Category: General Law


Call Parker Brothers!: Scenes from An Exciting Evening in Tuscaloosa


Last night, a few colleagues were over at my place and we discussed the local gossip: the storm on campus over the sex column in our student newspaper, the Crimson-White, (which, btw, made the front page of the Tuscaloosa News this morning). Not a bad article on the controversy; it has a first amendment analysis of why the University can’t censor the column. And to their credit, the administration doesn’t want to. The article would, of course, have benefitted from a quotation from Dan Solove.

Then we turned to a game: “name professors at that school.” The gist here is to have one person name a school and then see who can name the most professors at that school. There’s a permutation, which Scott England developed: pick a name out of the AALS Directory and ask where that person teaches. Of course, it has to compete with other Tuscaloosa faculty favorites, like “name the most important article in [pick a field] in the last decade.” Or, “what’s the most under-appreciated article in [pick a field].” Or, “what article/book do you wish you’d written?”

When I woke up this morning, it dawned on me that the game isn’t as much fun as the Ann Coulter Talking Doll. Perhaps Parker Brothers won’t be interested, afterall.


Ann Coulter: Come to Tuscaloosa


Thanks to one of my star students, Lee Birchall–a man with a degree from Dartmouth and a varsity athlete there who’s now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)–there are yet more phrases for the Ann Coulter talking doll! This time, it’s “I love to engage in repartee with people who are stupider than I am.”

Lee’s a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he’s starting a move to get her to speak at UA. I know she’ll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he’s offered to serve as her social host.


Religion, Prisons, and the Irony of the Law

Prison.jpgFrom time to time, my practice involves work for religious institutions and other parties dealing with issues involving the legal regulation of religion. Hence, I have done a bit of litigation involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). It recently occurred to me that this law creates a neat little legal paradox: It is entirely possible that you could be sent to prison for engaging in some activity only to find that “on the inside” you had a legal right to engage in precisely the activity that put you there in the first place!

RLUIPA is the second round in Congress’s response to the Supreme Court’s decision in Employment Div. v. Smith. In Smith, the Court held in an opinion by Justice Scalia that religious conduct (in this case the use of the hallucinogen peyote as part of the sacrament of the Native American Church) that was forbidden by a neutral law of general applicability was not entitled to constitutional protection under the Free Exercise Clause. In other words, the government could not pass a law that said, “The use of Peyote as part of a religious sacrament is forbidden,” but it could pass a law that said, “The use of Peyote is forbidden.” So long as religion is not singled out, the Free Exercise Clause, so said the Court, has nothing to say.

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Imaginary girlfriend?"> 8

Imaginary girlfriend?">What’s worse than an Imaginary girlfriend?

How about a scam date who’s creates the illusion that your subscribtion to paid dating sites is succeeding?

A lawsuit was filed earlier this month in U.S. District Court in Los Angeles by plaintiff Matthew Evans, who contends he went out with a woman he met through the site who turned out to be nothing more than “date bait” working for the company.

The relationship went nowhere, according to his suit. Evans says Match set up the date for him because it wanted to keep him from pulling the plug on his subscription and was hoping he’d tell other potential members about the attractive woman he met through the service.

On the one hand, this business practice seems clearly wrong. On the other hand, it raises the question of just what these paid subscribers are entitled to. There’s no guarantee that they’ll meet someone they like, fall in love, and live happily ever after, is there? Are they entitled to genuine “market reactions” to their datability — whatever those reactions might be?

Follow up questions include: Would a single “real” bad date really be better than two or three pleasant enough “fake” dates? Is this really so much worse than “real” dating using a paid “wingman”? And is’s sham date worse than going on a “real” date because one’s parents or friends pester one to do so, rather than out of actual romantic interest in the person dated? The ethical boundaries here seem to be not so clearly defined.


I don’t know why Jack Chin says Goodbye; the Virginia Legislature Says Hello

cedarhillconfederatemonument.jpgIn a recent issue of Constitutional Commentary, Gabriel J. Chin has a very thoughtful article, “Jim Crow’s Long Goodbye,” [21 Constitutional Commentary 107 (2004)]. I applaud Professor Chin’s research, which measures vestiges of the Jim Crow era in education, primarily through a study of statutes left on the books, which are now largely unenforced. Such statutes, for instance, provided for public financing of segregation academies. While the statutes are now largely symbolic, Chin identified several that have some continuing impact on state budgets. Alabama and Mississippi both allow teachers at private schools to join the teachers’ retirement system.

Chin is correct that in order to understand the appropriate legal and legislative response to Jim Crow we must have accurate data on its extent and continuing impact.

I don’t know why Professor Chin says goodbye; the Virginia legislature says hello. Well, hello, at least, to funding the memory of the Confederacy. The Virginia Code, § 10.1-2211, provides for a modest grant ($5 per grave per year) to be administered by the United Daughters of the Confederacy for the maintenance of graves of Confederate soldiers.

State funding for cemeteries is appropriate, in my opinion. We ought to remember our ancestors and preserve their places of repose. So funding for the graves of Revolutionary War soldiers, which the legislature began to do in 2002, is appropriate. Va. Code § 10.1-2211.1. Civil War cemeteries (and in an earlier era pensions for Civil War veterans) pose particular questions, however. For in the years after the war, as the nation struggled to reunite itself, cemeteries and the seemingly ubiquitous public monuments in both north and south were places where the memory of suffering at the hands of the former enemy was kept alive and where the place of slavery in the war was forgotten. The understanding of the war in both North and South become one of Southerners fighting honorably for preservation of their homeland and for a cause they honestly (if mistakenly) believed to be just.

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Why Congress Shouldn’t Subpoena Judge Alito’s Clerks.

This morning, I read this Sunstein-influenced NYT article which reads the tea-leaves of Judge Alito’s dissents to better predict his future rulings. The guessing game is pretty risky for many political players. Both sides of the aisle face retribution from their bases if Judge Alito deviates from (their respective views of) his predicted path. Senate Republicans have more at stake: if Judge Alito does not vote to overturn Roe, which seems at least possible given the malleability of Casey, the base would be irritated beyond all measure.

If Senators want more information about a nominee than that found in his or her public record (including financial record!), they’ve a few places to go: (1) the administration (through private and public channels); (2) the Judge (through written and oral Q&A); (3) the Judge’s friends, family and colleagues, and (4) the Judge’s former law clerks.

UTR has already gotten us going on this last track, summarizing the reactions from a few of Judge Alito’s former clerks. But, obviously, these reactions are highly self-selective. Let’s assume that the Senate really wanted to know more from the clerks about Judge Alito’s privately expressed (but legal) views about abortion, gay marriage, the death penalty, securities law, executive detention, etc. Could the Senate subpoena the law clerks and force them to talk?

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Madison on Law P0rn

Oscar Madison has been tracking the amount of law p0rn he receives. The numbers are staggering. He’s getting a pound per day of the stuff. And it’s far less titillating than the name suggests — it’s and endless stream of law-school brochures, all designed to elicit positive U.S. News responses. Madison’s (illustrated!) post mocks numerous the lunch presentation lists (all involving places he would never go). And he reserves special ire for NYU’s magazine with its “Dworkin on Dworkin” cover story.

We’ve got the solution for you, Oscar. Leave behind all that law p0rn and focus on blawg p0rn! Our brochures are much lighter than NYU’s — we promise!

Did you know that Concurring Opinions just brought in a rising star, Dave Hoffman, as a lateral addition to the blog? Or that our blawg-and-privacy center has just tripled its budget? You’re invited to a free lunch presentation tomorrow, by the way, which will be held at an undisclosed location in rural Virginia. I hope that you can make it. And even if not, perhaps you’ve got time to read this month’s highlight article, “Solove on Solove.”

[UPDATE: In the interest of avoiding drawing in people running google searches for p0rn, I’ve switched to misspelling the term with a zer0.]


Alito and Securities Law: Part II

As Prof. Ribstein notes, there has been a significant amount of interest, both on the internet and offline, in Judge Alito’s record as a “business friendly” jurist. The emerging consensus is (for marketeers) bullish. Forbes quotes Ted Frank as saying “All and all, business wins,” and then (rather wistfully) the magazine continues that the “stock market may have signaled its agreement on Monday; the Dow Jones Industrial Average had risen 49 points at midday.”

In any event, I’ve done a bit more research into Judge Alito’s record as a judge in securities cases, and I think defense attorneys may not want to uncork the champagne just yet.

As I noted when discussing the Burlington Coat factory case, the Judge does not appear hostile (as some do) to securities claims as a general matter. Rather, he appears to want to force plaintiffs to plead scienter with particularity, and to measure materiality by its market impact. In this post, I’ll continue my analysis of two additional Alito securities decisions that Prof. Ribstein didn’t focus on.

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