Legal Commentary

"The Next Civil Rights Battle" in Wired Magazine

Posted on March 25, 2008
Wired magazine has an article on "Why the Next Civil Rights Battle Will Be Over the Mind." Here's the gist (which seems to fall more naturally under the heading of "civil liberties" rather than "civil rights"): It's true that most of this technology is still gestational...

Noogiegate

Posted on March 25, 2008
If you're looking for a scandal now that Eliot Spitzer is off the front pages, this might be just the thing for you. About a year ago, three male FBI agents investigating the gangster Whitey Bulger were meeting with a female AUSA in the Boston federal courthouse...

Retributive Damages: Designing A Structure

Posted on March 24, 2008
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law and recent scholarship. In yesterday's post, I provided the basic sketch of retributive justice that informs the reconstruction of punitive damages that I propose...

PatientsLikeMe: A Study in Online Community Issues

Posted on March 24, 2008
The latest New York Times Magazine has an interesting story on PatientsLikeMe, a startup that's bringing the Web 2.0 user-generated-content approach to building communities of patients who suffer from a common disease. They upload truckloads of data about their treatments and symptoms (which the site compiles into outstanding visualizations) and also join discussion boards tailored to their specific illness...

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A "free vote" on tough legislative questions?

Posted on March 24, 2008
An interesting story is developing in the United Kingdom, regarding the "Human Fertilisation and Embryology Bill" now under consideration in Parliament. (Read more here.) Apparently, part of the drama concerns the question whether Catholic MPs (and others who object to the Bill on moral grounds) will be given a "free vote" by the Labour Party: Cardinal Cormac Murphy-O'Connor, leader of the Roman-Catholic Church in England and Wales, yesterday became the most senior clergyman to insist that Labour MPs should be granted a free vote...

Happy Dyngus Day!

Posted on March 24, 2008
In many Great Lakes communities with large Polish communities, the Monday after Easter is "Dyngus Day." In my own South Bend, it's also long been a day (especially for Democrats) for politicking and schmoozing with candidates. (Bill and Chelsea Clinton are in town...

On Omar and Munaf: The Washington Post [Well, You Know...]

Posted on March 24, 2008
I'm not nearly as clever (or tenured) as Sandy is, and so I can only borrow most of the title of his post from Sunday, but I had a similar reaction to a terribly disturbing editorial in this morning's Washington Post, "Imprisoned in Iraq," about the Omar and Munaf cases set to be argued before the Supreme Court tomorrow...

Republicrats, Obamacans, and the Unions

Posted on March 24, 2008
So Doug Kmiec has endorsed Obama. But the number of such Obamacans is less than one might predict, given Obama's appeals for such support. One section of the GOP seems ripe for the picking -- the Northeast-New York section of the Republican Party. These are the Ur Republicans -- the descendants of Federalists and Whigs like Hamilton, Adams, Daniel Webster, forming a Northeast-New York faction once ruled the Party up until, say, Dewey?s defeat by Truman...

Bear Stearns stock: From $2 to $10?

Posted on March 24, 2008
The details of "several days of frantic, secret negotiations" are here. Maybe bullish Bear Stearns speculators weren't so crazy after all. The potential roadblock? The Fed. Even more ammunition for David Zaring's theory concerning a newly engaged (and assertive) Fed.

Retributive Damages: The Basic Account of Retributive Justice

Posted on March 23, 2008
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law and recent scholarship. In today's post after the jump, I share an un-footnoted and unformatted version of the basic sketch of retributive justice that informs the reconstruction of punitive damages I propose in subsequent posts...

A Call for "Light Editing" of Cases in Casebooks

Posted on March 23, 2008
Is anyone else bothered by the trend in many casebooks (sadly, I?m only familiar with topics about private law) to eviscerate a case by editing it down to its bare essentials?which can literally mean only a few lines? I suppose the idea is to save time for a busy law student by boiling the issue down to some kernel of wisdom...

Fellowships for Aspiring Law Professors

Posted on March 21, 2008
Paul Caron provides a pretty comprehensive list of fellowships, LLM programs, and Visiting Assistant Professor Programs for aspiring law professors. (H/T: David Bernstein at VC). Having taken the VAP route myself (two great years at Florida State from 2001-03), I strongly recommend this increasingly common path into the academy.

Fear the Leprechaun

Posted on March 21, 2008
The Volokh Conspiracy's Todd Zywicki (George Mason) and I made a friendly wager (here and here) on last night's basketball game between George Mason and Notre Dame. As Stewie Griffin would say, "victory is mine." Go Irish.

Email Performance of Yahoo, AOL, Google, Etc.

Posted on March 21, 2008
Like many or most of you, I have multiple email accounts that I forward to a central web-based email program (in my case, Yahoo). This allows me to have professional email accounts and personal email accounts that I can read and search through in one central place...

Don't Tread on Me

Posted on March 20, 2008
Like Rick, I have watched the first episodes of HBO's John Adams with interest and enjoyment. Two thoughts came to mind while watching Part 2. First, in a belated and indirect response to Jessie's post about In God We Trust, maybe we simply should agree that, ceremonial deism aside, it stinks as a national motto...

Around this time of year, everyone wants to know...

Posted on March 20, 2008
how to write an article that will end up in a top law review. Thankfully, the advice is being given away for free over at this handy new site, the ArticlesEditor Blog. It's worth more than you'll pay for it. Larry Solum seems to think it's a parody. In light of the email that went out to a bunch of prawfs with blogs, I'm less sure of that...

Retributive Damages: Some Recent Normative Scholarship

Posted on March 20, 2008
Earlier posts on the topic of Retributive Damages can be found here. The whole article can be found here. Recent Normative Scholarship Unsurprisingly, the complexity, significance, and rapidly evolving nature of punitive damages law has attracted the attention of many scholars...

The Speech

Posted on March 20, 2008
As my last post indicated, I've been in transit this week, first to Boston and now for a family visit in Maine. So it was only yesterday that I had a chance to read the transcript of Obama's speech on race. My co-bloggers and some very interesting commenters (along with some decidedly less interesting commenters) have already weighed in with general remarks...

How do you write?

Posted on March 20, 2008
It seems to me there are two main ways to approach writing scholarship. One is to write the piece out in your own words, essay-style, perhaps in a somewhat broad or skeletal form, then go back and fill-in citations and support, perhaps changing language to quote from or track sources, and fleshing out some parts of the piece in the course of discussing sources...

Imagining the players who could jump-start a third party

Posted on March 20, 2008
In this post yesterday, I raised the notion that developments within both the Democratic and Republican parties could present a unique new opportunity for the emergence of a viable third party in the United States. Let me unpack this idea a bit more in the hope of getting some feedback on my thinking...

Bear Stearns and Shareholder Homogeneity

Posted on March 19, 2008
The JPMorgan - Bear Stearns deal is getting great coverage in the blogosphere. Highlights thus far include: Larry Ribstein's insightful prediction (on Monday) that Bear shareholders might reject the deal; Gordon Smith's detailed discussion of the merger agreement's "restructuring efforts" provision; Steve Davidoff's consistently thorough and insightful analysis, including his most recent take on the deal protection provisions; and Jeff Lipshaw's expert thoughts on many different aspects of the deal...

Takings, a Second Time

Posted on March 19, 2008
In 1985, I published my book, Takings: Private Property and the Power of Eminent Domain (1985), which promptly received a number of scathing reviews by authors who are best left unnamed for the moment. But I was confident then, as I am confident now, that the approach that I took to the topic was basically correct...

Gunston v. the Irish

Posted on March 19, 2008
My friend Todd Zywicki (George Mason), of the Volokh Conspiracy, clings to the view that the George Mason's men's hoops team -- lead by "Gunston" -- will defeat my Notre Dame Fighting Irish in the first round of the men's NCAA Tournament. Here is Todd's challenge, which I accept...

Retributive Damages: A quick overview of American Punitive Damages Law

Posted on March 19, 2008
Yesterday I posted the introduction to Retributive Damages. Today I provide some background on the law of American punitive damages and tomorrow I do a quick survey of recent normative scholarship on punitive damages. (You can find the whole article here...

Is the Democratic Party now doomed?

Posted on March 19, 2008
I speculated here just two weeks ago that a continuing primary campaign (at least through Pennsylvania) might be good for the Democrats. But, reflecting on the recent racial issues and some new poll numbers out of PA, I am now thinking that the Democrats are now of the path to a permanent schism in the party...

A new Gilded Age Court?

Posted on March 19, 2008
Jeff Rosen reports on the pro-business attitude of the SCOTUS. And numerous commentators have noted that neither the Rehnquist nor the Roberts Court has any special fondness for federalism. Somehow these accounts of the Court always seem to hint implicitly that the Court is guilty of hypocrisy in abandoning federalism and judicial deference to popular majorities...

Spring Has Sprung - Eat Dirt!

Posted on March 19, 2008
This is what I am making tomorrow for my Kindergartner's pre-break party. Delicioso. Get the recipe here.

Electing Faith

Posted on March 18, 2008
Alas, this is a post hoc post, as it were. But I want to thank the wonderful student organizers of today's symposium at Boston College Law School, Electing Faith: The Intersection of Law and Religion in Politics Around the World, for a terrific day. I think a splendid time was had by all, and I'd especially like to thank my co-panelists, Lloyd Mayer of Notre Dame and Mark Scarberry of Pepperdine, and the moderator, Fr...

Is There an Expresso Effect?

Posted on March 18, 2008
Just a quick post to get a sense of whether the prawfs and law review articles editors out there are finding that the advent of Expresso has led to a huge increase in submissions. My own anecdotal evidence: when I was an editor at HLR around 1998-2000, my recollection is that we received somewhere between 1200-1600 submissions a year...

Retributive Damages

Posted on March 18, 2008
Two weeks ago, I finally posted the abstract of my latest piece, Retributive Damages, here. You can now get the whole article, in draft form, up on SSRN. Were I content simply to promote the article, I might just stop there. But in fact I'm curious to get the feedback of various people here, and so I will blog excerpts of the paper over the next few days...

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