Legal Commentary

Tri For Gey 5!

Posted on March 01, 2011
Long-time readers of this blog know about the heroic defiance of my colleague, Steve Gey, against ALS (aka Lou Gehrig's) disease. I just received this email from one of favorite former students, Kristie Klein, who has been a terrific friend to Steve and a relentless foe of ALS...

Schragger on the Beneficent Underenforcement of the Establishment Clause

Posted on March 01, 2011
Before I shuffle off, I want to note a very interesting recently posted piece by Richard Schragger, The Relative Irrelevance of the Establishment Clause. I am a big fan of Professor Schragger's piece on localism in religious liberty from a few years back in which he claimed, in part, that decentralized decisions that benefit or burden religious liberty ought to be given greater deference than analogous federal, centralized decisions...

Transitions

Posted on March 01, 2011
Happy Beer and National Pig Day! It's March 1, and so we have thanks to extend to our wonderful, just wonderful, group of February bloggers, some of whom will be staying on to get some remaining posts finished. And we must also welcome a group of new and returning voices to the Prawfs cabaret...

"Resistan[ce] to Change"

Posted on March 01, 2011
"As They Ponder Reforms, Law Deans Find Schools 'Remarkably Resistant to Change'". That is the headline for this piece, in the online Chronicle of Higher Education. According to their deans, in other words, law schools are like Wayne Campbell. (UPDATE: I mean, of course, Garth! Party on...

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Oral argument is for the justices?

Posted on March 01, 2011
Interesting article in today's Washington Post about the way oral argument is becoming even-more dominated by justices' questions rather than attorneys' answers to those questions. One explanation is that Justices Sotomayor and Kagan are more aggressive than the justices (Souter and Stevens) they replaced...

Racial Blindsight Conference at Michigan State

Posted on March 01, 2011
The Michigan State University College of Law is hosting a symposium entitled "Moving Beyond 'Racial Blindsight'? The Influence of Social Science Evidence after the North Carolina Racial Justice Act." This webpage includes an introduction and an invitation for this upcoming event: The North Carolina Racial Justice Act of 2009 (RJA) broke new ground in its recognition of the role that social science research can play in identifying racial discrimination in the criminal justice system...

An Al-Kidd Reality Check: The Myth of Non-Statutory "National Security" Detention

Posted on February 28, 2011
In cross-posts at Volokh and SCOTUSblog, Orin Kerr takes issue with the government?s litigation strategy in Ashcroft v. al-Kidd, the material witness/Fourth Amendment/qualified immunity appeal in which the Supreme Court is set to hear argument on Wednesday...

Measuring Federalism

Posted on February 28, 2011
Modern federalism, as it is practiced in U.S. courts, depends heavily on untested empirical propositions. For instance, as everyone knows, the Supreme Court has swung back and forth a few times on whether states need some kind of judicial protection to preserve their policy autonomy, or whether instead the political process is good enough...

Rethinking Indeterminate Sentencing

Posted on February 28, 2011
My new article, ?Beyond Rehabilitation: A New Theory of Indeterminate Sentencing,? is now available here on SSRN. The article grew out of my interest in the revival of early-release opportunities that has occurred over the course of the past decade. This revival has the effect of making sentencing less determinate in many jurisdictions ? it is not as clear at the time the judge pronounces the sentence exactly how long the defendant will spend in prison...

Negging of Law Professors

Posted on February 28, 2011
For those of you unfamiliar with the concept, negging (according to the urban dictionary) is when a man relies on low-grade insults meant to undermine the self-confidence of an attractive woman so she might be more vulnerable to his advances. It is a way for a man to attract a woman more beautiful than he would normally be able to attract...

Are we ?Post-Gender??

Posted on February 28, 2011
The following is by FIU's Kerri Stone: Twenty-one years have passed since the Supreme Court held in Price Waterhouse v. Hopkins that Ann Hopkins was passed over for partnership at Price Waterhouse because of her sex, as evinced by the sex-stereotyped comments directed against her...

Snow-Shoveling, Governing Law Clauses, Six-Hour Contract Classes, and Other Random Heretical Observations

Posted on February 28, 2011
The title is one for a post I started writing at the beginning of the month, then deleted, and never came back to it. At this point, I don't remember the connection, although I think it started with an observation about being very anal about shoveling the driveway (something we've been doing a lot of in Boston this winter), and wondering why it made a difference to me that I made the driveway look clean and neat and not merely functional...

Attorney General Eric Holder and prosecutorial (mis)statements

Posted on February 28, 2011
In the Portland bomb sting case (about which I've got a series of blog posts at my home blog), there has been an interesting recent development involving the defense motion for a gag order against Attorney General Eric Holder. To recap, in this case, Mohamed Osman Mohamud, a 19-year-old student, was arrested and charged with attempted use of a weapon of mass destruction in violation of 18 USC s 2232a after being ensnared in an undercover sting operation...

Depravity: Finding Meaning in Doctrine, Not Abstraction

Posted on February 27, 2011
A few last thoughts on the crime of depraved heart murder in New York -- the end of my depraved trilogy. In previous posts, I accepted the received wisdom that depraved indifference murder is some sort of amalgam of extreme risk-taking regarding homicidal risk and a distinctive mens rea...

Glen on Kafka and Subjectivity in Law

Posted on February 26, 2011
I skimmed an interesting article, An Essay on Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature, by Patrick Glen (HT Larry Solum), a lawyer in the DOJ Civil Division, and an adjunct professor at Georgetown with quite an impressive publication record...

The Leo Strauss Tapes

Posted on February 25, 2011
I've blogged here before about my book project on Leo Strauss's ideas on war, peace, and law. One of the steps forward in this project came when the literary executor of Strauss provided me with a transcript of Strauss's course on Hugo Grotius's Rights of War and Peace...

The Consultant's Four-Quadrant Matrix for Generating Article Topics

Posted on February 25, 2011
Back in 2006, in my debut performance as a PrawfsBlawgger, I introduced many of you to the standard consultant's four-quadrant matrix. This morning, while I could have been doing any of the following productive things - preparing for class, getting ready for my talk to the faculty next week, writing an article for the ABA Young Lawyer magazine that's due soon, finishing a recommendation letter for a student - I managed to turn my mind to something just above Bubble Breaker on the procrastination scale...

Church Autonomy on Tap?

Posted on February 25, 2011
John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today. It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management...

A Presumption Against Cost-Benefit Preemption?

Posted on February 25, 2011
The SCOTUS's decision in Williamson v. Mazda Motors is welcome to all friends of federalism not only because of its pleasingly unanimous holding but also because it is the perfect course-packet and casebook companion to Geier v. American Honda. The two decisions differ by a hair's breadth from each other in the basic facts: The question in both was whether the feds' giving a manufacturer an option regarding a safety precaution should preempt states' holding the manufacturer from exercising one of the options permitted by federal law...

Want to Cut Costs? Release More Prisoners

Posted on February 25, 2011
In an era where states are looking to do anything to bring down budget deficits, they may be overlooking one of the most important costs they generate in the criminal justice system: pretrial detention. Many people would be surprised to know that the majority of people in our nation?s jails are those detained pretrial, not convicts...

The Early-Release Renaissance

Posted on February 25, 2011
I think one of the most fascinating developments in criminal justice over the course of the past decade has been the reinvigoration of early-release opportunities for prison inmates -- parole and parole-like mechanisms. Parole, of course, was a universal feature of the American criminal justice system as recently as forty years ago, but fell into precipitous decline over the last decades of the twentieth century...

Is Winkler Right to Say Obama Was Wrong?

Posted on February 24, 2011
FoP Adam Winkler (UCLA) has an interesting take on the Obama Admin's decision to not defend an aspect of DOMA. After the jump, I've reprinted the post, and I hope the comments here will be somewhat more illuminating than those on HuffPo. (FWIW, I do share some of Adam's concerns but I would like to hear why they are misplaced, if in fact they are...

Lessons for Health Care from the UI Experience

Posted on February 24, 2011
When I started out in my efforts to alleviate sleep-debt across the blog-reading world, I promised that my boring unemployment posts would have an exciting payoff in lessons for the affordable care act. Well, get your lunesta, my friends. Because one lesson from UI is that the ACA is obviously constitutional...

Posner on Leib/Leib on Posner on Leib

Posted on February 24, 2011
Eric Posner's review of my new book Friend v. Friend is available at The New Republic's website. It is sharp -- and reasonably critical and skeptical. My response is also available at TNR here.

Feedback, Tough Love, and "Failing Well"

Posted on February 24, 2011
Mike Madison and Michael Risch have thoughtful posts on so-called "tough love" workshops, the former's informed by five years as the Associate Dean for Research at Pittsburgh. The tension Mike Madison described is not unique to academia: on one hand, the only way you get better is to get criticized; on the other hand, (a) getting criticized isn't fun, and (b) do people understand that something can be both good or on the right track, but at the same time flawed and worth a lot of criticism and correction? On the other hand (that makes three), maybe the piece just...

Chinese Rooms and Partner Pay

Posted on February 23, 2011
The Wall Street Journal today spanned the continuum from the deep and mysterious hard question of consciousness to the Mammon of Big Law Firm partner hourly rates. The former came in an op-ed from John Searle, using his famous "Chinese room" image to explain why Watson computes but doesn't think...

Depravity, Again

Posted on February 23, 2011
Hot on the heels of my thoughts on depraved heart murder, the New York Court of Appeals today issued People v. Prindle, in which the defendant was in the process of stealing a snow plow blade (this year, I could certainly sympathize) when police responded to the scene and defendant took off in his van with the police in hot pursuit...

Quality legal television, for once

Posted on February 23, 2011
Tomorrow night on HBO is the premiere (with many, many repeat showings to follow) of Thurgood, starring Laurence Fishburne, in a filmed performance of the one-man show at the Kennedy Center. The play is based around a fictional speech by Marshall at Howard Law School, in which he recounts his life and career as civil rights attorney and Supreme Court justice...

Ballooning Statutory Damages in Copyright Law: Part 1 of 3

Posted on February 23, 2011
Over on the Freakonomics blog last week, Kal Raustiala and Chris Sprigman put up a post marking the ignominious end of the Jeffrey Koons "balloon dog" controversy. In case you missed it, a blogospheric hubbub erupted when Koons's firm, Jones Day, sent a cease and desist letter to Park Life, a San Francisco art gallery, for selling bookends that resembled Koons's "Balloon Dog" sculptures...

Weiler in the Dock

Posted on February 22, 2011
As some of you know from reading Leiter's blog, NYU Law prof, Joe Weiler, has been accused in France of a criminal defamation charge because he refused to take down a negative book review that appeared in the journal that he edits (the EJIL). Weiler had nice things to say about the trial's fairness but one hopes nonetheless that he is being indemnified by all the parties (that's all of us) who would benefit from a ruling in his favor, soon may it arrive...

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