done, we can tally the boxscore. Once again, when push came to shove in the biggest cases of the term (Guantanamo detainees, gun rights, the death penalty for child rapists, punitive damages for the Exxon Valdez, and the millionaires' amendment to the campaign finance laws), the Court was maximally divided with Justice Kennedy holding the deciding vote...

Thoughts on Heller?

Posted on June 26, 2008
Particularly with the VC experiencing technical difficulties, I thought I'd open up a general discussion on the Heller decision. Here are some initial questions: What are the biggest surprises? Where will the new Second Amendment right to gun-enforced self-defense lead us? And what is the political salience of the decision? Will this get the average person's attention, or will it drop quickly from the national consciousness? I'm betting this will a bigger issue that I expected it would be.

One Heller Snark...

Posted on June 26, 2008
Everyone else is going to say lots of substantive things about today's Supreme Court decision in Heller, the Second Amendment case. My own views are a bit complicated. But I just wanted to make one snarky observation: Neither of the dissenting opinions suggests of Justice Scalia's majority opinion that "[i]t will almost certainly cause more Americans to be killed," Boumediene v...

Renting versus Owning

Posted on June 26, 2008
Earlier this week, Krugman had an op-ed criticizing the longstanding policy of encouraging homeownerhip. His bottom line was that homeownership is not for everyone, and that government shouldn't be trying to push as many households as it can into that form of tenure: There are, of course, advantages to homeownership ? and yes, my wife and I do own our home...

A New Way to Ignore The Law -- Don't Open Email from the Agency

Posted on June 25, 2008
The New York Times reports today that the White House told the EPA that it would simply not open emails detailing the agency's response to the Supreme Court's decision in Massachusetts v. EPA, which required the agency to act under the Clean Air Act to treat greenhouse gasses as pollutants...

Stanford's New Pass-Fail System: A "Back to the Future" Memoir

Posted on June 25, 2008
My alma mater, Stanford, now appears to be headed for the third (or maybe fourth) variant of pass-fail grading since my days there in the 1970s. (HT Brian Leiter.) Back then, any student in any year had the unrestricted option to take any class on the "3K" system - credit, restricted credit, no credit...

More on Gas Prices and Sprawl

Posted on June 25, 2008
More from the NY Times on the impact high gas prices are having on exurban households. Here's a taste: Just off Singing Hills Road, in one of hundreds of two-story homes dotting a former cattle ranch beyond the southern fringes of Denver, Phil Boyle and his family openly wonder if they will have to move close to town to get some relief...

Kennedy v. Louisiana Decided

Posted on June 25, 2008
The Supreme Court this morning decided Kennedy v. Louisiana, the child rape case that many of us thought would be a test of the future of the death penalty in the US. By a 5-4 vote the Court struck down Louisiana's death penalty statute as it applies to the rape of a child under the age of 12...

LiveBlog at SCOTUSblog

Posted on June 25, 2008
SCOTUSblog is doing a live blog of today's Supreme Court happenings. (No need to refresh!) Things should get going just about . . . now.

Abigail Adams on "Ostentatious Erudition"

Posted on June 24, 2008
We don't get HBO so my birthday present from my son was the DVD set of the John Adams mini-series with Paul Giamatti and Laura Linney, which arrived today. I loved this bit of dialogue in Part I. John is defending the British soldiers who shot into the crowd in the Boston Massacre...

Blogger Guilt: On Being a Part-Time, Not-for-Profit Event Planner, Among Other Things?

Posted on June 24, 2008
This morning I am off for a 17 hour flight to Israel (and Barcelona and Paris in the middle) for six weeks. The Tel-Aviv University Law Faculty has kindly offered me an office during for the summer so I am hoping to establish something more or less like a writing routine during the home visit...

Presidential Debates as Trials

Posted on June 24, 2008
Charles Collier (Florida) has an interesting essay in Yale's Pocket Part arguing that presidential debates ought to be conducted like jury trials--candidates, the parties/advocates, question one another and give answers presenting their best cases; a moderator serves as judge to ensure questions are asked and answered and procedures are followed; and We the People serve as the jury, deciding, based on what we have heard, which party we believe would be better in the Oval Office...

Cert. denied in the border fence case

Posted on June 23, 2008
Today the Supreme Court denied cert. in Defenders of Wildlife v. Chertoff, a case that raised some interesting and (in my view at least) important issues about the non-delegation doctrine. (I helped co-author an amicus brief urging a cert. grant, and Rick Hills blogged about the case here )...

George Carlin and the First Amendment

Posted on June 23, 2008
Comedian George Carlin died yesterday of heart failure at age 71. He dies just after being named recipient of (but before receiving) the Mark Twain Prize for American Humor. Ironically for Carlin's status as a hero of the First Amendment, his death also comes less than two weeks before the 30th anniversary of the Supreme Court's decision in FCC v...

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