Legal Commentary

Governors versus Congresspersons as Presidential Aspirants

Posted on May 14, 2008
Are we seeing the passing of the Era of Governors-as-Presidents? The era began after Watergate, when distrust of Washington led to the election of a series (4 out of 5) Presidents' having been former governors who ran against the nefarious inside-the-beltway "Washington Establishment...

Candor & Politics: Now Accepting Nominations for the LaFollette Award

Posted on May 14, 2008
As the Democratic primary winds down, the question arises: Will some candidate win the uncoveted LaFollette Award this year? The LaFollette Award is given (by yours truly) to the candidate who most distinguishes himself or herself by conscientious indifference to public opinion in the service of truth as he or she sees it...

Bluebook factoid?

Posted on May 14, 2008
A colleague stopped by office to whine about what law review editors were doing to his writing. S/he is one of those lovable grumpy types who likes to talk about the good old days; so long as they were old, they were good. During the anti-Bluebook part of his speech, s/he claimed that standard form back in those good old days only required last names in citing articles and books (though s/he suggested that books used first initials)...

Changes at the Solicitor General?s Office

Posted on May 14, 2008
For those who haven?t seen, Solicitor General Paul Clement announced that he will leave the government on June 2. I had the great experience of working with Clement for a year when I was a Bristow Fellow, and I think his departure will be a blow to the office...

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The RIAA in the News: Catching Pirates and Conditioning University Funding

Posted on May 13, 2008
The RIAA is turning to states to help with piracy on college campuses. Tennessee has just passed a law, and Illinois is considering one, obliging public universities to implement and enforce measures that seek to prevent copyright infringement via university networks...

Political Casualties

Posted on May 13, 2008
Ohio Attorney General Marc Dann will be stepping down later today, after initially refusing to do so in light of a sexual harassment scandal that involved members of his staff (and a pineapple pizza--why these details surface is utterly beyond me). Representative Vito Fossella has yet to step down, though robust talk of his determination to run for re-election has waned...

May Quicksand

Posted on May 13, 2008
As May arrives, law school classes end, and as quickly as possible I find a way out of the quicksand of exam grading. What's the best way to draw myself out of the quicksand? How best to clear my mind and jump into some summer work? Deadlines won't inspire me now -- I placed an article in the Spring Law Review Lottery...

The Hazards of Trying to Set the Record Straight

Posted on May 13, 2008
The political campaign season inevitably brings a rash of candidate claims and counterclaims, charges and rebuttals, the presentation of "myths" v. "realities." Conventional wisdom suggests that a smart candidate will leave no misleading claim by his or her opponent unrebutted...

Symbolic Counter-speech and the Pledge of Allegiance

Posted on May 13, 2008
Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared...

Of Witchcraft and Warlords

Posted on May 13, 2008
As Professor Kolber noted several days ago, Congolese are attacking witchcraft with cringe-worthy means. The situation in the Congo is a matter of revived interest personally, due to my involvement on the board of a nascent citizen-journalist NGO based in the Congo and neighboring Rwanda...

Signing off

Posted on May 13, 2008
I am grateful to the Prawfs for inviting me back for another stint. I'm especially glad to have had the chance to stay on in May after a particularly busy April. My fellow bloggers each month have been fantastic, and I look forward to keeping up with the next crop from my teaching and writing outposts over the summer...

"Beyond the Breaking Splendour of the Years"

Posted on May 12, 2008
I've blogged several times before here about the Tri-4-Gey team's efforts, inspired by my colleague Steve Gey and his battle with ALS, to raise funds to battle Lou Gehrig's disease. The excellent news is that they have now raised over $70,000, due in part to the generosity of readers of this blog...

'Why I Don't Write'

Posted on May 12, 2008
Three years ago, Paul Horwitz started a wonderful discussion about the value of scholarship by law professors, Why I Write. Those of us who populate the legal blogosphere tend to be writers. We write articles, essays, symposia pieces, and, our appetites still unsatiated, jump into blogging, op-ed writing, and the like...

Quality Judicial Writing?

Posted on May 12, 2008
Justice Scalia's new book, "Making Your Case: The Art of Persuading Judges" -- co-authored with Bryan Garner ? offers suggestions for written and oral advocacy. While Scalia and Garner agree on many topics, an interview in the ABA Journal reports that they disagree on a few matters related to effective legal writing, such as the value (or lack thereof) of substantive footnotes, the appropriate use of contractions, and the decision to place string citations in text or in footnotes...

Do I have Standing to Intervene if a Court Refuses to Follow my Article?

Posted on May 11, 2008
I left practice in part based on the fantasy that I could better influence legal developments by writing articles than I could by litigating appeals; even when a brilliant brief wins, it often results in an opaque and narrow opinion, particularly in the intermediate appellate courts, but a law review article makes its argument forever...

Weekend Trivia Challenge - Name this Law School

Posted on May 10, 2008
Can you name this law school? Founded in 1834, it is the oldest law school in its state, and one of the oldest in the nation. Originally a private school, in 2000, it merged with a flagship public university. A bitter battle followed over whether the school should remain in its original locale or relocate to its new university's main campus...

The Peevyhouses: The Most Screwed Victims in Case-Law History

Posted on May 09, 2008
Is it a bizarre ritual of professional self-loathing? As law professors, we delight in training the next generation of lawyers by pouring over case after case in which the great wheels of justice grind some sad sack to a pulp. But who is the most screwed victim in case-law history? I solicited nominations back in February...

Truly Useful Law School Courses

Posted on May 09, 2008
As a faculty advisor, one of my jobs is to approve the courses my first-years plan to take next fall. Law students are fairly conservative and risk-averse in their choices, so usually I see the standard set of courses: Evidence, Bus. Org., Crim Pro, Admin, and the like...

Some Weekend Reading: A Review of Posner and Powell

Posted on May 09, 2008
Looking for something to do this weekend? I have just the thing for you. Here is a short draft review, which should hopefully be destined for a popular practice journal, of two great new books: Richard Posner's How Judges Think, and H. Jefferson Powell's forthcoming Constitutional Conscience: The Moral Dimension of Judicial Decision...

On Proctoring Your Own Exam...

Posted on May 09, 2008
I'm writing this post from my seat at the front of a classroom where half of my 140 first-year Constitutional Law students are taking their final exam (the other half is in the next room over). And other than trying to pass the time, sitting here also got me to thinking -- how common is it to proctor your own exam? I have two reasons why I do it here at WCL: First, I save money...

Observations on exams

Posted on May 09, 2008
Probably like the rest of the professor world, I?ve been grading exams for the last few days. Most exams I took in law school were issue spotters (there were a few that were theoretical, asking questions like ?how would you redesign the administrative state,? but I?m not going to focus on those), which generally require students to apply core doctrines to the facts...

Effective Testing

Posted on May 08, 2008
Because I will be teaching abroad for part of the summer, I decided to ignore my conscience and administer a Property exam that was half multiple choice/short-answer and half essay. I know a number of professors are ambivalent about using multiple choice on law school exams, but that the option can be useful (not to mention easier on the professor on the flip side, so to speak)...

Voter ID and Election Fraud: A Non-Fix to a Non-Problem?

Posted on May 08, 2008
Lots of people have said interesting things about the Court's upholding of the Indiana Voter ID statute, including Rick Hasen (in a 2006 piece in Slate, voter ID laws in Slate, and a more recent piece here) Vikram Amar, Dan Filler, and Edward Foley and Dan Tokaji...

Which Kind of Law Professor Are You?

Posted on May 08, 2008
The first one? Or the second? See here.

The Litigation Bounty

Posted on May 08, 2008
Yuval Feldman and I have been studying regulatory, organizational and behavioral effects on compliance and reporting. Our first study forthcoming in the Regulation and Governance is here. Recently, we received a grant from the ABA section on litigation to help us with the next stages of our studies...

The Company We Keep: Negativity by Association

Posted on May 08, 2008
Tommy Crocker's very interesting post last month questioned folks' eagerness to associate Barack Obama with the views of his pastor, the Rev. Jeremiah A. Wright, Jr. The Washington Post's Shankar Vedantam recently ran a related -- and equally interesting -- analysis that describes social and cognitive psychology research confirming that onlookers frequently denigrate an individual simply because of his or her social relationship with someone perceived as stigmatized...

Horwitz on Kerr on Horwitz on Cassell on McCain (on Donner, on Blitzen, on . . . )

Posted on May 08, 2008
Much of the discussion of John McCain's speech on his "judicial philosophy" (I cannot help but put that in quotes) has been interesting and even illuminating. My earlier post is here, and I really commend to readers the comments on it by Orin Kerr, especially, and by Trevor Morrison...

Federal Rules of Electoral Procedure?

Posted on May 08, 2008
Heather Gerken had a Legal Times op-ed and a Balkinization post discussing proposals for private, non-partisan "shadow institutions" to help resolve electoral disputes involving vote counting, eligibility, and districting. She writes more here. She argues that such institutions can function as a first step towards taking control of electoral processes out of partisan hands and moving us, incrementally, toward the non-partisan processes that all other western democracies use...

Happy 60th Birthday, Israel!

Posted on May 08, 2008
Sadly, I wasn't able to make it to this year's celebrations in Israel for today's 60th Birthday, but I wanted to wish a "Yom Huledet Sameach" to all our Israeli readers and writers. After the jump, I've posted some links care of the AJC, the human rights and advocacy organization.

"Non-recognition" of same-sex couples in Michigan

Posted on May 08, 2008
The Michigan Supreme Court finally came down with their opinion in National Pride at Work v Governor of Michigan. Download pride_at_work.pdf The case involves the interpretation of Article I, section 25 of the Michigan Constitution, a provision barring the state from recognizing any agreement as a marriage "or similar union...

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