Legal Commentary

Deadwood Reports and the Choices They Make

Posted on February 26, 2008
I was out celebrating my second anniversary(!) with my wife over lunch, so I'm a little late by blogospheric standards to report this, but in case you haven't seen it, the venerable Green Bag will be issuing an annual Deadwood Report. (H/t: Robin Craig; more coverage by Brian Leiter, Orin Kerr, and Paul Secunda, who proposes bobblehead dolls made in honor of law school deans and various prawfs)...

Duke Lacrosse I: New Player Lawsuit

Posted on February 26, 2008
Back in October, I wrote about the § 1983 lawsuit filed by the three Duke lacrosse players who were indicted in 2006 on charges of gang-raping an exotic dancer, then exonerated when it became clear the woman had fabricated the story and the district attorney (subsequently disbarred and convicted of criminal contempt) had repeatedly lied to the court and attempted to conceal exculpatory evidence...

Talkin' Sports Over Some Law-Firm Beers

Posted on February 25, 2008
In a post last week, I explained how, as a law-firm associate, I was assailed every year in my annual review for the ?complicated color system? of tape flags that I used in a document review during my first year as an associate. You know what?s particularly unfair about being singled out for that? Lawyers are always making things more complicated than necessary...

At it again? Fitzpatrick on Post-Grutter Michigan

Posted on February 25, 2008
We've had some good discussions here and here in the past when we've linked to the work of my law school classmate Brian Fitzpatrick (Law, Vandy), so I thought I'd see if we can repeat our success now that Fitzie's stirring the pot again with his newest piece: Can Michigan Universities Use Proxies for Race after the Ban on Racial Preferences? Here's the abstract: In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their...

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An Abstract of Punishing Family Status

Posted on February 25, 2008
I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews. This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of ?family ties burdens? or penalties that impose punishment upon...

Superdelegates Redux

Posted on February 25, 2008
Geraldine Ferraro's op-ed about superdelegacy in the New York Times today is misguided in many ways. David Ponet and I have a rival op-ed in the Legal Times today on the subject; you can download the pretty PDF version from this link: Download ponet_leib_22508...

Jonesin' for a Law and Morality Fix?

Posted on February 25, 2008
For a symposium on the state of play between law and morality, check out the new issue (h/t: Quiqley at Texas) of the HARVARD JOURNAL OF LAW & PUBLIC POLICY, VOLUME 31, NUMBER 1, WINTER 2008. Table of contents below. Interesting articles from a range of perspectives here...

Online Journal Supplements -- Fizz or Fizzle?

Posted on February 25, 2008
The advent of online journal supplements has led to some uncertainty in their value. For those who are unfamiliar with them, they are "extensions" of the print law reviews that enable publication of shorter essay or op-ed style pieces with more immediacy...

Sunday Book Blog -- Reality Books

Posted on February 24, 2008
Okay, so perhaps this genre hasn't caught on fully yet. But I'm in the middle of a captivating book that could lead this category (it doesn't really seem to fall into "Memoirs"). It's called The Year of Living Biblically: One Man's Humble Quest to Follow the Bible as Literally as Possible, by A...

It had to be done eventually: Prawfs is on Facebook

Posted on February 24, 2008
Folks, please give a big thanks to Paul Horwitz for starting a facebook group profile for PrawfsBlawg. Here's the link. Feel free to join and spread the love.

Superdelegate Fatigue?

Posted on February 23, 2008
In case you don't have superdelegate fatigue yet, you can check out a column I wrote with David Ponet at the Legal Times on the subject. We explain why both Obama and Clinton have it wrong.

Call for Nominations ? Most Screwed Victims in Caselaw History

Posted on February 22, 2008
If the law?s central theme is justice, why do we teach law students with a canon of cases that leave the reader with one common refrain: ?Wow. That person got screwed.? Why? Because, to borrow a phrase from my own Contracts teacher, Prof. Gerald Frug, ?It?s delicious...

Alternatives to Habeas and the Myth of Swain v. Pressley

Posted on February 21, 2008
I've been staying rather mum on the Guantanamo cases and the Iraqi detention cases, partly because I've been busy and partly because I've been involved in both... that being said, I wanted to flag one issue that I explore in a new paper an early draft of which I just posted to SSRN--the idea of "adequate" and "effective" alternative remedies to habeas corpus...

Legal Education and Regulatory Theory

Posted on February 21, 2008
Various discussions on prawfs have focused on reforming legal education, introducing new courses and methods to the curriculum, and rethinking what future lawyers need for successful (and diverse) legal careers. Jason Solomon (Georgia) has posted his forthcoming Law and Governance in the 21st Century Regulatory State (Texas Law Review, Vol...

Incentives to Precautions in Proximate Cause and some meta-questions

Posted on February 21, 2008
In a couple hours, I'm going to be wrapping up some proximate cause materials in my criminal law class. Here's one thing I've been thinking about, and I would be curious to hear reactions to it. Imagine the Kibbe case. (K gets V snockered drunk, robs him, puts him in car, drives, and leaves V with pants at his ankles, without eyeglasses, on the side of an desolate night road in the cold...

It's True: Sex Does Rock Our World

Posted on February 20, 2008
Israel decriminalized homosexuality in 1988 and has recently passed several laws recognizing gay rights. Israeli court rulings in recent years have granted inheritance rights to gay couples and recognized same-sex marriages performed abroad. Last week, the Israeli government implemented a new plan allowing same-sex couples to adopt...

Is the Pledge merely Ceremonial Deism?

Posted on February 20, 2008
Last week in my law & religion seminar, we went over the Newdow case -- the infamous 9th circuit case holding that the words "under God" in the Pledge of Allegiance violate the Establishment Clause. The Supreme Court mostly didn't reach the constitutional issue, ruling that Newdow didn't have standing, but Justice O'Connor did present a lengthy concurring opinion concluding that the phrase was part of our country's acceptable "ceremonial deism," like having "In God We Trust" on our coins -- a phrase coined by Justice Brennan in 1984...

Weekday in Seattle

Posted on February 20, 2008
Update: Here's an audio file of the conversation . I thought the host and all the other guests raised important questions and points. *** For those of you in the Seattle area or with access to radio on the computer, I'll be talking about shaming and the law on NPR's Seattle based Weekday show later this morning around noon Eastern...

Congress: Reverse Ledbetter!

Posted on February 20, 2008
My friend Neena (who also clerked for the Hawk) works at the National Women's Law Center. She just circulated the following important letter, which I thought I'd share with the Prawfs community. The National Women?s Law Center is circulating the attached sign-on letter for lawyers and law students in support of the Fair Pay Restoration Act...

The Sex-Ed License, Redux

Posted on February 19, 2008
Last week I blogged about the uneasy case for a sex-ed licensing scheme that would, with other conditions, serve as a safe harbor from statutory rape prosecutions for sex between and with minors over a certain age (e.g, 15). The proposal, and the couple of posts that led to that one, have met with some interesting reactions...

Abortion and Popular Culture: Fast Times v. Knocked Up

Posted on February 19, 2008
Sherry Colb has a FindLaw essay and blog post on the movie 4 Months, 3 Weeks, and 2 Days, which depicts the efforts of a student to obtain an illegal abortion in Ceausescu's Romania in the late 1980s. In the post, Colb wonders why abortion is not depicted as a serious option in recent American movies such as Waitress, Knocked Up, and Best-Picture nominee Juno (and I confess to not having seen any of these)...

Sonic Entertainment

Posted on February 19, 2008
I don't know about you, but I'm a big fan of the Sonic commercials. They usually feature two guys in a car at a Sonic talking about some new Sonic food. The guys are, well, imagine a cross between Urkel and Will Ferrell. My favorite is the Tot Rejection spot...

Was Jon Stewart Better Without Writers?

Posted on February 19, 2008
Since the New Year, Jon Stewart had been doing The Daily Show without his WGA-striking writers. Now that the writers are back, I have to admit, sadly, I think that his show has gone slightly downhill. The fact is, without his union labor-pool, Stewart was a smart-aleck version of a smart-aleck...

Some thoughts on "Whose Eyes"

Posted on February 19, 2008
Yesterday, at the end of Howard's post on shameless plugs -- really, though, the genre is a null set here on Prawfs! -- Howard mentioned the paper by my friends Dan Kahan, Dave Hoffman, and Don Braman, entitled: Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v...

Excluding "Whites" From Review Sessions

Posted on February 18, 2008
Richard Delgado's "Ask Mom" series on Blackprof is regularly fascinating and provocative, if I may sum up my reactions to it in a neutral and non-specific way. Today's post is no exception. "Mom" answers a question from a "reader" who writes to ask whether it is permissible for her to hold support sessions for students with grade-point averages of B or lower...

Lawyers Aren?t Boring ? Just Ask Them About Tape Flags

Posted on February 18, 2008
People say lawyers are boring. But that?s only half true. Lawyers may be boring to ?people,? but lawyers are absolutely fascinating to other lawyers. I know, because I am one. And I?ve actually had multiple conversations ? some lasting the better part of an hour ? about the use of Post-it-brand tape-flags in document review...

"O young academic politician, know thyself!"

Posted on February 18, 2008
What would happen if Jim Chen traveled back in time and space to England in 1908? (Besides the usual shoot-your-grandfather time-travel-y altered-destiny stuff, in which Hitler becomes a famous artist, Huey Long serves five terms as President, and Tom Cruise is known as a respected actor...

Shameless Plug Division

Posted on February 18, 2008
Regardless of when they are accepted, articles seem to come out in bunches, as this week attests. Today, my essay, Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy, was published on Northwestern University Law Review Colloquy. This is a response to an article from my co-guest prawf, Scott Dodson, that appears in the latest issue of Northwestern University Law Review...

A Few Good Men?

Posted on February 18, 2008
Last week, I passed along the A Few Good Men parody of the Roger Clemens hearing. Today, I received an e-mail from Scott Sullivan, an assistant professor in the Emerging Scholars' Program at the University of Texas School of Law and an attorney for several GTMO detainees, with the following story: During my most recent trip to visit with my clients I asked my military escort if I could get a copy of Santiago's transfer order before we left the base...

Have law students gotten more cynical?

Posted on February 17, 2008
This post is based only on anecdotal evidence, but I wonder if other prawfs have felt like students have gotten more cynical, and more inclined toward positivist accounts of law & judging, than before? I've always thought I was more on the cynical side, and joined that view with a postmodernist understanding of how rhetoric (including that of "reason") can be deployed...

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