Legal Commentary

"Judicial Fiat" and Judicial Humility

Posted on June 09, 2008
Joining a blog early in June to comment on the Supreme Court's concluding term is usually a safe bet. Certainly, last year, I had any number of subjects teed up to go. As others have noted, however, thus far this has been a relatively slow and themeless Supreme Court term...

Right-wing "Dworkinianism"

Posted on June 09, 2008
Mike Dorf has an interesting post about why right-wing "Dworkinianism" has never developed on the right. Of course, as a commenter there suggests, if right-wing constitutional interpretation is equivalent to originalism, it isn't much of a mystery why right-wing "Dworkinianism" never got off the ground...

The obscurity of intellectuals: An initial taxonomy

Posted on June 09, 2008
When I denounced the obscurity of intellectuals last week, several (perhaps justifiably) irate responders noted that I did not explain why I liked some obscure writers and disliked others: I had no definition of permissible obscurity, beyond my own prejudices (and an admittedly unwholesome desire to tap on the glass just to watch the snakes jump)...

Brian says that I'm a LEADER!

Posted on June 09, 2008
... right here on his Law School Reports blog. Okay, I am only a leader in the rapidity with which I admit I'm wrong. But that's a start: Surely, better this title than stubborn tenacity in maintaining that one is right when one's not. By the way, Pam has a response to my response to her response to my initial post on the Riley case...

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Foreclosure Blight

Posted on June 09, 2008
Last week, I posted to a story about a law making failure to mow the lawn a jailable offense. Here's a story about a woman who was cited for watering the lawn of an abandoned house next door. Both stories point towards the difficulty that abandoned and foreclosed homes are likely to present for the neighbors who remain, a problem that is only going to grow worse as the housing crisis deepens.

New book on statutory interpretation reviewed by Rick Pildes

Posted on June 08, 2008
Here, on Hasen's election law blog. If you are like me in that you are fascinated by what it means to follow a rule, then you'll likely enjoy a book about an enormous 19th century legal dispute over whether a whale is a "fish" within the meaning of an inspection statute...

Boston Globe on friendship & the law

Posted on June 08, 2008
Rebecca Tuhus-Dubrow has a lengthy article on friendship and law in today's ideas section of the Boston Globe. It is fairly done and is a nice introduction to the subject.

Karl Llewellyn and the U.S. Supreme Court

Posted on June 08, 2008
Karl Llewellyn haunted the Supreme Court this term, when Ali v Federal Bureau of Prisons was handed down on January 22nd. The 5-4 decision, written by Thomas, with dissents by Kennedy and Breyer, has not been much noticed. The case involved the suit of a prisoner, Ali, to recover damages under the Federal Tort Claims Act for the Federal Bureau of Prison?s loss of his Quran, prayer rug, and sundries...

NYT Discovers SSRN -- DEVELOPING!

Posted on June 08, 2008
In tomorrow's New York Times, it is noted that SSRN allows academics to measure their relative popularity. Just as newspapers track the day's most downloaded stories and Amazon.com lists book sale rankings, we're told, now academics have found a way to keep score...

What is the Triple Crown of the Legal Academy?

Posted on June 08, 2008
Yesterday, while at Belmont Park counting down to Big Brown?s Big Disappointment, I pondered the significance of the Triple Crown and (of course) it?s relationship to the legal academy. Is there any formulation of accomplishments that amounts to a Triple Crown of the legal academy? Some analysis of the Triple Crown is useful to help identify relevant selection criteria...

Orwell & the Intellectuals

Posted on June 07, 2008
Richard Ford took issue with my generally low view of "intellectuals" over at Slate's blog. As usual, his is a thoughtful post, and I have no desire to rehearse all of his arguments. But in the course of his post, Ford takes issue with my characterization of Orwell as attacking the obscurity of intellectuals...

Franke on Loving and Friendship

Posted on June 07, 2008
Katherine Franke has just published Longing for Loving in the Fordham Law Review. Here's the abstract: Post-Lawrence efforts to secure marriage equality for same sex couples must be undertaken, at a minimum, in a way that is compatible with efforts to dislodge marriage from its normatively superior status as compared with other forms of human attachment, commitment and desire...

Is there a moral distinction between trade and immigration?

Posted on June 06, 2008
Why does the cause of trade not resonate with the same egalitarian and libertarian emotions as the cause of immigration? Churches shelter immigrants from deportation in the name of charity and justice. Immigrant rights groups fight to unite families separated by national boundaries...

Unsolicited advice for new associate deans (Part 2)

Posted on June 06, 2008
Live from Cleveland (where I'm attending a really good AALS mid-year meeting on Con Law), here's Part 2 of my set of dos and don'ts for new associate deans. (Part 1 can be found here). 5. Keep secrets. As associate dean you won't just be privy to confidential information, such as all student evaluations, but you'll also be the recipient of confidential personal information your colleagues provide about themselves...

What Do You Do When It Just Seems Wrong?

Posted on June 06, 2008
If your field is anything like mine (Criminal Law, Criminal Procedure, Federal Courts, etc.) there are certain doctrines that you're compelled to teach that simply seem wrong. I'm talking here not about a case or two that you disagree with, but an entire line of cases that frustrate you to teach...

Is and Ought's Excellent Adventure (Part 3): How Many Superdelegates Does It Take to Screw in a Lightbulb?

Posted on June 05, 2008
As my last entry in this series, I want to address the Hilary Putnam point Rick Hills has raised, and then, finally, I will move on to subjects that really matter, like Angelina Jolie's babies. (The question is whether the Hume dictum on is and ought has since been called into question...

Advice to Summer Associates - iTunes Version

Posted on June 05, 2008
Over at Concurring Opinions, Deven Desai has some sound advice for law students embarking on their summer law firm adventures. The core of the advice is something I repeat often to my students: work hard, research and write well, be productive, show you have the stuff of a lawyer...

Mow that Lawn!

Posted on June 05, 2008
From the strange land use law files: (HT Planetizen) CANTON City Council has unanimously approved toughening the city's high-grass and weeds law, making it possible for repeat violators to get jail time. Council passed the legislation Monday night by a vote of 12-0...

Eminent Domain Reform Takes an Interesting Turn in California

Posted on June 05, 2008
Tuesday's voting was not all about Obama. California voters were also considering an anti-Kelo proposition (Prop. 98). A similar measure that property-rights advocates proposed in 2006 failed, probably in part because they tried to bundle it with a Measure 37-style takings provision...

Pam Karlan & Hills on local government in Alabama

Posted on June 05, 2008
My old undergraduate debate coach, Pam Karlan, has taken me to task on Balkinization for criticizing the plaintiffs? position in Riley v. Kennedy. On style and tone, I concede the debate to her hands down: I am abashed to say that she rightly reproaches me for accusing the civil rights bar of ?ignorance? of local government law...

The Hollow Hope, Take 2

Posted on June 05, 2008
The University of Chicago Press has just published a second edition of Gerald Rosenberg?s The Hollow Hope. Rosenberg argues forcefully in this careful study of constitutional litigation that ?U.S. courts can almost never be effective producers of significant social reform,? and that litigation is a drain on the scarce resources of reform advocates who could achieve more through the political process...

Poetic Justice Instantiated

Posted on June 04, 2008
Literally. Turns out a bunch of teens near Middlebury College trashed the former home of poet Robert Frost. On December 28, a 17-year-old former Middlebury College employee decided to hold a party and gave a friend $100 to buy beer. Word spread. Up to 50 people descended on the farm, the revelry turning destructive after a chair broke and someone threw it into the fireplace...

Sneaky Hybrids

Posted on June 04, 2008
Examples of unintended consequences and countervailing risks abound in environmental policy: MTBE, a fuel additive initially adopted to reduce tailpipe emissions and meet Clean Air Act requirements, is now one of the most pervasive groundwater contaminants in the United States; prompted by California?s Proposition 65, Gillette removed TCE (a chemical listed as a ?known carcinogen? by the State) from Liquid Paper only to substitute 1,1,1-trichloroethane (?TCA?) (unlisted by the State, but perhaps even more dangerous than TCE); advances in home energy efficiency are offset by ever-larger homes and advances in fuel economy are offset by increases in vehicle miles traveled...

Our busiest day ever

Posted on June 04, 2008
In the three years we've been up and running here on Prawfs, we've had some great traffic. But today, as far as I know, takes the cake. We've had over 15, 000 visitors today, coming from www.abovethelaw.com, Balkinization, www.Slate.com, www.Instapundit...

Why the Supreme Court Should Grant Cert. in Haywood

Posted on June 04, 2008
I think those of us who watch the Supreme Court for a living (or just a hobby) have increasingly come to rely upon SCOTUSblog for inside info about the Court, especially when it comes to upcoming cert. petitions of interest. That being said, there's an important case on the Conference list for next Thursday, June 12, that didn't make Tom Goldstein's "Petitions to Watch" cut (I assume the omission has nothing to do with any judgment as to its significance, but rather with the fact that it's an IFP case, and SCOTUSblog's Conference coverage is only for the paid petitions)...

If it's June, it must be Prawfs

Posted on June 04, 2008
I've now been doing this job long enough (6 years on 2 coasts) that the rhythms of the profession are comfortably familiar. If it's June, it's summer. And that means: (1) A push to finish grading (mercifully completed early this year). (2) A couple of trips to conferences in kid-friendly locales...

Entry Level Teaching Placement Rankings

Posted on June 04, 2008
Brian Leiter recently linked to this ranking by Daniel Solove of law schools by the percentage of their graduates seeking teaching jobs who successfully land one. After noting the lack of success of Cornell's graduates on the teaching market, Leiter goes on to say the following: The relatively poor performance of Cornell and Penn grads is rather startling, especially given the comparatively large number of graduates trying to get teaching jobs--my guess is there were a lot of students misled by U...

Is and Ought's Excellent Adventure (Part 2): Kent Greenfield on Mukasey's BC Speech

Posted on June 04, 2008
A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on Attorney General Michael Mukasey's commencement address at Boston College this year. At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series...

More on the Is-Ought distinction

Posted on June 04, 2008
Jeff Lipshaw has an excellent and down-to-earth post on the Is-Ought distinction, which asks me to clarify my own earlier post on the topic. Of course, there is an ought-is distinction in our speech, just as there is a boundary between France and Germany on our maps of Europe...

The surprising survival of birthright citizenship in the U.S.

Posted on June 04, 2008
For the last dozen years, there has been a steady campaign against the Fourteenth Amendment?s requirement of ?birthright citizenship? ? automatic citizenship for ?all persons born ? in the United States and subject to the jurisdiction thereof.? In 1996, the Republican Party adopted a plank endorsing a constitutional amendment to get rid of ?soil citizenship...

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