Legal Commentary

Hiring Chairs 2008-09: Announce Yourselves!

Posted on June 13, 2008
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...

More on censorship, and freedom, in Canada

Posted on June 13, 2008
The Other Rick posted the other day on censorship, free speech, civility, liberalism, slippery slopes, and other things, setting off some interesting comments and reactions elsewhere. For what it's worth, I think it's reasonable and welcome to question, now and again, if only to keep us sharp, the "my expressive liberty trumps your offense, dignity, etc...

1. Is John McCain a Natural Born Citizen? 2. Goodbye (Especially to Cora, who Broke my Heart)

Posted on June 13, 2008
I have stayed longer than the usual Prawfs visit hoping to write a certain potentially fascinating (yet non-privacy invading or sensational) interview -based post, but for good and substantial reasons, it appears that it will not materialize. Accordingly, I now sign off with gratitude and hoping that the following will not eliminate me from future consideration for another visit...

Kozinski's Web Site Troubles

Posted on June 13, 2008
I'm home with a flu-like bug today, but I thought it worth posting a quick link to this (for those who have not already read about it elsewhere): (HT TPM) A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos...

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Jurisdiction, Merits, and the Detainee Cases

Posted on June 13, 2008
I have read Munaf, but not Boumediene in full, so for the moment I leave detailed commentary to others. I wanted to focus on a small aspect of the analysis in both cases: The Court finally seemed to separate the jurisdictional questions of whether a federal court can assert jurisdiction and consider a habeas petition from the substantive question of whether the petitioner is, in fact, in custody in violation of the Constitution and laws of the United States and is entitled to the relief sought (typically, release from custody)...

Cardozo as Yoda

Posted on June 13, 2008
With all due deference to Rick Garnett's apt observation about Justice Kennedy, Justice Cardozo was doing Yoda-speak long before Yoda was a gleam in George Lucas' eye. The fact that I'm in Michigan without access to my full Cardozo collection limits my examples, but how about these from the classic (and wrong) majority opinion on fiduciary duties in Meinhard v...

Munaf's Mixed Bag: FARRA, the Rule of Non-Inquiry, and the Significance of Belbacha

Posted on June 13, 2008
So, I had been holding off writing about the "other" major Supreme Court decision yesterday in Munaf v. Geren, both because Boumediene understandably came first, and because there are layers of nuance to Munaf (even though it's unanimous) that aren't shared by the much longer, much more divided decision in the Guantanamo cases...

Fourth Annual Conglomerate Junior Scholars Workshop

Posted on June 13, 2008
The folks over at the Glom are hosting their fourth annual Conglomerate Junior Scholars Workshop for untenured law professors or candidates entering the law teaching market this fall. The submission deadline for completed papers is June 30, 2008. Here's some additional info from Christine Hurt: The Conglomerate has now hosted this workshop for the past three summers, and we have come to believe that the workshop provides a great service of matching junior authors with more senior experts in their field and also with other readers inside and outside of the academy...

What?s wrong with a little censorship, eh?

Posted on June 12, 2008
As the front page of this morning's New York Times suggests, the Canadians are famously more tolerant of restrictions on speech -- in particular, regulation of ?hate speech? -- than we Yankees. An American law prof, steeped in First Amendment doctrine, is tempted to react indignantly to such censorship...

Summer Reading Recommendation - Alan Furst's The Spies of Warsaw

Posted on June 12, 2008
I still run out and buy the new John LeCarre as soon as it hits the bookstores, even though nothing he has written since the end of the Cold War has measured up to the George Smiley era. Tinker, Tailor, Soldier, Spy may be my all-time favorite book, and Smiley's People isn't far behind...

The Court Limits the "Class of One"

Posted on June 12, 2008
Monday's Supreme Court decision in Enquist v. Oregon Dept of Agriculture appears to be on its way to being overshadowed, at least in terms of blogosphere commentary, by today's decision in Boumediene. (One notable exception is Deborah Hellman's post on Balkinization...

Is It "Green" to be Anti-Immigration?

Posted on June 12, 2008
The first section of Wednesday?s New York Times included a half-page advertisement, sponsored by America?s Leadership Team for Long Range Population-Immigration-Resource Planning (and also supported by the American Immigration Control Foundation, Californians for Population Stabilization, the Federation for American Immigration Reform, NumbersUSA, and the Social Contract Press), arguing for stricter immigration controls in order to prevent ?further degradation of American?s natural treasures...

More Boumediene: What About Military Commissions?

Posted on June 12, 2008
This will be my second (and last) pointer to the OJ's Insta-Symposium on Boumediene, but I wanted to briefly flag my second post, on what the decision means for the military commissions currently underway and the eponymous Military Commissions Act of 2006...

A contemporary Antigone story?

Posted on June 12, 2008
Over in Michigan, there's a story developing about a father who was arrested for harboring a fugitive: his son. It's a choice that no parent would want to make. Kelley Thomas' 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad's doorstep on E...

Who's Afraid of Habeas Corpus?

Posted on June 12, 2008
This morning brings the long-awaited Supreme Court opinion on the availability of habeas corpus to the foreign detainees being held at Guantanamo Bay. Though the result was probably predictable ever since the Court abruptly changed its mind and granted the case last year, it still tingles the senses to read a bold, liberty-affirming opinion from Justice Kennedy issued over the sharp (and, in one case, bombastic) dissents of four of his colleagues...

Justice Kennedy as Yoda

Posted on June 12, 2008
I'll leave it to Steve and others to do the interpretation-and-translation heavy lifting of today's decision in Boumediene. My question is, what to make of this sentence from Justice Kennedy's opinion: Remote in time it may be; irrelevant to the present it is not...

Another Opinio Juris "Insta-Symposium," and My Contribution Thereto

Posted on June 12, 2008
Over at the OJ, there's another "Insta-Symposium" unfolding over today's somewhat important (ha!) decision in Boumediene. My own contribution thereto--on habeas corpus and error correction--is up here. I also hope to have more to say later about the Iraqi cases, which were also decided today in a result I would never have predicted...

An Exercise in Judgment

Posted on June 12, 2008
Further to Bill Henderson's comments on judgment (and the difficulties in teaching it), I went back to an article I wrote on the subject and pulled out the following hypothetical: The company has two valuable and high-potential employees, Jack and Stephanie...

Yahoo's "Unconscionable" Employee Severance Plan

Posted on June 12, 2008
The press continues to give Carl Icahn a big platform for his ongoing pronouncements about Yahoo. Here, for example, Icahn claims that Yahoo shares are worth $34.75. I'm not a negotiation expert, but it seems to me that putting out a public price will only weaken both Yahoo and Icahn in the negotiations...

Should Ronald Dworkin dislike foreign law just as much as Justice Scalia?

Posted on June 12, 2008
As the NY Times notes, the United States is an outlier when it comes to free speech. As I noted in an earlier post, we Yanks are weirdly out of step with most of the world on birthright citizenship (i.e., we have it, and most of other industrialized democracies don't)...

More on Lawyers and Entrepreneurs

Posted on June 12, 2008
In comments to my last post about Bill Henderson and the ISBA small firm workshop, Hillel Levin and "PA" pose questions about what you can teach in a law school classroom. "Law and entrepreneurship" is a nice place to explore what you can reduce to process capable of being replicated, much less taught...

The Nanny Classroom

Posted on June 11, 2008
Perhaps, as a resident of New York City, I?m particularly sensitive to nanny-ism characterizations in light of the nanny-label bludgeoning that our fearless Mayor (otherwise known as Nanny Bloomberg) has endured in the wake of NYC?s smoking ban, the Opportunity NYC program, and, most recently, mandatory restaurant calorie count displays and the transfat ban...

Henderson on Solo and Small Firm Practice

Posted on June 11, 2008
Over at Legal Profession Blog (my home base), Bill Henderson gives his impressions of the solo and small firm practice meeting of the Indiana State Bar Association. Here's a sample of Bill's take on the relationship of law school education to the "touchstones" of small firm practice: Indeed, with the large tilt in law schools toward professors with large law firm experience--and virtually all as associates rather than equity partners--it is likely that we law professors undervalue the importance of commonsense and practical judgment in building a successful career...

A darn good footnote

Posted on June 10, 2008
Care of one of my students, I was treated to this delight in In re Richard Willis King, 2006 WL 581256 (Bkrtcy. W.D. Tex.) (Order Denying Motion for Incomprehensibility): The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting...

Oil Prices and Sprawl

Posted on June 10, 2008
Back in December, I wrote an op-ed for the Washington Post suggesting that rising oil prices might be having an impact on Americans' taste for exurban homes. At the time, the data in support of this thesis was still very anecdotal. In the six months since then, more data has been gathered, and it points in the direction one would expect...

Obscurity, the Golf Swing, and Wittgenstein's Poker - More Boring Commentary

Posted on June 10, 2008
I've been lurking with some interest behind Rick's post on obscure language and the extensive comments. I have the power of the TypePad pen, so I'll offer up some thoughts, and try really hard not to be either obscure or boring. I was thinking about one of the most popular unread books in recent history, Stephen Hawking's A Brief History of Time...

SSRN and Law Reviews -- A Follow Up

Posted on June 10, 2008
I posted the other day about the recent NYT article on SSRN and how it is or isn't changing legal scholarship. There have been a number of interesting responses in the comments, and I thought I would post again here rather than joining the comments in the hopes of continuing what's been a very useful discussion (at least for me)...

Textualists lose one at SCOTUS

Posted on June 10, 2008
Contrary to what some of you might think, I do not spend all of my blogging time here justifying my prejudices in philosophy and literature. This term has produced a bumper crop of criminal law cases raising deep or downright bizarre problems in construing federal statutes, about which I have posted (here and here)...

Unsolicited advice for new associate deans (Part 3)

Posted on June 09, 2008
As part of my own modest efforts toward destroying Prawfs Blawg through boring posts I present the third and final installment of my list of dos and don'ts for new associate deans (previously begun here and continued here). 9. Read up on procedural due process...

Our new slogan

Posted on June 09, 2008
In light of Brian Leiter's recent pronouncement, we're amending our catchphrase at the top of the page, at least for the indefinite future. And in response to popular demand from our various constituencies, we've also created a new category for archiving future posts...

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