Legal Commentary

Merit Pay for Prison Wardens?

Posted on March 03, 2008
Tying the salaries of public officials to performance tends to be a policy touted by Republicans as a market-based solution to poor bureaucratic incentives. The most obvious example is merit pay for public school teachers, a prescription urged by Republicans but generally resisted by the National Education Association and the American Federation of Teachers, major constituencies of the Democratic Party...

Duke Lacrosse IV: Universities and Student-Athletes

Posted on March 03, 2008
Eric Muller, of Is that Legal?and the University of North Carolina Law School, complains about the way in which academic operations at the law school are hindered and frustrated by the school's seemingly greater commitment to even non-revenue athletics and the role that athletics plays in the university power structure relative to academic departments...

Facebook and Due Process

Posted on March 03, 2008
Over at Co-op, Dan Solove mentions that our mutual friend, Dave Lat, from Above the Law, has been booted off, somewhat inexplicably, Facebook. I noticed this a few days ago also and was sad to hear about Dave's plight (relatively speaking!), since he was a very active user...

Shouldn't we have universal voting?

Posted on March 03, 2008
I have never completely understood why, in a country committed to democracy, we make every citizen pay taxes and get a social security number, but we do not make every citizen vote. And, if I understand the most robust universal health care plans, apparently there are now serious proposals for forcing every citizen to acquire some form of health insurance...

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How important is seeing a candidate (or a rock band) live?

Posted on March 02, 2008
With thanks to Dan et al. for the repeat invite, I plan to spend my Prawfs time talking about politics (though I likely won't be able to completely leave out my blog love for Sentencing Law & Policy or Law School Innovation). Because I am in Ohio ? and because I am teaching for the first time this semester a novel Legislation course ? I have few professional or personal moments these days without political dimensions...

An unlikely blogger

Posted on March 02, 2008
Mark Bittman has this piece in today's Times about his effort to observe a "secular Sabbath" - - a day free of (among other things) email and internet. He describes his fight against the temptation to check his email just before sleeping and immediately upon waking, as well as his frustration at reading the news without hyperlinks...

Did Omar and Munaf Just Become the Same Case?

Posted on March 02, 2008
Over at Opinio Juris, Kevin Heller has news of an immensely important development -- the Iraqi Court of Cassation's reversal of Mohammed Munaf's conviction by the Central Criminal Court of Iraq (the "CCC-I"). Munaf's habeas petition is one of two brought by U...

Can You Teach Constitutional Law Without Assigning the Constitution as Reading?

Posted on February 29, 2008
When I was taking Constitutional Law, my teacher, Prof. Charles Fried, assigned the U.S. Constitution as reading right at the beginning of the semester. But talking to friends, I found out that at least one Con Law professor at my school did not. I was aghast...

Rotations

Posted on February 29, 2008
It's that time of the month to say thanks to our past guests and welcome our new ones. First, I'm very grateful to Adam Winkler, Liz Glazer, Zak Kramer, Jay Michaelson, Scott Dodson, Rob Kar, and Brooks Holland for all their contributions over the last few weeks...

The New York Court of Appeals, Corrections Officers, and § 1983

Posted on February 29, 2008
Although it?s several months old, I just came across this fascinating (and rather disturbing) decision by the New York Court of Appeals from last November. In short, the Court of Appeals upheld section 24 of the N.Y. Correction Law, even though that statute precludes the New York state courts from entertaining any damages actions (including § 1983 claims alleging federal constitutional violations) by state prisoners against state correctional officers...

For Our Hanover, New Hampshire-Area Readers...

Posted on February 29, 2008
I'll be speaking later today at a neat-looking conference at Dartmouth College co-sponsored by the Ford Foundation, titled "The Gaze & the Veil: Surveillance and the Legacies of Orientalism." My topic, specifically, is "Hamdan v. Rumsfeld and the Marginalization of Individual Rights," a paper to which I've alluded before, and about which I hope to blog more shortly...

Friday Music Blog: Recommendations

Posted on February 29, 2008
So goes another guest stint. Thanks to Dan et al. for having me. As much as I like to recommend music, I really love to get recommendations. So I offer a trade: I'll make one more recommendation, and you all can make some recommendations in the comments...

Until Next Time...

Posted on February 29, 2008
It's time to sign off. I have thoroughly enjoyed the experience blogging here at PrawfsBlawg, and I look foward to returning soon. I sorta wish I had a chance to do some shameless self-promoting while I was here, but it's probably best that I didn't. I'll just leave this link here and be done with it...

Punishing Family Status: Some Examples (Part I)

Posted on February 29, 2008
Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself. Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status...

Leap Years and the Law

Posted on February 29, 2008
Thanks to Dan for having me as a guest on Prawfs. To commemorate my last day here (since I won't be able to celebrate its anniversary for another four years), I thought I'd contribute to the emerging and important "Law and . . . / . . . and the Law" movement by briefly surveying the extent to which courts and commentators have grappled with the problem of February 29...

Can Senators Keep Their Senate Seats When Elected President?

Posted on February 28, 2008
Seth Barrett Tillman -- one of the best constitutional law professors not to be a law professor -- argues in this recent paper that McCain, Clinton, and Obama may keep their Senate seats even assuming that one of them becomes President. Incompatibility Clause, you cry? Don't worry, says Tillman: it doesn't apply...

Law Professor Amicus Brief in Omar and Munaf

Posted on February 28, 2008
I'm extremely pleased (and, perhaps more importantly, relieved) to post a copy of the amicus brief filed today on behalf of a group of federal courts and constitutional law professors in the Iraqi detention cases currently before the Supreme Court -- Geren v...

We're Number 8! We're Number 8!

Posted on February 28, 2008
. . . on this list of "influential law blogs."

Skeel and Stuntz are blogging

Posted on February 28, 2008
Profs. David Skeel and Bill Stuntz are blogging here, at "Less than the Least." Prof. Stuntz shares some reflections occasioned by his struggle with cancer, in this moving post. God bless him.

Law-Firm Associates Should Unionize

Posted on February 28, 2008
Law-firm associates should unionize. I don?t know why they haven?t already, except that they are, on the whole, rather gutless. Think about it. Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them...

Duke Lacrosse III: Harassment

Posted on February 28, 2008
A commenter on my second post on the Duke lacrosse players' lawsuit (first post here) wonders why the players did not assert federal claims for racial (Title VI) or sexual (Title IX) harassment in education. One guess is that, to the extent they were harassed, it was because of their status as lacrosse players and because of their being implicated (by association) in alleged misconduct (that turned out to be false)...

Punishing Family Status: An Introduction

Posted on February 28, 2008
Earlier this week, I mentioned that Ethan, Jennifer Collins and I have completed a working draft of our paper, Punishing Family Status, and have shipped it off to a number of law reviews. Today I reprint below the introduction--sorry for the formatting bloopers...

Confounding the Founding: Why Separated Powers?

Posted on February 27, 2008
For an article I'm working on (about which I hope to blog further soon), I came across the following quote, delivered by the current Attorney General in a 2004 speech. Referring to the Founding, then-Judge Mukasey suggested that the Federalists: resisted pressure from people like Patrick Henry ...

On "Deadwood"

Posted on February 27, 2008
The recent blogosphere discussion of the Green Bag's forthcoming so-called Deadwood Report, which by and large has been favorable, is no substitute for reading the editors' introductory report itself. Strip away your preconceptions -- including the assumptions that "more" "information" is always "better," that anything must be better than US News, and so on -- and read the report...

Duke Lacrosse II: First Amendment Implications?

Posted on February 27, 2008
Continuing my thoughts on the latest Duke lacrosse lawsuit. One interesting feature is the role that the First Amendment might play for the defendants. Much of the conduct described in the complaint, and much of the conduct that presumably forms the basis for the players' claims against Duke and Duke officials (and to law-enforcement officials to a lesser degree), centers on all sorts of public statements that stated or suggested that some or all the players had done something wrong...

Why Democrats Still Love The West Wing

Posted on February 27, 2008
Via Slate (click on "Life Imitates The West Wing" thumbnail), the writers of The West Wing apparently modeled Congressman Matt Santos (the young, upstart, minority, darkhorse candidate who emerges to win the Democratic nomination and the presidency) after Barack Obama.

Chicken. Fowl, indeed.

Posted on February 27, 2008
Miriam Cherry once asked here if it was really true that some Contracts professors dress up as chickens to teach Frigaliment Importing Co. v. B.N.S. Int?l Sales Corp, 190 F. Supp. 116 (1960). When I was at Brooklyn last year and taught the case I told the class about this tradition among some contracts professors but told them that I was too cool to dress as a chicken...

The Evolution of Criminal Law Theory

Posted on February 27, 2008
Conference Announcement Rutgers Institute for Law & Philosophy The Evolution of Criminal Law Theory Friday-Saturday, May 30-31, 2008 The Rutgers University Inn and Conference Center, New Brunswick, NJ Most theorists seem to agree that the criminal law has changed dramatically in the past few decades...

When the N.Y. Times Becomes the Paper of Gloom-and-Doom (or at least of Season One of "24")

Posted on February 26, 2008
Buried among the Oscar coverage (by the way, I totally had Atonement for best picture in my Oscar pool -- oops!), was this story from yesterday's New York Times that, for some reason, totally rubbed me the wrong way: The headline was innocuous enough: "In Painful Past, Hushed Worry About Obama...

Teaching Two Sections, Part II: On Keeping the Classes in the Same Place and Other Issues...

Posted on February 26, 2008
A while back, I wrote the first of what I hoped would be a series of posts about the particular challenges (and opportunities) presented by teaching two sections of the same class during the same semester. As I noted then, I ended up taking the "easy" way out -- using the same syllabus and course materials for both sections...

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