Wednesday, May 11, 2011
ACA News
I've been surprised by how much space has been taken up on this and other blogs in recent days by . . . um, other things . . . and not on the healthcare litigation, including the oral arguments yesterday in the Fourth Circuit. A tip of the hat to the Volokh Conspiracy, which has had useful posts on this issue by Orin Kerr and Jonathan Adler.
Posted by Paul Horwitz on May 11, 2011 at 02:31 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
The Short Sharp Paper Series and a movie review too.
Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on. But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunatley, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy.
Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews -- btw, saw Win Win a couple weeks ago on a date night--worth watching but for Netflix not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.
So, without further adieu, here are a few disparate links in no particular order:
Continue reading "The Short Sharp Paper Series and a movie review too."
Posted by Dan Markel on May 11, 2011 at 01:44 PM in Article Spotlight, Culture, Dan Markel, Film, Legal Theory | Permalink | Comments (0) | TrackBack (0)
The Health Care Debate and Daniel Webster
I was pleased to see the Fourth Circuit panel’s reference to the oral advocacy of Daniel Webster in yesterday’s argument regarding the constitutionality of the individual insurance mandate. Rather timely, in light of this blog’s recent discussion of historical advocacy before the Supreme Court. And, from my perspective, it’s always good to see a court attempt to engage historical understanding of the Constitution.
But putting aside our views of the relative merits of Webster’s advocacy, do the odds of the Supreme Court upholding the mandate increase or diminish to the extent that the Court focuses on the historical understanding of the Commerce Clause? While some might think the answer to this question is self-evident, the Fourth Circuit discussion seems to suggest otherwise.
Posted by Kurt Lash on May 11, 2011 at 12:22 PM | Permalink | Comments (1) | TrackBack (0)
It's all about procedure, naturally
Lyrissa mentioned the defamation case arising from the "Bodies" Exhibition; the district court's opinion is here. Three thoughts:
1) First, the judge's personal jurisdiction analysis would probably deserve a 'C" in Civ Pro.
The judge relies on the "effects test," with the key contacts being a web site. But the court proceeds to find jurisdiction based solely on the defendants putting up a web page (which it conclusorily describes as "interactive," an unfortunate buzzword) accessible from anywhere in the United States. This is a very liberal understanding of the effects test, given that, because the plaintiffs are not from Florida, no real harm (and certainly not the "brunt" of the harm) was felt here. The court found that the statements on the web site were aimed at the plaintiff and the exhibition--but the plaintiff is not in Florida in any real sense and the exhibition was no more in Florida than it was anywhere else. The logic of this opinion comes very close to creating nationwide jurisdiction over people putting things up on web sites.
Moreover, the court mentions much non-web conduct--including public testimony, public statements, and media interviews--none of which took place in Florida; the court mentions statements in Pennsylvania and Hawaii. Worse, the court identifies the particular statements at issue in the case, but does not say whether they were posted on the web site. [ED: I just read the Complaint, which does allege that the defamatory statements were made on the web site and in public appearances and statements]. In other words, the web contacts may not actually be the ones giving rise to the claim. In which case, the court is finding general jurisdiction over an individual based on a web site accessible from anywhere. Which, any of my students will tell you, is just wrong.
2) The defendants did not move to transfer venue, which is surprising. The plaintiffs are not from Florida and have no connection to Florida. The public statements at the heart of the action were made in several places, none of them Florida, which means the state really has no connection to the case. So even if the defendants are subject to jurisdiction, there is at least an argument that some other district (Hawaii, Virginia, or DC make the most sense) is more proper. I think it at least would have been a good candidate for transfer.
3) The plaintiffs seek an injunction against the defendants making future defamatory statements about the exhibit, a problematic remedy that SCOTUS seemed poised to declare constitutionally forbidden a few years ago, but for Johnny Cochran's death.
Anyway, I may have found a good case for next year's Civ Pro class (or is talking about my teaching plans self-promotion?).
Posted by Howard Wasserman on May 11, 2011 at 12:13 PM in Civil Procedure, Current Affairs, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
How Special is Special?
This may, unfortunately, come across as more law professor navel gazing, but I'm interested in the signaling function of placement in specialty journals. I write primarily in intellectual property. There are a lot of journals out there which focus exclusively on intellectual property, technology, the arts, or some combination of the three. One can instead, if the planets align right, also publish an article in a general law review.
I recently had to decide whether to place an article on copyright law with a specialty journal or a law review at a top 100 law school (according to USNWR). As a young, untenured scholar, I see trade-offs and uncertainty. If I want the casual reader of the particular journal to take interest in the piece (and we might wonder whether there is such a person), my odds are better if I place the piece with a specialty journal. It is possibile that an article in a well-received specialty journal might become part of the discourse more easily than an article in a respectable law review, if scholars in my field are watching the output of specialty journals. (Note my use of terms like "well-received" and "respectable," ill-defined adjectives to compare things that may not be comparable.) I also can't help thinking ahead to the tenure process.
Continue reading "How Special is Special?"
Posted by Jake Linford on May 11, 2011 at 10:13 AM | Permalink | Comments (6) | TrackBack (0)
The D.C. Circuit After Boumediene
Speaking of self-promotion... Those who have been following the Guantanamo litigation and/or the ongoing debate over the "new AUMF" language in the NDAA are probably well-acquanited with the debate over whether the D.C. Circuit in its post-Boumediene jurisprudence has attempted to undermine the Supreme Court's June 2008 decision, which held that the Guantanamo detainees are entitled to the full protections of the Suspension Clause.
For those who would like to read more, or who could use (what I hope is) a useful capsule summary of the jurisprudence to date, I have a new paper on SSRN (part of a sympoisum for the Seton Hall Law Review) that analyzes the bulk of the D.C. Circuit's post-Boumediene Guantanamo case law in light of this charge. Not to ruin the punch-line, but the essay concludes that the hostility to Boumediene (and, as significantly, Hamdi) can be ascribed to no more than four of the D.C. Circuit's judges. The rest of the Court of Appeals has generally hewed to a more moderate line, and has even rebuffed their outlier colleagues in a few significant cases. That's not to commend the results in all of the court's decisions, many of which I find quite disturbing (some deeply so). Rather, it's to suggest that, for the most part, the core of the D.C. Circuit is acting consistently with what little guidance the Supreme Court has offered--a point we would do well to keep in mind in the context of the very live debate over whether statutory reform of the AUMF is necessary...
Posted by Steve Vladeck on May 11, 2011 at 10:06 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack (0)
Asking for the World
Despite the heated reaction to Eric's post on self-promotion, I'll be talking sometime soon about an article I'm writing for a symposium on the public trust doctrine. But as luck would have it, last week came the news of a series of lawsuits to be filed in courts in several states by an environmental group Our Children's Trust. I haven't seen the complaints, but the website for the lawsuits indicates that they're asking for significant curbs on greenhouse gases and a major reforestation effort, based on an argument that the atmosphere is a resource protected by the "public trust" doctrine.
For those who don't know it, in a nutshell the public trust doctrine is a doctrine, traceable back to Roman law, which on one reading creates a commons in certain resources, such as the air and the ocean. It came into American law from Britain, and achieved its most notable success in an 1892 Supreme Court case in which the State of Illinois was held to have lacked the power to alienate a large part of the Chicago waterfront, on the theory that that land was held in common under the doctrine. Joseph Sax, an environmental law scholar, is credited with having resurrected the public trust doctrine in the late 1960's, largely as a tool for ensuring that government decisionmaking affecting environmental resources was made with at least some awareness of environmental values.
So what about these lawsuits? Based on information from the lawsuit's website, they're awfully ambitious in terms of what they're requesting. Given that they're requesting this relief based on a doctrine that (as I'll discuss in a later post) is both of uncertain legal provenance and traditionally limited to a discrete set of resources, it's hard to bet on the plaintiffs' success. Indeed, the courts deciding these cases may well take some guidance from the Supreme Court's likely decision in American Electric Power v. Connecticut to push difficult, large-scale environmental decision-making into the political branches and the bureaucracy, rather than having courts decide them on common law theories.
Continue reading "Asking for the World"
Posted by Bill Araiza on May 11, 2011 at 10:05 AM | Permalink | Comments (0) | TrackBack (0)
Interesting Defamation Claim
Premier Exhibitions can proceed with a libel claim against a human rights foundation that claimed that the dead bodies it used in its "Bodies" exhibition were those of executed Chinese prisoners obtained on the black market. A federal district court in Florida (Judge Merryday) refused to dismiss the claim for lack of jurisdiction, since the website of the director of the human rights foundation was accessible in Florida. There are other interesting facets, including a tortious interference claim. For more, see here.
Posted by Lyrissa Lidsky on May 11, 2011 at 10:01 AM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 10, 2011
Race and Criminal Justice in the West
Conference Announcement and Call for Papers
Race and Criminal Justice in the West
Gonzaga University School of Law
Spokane, WA
Friday-Saturday, September 23-24, 2011
Sponsored by:
Gonzaga University School of Law
The Task Force on Race and the Criminal Justice System
Description
This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses.
Examples of the topics we expect to explore include:
Continue reading "Race and Criminal Justice in the West"
Posted by Dan Markel on May 10, 2011 at 12:38 PM in Sponsored Announcements | Permalink | Comments (0) | TrackBack (0)
Did the Supreme Court recently exercise a power that had lain dormant for decades?
The Supreme Court rules permit a petitioner to seek rehearing of a denial of certiorari. The deadline for doing so is 25 days after the denial of certiorari, and the rules really seem to mean it, as they state that "[t]he Clerk will not file" an untimely petition (Rule 44.4). Nonetheless, the Court has long asserted the power to grant a petitioner leave to file a petition for rehearing out of time. The leading cases for this proposition, which are getting pretty old, are Gondeck v. Pan Am. World Airways (1965) and US v. Ohio Power Co. (1957). This practice was never common, and it had seemed like the Supreme Court had gotten out of the business of granting leave to file rehearing out of time. Based on some quick research, the most recent instance I could find in which the Court had accepted an untimely petition for rehearing of a denial of certiorari was about 40 years ago (in Tidewater Oil Co. v. US, 405 U.S. 986 (1972)).
Until last month, that is.
Posted by Aaron Bruhl on May 10, 2011 at 08:26 AM in Civil Procedure, Criminal Law | Permalink | Comments (3) | TrackBack (0)
Monday, May 09, 2011
On Pimping on PrawfsBlawg
Since Dan hasn't turned off my guest account yet, I'm going to wade in with one extra post, so that I can fully respond to AnonProf's comment: "I would appreciate it if Prawfs didn't invite guest commentators who use this blog to pimp their work."
First of all, let's pick a slightly more neutral term: Self-promotion. Am I guilty of that? Yes. I think it's fair to call what I was doing "engaging in a scholarly dialog," but if you want to call it self-promotion, I won't argue with that at all.
Now that's self-promotion.
Now, as a law professor, I'm a scholar and a teacher. The job of a teacher is pretty straightforward. It's to teach my students, thus helping to contribute to their intellectual toolkit – knowledge, skills, etc. As I see it, the job of a scholar is similar, just more diffuse. Scholars are to try to contribute to society's intellectual toolkit – adding to the storehouse of knowledge, helping to organize it, providing new ways to use it, etc. The function of a scholar, therefore, is necessarily public. You haven't really "produced" scholarship until you've gotten it out there. That means it needs to be made available, accessible, and visible. And that involves not only publication, but some measure of promotion.
So if promotion of scholarship is justifiable, why wouldn't self-promotion be? It seems to me the real difference between "self-promotion" and "promotion" is whether or not you have the resources to pay someone to do it for you. And I use "pay" in a loose sense, as in the microeconomic reality of the situation. Movie stars have agents, PR reps, and, on individual projects, studio or network marketing departments that do their promotion for them. Book authors have reps and publishing houses that largely do their promotion for them. Scholars have themselves and, if they are lucky, an institution with "communications" people. At the University of North Dakota, I don't have a team of people sending out glossy flyers about me or calling newspapers on my behalf. (AnonProf, if you have a team of communications people working for you, then God bless! I wish I had the same!)
Continue reading "On Pimping on PrawfsBlawg"
Posted by Eric E. Johnson on May 9, 2011 at 11:53 AM in Blogging | Permalink | Comments (26) | TrackBack (0)
Backwards and Forward between Human Rights and Morality: Why Deliberating with (unreflective) Human Rights Lawyers Can Be Troubling
I have the greatest admiration for both academic and practicing human rights lawyers. Yet, I have often found deliberating moral issues with some – unreflective – human rights lawyers frustrating. The conversation usually begins with you suggesting possible moral reasons in favor of or for the permissibility of a certain practice. For example, some people (such as the president and his spokespersons) have suggested that sending soldiers to kill Osama Bin Laden was permissible on both retributive, consequential, and self-defense grounds. At this point the human rights lawyer will attempt to rebut your position by reciting a chain of acronyms, which you will of course find highly difficult to follow, concluding that your position is wrong. If you dare inquire, you will most likely learn that the acronyms stand for things such as a U.N. resolution, a treaty, a non-ratified treaty, some clause in some E.U. convention, a decision by a provisional international tribunal, a report by some commission, opinions of scholars in the field, and maybe even a “custom” or two. In other words, some combination of sources of international law that supposedly suggests your position is not only illegal but has long ago been rejected as barbarous by the enlightened and civilized world. Hoping to avoid the quasi-legalistic issues, for example should Obama be dragged before the ICTA or the ICTP (International Criminal Courts for Afghanistan and Pakistan), you will at this point suggest the obvious fallacy in your interlocutor’s reasoning: one cannot rebut a moral claim with a legal one.
And this is where things become frustrating. As we were all taught, human rights law aspires to capture basic moral rights. Yet, somehow the aspirational component of human rights law is lost on many of the more zealous and unreflective members of the human rights community, for many of which the positivistic lawyerly labor of stringing together the variety of hard, soft, and ephemeral sources of international law functions as a form of moral as well as legal reasoning. For the unreflective human rights lawyer your position is morally wrong because it is legally wrong. Figuring out what the law is is not the beginning of the conversation – as is usually the case for legal academics – but rather the end of the conversation.
And this is where things turn from frustrating to worrying. In the minds of some, human rights law does not merely aspire to reflect morality but actually does – by definition –reflect morality, thereby making human rights law insular and immune to external moral critique. Some human rights lawyers appear to have appropriated not only certain legislative powers over international law, but by extension also view themselves as legislators of morality itself. And, anyone who dares argue against or question the supposed presumed state of human rights law is categorically an enemy of moral rights. Because after all, human rights are moral rights. Aren’t they?
Posted by Ori Herstein on May 9, 2011 at 10:44 AM | Permalink | Comments (0) | TrackBack (0)
Editors: Help Us Help You Fill Your Fall Books
This is just a reminder to any of our law review editor readers that we'd love to hear your thoughts on whether you'll be accepting submissions in the Fall. Take our very short survey here: <a href="Click" _mce_href="http://www.surveymonkey.com/s/JLYGY3C">Click">http://www.surveymonkey.com/s/JLYGY3C">Click here to take survey</a>
Posted by BDG on May 9, 2011 at 10:03 AM | Permalink | Comments (0) | TrackBack (0)
Sunday, May 08, 2011
Quiet Title Is As Quiet Title Does
While walking around Santa Fe at the R&R end of a conference trip I came across this delightful sign. I'm sure Mr. Quiet knew his calling in life from the day he was born.
Posted by Bill Araiza on May 8, 2011 at 11:06 AM in Odd World | Permalink | Comments (2) | TrackBack (0)
Saturday, May 07, 2011
Goodbye, and My FSU L. Rev. Article on Intellectual Property
I want to thank Dan and everyone at Prawfs for another wonderfully enjoyable time guest blawging.
I feel especially connected to Florida State this Spring, since I just placed an article in the Florida State University Law Review. That manuscript is up on SSRN. It's called Intellectual Property and the Incentive Fallacy. I argue that the fundamental economic premise of copyright and patent – that public intellectual goods need external incentives – is wrong. Using recent scholarship in behavioral economics, psychology, and business-management studies, I contend that it can now be persuasively demonstrated that natural and intrinsic motivations will cause technology and the arts to thrive even without externally supplied rewards.
I wish everyone a wonderful summer. Here's hoping you don't run into any of your students at the beach. So lawng, prawfs!
Posted by Eric E. Johnson on May 7, 2011 at 10:20 PM in Intellectual Property | Permalink | Comments (6) | TrackBack (0)
Friday, May 06, 2011
"The New Phone Book's Here! The New Phone Book's Here!"
I just got a nice big box of reprints in my office today. Every time that happens, I run through the halls yelling the title of this post. And every time, I have to explain to my colleagues that I am not a lunatic, just a big Steve Martin fan (see here). But which of us hasn't met a box of reprints with the kind of naive enthusiam displayed so wonderfully by Martin's character? "I'm somebody now! Millions of people look at this book everyday! This is the kind of spontaneous publicity -- your name in print -- that makes people. I'm in print! Things are going to start happening to me now." These words were written to be said by a law professor.
I know this topic has been covered before, on this blog and others, but do reprints serve any purpose anymore, other than (1) allowing us the transient joy of seeing our names in print and (2) demonstrating to our parents that the money they spent on law school tuition was not utterly wasted, even though we are making about a fifth of what we could be earning at that fancy law firm where we summered? And more specifically, what is your experience in sending reprints to judges? I have done so on occasion, and even received nice letters in return from Justices O'Connor and Souter, and thought there was nothing improper about it. But the last time I did so, I received a letter back from the judge -- okay, it was one of the Nine Exalted Ones, but I won't say who -- telling me that s/he would not consider any unsolicited matter outside the record of the case. The tone of the letter was rather brusque. I thought this was a little odd, since the judge could have found my article on his or her own and I was just making it easier for him or her. Am I wrong? Has anyone had a similar experience?
Posted by Michael J.Z. Mannheimer on May 6, 2011 at 09:58 PM | Permalink | Comments (15) | TrackBack (0)
A Tip for Lateral Movement
If you are law professor who is interested in being considered as a lateral hire, you should keep your information updated on your school's website. In addition, you should have a link to your full CV there. You'd be surprised how many people don't do this. I'm trying to identify potential lateral candidates right now, and I can tell you that those candidates without CVs online are probably at a disadvantage.
Posted by Lyrissa Lidsky on May 6, 2011 at 10:12 AM | Permalink | Comments (5) | TrackBack (0)
Thursday, May 05, 2011
The Federal Death Penalty in Non-Death States
I want to thank Dan and the gang for inviting me to blog here this month. I'm a bit embarrassed that this is my first post, given that we are already five days into the month, but I was away the first couple of days and have had intermittent and inexplicable internet outages since then (yay, Time Warner). Anyway, I look forward to sharing my thoughts on scholarship, teaching, service, and whatever else crosses my mind.
For my first post, I wanted to share a few thoughts on a pet issue of mine that happens to be quite timely: federal capital prosecutions brought for conduct occurring entirely within States that do not authorize the death penalty. I say "timely" because Judge William K. Sessions III issued a decision yesterday in United States v. Michael Jacques (pronounced "Jakes") denying, among other things, Jacques's motion to strike the notice of intent to seek the death penalty. Jacques is accused of luring his twelve-year old niece to his house, then kidnapping, raping, and killing her. This took place entirely within Vermont, which has no death penalty, but the federal government is bringing the prosecution under the Federal Kidnapping Act. Before 2006, this would not have been a federal offense. The FKA was amended that year to cover not only kidnappings that cross State lines, but also those where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.” That Jacques allegedly used text messages to lure the victim and altered her MySpace page to try to cover his tracks -- and perhaps even that he used an automobile to transport the victim -- brings it within the FKA. It seems pretty clear that the only federal interest here, if it can be called that, is that the death penalty is available under federal law but not Vermont law.
Jacques raised the argument I made in my article, When the Federal Death Penalty is "Cruel and Unusual," 74 U. Cin. L. Rev. 819 (2006) (oh, yes, the shameless self-promotion starts with the first post), that it constitutes cruel and unusual punishment in violation of the Eighth Amendment for the federal government to impose death for conduct occurring within a State that does not itself authorize capital punishment. The argument is grounded in the origins of the Eighth Amendment, and the Bill of Rights generally, as a means by which the Anti-Federalists sought to preserve State sovereignty, especially over crime and punishment. Because the Anti-Federalists conditioned their reluctant acquiescence to the ratification of the Constitution on the adoption of a Bill of Rights, I argue, their views, motivations, and general outlook must be consulted on the meaning of the Bill's provisions.
Judge Sessions rejected the argument, but I take solace in the fact that, unlike the Government's brief, he was not completely dismissive. Rather, he suggested that Jacques might have had more success had he spelled out the argument in greater detail in his brief, rather than simply incorporating my article by reference. Also, the court "observe[d] that the federalism question raised by Jacques appears to remain an open one in [the Second] [C]ircuit."
If Jacques is convicted and sentenced to death, he will join nine others in modern history who have been convicted and sentenced to death by the federal government for crimes occurring in non-death States. (Three had their convictions or sentences reversed on appeal; of those, two were re-sentenced to life without parole and one is currently scheduled to be re-sentenced).
Posted by Michael J.Z. Mannheimer on May 5, 2011 at 09:59 PM in Criminal Law | Permalink | Comments (4) | TrackBack (0)
AT&T v. Concepcion and Adherence to Minority Views
Last week the Supreme Court decided AT&T Mobility v. Concepcion, in which it held (5-4, along the "usual" ideological lines) that the Federal Arbitration Act preempted a state-law rule deeming an arbitration clause's ban on class proceedings unconscionable. The case came from the Ninth Circuit, which was applying California unconscionability law. That the case came from a federal court rather than a state court was important. Had the case come from a state court, it might have turned out differently. That is because Justice Thomas believes that the FAA does not apply in state courts, and he has continued to adhere to this view despite multiple precedents to the contrary. See, e.g., his dissents in Preston v. Ferrer (2008); Buckeye Check Cashing v. Cardegna (2006); Doctor's Assocs. v. Casarotto (1996). (For other reasons, he also had problems with the majority's implied preemption analysis in AT&T v. Concepcion itself, but he reluctantly joined the opinion.) In an alternate universe where the case came from a state court, he presumably would have joined the four dissenters in AT&T v. Concepcion in voting not to reverse a state court's unconscionability holding, though for different reasons. (Here I leave aside the possibility that the Court would overrule itself on whether the FAA applies in state courts, but see more on that below.)
Let's return to the actual universe and suppose that tomorrow a state court issues an opinion striking down a class waiver in circumstances that are not materially distinguishable from those in AT&T v. Concepcion. If the Supreme Court took the case, how would it come out? Would Thomas adhere to his prior views on the FAA in state courts? Would the four dissenters adhere to their AT&T v. Concepcion dissent?
Continue reading "AT&T v. Concepcion and Adherence to Minority Views"
Posted by Aaron Bruhl on May 5, 2011 at 01:50 PM in Civil Procedure, Judicial Process | Permalink | Comments (1) | TrackBack (0)
Unloading the Canon
There's a saying that "the law you learned in law school is the law," the law you instinctively think of when a legal question arises. This saying has particular resonance for professors, who are tasked with teaching the law, even when it's changed substantially from when the professor herself was in school. The issue is even more resonant for casebook authors. Writing a book, or a new edition, requires making hard choices about excising or minimizing cases that were the law when the author was in school. It's a recognition of the passage of time, and, therefore, of our own aging.
In the most recent version of our con law casebook (note the subtle product placement), we were faced with some choices of this sort. I'm curious about the choices others would have made. So here's my question: for those of you who graduated from law school at least ten years ago or so, what canonical con law cases would you consider to have dropped out of the canon? Let me explain some things here. First, the question is primarily aimed at people who have been out of school for a while, for the obvious reason that for recent grads, they law they learned in school really is still the law. (But more recent grads are of course welcome to participate in any way they choose.) Second, dropping from the canon doesn't mean simply overruled, or deprived of precedential weight. Presumably, almost any con law book has to include Dred Scott and Lochner. Rather, the point is that the case has lost its pedagogical value because it's been superseded, either by later cases or more current debates.
I'll start the discussion by noting a couple of our choices in the Commerce Clause area. First, we demoted Heart of Atlanta Motel and Katzenbach v. McClung from full-blown excerpts to notes. These are great cases to teach, but with Lopez, Morrison and Raich on the books they seem to me to have faded in significance. (Wickard has not similarly faded, it seems to me, because it's still recognized as the template for part of the modern analysis.) Second, we demoted the entire National League of Cities-Garcia debate to a note. The debate is still important, as it provides the backdrop for the commandeering cases of the 1990's; that's why the cases weren't totally excised. But the Court has now had twenty years to mount a frontal counter-attack on Garcia, and it seems not to have shown any inclination to do so.
So how'd we do? Any other suggested deletions from the casebook canon? For that matter, do more recent cases call for considering the addition of older cases not considered part of the canon?
Posted by Bill Araiza on May 5, 2011 at 01:26 PM | Permalink | Comments (7) | TrackBack (0)
The Free, Open-Source Torts Compendium
Last year I blogged about my project to create a free, downloadable casebook for torts. The completed casebook, broken into two volumes with an online appendix, is done and online. At James Grimmelman's suggestion, I will write a teacher's manual over the summer, which will be available to instructors upon request.
If you are in the market for a new torts casebook, mine has the following features: (1) It's free. And students love free. Paperback copies can be obtained at cost through a print-on-demand vendor (Town & Country in New Hampshire, or one of your own choosing). (2) There are no notes or questions; it's just source material. That may not be a feature as far as everyone is concerned, but I know some teachers like it that way. (3) You can customize the book to your own liking. Just let me know, and I'm happy to send you the Word .doc files, and you can add to, delete from, and change around the content as much as you like. (4) You never have to worry about being blind-sided by new editions, because when I do release a new edition, the old editions will stay online, free, and just as printable and downloadable as the new versions.
My casebook's not for everyone. It's a bare-bones approach. I use it alongside a slim treatise (Understanding Torts by John L. Diamond, Lawrance C. Levine, and Stuart Madden) and a memoir (Four Trials by John Edwards). But if it's up your alley, it's free for the taking. And my archive of syllabi, old exams, handouts, and mindmaps is all on my website. Also, my original slideshow .ppt files are available to any instructor who asks.
Posted by Eric E. Johnson on May 5, 2011 at 10:36 AM in Books, Teaching Law, Torts | Permalink | Comments (2) | TrackBack (0)
Entry Level Hiring: Deadline/Reminder, Information, Question
Deadline and Reminder: I will post the final entry-level hiring summary on May 16. No information received after May 15 will appear in the summary or the spreadsheet. Please post information about entry level hires in the comments to the initial post, or email me directly at slawsky *at* law *dot* uci *dot* edu.
Information: If you want to know more about the schools entry level hires come from (i.e., where entry level hires obtained their JDs), Leiter has a nice report here. An 2009 Journal of Legal Education article by Daniel Martin Katz et al. takes a look at the same topic using social network analysis.
Question: What is this report for?
Continue reading "Entry Level Hiring: Deadline/Reminder, Information, Question"
Posted by Sarah Lawsky on May 5, 2011 at 09:57 AM in Entry Level Hiring Report | Permalink | Comments (7) | TrackBack (0)
AT&T's Long Game on Unconscionability
Thanks to the Prawfs team for inviting me back to guest blog. I'll plan to blog on recent Supreme Court cases, my current scholarly projects, and other miscellaneous topics.
Last week the Supreme Court decided AT&T Mobility v. Concepcion, which held (5-4) that the Federal Arbitration Act preempted a state-law unconscionability rule that deemed an arbitration clause's ban on class proceedings unconscionable. If you wanted this result, this case presented a favorable vehicle through which to reach it. As Justice Scalia emphasized in his majority opinion, the arbitration clause at issue here had a number of interesting pro-consumer features: AT&T would pay the arbitration costs, the arbitration would take place in the customer's county, AT&T would pay a $7500 minimum recovery plus double attorneys' fees if the arbitrator awarded more than AT&T's final settlement offer, etc. (One could genuinely question, as many have questioned, whether these features actually make individual arbitration of small claims viable in practice, but at least in relative terms this clause looks a lot better than those that strictly limit remedies, impose potentially high arbitration costs, and the like.) It seems likely to me that (1) these favorable facts helped the majority reach its preemption result and (2) now that this preemption holding is on the books, it will apply broadly, including to many less favorable clauses -- i.e., it seems preemption will be the rule rather than an exception. The vehicle matters to the development of the law.
And the vehicle probably wasn't an accident.
Continue reading "AT&T's Long Game on Unconscionability"
Posted by Aaron Bruhl on May 5, 2011 at 09:40 AM in Civil Procedure | Permalink | Comments (3) | TrackBack (0)
Will There Be a Fall Submission Season?: A Theory, Some Data, and a Survey for Editors
It often seems to me that as the summer winds turn cool, so too do the shoulders of law review editors. Or, less poetically, I've never had much luck with the fall submission season. In the last two seasons, in particular, based on my own experiences and those of other folks I've talked to, it's been hard even to get any sign of life at all in the fall -- no "confirmation of receipt," no nuthin'.
My theory is that the submission cycle is unraveling backwards into the spring. As Expresso drives up spring submission volume, journals accept more spring pieces, leading to more competition in the fall, leading frustrated authors (e.g., me) to push to get work out in the spring, leading to...etc. And, indeed, consistent with that theory, editors at several good journals have told me that this spring saw the largest seasonal volume of submissions ever.
Not content with my intuition, I did some investigative "journalism" and e-mailed the folks at Expresso. They did a study on submission patterns back in 2006, and it's full of interesting stuff. The headline for our purposes here is their finding that 44% of all submissions are in the Spring, 37% in the Fall. And "those percentages from 2006 are close to what you might expect today," they tell me. But volume has increased steadily each year in all seasons.
I don't see these numbers as clearly confirming or disproving my theory. We don't know what portion of articles are accepted in each season, so steady submission numbers tell us only that authors aren't shifting their behavior. (Though it's possible that authors most likely to be accepted--not me, clearly--do shift...) It's also possible the overall volume increase is leading to fewer fall slots. Expedites & w/d's by season would help, but Expresso doesn't compile that data.
So, in short, we need your help, law review editors! If you have a minute, or if you don't but you're procrastinating, take our very short survey on your fall submission season availability by clicking here.
Posted by BDG on May 5, 2011 at 08:47 AM in Law Review Review | Permalink | Comments (4) | TrackBack (0)
Wednesday, May 04, 2011
Libertarians and the Claims of Democratic Authority in the Context of Criminalization Debates
I have a section in this paper I'm working on --designed to be a love letter of sorts between retributive justice and liberal democracy :-) -- that I'm afraid I'm not sure is fully there yet, and I was wondering if those with a political philosophy bent might have some reactions. The relevant background here is that I'm trying to explain the reasonableness of democratic authority, largely by appeal to some arguments put forward these days (ie, in the last decade) by Shapiro, Hershovitz, and Christiano. My concern, however, is that in anticipating the first-wave libertarian objection, they have not responded to the "second wave" of critique that an aspect of Arneson's paper represents. (The rough cites for this can be found below.). I could be completely wrong and maybe they or others address the concern, so please feel free to email me offline .
So below the fold, please take a look at these tentative thoughts and feel free to share some reactions or references to additional citations that can help me manage Arneson's critique. I've included a bit more of the discussion than is necessary in case it spurs other reactions too. All the usual caveats apply--it's just a preliminary draft and not for citation or circulation w/o my approval but yes, please tell me if/how I'm wrong (gently). Many thanks!
Posted by Dan Markel on May 4, 2011 at 04:15 PM in Criminal Law, Legal Theory | Permalink | Comments (10) | TrackBack (0)
