Legal Commentary

Obama's Speech

Posted on March 18, 2008
I wouldn't normally post twice in a day, but I just saw the video of Obama's speech, and I'm very curious what folks thought about it. I'll go first. I thought it was pretty amazing: intelligent, eloquent, persuasive, and yeah, inspirational. It was, to me, an actual example of explaining some complex and difficult real and perceived differences, and then trying to build bridges, stressing commonalities and not divisiveness...

A Tangential Thought on Heller: What About "Poor Joshua"?

Posted on March 18, 2008
I will confess to not having as strong a feeling about the D.C. gun control case as it seems most everyone else does, especially today. That being said, there's one idea/argument I haven't really seen anywhere that I'm curious about: One of the major arguments in defense of an individual right, as I understand it, is the need for private self-defense -- for the ability of citizens to defend themselves from private, and not just governmental, violence...

The Future of Labor Law: The Public Sector; and States as Laboratories of Democracy

Posted on March 18, 2008
Labor law, some conventional wisdom says, is dead. True, union density in the private sector has taken a long slide from around 35% in the 1950s to under 10% today. In reaction, a number of schools do not even regularly offer a labor law class. This, I suggest, is a mistake...

P.S.: Originalists ought to love the Blaine Amendments

Posted on March 18, 2008
Rick Garnett just posted a message about how the spirit of the Blaine Amendments lives on in South Dakota, where kids attending Lutheran school were apparently denied access to the use of the public busing system because of the religious nature of their education...

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Message to Originalists and their Foes: Think 1868, not 1791

Posted on March 18, 2008
Is anyone besides myself bothered by the tendency of both originalists and anti-originalists to confuse dates when discussing the original understanding of ?incorporated? rights? It happens all the time. In discussing whether states must maintain a wall between church and state, everyone brings up Madison?s views on Virginia?s assessments for the Anglican Church or Jefferson?s letter to the Danbury Baptists or some other event close to 1791...

(Litigation) life imitates Prawfs? More on the Blaine Amendments

Posted on March 18, 2008
A few days ago (see below for links), some of us had a discussion here at Prawfs about, among other things, the Blaine Amendments and federalism. Then, I received this notice from the religious-liberty litigators at the Becket Fund: Friday, March 14, the Becket Fund for Religious Liberty is scheduled to present oral argument in St...

Convictions Law Blog

Posted on March 17, 2008
Via Orin at VC, comes the launch of Convictions, a group law blog at Slate. Some outstanding people (including Orin), most of whom already are well-known in the world of legal and law-professor blogs. Definitely one to add to the daily reading rounds.

Of Principals and Principles

Posted on March 17, 2008
Stanley Fish has a characteristically provocative little column on the superdelegates at the NY Times. He calls it "Memo to the Superdelegates: No Principles, Please." As David Ponet and I have recently argued, however, the superdelegates are quite generally bound by a political morality, one that doesn't give them perfectly clear guidance on what they should do but one that certainly gives them more direction and principle than Fish can tolerate...

Cert Grant in "Fleeting Expletives" Case

Posted on March 17, 2008
SCOTUS granted cert today in eight cases (full details courtesy of SCOTUSblog). Among them was FCC v. Fox Television Stations, in which the Court will review whether the FCC acted appropriately in amending regulations to eliminate the so-called "fleeting expletives" doctrine...

Overcoming Necessity

Posted on March 17, 2008
Although I?m a week late in commenting, I wanted to add a couple of thoughts about President Bush?s veto of the Intelligence Authorization Act for Fiscal Year 2008, which would have confined interrogation techniques to those approved by the Army Field Manual on Interrogations...

Obama and the "Elite Economic Consensus"

Posted on March 17, 2008
As Gordon Smith and Larry Ribstein have discussed, this week's NYT Magazine has an article from Jeffrey Rosen on the Supreme Court's pro-business tilt. The article brings an overlooked issue to the fore, and it's great to see both the article and the blogosphere commentary that is already developing...

Is God Really Just God?

Posted on March 17, 2008
I have been thinking quite a bit lately about what is sometimes referred to as ?ceremonial deism? ? relatively anodyne or ritualistic invocations of God in contexts like the National Motto on coins, ?God save this honorable Court,? etc. Whether nonsectarian but monotheistic invocations of God by the government should be constitutionally permissible is, it seems to me, a valid question...

Dorf on Law NCAA Pool

Posted on March 17, 2008
For those looking to throw a bracket into yet another NCAA pool, but one that does not involve breaking state and federal law, check out the pool at Dorf on Law.

HBO's "John Adams"

Posted on March 17, 2008
Last night, I watched the first episode -- "Join or Die" -- of the HBO mini-series, "John Adams." (The series is based on the popular David McCullough biography.) Paul Giamatti -- an excellent actor, in my view -- plays Adams, and Laura Linney plays Abigail Adams...

Duke LJ 2009 Symposium on Admin Law under Bush

Posted on March 17, 2008
The Duke Law Journal is delighted to announce the topic of the 2009 Duke Law Journal Symposium. It will focus on administrative law under the George W. Bush administration and the future of administrative law. The symposium will look retrospectively at the characteristics and accomplishments of the administrative state under the Bush Administration and prospectively at the direction the next President will or should take the administrative state...

Defibrillating Doctrinalism

Posted on March 17, 2008
Here?s a thought: whoever said ?theory=good, doctrinalism=bad?? Are there value-judgments placed on scholarship style and type? Is one perceived as more or less difficult, more or less useful, more or less ?academic?? Whatever happened to the careful, meticulous doctrinal scholars of 1910-1950? Has that art died out? Was it an art? I?m curious to explore the thoughts of so many bright minds here on Prawfs...

Could and should Obama just "play the Jesus card"?

Posted on March 16, 2008
The media buzz on the 2008 campaign is now focused on the provocative pulpit comments of the pastor of Senator Obama's church, Reverend Jeremiah Wright. Reverend Wright's provocative sermons and the reaction thereto are probably worthy of many posts, but here I want to question Senator Obama's written response on Friday that appeared at The Huffington Post...

New Issue of OSJCL

Posted on March 14, 2008
I'm delighted to annouce the publication of the new issue of the Ohio State Journal of Criminal Law. The issue is called Toward a Just and Rational Body of Substantive Criminal Law: A Symposium in Honor of Sanford H. Kadish and contains contributions by Peter Westen, Stephen Morse, Claire Finklestein, Leo Katz, Kim Ferzan, Josh Dressler, Larry Alexander, Andrew Ashworth, and Stephen Schulhofer...

A Passover Cocktail

Posted on March 14, 2008
For some years, my father has been pushing a particular kosher for passover cocktail he invented on all who are daring enough to try it. I usually decline. He has now taken it to the next level, bottling "Martin's Blackhawk." Obviously, I can't tell you the secret formula...

Become Part of the Crim Conversation

Posted on March 14, 2008
The Criminal Law Conversations project is well underway with more than forty nominations that you can view here. Now is the time to express your interest in commenting, and there are plenty of topics to comment on. Though we will update you with other topics in the weeks to come, here are just a handful of the nominated authors and terrific topics: Doug Husak on overcriminalization; both Peter Westen and Ken Simons on the relationship between indifference and punishment; Victoria Nourse and Joshua Dressler on whether provocation should mitigate punishment; Jeffrie Murphy on remorse; Erik Luna on restorative justice; Susan...

Are Law Students Too Smart?

Posted on March 14, 2008
A huge number of America?s brightest people go to law school and, from there, on to a career in the law. Is that a waste? For every extra bit of talent that matriculates into business school, real wealth will be created, our economy will grow stronger, and people will be better off...

EZ-Pass or EZ-Ticket?

Posted on March 14, 2008
Since coming late to the daylight-savings-time thing (enacted in 2007), Indiana is now getting on board with the EZ-Pass electronic toll collection system on the toll road in the northern part of the state. Obviously this should ease traffic and it has long been in place in other parts of the country...

My Favorite Case That is Not in the Casebooks: April Enterprises v. KTTV

Posted on March 14, 2008
Here is a gem of a case that could be of use to you in Contracts, Torts, or Entertainment Law. I would put it in a casebook if I were authoring one. It is April Enterprises, Inc. v. KTTV, 147 Cal. App. 3d 805 (1983). Paul Winchell, a ventriloquist who is perhaps best known as the voice of Tigger the Tiger, did a children?s television show in the 1960s called ?Winchell-Mahoney Time...

Muskrat Love: Judicial Review, Advisory Opinions, and Funeral Protests

Posted on March 13, 2008
Sorry; I could not resist. On Tuesday, the Kansas Supreme Court struck down the state's Funeral Privacy Act, which prohibited picketing and other demonstrations within 150 feet of the entrance to a funeral during the times surrounding services. The law was an explicit attempt to stop the Kansas-based Westboro Baptist Church, which has gained notoriety by picketing funerals of slain soldiers (and of every other high-profile civilian death, given a stated intent to protest the funeral of the slain UNC student president)...

Apology Uniforms

Posted on March 12, 2008
Red, white, and blue diagonal striped tie, dark suit (with pin), pursed lips, (surprisingly) loyal wife, powder blue suit, pearl necklace, American flag.

Symposium on Morse and Free Speech

Posted on March 12, 2008
In case anyone is interested . . . my contribution to a forthcoming symposium, in the Lewis & Clark Law Review, on the Morse case is available here (on SSRN). The paper is called "Can There Really Be 'Free Speech' in Public Schools?". Comments appreciated!

Federalism and the Presidential Candidates

Posted on March 12, 2008
Being a federalism nut, I naturally surf the ?08 election blogs and websites looking for signs that anyone cares about basic issues of federalism ? you know, statutory and regulatory preemption, dormant commerce clause, uniformity versus diversity of individual rights, etc...

The False Promise of One Share, One Vote: A Response to Larry Ribstein

Posted on March 12, 2008
In our paper, ?The False Promise of One Share, One Vote,? Grant Hayden and I argue that the traditional justifications for the one-share, one-vote paradigm fail to hold up under scrutiny. In a recent post, Larry Ribstein argues that ?[t]he basic problem with this approach is that it doesn't clarify what's at stake...

The New Sins, As Interpreted by Indexed

Posted on March 12, 2008

The "Ranking Game" Game -- Make Your Own Rules

Posted on March 12, 2008
I haven't seen this mentioned yet, but it's (i) an interesting way to see what counts in law school rankings and how such rankings could be different if different criteria were given different weight; and (ii) a real potential time-waster for law profs into ranking issues...

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