Legal Commentary

A Critique of "National Security Courts"

Posted on June 23, 2008
Although I've written before about my concerns with the idea of "national security courts" for terrorism cases (including challenges to detention and trials for criminal offenses), we've already seen calls for such hybrid tribunals in the aftermath of the Supreme Court's decision 11 days ago in Boumediene, and I imagine those calls will only increase as the summer goes on...

Sokol on Antitrust Counsel (and Some Thoughts on Chambers Generally)

Posted on June 23, 2008
Danny Sokol (Florida) has an interesting post over at Antitrust & Competition Policy Blog (a Member of the Law Professor Blogs Network) about the Chambers USA rankings of New York City and Washington D.C antitrust lawyers. The question is why general counsels would want to hire antitrust deal counsel without a substantial history with (or employment by) one of the agencies...

A Tad Too Friendly at Friendly®?s

Posted on June 22, 2008
I offer the following consumer experience as fodder for the debate in the intellectual property field over the appropriate balance of trademark protection. While on a road trip recently, I convinced my husband to stop at a Friendly®?s (for old time?s sake)...

Northwestern's "accelerated JD"

Posted on June 22, 2008
This from Northwestern: Northwestern University School of Law will offer an accelerated JD program starting in 2009 as one of the initiatives of a major new plan to maximize its graduates? success in the changing worlds of the legal profession and the clients it serves...

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The Rise, Fall, and Revival of the Social Gospel?

Posted on June 22, 2008
Bill Stuntz observes that the standing of Christians in academia might be linked to the political rather than theological views of Christians ? especially Fundamentalist Christians. Stuntz also notes that the political valence of Christianity might be changing: ?American evangelicals have changed our emphasis over the past decade or so: hang around evangelical churches, and you?ll hear a lot more talk about poverty and disease than in the past, and a lot less talk about the culture?s moral failings...

Happy Solstice!

Posted on June 21, 2008
Here in Charlevoix, Michigan, on the eastern shore of Lake Michigan, above the 45th Parallel and just about as far west as you can get in the Eastern Time Zone, aided by Daylight Savings Time, the sun will set officially at 9:32 p.m. (compared to 8:25 p...

Telecom Immunity and United States v. Klein

Posted on June 21, 2008
At Balkinization, Marty Lederman discusses the congressional Democratic compromise with (or capitulation to, depending on your perspecive) the White House on retroactive immunity for the telecom companies for their role in warrantless surveillance, announced last Thursday and approved by the House on Friday as part of the reauthorization of FISA...

Vining on Law and Religious Commitment

Posted on June 20, 2008
Apropos of Rick Hills' post on "theophobia" and the myriad comments that follows, Joseph Vining (Michigan) has posted Legal Commitments and Religious Commitments, a comment on Steven D. Smith's Law's Quandary (HT Larry Solum). Here's the abstract: Person, individual, purpose, value, authority: Can these be realities for law without making a commitment to law into a religious commitment? Can the affinities between the world of law and the world of religious life be as close as they are without leading one to conclude, empirically or introspectively, that these dimensions of experience are the same? In a comment on Steven Smith's...

A Price for Everything?

Posted on June 20, 2008
Just to follow up on my post on gentrification, here's an article from the Seattle Times about an elderly woman who held out against private development because she just didn't want to sell, at any price. When she wouldn't sell, developers simply built around her (see photo, also from the Times story)...

The Future of Class-of-One Claims

Posted on June 19, 2008
This is my third and final post on Engquist v. Oregon Dept of Agriculture, the class-of-one equal protection case the Supreme Court decided last week. (Previous posts are here and here .) My first post focused on the logic of the Court's equal protection analysis in finding the class-of-one theory inapplicable in the government employment context, and my second focused on Engquist as a government employee case...

How Many Law Schools Do We Need?

Posted on June 19, 2008
I can?t resist flagging How many law schools do we need?, from the The Buffalo News. The article charts reaction to the State of New York?s decision to set aside $50 million to support three new law schools (to be affiliated with St. John Fisher College, SUNY Stony Brook and SUNY Binghamton) and picks up on many of the themes in September?s Wall Street Journal article lamenting the plight of un- or under-employed, debt-ridden law school graduates...

Theophobia

Posted on June 19, 2008
Just a few days ago, I was discussing a mutual friend with a former colleague. The latter was astonished by our mutual friend?s Christianity: ?What?s up with that?!? he exclaimed, expressing bewilderment and even nervousness at the thought that a well-regarded ? indeed, by academic standards, famous ? professor could believe in the existence and beneficence of an omniscient and omnipotent God...

The Alt-Neu clash of anti-discrimination and free exercise

Posted on June 18, 2008
Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups. Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise...

A Thought Experiment on Same-Sex Marriage

Posted on June 18, 2008
In honor of yesterday's momentous events in California, I thought it would be appropriate to post to a wider audience a question I sometimes ask my students to prompt a discussion of the proper role of constitutional courts. After the jump, I offer a very plausible "history" of the evolution of same-sex marriage (no fighting the hypothetical, please!)...

"A Bunch of Woofing"

Posted on June 18, 2008
The Detroit Free Press reports this morning on the continuing debacle involving the Detroit City Council's attempt to remove Mayor Kwame Kilpatrick as a result of a series of alleged improprieties while in office. The city's Law Department (raising the question, for another time, just who is the client) has hired Wayne State Law Professor Robert Sedler (left), who is filing a lawsuit on the mayor's behalf, claiming, as I understand it, that Robert's Rules of Order (the real ones, not Professor Sedler's) require a two-thirds and not a majority vote to approve removal proceedings...

Laptops, Internet, and Other Issues of Deportment

Posted on June 17, 2008
Fiddling with my fall syllabi for my Securities Regulation and Agency, Partnership & LLC classes this morning, and here's the current draft of the text on these subjects: The use of laptop computers in class for things other than taking notes or looking at the statutes has consumed many electrons in the law school academic blogosphere and elsewhere...

Who's Afraid of a Little Process?

Posted on June 16, 2008
If one peruses various of the comment threads to posts about the Supreme Court's decision last Thursday in Boumediene (see, for example, the comments to this post or to this one), one finds a similar criticism of Justice Kennedy's opinion repeatedly echoed in various places -- that "foreign enemy combatants" are not part of "We the People," and so therefore are undeserving of constitutional protections (including access to the writ of habeas corpus)...

More on the Class of One: Enquist as a Workplace Case

Posted on June 16, 2008
Last week I posted on the Supreme Court's decision in Enquist v. Oregon Dept of Agriculture, where a six-justice majority held that government employees could not challenge employment decisions as equal protection violations under the "class of one" theory of Village of Willowbrook v...

The Ambiguity of Gentrification

Posted on June 16, 2008
There was an interesting story in Friday's NY Times concerning gentrification in Harlem. The whole article was worth reading, but I was struck by this passage: While welcoming safer, cleaner streets, longtime residents have found themselves juggling conflicting emotions...

Kant on Golf

Posted on June 16, 2008
Today is my birthday, which means three things. (1) My birthday often falls on, or abuts, Father's Day. (2) Everybody in my family always lets me watch the last round of the U.S. Open on Father's Day. (3) Because it's my birthday, and because there's an eighteen hole playoff today, I am being treated to a second day of getting to watch the golf...

Economics and Ideology

Posted on June 16, 2008
Over at Crooked Timber, a very interesting and instructive discussion of the way ideology permeates economic analysis. (HT Leiter) Here's a taste: What economics has done is to take the models of the supply and demand of consumer goods and apply them to the supply and demand of labor...

Linguistic Communities, Intellectuals and Dilbert

Posted on June 16, 2008
Several weeks later, I am still pondering the "anti-intellectualism" debate Rick Hills stirred up, and some of the comments to my post on the subject. What got me going this morning was reading the introduction to Stephen Finlay's Four Faces of Moral Realism, which Larry Solum was kind enough to spotlight today...

A Fascinating Day at the Court for Fed Courts

Posted on June 16, 2008
Two of the three cases in which the Court granted certiorari this morning raise fascinating Federal Courts issues, and should make for interesting topics for next year's Fed Courts classes. The first is the more famous case -- Ashcroft v. Iqbal, which raises a host of complicated questions about qualified immunity and Bivens...

The Roots of Canada's Recent Apology to Native Peoples in U.S. Tort Claims

Posted on June 15, 2008
The NYT reported last week that "The government of Canada formally apologized...to Native Canadians for forcing about 150,000 native children into government-financed residential schools where many suffered physical and sexual abuse." (Click here for full story...

Human trafficking in Florida

Posted on June 15, 2008
A few weeks back, William Finnegan had an outstanding piece of reportage in the New Yorker on the scourge of human trafficking. Most people don't know enough about the scope or intensity of this tragic trade in human flesh, so, if you haven't read the article yet, I want to draw your attention to it...

What I learned about blogging from Bill Bishop's book on polarization & geographic sorting

Posted on June 15, 2008
It is still early to be picking favorite books of 2008. But I think it unlikely that anything in the Non-Fiction/Popular Poli Sci category will beat Bill Bishop, The Big Sort: Why Clustering of Like-Minded America is Tearing Us Apart (Houghton Mifflin 2008)...

Happy Fathers' Day

Posted on June 15, 2008
one of my favorite stories of fatherhood, from 100 Years of Solitude: The children . . . insisted that their father take them to see the overwhelming novelty of the sages of Memphis that was being advertised at the entrance of a tent that, according to what was said, had belonged to King Solomon...

Say It Isn't So!!!

Posted on June 15, 2008
"Gay Couples Find Marriage Is a Mixed Bag," in Today's NYT. Straight Couples Express Surprise, Shock.

Legitimate court-bashing versus illegitimate distortion

Posted on June 14, 2008
Senator Lindsey Graham reacted to the SCOTUS's decision in Boumediene by stating, "what happened yesterday was unprecedented. Americans are going to be shocked to find that that mastermind of 9/11, Khalid Sheikh Mohammed, now has the same legal standing as an American...

Sparing the Rod in Indiana: Reactions of a Parent and Jurisprude

Posted on June 14, 2008
I've been thinking about Mike Frisch's post over at Legal Profession Blog on the recent Indiana Supreme Court decision reversing a criminal conviction in the beating of a child. Here's Mike's description of the case: The defendant was the child's mother...

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