- “There is nothing in the Constitution that …even hints that the president’s power expands because Congress won’t pass the legislation he advocates.” [David Bernstein interview with Josh Blackman about Bernstein’s new book “Lawless,” on Obama administration vs. constitutional limits more from Bernstein on book]
- “Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument” [Cato event Dec. 7 with Andrew Grossman, John Paul Schnapper-Casteras, Gail Heriot, Richard Lempert, and Wallace Hall, moderated by Ilya Shapiro]
- Theme of this year’s Federalist Society lawyers’ convention was Congress, videos of related panels [originalist views of Congress, Congressional dysfunction, deference and delegation, prospects for getting legislative branch to reclaim lawmaking power]
- Certiorari petition asks SCOTUS to review dischargeability of law school debts in bankruptcy [BNA; Tetzlaff v. Educ. Credit Mgmt. Corp.]
- At Cato’s Constitution Day, panels looked back at an eventful SCOTUS term [Cato Policy Report]
- Common law vs. statutes: Richard Epstein on Spokeo v. Robins oral argument [Hoover] Must plaintiffs show they actually suffered harm? [Daniel Fisher]
- No, the Constitution doesn’t let feds cancel Redskins trademark as offensive [Kristian Stout, Truth on the Market; Ilya Shapiro]
- “A legal challenge at Scotland’s top civil court failed earlier this year, but the No To Named Persons (NO2NP) campaign group has secured a hearing at the Supreme Court in London in March.” [Scotsman, earlier on named person scheme]
- “The auditors found students in two schools who carried contraband salt shakers” [WSJ editorial on 4.5% drop in participation in school lunch program]
- Teachers’ union AFT spends tens of millions a year on politics, policy, influence [RiShawn Biddle]
- “A Short, Sad History of Zero-Tolerance School Policies” [Nick Gillespie, Reason]
- Divergent Paths: The Academy and the Judiciary is a new Richard Posner book forthcoming from Harvard University Press [Paul Caron, TaxProf] Shouldn’t the program offerings at the Association of American Law Schools include at least as much range of diversity of thought as, for example, the panels at the Federalist Society convention? [John McGinnis, Liberty and Law] Heterodox Academy is a new website and project with its goal to “increase viewpoint diversity in the academy, with a special focus on the social sciences.” [Nicholas Quinn Rosenkranz] More: Jonathan Adler on a widely noted Arthur Brooks op-ed on ideological imbalance in the academy. And don’t forget my book;
- “Judge Tosses Concussions Lawsuit Against Illinois Prep Group” [Insurance Journal]
- In case you were wondering, yes, law school trade associations did support that “law school’s a bargain, there’s no real economic crisis for grads” research [Outside the Law School Scam]
The study has a wealth of findings regarding lawyers’ ideological leanings by state, by practice area (energy, mergers and acquisitions, and litigation defense are relatively conservative; civil rights, employment, and personal injury are relatively liberal, as one might predict, but are outflanked on the left by entertainment law). Grads of all top law schools lean left, but those of Berkeley, Stanford, and Chicago more so than Yale, Harvard, and Columbia.
Some of Tyler Cowen’s observations from the survey:
We learn also that female attorneys are considerably more liberal than male attorneys, but the number of years of work predicts a conservative pull. Being a law firm partner also predicts views which are more conservative than average. If you consider “Big Law” attorneys, while they are overall to the Left, they are more conservative on average than the cities they live in, such as NYC or Los Angeles. Lawyers in Washington, D.C. are especially left-leaning. … Public defenders are far more left-leaning than prosecutors, though prosecutors are still more left-leaning than lawyers as a whole.
And Ira Stoll:
The authors point out that lawyers not only control the judicial branch of government, but that they are also overrepresented in Congress and among the presidents. The leftward tilt among the press and academia is a common complaint among conservatives. Conservatives sometimes complain about trial lawyers or the tort bar, too. But one doesn’t often hear talk about the overall leftward tilt of the legal profession, a trend highlighted by this paper.
Meanwhile, the practice area that exceeds all others in its leftward lean? Legal academics. (More on that in my recent book Schools for Misrule.) Related to which, Prof. Nicholas Quinn Rosenkranz writes of being one of three openly right-of-center members on the 120-member Georgetown Law faculty: “The consensus seems to be that three is plenty — and perhaps even one or two too many.” [“Intellectual Diversity in the Legal Academy,” Harvard Journal of Law and Public Policy last year, via Scott Douglas Gerber, Chronicle of Higher Education]
Dear New York Law School: Should law schools really take the lead in promoting unconstitutional curbs on online speech? [Scott Greenfield]
Related, at least tangentially: a United Nations report on “cyberviolence” is cartoonishly bad on videogames and pretty much every other subject it touches [Ken White at Popehat]
- Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
- A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
- Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
- Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
- EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
- “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
- Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]
- “Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong” [Popehat, related Ken White on cease and desist orders]
- “Winghouse restaurants only serve chicken wing parts, not the full drummettes, flappers and wingtips combination that traditionally defines a chicken wing, a class action lawsuit claims.” [Courthouse News, links to paywalled document]
- Claim: what really ails law schools is lack of aggressive PR push. Readers push back in comments [Caron/TaxProf, Joe Patrice]
- I was hoping Sen. Rand Paul would take a harder line against wildcat public employee strikes [Dave Weigel on Kentucky clerk case]
- California’s Central Valley hit by ADA mass filings: “Griffiths said the Moore Law Firm has filed [accessibility] complaints against about 200 businesses in Fresno.” [Hanford Sentinel]
- If the “system is rigged,” it’s not in the way Sens. Elizabeth Warren and Bernie Sanders seem to think [Cass Sunstein, Bloomberg View]
- Up jumps the swagman, files a claim in copyright: origins and ownership chain of “Waltzing Matilda” are murky [Sydney Morning Herald via @ContentLawyer]
I’ve seen a hundred wacky and extreme papers out of legal academia, and wrote about more than one in Schools for Misrule, but this one, published by the National Security Law Journal at George Mason (whose editor-in-chief has already repudiated it) stands out. You can read the whole story at The Guardian, including links to some of the controversies that have followed author William Bradford, but it might make more sense to hand the gavel over to distinguished legal scholar and Prof. Jeremy Rabkin in his four-page rebuttal:
When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have expected readers to “respond” – unless to ask, “Are you out of your minds?”
Monday update: Bradford resigns.
The late Prof. William Prosser, whose enormous influence on modern tort law has made him an occasional target of my windmill-jousting, wrote a parody song “The Common Law of Texas” in the early 1960s to the tune of “The Yellow Rose of Texas.” Kyle Graham found it and nominates North Carolina, Oregon, and Hawaii as states that currently follow their own path on common-law tort doctrine.
- Makes perfect sense: to make transportation more accessible to its residents, Montgomery County, Maryland orders 20 taxi companies to close down [Washington Post]
- “New ‘Gainful Employment’ Rule Spells Trouble For For-Profit Law Schools (And Would For 50 Non-Profit Law Schools)” [Caron, TaxProf]
- “To comply with a twisted interpretation of TCPA, Twitter would have to stop providing certain services altogether.” [Harold Furchtgott-Roth] “New FCC Rules Could Make Polling More Expensive, Less Accurate” [HuffPost Pollster]
- To draft the unpassable bill: Scott Shackford on the politics and bad policy behind the omnibus LGBT Equality Act [Reason] “So How Can Anyone Be Opposed to Non-Discrimination Laws?” [Coyote] More: Establishment liberalism reluctant to admit it’s changed its thinking on religious accommodation, but that’s what’s happened [Ramesh Ponnuru/Bloomberg View]
- Update: “Court rejects claim over goat goring in Olympic National Park” [AP, earlier here and here]
- “I would receive 100 other identical stories [from asylum seekers] with only the names changed.” [The Australian, 2013]
- “Some protested that DNA testing amounted to a violation of canine privacy because dogs were not capable of consent.” [New York Times on Brooklyn condo dispute via @orinkerr]
“… RE: Your Request for a Formal Apology.” Seth Barrett Tillman, who teaches law at the National University of Ireland in Maynooth, points out that the specifically lawyerly skills of “learning to see the world as others see it” and adopting “arguments and conduct that are proportionate to the facts” are also valuable when expressing disagreement with others in legal academia. “If mere hurt feelings were a recognized injury, then no one could possibly disagree with anyone else, and all intellectual inquiry, in law and in other fields, would be at an end. You do see that, right?” Whole thing here.
As I’ve noted elsewhere, I too have decided the time has come to demand a formal public apology. After I give thought to what might achieve the most virality on social media, I will settle on from whom and to whom over what.