Legal Commentary

US News Hacked?: Does the US News Web Site Display 3rd Tier & 4th Tier Law Schools Ranked in Order?

Posted on March 31, 2008
In its published version of its law school rankings, US News lists schools in the "third tier" and "fourth tier" alphabetically, rather than in ranked order. One of my colleagues has noticed an anomaly in this year's on-line version of rankings which, it appears, reveals the full ordinal ranking of third-tier schools in "batches" which correspond to "tied" scores...

Takings and Constitutional Interpretation (From Richard Epstein)

Posted on March 31, 2008
From Richard Epstein After multiple detours about both federalism and the original position, it is probably worth while to return to the original structure of Supreme Neglect. The initial task is not the substantive one of figuring out exactly what the takings clause means...

Does following the money suggest the end is soon Senator Clinton?

Posted on March 31, 2008
Two money stories about the Clinton campaign on Politico caught my eye this morning: Cash-strapped Clinton fails to pay bills and Clinton didn't pay health insurance bills. Here is a damning excerpt from the first story: [W]ord is getting around that Clinton?s campaign does not promptly pay those who labor to make her events look good, said an employee of the event production company Forty Two of Youngstown, Ohio...

CLC Update

Posted on March 31, 2008
The last two weeks have been the most active for the CLC project to date. The project has had postings of one kind or another from Michael Corrado, Tony Dillof, Ken Simons, Vera Bergelson, Michelle Anderson, Stephen Garvey, Peter Westen, Joan Krause, Laura Appleman, Josh Dressler, Paul Robinson, Arthur Ripstein, Amy Sepinwall, Bennett Capers, Dan Markel, and Doug Husak...

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Watching Your Every Move

Posted on March 31, 2008
I tend to lag behind technological advances. This one, however, has me sputtering with incredulity. We are all aware that our cell phones are miniature tracking devices. But it had never occurred to me that people would pay for a service to use them as tracking devices ? voluntarily...

Sunday Music Recommendation

Posted on March 30, 2008
Kathleen Edwards is a singer-songwriter who writes in something of an alt-country vein. Her debut, Failer, was tremendous. She has just released her third album, Asking for Flowers, after a hiatus of a few years. I'm not sure whether to say of Edwards that she is as good as her best work, or as disappointing as her most blah work...

National Media, Missing Persons, Race and Gender

Posted on March 29, 2008
CNN reported yesterday on the renewed search for a 19-year-old Middlebury College student, missing since early February. The student last was seen leaving a dorm building on February 5. Friday's search was the first in more than one month--purportedly because the snowpack had been too deep to allow for a search...

Law, Culture & the Humanities

Posted on March 29, 2008
I am writing from the Law, Culture & Humanities conference being held in Berkeley this year. First of all, anyone interested in interdisciplinary work at the intersection of law, literature, history, philosophy, cultural studies, visual studies, etc., should watch for the call for papers for next year?s meeting...

Behold My Split Infinitives, My Dangling Prepositions, and My Singular ?They?

Posted on March 29, 2008
When I am writing, I want to use split infinitives, dangling prepositions, and ?they? to mean just one person, but there's a problem. I?m afraid people will think I?m an ignoramus. Or, at a minimum, not as educated and cultivated as they are. But there are compelling reasons for using these maligned grammatical constructions...

Ballpark construction, public culture, and public resources

Posted on March 28, 2008
In the current Sports Illustrated, S.L. Price, an SI writer and resident of DC, offers some thoughts on the soon-to-open Nationals Park. The park cost almost $ 675,000 $ 675 million (whoops, thanks Dan), 97 % of which (an absurdly high percentage compared with other ballpark deals) is public money...

A Friday Diversion--"Postcards from Yo Momma"

Posted on March 28, 2008
In the interest of a Friday distraction, and because I swear that some of them could have been e-mails from my own mother, I wanted to flag a new funny website that a friend of mine forwarded to me--"Postcards from Yo Momma." Just don't read it in class...

National Security Law Junior Faculty Workshop

Posted on March 28, 2008
From Friend of Prawfs, Bobby Chesney: Wake Forest University School of Law, May 23, 2008 On behalf of a range of institutions (please see the list of sponsors/hosts after the jump), I am very pleased to announce that there will be a national security law junior faculty workshop at Wake Forest on Friday May 23, 2008...

Friday Fundraisers for Steve Gey and Katrina Relief.

Posted on March 28, 2008
Since it's Friday (payday in many places), and therefore time to give charity, I thought I'd alert you to two worthy causes. The first I've already hawked here before: the Tri-for-Gey, a triathalon fundraiser by students, staff and faculty of FSU's College of Law aimed at raising money for ALS (aka Lou Gehrig's disease)...

Retributive Damages: Possible Jury Instructions

Posted on March 28, 2008
In earlier posts gathered here, I laid out the structure, rationale, and constitutional implications for a new way to think of punitive damages as an intermediate sanction designed to facilitate the public normative interest in retributive justice. In today's post, after the jump, which is also the last post in this series, I've tried to distill many of the major policy prescriptions in this project in capsule quasi-jury instructions...

Retributive Damages: Some Constitutional Analysis

Posted on March 27, 2008
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff...

ISO Dissident Directors; Must Like Vista and Angering Yahoo Employees

Posted on March 27, 2008
The Bear Stearns imbroglio has sucked up much of the attention that would have otherwise been lavished on the Microsoft-Yahoo showdown. Here's a snippet from that drawa: One of the next steps in the Microsoft-Yahoo melodrama is for Microsoft to nominate a slate of directors to replace the ones it will try to get fired at Yahoo's shareholder meeting ...

Caps off for Obama? Med Mal and the '08 Election

Posted on March 27, 2008
Here is a legal/policy question that is not yet a big election issue but will surely soon become one: Should punitive and other tort damages be capped by the feds? McCain urges such caps for medical malpractice damages as part of his health care reform plan...

U.S. News-Related Question

Posted on March 27, 2008
Should students look at bar passage rates (relative to a pertinent jurisdiction) in deciding whether to attend a particular law school? From reading some of the comments to Dan Solove's U.S. News rankings post here, it seems that some students do. I suspect, though, that one's likelihood of passing the bar is probably mostly explained by things the student already knows about himself before picking a law school, like his college GPA and LSAT scores...

Pre-Edison Sound Recording

Posted on March 27, 2008
The New York Times has a very interesting article about a sound recording made about twenty years before Thomas Edison's famous "Mary Had a Little Lamb" recording: The 10-second recording of a singer crooning the folk song ?Au Clair de la Lune? was discovered earlier this month in an archive in Paris by a group of American audio historians...

Retributive Damages: The Case for Partial Outsourcing of Retributive Justice to the Tort System

Posted on March 26, 2008
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff...

Should Professors Disclose Political Opinion to Students?

Posted on March 26, 2008
James Poniewozik argues in his recent column in Time that journalists should publicly disclose their voting records. It has long been sacrosanct for reporters to avoid ever revealing their political preferences or party affiliations. Poniewozik?s challenge to this longstanding dogma makes for fascinating reading...

Race, Gender, and Making Exceptions

Posted on March 26, 2008
As a resident of Ohio, I feel eminently qualified to comment on the candidates in this election (and, by negative implication, I am not particularly qualified for any other reason). One thing that occurs to me in all the talk about Obama and race is that we in the US (and perhaps elsewhere) have virtually always made "exceptions" when it comes to race - that is, we see some people as "not really" black, for example...

The Point of Sabbaticals -- My Experience

Posted on March 26, 2008
A bit over a year ago, I did a guest blog post about the prospect of going on sabbatical. What, I wondered, would I accomplish and what exactly was the point of a semester with no teaching or committee duties? I post now not just to satisfy what I assume is the curiosity of millions and millions of my fans about me personally, but also to talk about the sabbatical experience more generally, having now actually completed one...

Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Posted on March 26, 2008
Writing here in The New Republic, Robert Gordon has a notable commentary entitled "Criminal Intent: The presidential candidates need to stop ignoring America's crime problem ? and start considering innovative solutions." Here is how the commentary begins: Here's a funny thing about this presidential campaign season: Two crime dramas ? "The Wire" and "Law & Order" ? have gotten more attention than actual crime...

US News Rankings just like the White House?

Posted on March 26, 2008
Leaks abound. Law School Discussion has an advance on the Top 100. (H/T: Dave at CoOp). I am proud to see my alma mater break the Top 10. But I still have not seen a complete list to know where my home institution landed this year; guess I will have to wait a few more days.

The Coming fight over incorporation: Will there even be one?

Posted on March 26, 2008
We need to have a discussion about incorporation of the Bill of Rights in SCOTUS. Provisions of the Bill were incorporated against the states with ridiculous casualness in cases like Gitlow and Cantwell v CT. But there is a strong argument that the Bill ought to apply in different ways against different levels of government, based on the different risks that each level poses for liberty...

Retributive Damages: How much and to whom?

Posted on March 25, 2008
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law, recent scholarship, and retributive justice. Yesterday's post articulated some of the basic structure for retributive damages, focusing on what misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions)...

Speaking of punitive damages...

Posted on March 25, 2008
Yes, I know I've lately been a bit of a one-track retributive damages "promoter" -- the word "pimp" seems more appropriate but the last time one of us used it, well, that's another story -- but I just noticed that Adam Liptak's got a new article in the Times about the "American Exception" of punitive damages...

Why Do We Counsel Against Commercial Outlines?

Posted on March 25, 2008
Why do so many law professors caution students to stay away from commercial outlines? Isn?t it a bit odd that we think students must be protected from certain books? Perhaps commercial outlines are not the best way to learn the law. That?s arguable. I certainly hold the opinion that commercial outlines provide information that is woefully incomplete, at best...

Medellín: The Insta-Symposium

Posted on March 25, 2008
Over at Opinio Juris, there's already a series of posts on today's Supreme Court decision in Medellín, an "insta-symposium," as OJ calls it. My own contribution, on the significance of the Court's new definition of "non-self-executing" treaties, is available here...

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