Legal Commentary

Unsolicited advice for new associate deans (Part 1)

Posted on June 04, 2008
It's the season for changes in the associate dean's office. New ADs are starting, and those cycling out (like myself) are picking new offices and working hard to leave a clean desk for their successors. (We're also containing our elation at the prospect of being promoted back into the faculty, but that's another post...

"Do Churches Matter?"

Posted on June 03, 2008
I have posted on SSRN an essay -- originally presented as a lecture at Villanova -- called "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses". Here's the abstract: In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression...

The French versus Scottish-English styles in American Writing

Posted on June 03, 2008
The ruckus that I caused with my (admittedly intemperate but, I hope, harmless) Bronx cheer for Judith Butler reminds me of a serious topic -- which is the durability of an Brit-French divide in American political writing. After pondering the matter deeply (i...

Is and Ought's Excellent Adventure (Part 1): Ontological Confessions of a Wishy-Washy Lawyer

Posted on June 03, 2008
Several days ago, Rick Hills criticized legal scholars who use David Hume's famous "is-ought" quotation in the same way they might add a string cite for summary judgment standards in a brief. I don't want to quarrel with that criticism, but the rest of his post implied that point of the is-ought distinction itself was somehow passe, or another Enlightenment relic, and put to rest by Hilary Putnam's critique (or, at least, eaten up in the legal academy once the analytic philosophy predators invade the eco-system)...

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Why I Am ... Um ... Nothing in Particular

Posted on June 03, 2008
I share many of the gentler criticisms of Rick's post. In particular, I think it is kind of a mug's game to describe oneself either as an "intellectual" or an "anti-intellectual." Just as the Moneylaw folks are always on about performance over credentials, so I would say that describing oneself as intellectual or anti-intellectual -- indeed, the whole act of self-labelling -- is less interesting than what one actually does...

Signing Off

Posted on June 02, 2008
Thanks to everyone at Prawfs for making my May visit so enjoyable. It was good to see so many people at the blogger happy hour in Montreal for Law and Society. I'm now in Cleveland for the mid-year AALS meeting and am looking forward to seeing old and new friends here...

Why I am an anti-intellectual

Posted on June 02, 2008
I am sorry to have offended Professor Heller with what I took to be a lighthearted gibe at Judith Butler. Although my assessment of her stuff is basically the same as Martha Nussbaum's, I am happy to attribute my mystification at her language to my own intellectual limits -- especially if this admission will excuse me from re-reading the baroque prose of Bodies That Matter (1993)...

Tribal Communities, Corporate Boards, and Lawyers

Posted on June 02, 2008
I'm working on a case book revision (joining the incumbent author in a new edition), and dealing with a chapter I never taught is like class prep, so any excuse to procrastinate suffices for me. Today's inspiration is Eduardo's post about lawyers (or the lack thereof) on desert islands or space stations...

Next Up in the GCC Demolition Derby

Posted on June 02, 2008
[A brief sidebar: Many thanks to Dan for inviting me to participate. I hope that the Blog Muse cooperates during this brief guest visit and readily offer my admiration to those who find the time and inspiration to post on a regular basis.] Scholars frequently employ data about where the impacts of global climate change (GCC) will be felt most acutely as a basis for explaining or justifying differing jurisdictional responses to GCC...

Desert Islands, Space Stations, and Lawyers

Posted on June 02, 2008
I wanted to start by thanking the permanent residents of PrawfsBlawg for inviting me back for another month-long visit. I'm looking forward to it, especially since it's sort of a virtual reunion with my co-clerk and friend Andy Siegel, who will also be visiting here this month as well...

Summer Blogging

Posted on June 02, 2008
I'm thrilled to be back for another stint of blogging on Prawfs. As always, I want to thank Dan for this opportunity. I have just finished my term as associate dean and I plan to share some of my thoughts about that position, among other topics; I hope they'll be interesting to both former and future ADs and profs, as well as any students who might be out there...

Priest Convicted of Sexual Abuse Seeks New Trial Based on "Junk Science" of Repressed Memory Evidence

Posted on June 02, 2008
The Boston Globe recently reported that former priest Paul Shanley, currently serving a 12-15-year sentence for sexually abusing a boy in the 1980s, appeared in court last Thursday to argue for a new trial. In 2004, the Boston archdiocese settled a lawsuit arising out of allegations of sexual abuse by Shanley for $1...

Call for award nominations

Posted on June 02, 2008
Now that June is underway, and my exams are almost all graded, it is time to solicit nominations for prizes. Specifically, I am looking for nominees for the following awards: (1) The Hegel Award: Given to the author whose books' citations in conversation or footnotes most greatly exceed the number of people who have actually read the author's books...

It's Good To Be Back

Posted on June 02, 2008
Thanks to Dan and the rest of the crew for having me back for a second guest-blogging stint. I met Dan and his lovely wife on the way back from Berlin after the Law and Society meeting last year and was delighted to take up his invitation to blog here then...

Announcements and Rotations, etc

Posted on June 01, 2008
Sadly, I had to miss the bagels and smoked meat served in Montreal at the PrawfsBlawg-Co-Op Happy Hour, but I'm hoping some pictures might circulate as evidence. When not losing my 403b funds to a duo of pool-hall hustlers, I spent the last few days in glamorous New Brunswick, NJ, where I had an outstandingly useful and fun time at the criminal law and philosophy conference organized by the inimitable Kim Ferzan and Doug Husak...

Why I Like Theory

Posted on June 01, 2008
If it's June, this must be PrawfsBlawg. Here I am again for the third summer in a row, gazing out at the lake, working on my work, and, this year, missing the LSA annual meeting for the first time since I took up law professoring. Also, a year later I'm still trying to figure out if I really look like Owen Fiss...

Conferences aimed at junior faculty

Posted on May 31, 2008
For the last few days, I?ve been at the Law and Society conference in Montreal. One of the things that I have learned from talking with people here is that there are a lot of different conferences aimed at junior faculty, and that many junior faculty with whom I?ve spoken do not know about them...

So Long, Prawfs

Posted on May 31, 2008
It's time for me to sign off PrawfsBlawg. The early part of this week, I had been thinking about how I could do a bang-up good-bye post. I figured I had the whole back-half of the week to write a real coup de grâce finale. But then my son brought home from daycare a virus - probably originating from some kind of alien hive in another galaxy - and I have spent most of the whole last part of this week savoring the calming coolness of the linoleum bathroom floor against my face...

Consensus on vouchers and the Establishment Clause?

Posted on May 30, 2008
I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") -- and so have missed the conversation on civility, slippery slopes, and the like. In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to...

Best "slippery slope" argument to date...

Posted on May 30, 2008
...by Eric Posner, on Slate's blog. But is Posner's argument really a "slippery slope" argument? I'd say that Posner's argument is an example of Burkean conservatism, which opposes all rationalistic debate about all social institutions, on the theory that, once one starts to demand reasons for conventions, conventions (good and bad) unravel, because human reasoning powers are weak...

Why do conservatives keep on invoking the "slippery slope"?

Posted on May 30, 2008
As a conservative myself, I'd like an answer to this mystery -- even at the expense of posting one more item (I swear, my last) on the topic. The "slope" is by far, the weakest and least plausible argument against same-sex marriage (see my last post on the subject)...

More on slippery slopes & same-sex marriage

Posted on May 30, 2008
In response to a recent post of mine on slippery slopes, several commentators offered responses that suggest I was unclear. So here is a clarification that, I hope, in painful detail, eliminates all ambiguity about why I believe that the justification for same-sex marriage does not "slip" us into a sexual Babylon...

Civil Rights Lawyers' Ignorance of Local Government Law

Posted on May 30, 2008
The Court handed down Riley v Kennedy, 07-77, this week. Riley is a singularly tedious Voting Rights Act decision, and the result was predictable: 7-2 for Governor Riley, with the Court holding that the Alabama legislature's statute allowing local elections of county commissioners did not change the "baseline" of election practices when (a) the statute violated the state constitution and (b) the statute had been struck down by the state supreme court as soon as humanly possible...

Drug Prosecutions: Racial Disparity, San Diego State and U.S. News Rankings

Posted on May 29, 2008
Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.) One reason may be political; drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there...

Konomark t-shirt giveaway!!

Posted on May 29, 2008
In what I believe to be another PrawfsBlawg first from yours truly, I am proud to announce a t-shirt giveaway! I am sending a high-quality all-cotton t-shirt with the attractive konomark logo to the first 25 law professors who konomark any of their teaching materials or website content...

Bear Stearns Buyout Approved

Posted on May 29, 2008
Details here. All the hullabaloo -- discussed here and here -- has died down. Why? The deal's approval comes as no surprise -- since offering to take over the firm two-and-a-half months ago at the behest of the U.S. government, JPMorgan Chase & Co. has purchased nearly half of Bear Stearns Cos...

Retributive Damages, Privacy and Procedural Safeguards

Posted on May 28, 2008
Greetings from gorgeous Vancouver, where I'm camped out for the next month at the extraordinarily lovely and temperate surroundings of Green College at UBC. When not teaching comparative sentencing law and policy to a group of wonderful students this coming month, I'll be working on a couple writing projects: among them, the book on family ties and criminal justice, and the first two installments of my retributive damages trilogy...

A taxonomy of slippery slope arguments

Posted on May 28, 2008
Eugene Volokh has recently objected to my post deriding the sorts of ?slippery slope? arguments invoked in the ?same-sex marriage? debate. His post inspired me to take another look at my two very favorite pieces on slippery slope arguments ? Fred Schauer?s 1985 piece and Gene?s own much longer 2003 piece (both in Harvard)...

The Museum of Intellectual Property

Posted on May 28, 2008
Perhaps more than any other field of law, intellectual property calls for illustration. The landmark cases of IP law have facts that beg to be seen, as well as read. That?s why I?ve begun a project called The Museum of Intellectual Property. The aim of the museum is to serve as a resource for teachers, students, and scholars of IP law...

A Nail in the Coffin of the Dicta/Holding Distinction?

Posted on May 28, 2008
We spend a lot of time teaching the students what constitutes a holding, and how to distinguish a holding from dicta. But as a practical matter, it seems that the distinction has largely lost its importance. Lower courts almost always treat dicta in Supreme Court opinions as equivalent to holding...

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