Legal Commentary

Friends as Fiduciaries

Posted on March 06, 2008
I too have shipped a solo effort out to the law reviews very recently. It is entitled Friends as Fiduciaries and an abstract is pasted below. I'll upload it to SSRN upon placement: The Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed friends certain kinds of remedies that are most appropriate for achieving...

Retributive Damages: The Abstract

Posted on March 06, 2008
So, as threatened, I've finally got a serviceable draft of Retributive Damages ready. Once I've finished blogging about and through the Punishing Family Status article, I will return to blogging about this project but since I've just sent it off to the law reviews and am basking in the utter sense of possibility(ha!), I thought I'd share the abstract, which is a bit different than the one up on SSRN...

Home schooling no more (in California)?

Posted on March 06, 2008
The L.A. Times has this story about a recent ruling by an appellate (state) court in California: Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California's home schooling families...

Spring Break on the Road...Academic Style

Posted on March 06, 2008
Greetings from NYC, where I'm in town for a few days. Tomorrow I'll be presenting Retributive Damages to the St. John's faculty. Very excited about that since I've just shipped off the most recent draft to the law reviews. It's my first piece about punitive damages but I've actually been toiling on this project since the fall of 2002...

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Bobby Jindal and Ethics Reform in LA

Posted on March 06, 2008
As a New Orleans native whose family still lives there, the months since Hurricane Katrina have been full of one heartbreak after another. The devastation of the storm has been followed by disappointment at the failure at all levels of government, particularly state and local, to at least restore the city and state to what it was, or at best, to utilize the opportunity to create something better...

Clemens v. McNamee: Your One-Stop Civ Pro Exam

Posted on March 06, 2008
Apparently, the new goal of sports figures is to educate the public about civil procedure (not a bad thing, actually). First came the lawsuit between West Virginia University and Rich Rodriguez, its former football coach, which taught us about removal and the difference between a citizen of a state and an arm of the state for purposes of diversity jurisdiction and now is going to demonstrate just what the discovery process looks like...

More on IUPUI and the KKK

Posted on March 06, 2008
I was going to post this as a Comment on Rick's post on the looniness at IUPUI, but there is a lot of stuff to bring out, so I decided to make it a separate post. First, Paul Secunda discusses this at Co-Op, with some very good comments. He also announces that IUPUI rescinded the punishment, although with a letter that sounds a lot more like a warning than an apology (more on that in a second)...

Is reading "Notre Dame v. the Klan" at work racial harassment?

Posted on March 06, 2008
Here's a story, that hits close to home, from FIRE (Foundation for Individual Rights in Education): In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks...

Reading Legal Scholarship

Posted on March 06, 2008
Brian Leiter recently posted a query on his philosophy blog asking how people read philosophical articles. I'd like to ask the same question about law review articles. How much time do you typically spend reading an average length article? Do you usually skim? Do you read the footnotes methodically or selectively? Surely these answers will vary with the piece but somehow the comments on Leiter's blog were still informative...

Reverse age discrimination and presidential hiring

Posted on March 06, 2008
Paul's new post on "the Endless Narcissism of a Generation" has me again thinking about age as an extremely important ? and remarkably underexamined ? aspect of federal elections. Senator Clinton has recently been urging citizens "to think about this decision more like a hiring choice than a voting choice...

Huckabeen

Posted on March 05, 2008
Huckabee is Huckabeen (for the 2008 presidential election). Between (1) the NYT story on McCain's possible lobbyist conflict of interest and (2) the blawgospheric discussion of McCain's possible constitutional ineligibility for the presidency, Huckabee may have come surprisingly close to getting the miracle he hoped would put him in the White House...

A Question for Rick Hills: On Constitutional Decision Rules and the Institutional First Amendment

Posted on March 05, 2008
I think Prawfsblawg is extremely lucky to have Rick Hills as a guest. I hardly need justify that statement, but I do want to single out one article in particular: Rick's splendid piece The Constitutional Rights of Private Governments, 78 NYU L. Rev. 144 (2003)...

Lawyers? Conferences vs. Legal Academic Conferences

Posted on March 05, 2008
Since joining the legal academia, I?ve attended mostly academic conferences: AALS, Law and Society; American Society for Legal History; various labor and employment law meetings (including a now-annual affair dreamed up on this very blog); some pure history conferences; and various small work-shops...

Hillary Clinton and the Endless Narcissism of a Generation

Posted on March 05, 2008
I don't mean to sound as if I'm endorsing a candidate in this post, Democrat or Republican. But after listening to Senator Clinton's combative speech last night, I find myself wondering again why so many people persist in seeing the Democratic race as being about race, or gender, when it is also and obviously so clearly about an endless and increasingly tiresome generational struggle...

The Roberts Court, admin law, & federalism

Posted on March 05, 2008
For aficionados of federalism, all of the important battles over state power are now being fought in the arena of administrative law and regulatory preemption. If agencies can easily preempt state law, then federalism is dead, because agency regs tend inexorably to expand over time, squeezing out most state policy-making space...

Learning from Our Students

Posted on March 05, 2008
In my upper-level elective courses (Federal Courts and Civil Rights), 15 % of the final grade is based on an appellate argument. Each student argues a recent court of appeals decision to the "Supreme Court" (a panel of myself and 2-3 classmates). I have done this three times and the students tend to get into the project...

The Role of Apology in Litigation - A Visible Result?

Posted on March 05, 2008
I was struck a couple of weeks ago by the power of apology in the context of litigation. Does the current civil litigation sphere account for what is often masked by the adversary system - a potentially genuine apology? Despite legislation in some states and provinces evincing apologies are not evidence of liability, how many lawyers truly do counsel their clients to say ?I?m sorry?? In law school, do we teach the apology as just the cathartic musings in some form of A...

Back in the Game

Posted on March 05, 2008
Apologies for my AWOL on the blog. Having just lived through a rather wild home flood, I've been prevented from contributing this past month, though have been following daily, as usual. However, I'm now back in the game! Thanks to Dan Markel for his patience...

"Frozen" People at Grand Central Station

Posted on March 04, 2008
Over 200 people stood motionless in Grand Central Station for five minutes. See here. And here's the "Improv Everywhere" website with more details.

Would a knock-out or additional rounds be better for the Democrats?

Posted on March 04, 2008
As we await primary election results today, I am wondering about the conventional wisdom that it is good for a party to settle on its Presidential nominee sooner rather than later. This CV largely prompted the quick embrace of John Kerry in early 2004, and that did not work out so well for the Democrats...

Torture, with Apologies

Posted on March 04, 2008
I suppose this might count as a ?me too? posting, since I also published a review of Eric Posner and Adrian Vermeule?s book, Terror in the Balance, now available here. I also discuss Judge Posner's book, Not a Suicide Pact. I?ll let others decide whether I too am like President Merkin Muffley, as Alice Ristroph suggests most legal academicians have been in using ?the voice of reason? that ?is timid and faltering...

"The Moral Foundations of Law"

Posted on March 04, 2008
This summer seminar, "The Moral Foundations of Law", sponsored by the Witherspoon Institute at Princeton, might be of interest to Prawfs readers who are law students: The Witherspoon Institute is pleased to announce the first annual summer seminar on the Moral Foundations of Law, a comprehensive week-long program investigating the interaction among moral thought, legal theory, and the nature of moral legislation...

Ristroph on Terror in the Balance

Posted on March 04, 2008
My friend and occasional sparring partner in crim law theory, Alice Ristroph (Utah to Seton Hall via Harvard Ethics), has unleashed the dogs of war on "Professors Strangelove," Chicago's Eric Posner and Harvard's Adrian Vermeule. Up on SSRN now, you can find her bare-knuckled critique of Posner and Vermeule's book, Terror in the Balance: Security, Liberty and the Courts...

For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media

Posted on March 04, 2008
A legislative proposal: Congress should set aside, or direct telephone companies to set aside, certain phone numbers that can be used in films and on television without fear of liability. As you have no doubt noticed, when a line of dialog includes a phone number, the character on screen, often with intense earnestness, spits out a phone number with a ?555? prefix...

Saving Trees

Posted on March 04, 2008
My thanks to Dan et al. for having me back on Prawfs! For as long as I can remember, the default page margins on a Microsoft Word document have been 1.25'' on the left and right sides. In my 7th or 8th grade "typing" class (yes, that's what it was called), I believe we were taught that 1'' margins are standard all around...

Sentencing Guidelines and Retroactivity

Posted on March 03, 2008
Unless you?ve been in a drug-induced haze, you?ve probably heard that the United States Sentencing Commission recently amended the Sentencing Guidelines to correct the crack/cocaine disparity. One of their most interesting aspects of these amendments?which became effective today?is that they are retroactive...

Reagan's Shadow

Posted on March 03, 2008
Many thanks to Dan and company for inviting me back to Prawfs. I am delighted to have the opportunity to participate in the Prawfs conversation. The first thing I have to contribute this time around is a lingering question from Barack Obama?s invocation of Ronald Reagan in an interview...

James Bryant Conant is a Big Stupid Head

Posted on March 03, 2008
Novelist and foul-rag-and-bone-collector Nicholson Baker has a lovely article in the NYRB on The Charms of Wikipedia. It is especially fascinating on the debate between "deletionists" and "inclusionists" on Wikipedia -- those who favor trimming "stubs" and "non-notable" entries and those who take the view that, "if people want an article about every Pokemon character, then hey, let it happen...

Religiously Affiliated Law Schools conference

Posted on March 03, 2008
Detailed information on this year's Religiously Affiliated Law Schools conference (at Boston College, on April 6-7), can be found here. Here's the overview: Faith can spark professional formation and intellectual growth as well as spiritual and moral development...

Law Profs as Political Pundits: Should Schools Do Media Training?

Posted on March 03, 2008
Thanks to Dan & The Gang for having me back. Like Doug B., I live in Ohio and am struck with how much attention the state is getting from the media and candidates. Obama, Hillary, and McCain have all been through Toledo already, and Hillary is speaking today at my University...

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