Jan 27, 2014

Unprecedented Presentation at Arizona State University College of Law

On Thursday, January 23, 2014 I paid a visit to the Sandra Day O’Connor College of Law at Arizona State University, and gave a talk on Unprecedented.

Here is the video, and some photos.







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Jan 27, 2014

On Blogging and the Self

Will Wilkinson, an “old school blogger,” laments eloquently the loss of many personal bloggers, who have been hoarded up by group blogs and other content aggregators.

A personal blog, a blog that is really your own, and not a channel of the The Daily Beast or Forbes or The Washington Post or what have you, is an iterated game with the purity of non-commercial social intercourse. The difference between hanging out and getting paid to hang out. Anyway, in old-school blogging, you put things out there, broadcast bits of your mind. You just give it away and in return maybe you get some attention, which is nice, and some gratitude, which is even nicer. The real return, though, is in the conclusions people draw about you based on what you have said, about what what you have said says about you, about what it means relative to what you used to say. People form expectations about you. They start to imagine a character of you, start to write a little story about you. Some of this is validating, some is irritating, and some is downright hateful. In any case it all contributes to self-definition, helps the blogger locate and comprehend himself as a node in the social world. We all lost something when the first-gen blogs and bloggers got bought up. Or, at any rate, those bloggers lost something. I’m proud of us all, but there’s also something ruinous about our success, such as it is. We left the garden behind. A guy’s got to eat. I mostly stopped blogging for myself because I thought I couldn’t afford to give it away. But I miss the personal gift economy of the original blogosphere, I miss the self it helped me make, and I want at least a little of it back.

This really spoke to me. Over the years (in posts I could find if I took the time), I’ve written how this blog has helped define me, both in terms of how I see myself, and more increasingly, how others see me.

I go back and read some of my early blog posts from 2009 and laugh at how simple and immature I was. Sure, I see lots of potential, and am sometimes surprised at the stuff I came up with back then, considering how little I know. (I’m sure I’ll say the same thing about my 2014 writing in 2019, 2024, and so on). But with each post, each comment, each link, I started building my persona–both public and private.

One of the ways I have honed my ability to write so prolifically is because of the blog. It has become second-nature for me to express my thoughts in writing, and often develop them through writing. (This entire post took about 10 minutes to write). And blogging has also nourished my speaking skills. I tend to write as a think. So when I want to lecture or talk to an audience, I simply turn my fingers off and turn my mouth on. The words flow out in a nearly identical fashion. I’ve gotten better at public speaking through hours upon hours of classroom lecturing (both in terms of getting my cadence right, monitoring the emotions of the audience, and drawing people in), but at its heart is my ability to speak impromptu without notes on a host of topics. I do have lecture notes, but I never, ever read from them.

Blogging has also begun to define how others view me. As Will notes, this has pros and cons. The pro is that the blog has given me a fairly decent public persona. The con is that people judge me based on some of the crap I write. Now, I frequently attend events and lawyers and law students tell me, “Hey, I’ve been reading your blog for years!” And, I always wonder, what do they think of me? None have had any personal contact with me, yet somehow, digest my personality from blog posts about the Constitution and Jersey Shore.


During a brief hiatus after I started clerking with Judge Boggs, where I was not allowed to blog (I refer to it as the interregnum), I went through serious withdrawal. I started getting very anxious, and felt like I wasn’t being myself. It was so odd. And this was over the course of four or five days. I suddenly realized what it was. An outlet that I cherished to share my thoughts had vanished, suddenly. It was at that point that I decided to resume blogging at my normal pace, though privately. Only a few trusted friends had access to the site. During that year, when I was cut off from my normal channels of academic discourse and engagement, the private blog was my oasis, and helped to keep me sane.

So where does that leave me? I hope I never have to give up this blogging format. I have written over 7,000 posts on a wide, wide range of topics. It has helped congeal my thoughts that led to some excellent scholarship. And, in a natural way, has made me a much better communicator, both inside the classroom and elsewhere.

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Jan 27, 2014

David Lat Has Coined Three Words in Black’s Law Dictionary (and I got a slang tweet from Garner)

Kudos to David Lat for coning three new words added to the newest edition of Black’s Law Dictionary: bench-slap, judicial diva, and litigatrix.

And, Bryan Garner confirmed that “neck doily” is now slang for Jabot!


And “doily” is preferred to “doiley.”

Update: Here is a screen shot from the 10th Edition of Black’s Dictionary for Jabot.


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Jan 27, 2014

If Only Hank Rearden Operated the Youngstown Sheet & Tube Factory

Rather than allowing it to be seized, he would’ve just disappeared.

As an aside, does anyone know of anything Rand wrote about the steel seizure cases?

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Jan 27, 2014

More Demanding Professors Get Lower Evaluations

An interesting study via WaPo from the Air Force Academy on the accuracy of teaching evaluations:

That would be fine if student evaluations illustrated teaching effectiveness and the areas where professors needed to get better. But they don’t. In fact, some evidence suggests that professors who receive high evaluations are actually worse teachers than their peers.

In a 2010 study at the Air Force Academy, where a standardized curriculum allows for convenient natural experiments, professors who got high marks from students tended to give out higher grades — and their students did worse in subsequent classes. For the more demanding professors, it was the opposite: They generally got lower student evaluations, but their students did better later on.

In other words, professors with lower expectations got rewarded, even though their students didn’t learn as much. The professors who assigned more work taught their students more, but they were punished for doing so.

Specifically, the study found:

Professors rated highly by their students tended to yield better results for students in their own classes, but the same students did worse in subsequent classes. The implication: highly rated professors actually taught students less, on average, than less popular profs.

Meanwhile, professors with higher academic rank, teaching experience and educational experience — what you might call “input measures” for performance — showed the reverse trend. Their students tended to do worse in that professor’s course, but better in subsequent courses. Presumably, they were learning more.

That conclusion invites another: students are, in essence, rewarding professors who award higher grades by giving them high ratings, and punishing professors who attempt to teach material in more depth by rating them poorly.

Anecdotally, I’ve heard that students prefer taking professors that give higher grades and less homework. I wouldn’t know this personally, because like the sadist I am, I took the hardest possible classes from professors at GMU that I knew would make me work hard for the grade, but I would learn so, so much. If you know GMU profs, I voluntarily took Professors Krauss and Lund twice. There were among my lowest grades in law school, but some of the greatest learning experiences of my life.

It’s a shame that students don’t go to school to learn, but are so fixated on the grade. Sure, employers look at the grades to hire someone. But what happens after you get the job? It’s not over. Your intelligence and skills, acquired during law school, will prove yourself as a lawyer, and a human being. And–as I often tell students–after the first or second job, grades matter much, much less.

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Jan 27, 2014

Keeping Kosher in Prison

The Times ran a feature about the increasingly large number of prisoners who have sought kosher meals. The article suggests, and I’m sure many cynics would agree, that most of these prisoners are not acting on true, devout beliefs in Jewish dietary laws, but instead are seeking the kosher meal because on average they are of a higher quality.

I asked my buddy Shon Hopwood about his views on this. He wrote in:

Kosher meals actually contain fresh fruits and vegetables, whereas the other meals do not. At the prison I was at, you only needed to take a short quiz on Judaism or one of the Muslim religions and you could receive the kosher meal. The number of people who sign up, and it was a lot, tells you just how bad the food is in prison.
There was one evil prison guard who made it her mission in life to make sure that those with the kosher meal never ate anything non-kosher. If she caught someone, she’d then take them off the kosher meal list.

Rabbi Dovid Goldstein of Chabad Lubavitch of Houston is the head rabbi for the entire Texas prison system. His job, among countless other things, is to supervise the kosher kitchens, and to certify who can partake in the kosher meals. As an aside the Becket Fund waged a long legal battle against Texas to ensure that inmates had access to Kosher meals. As a result of that litigation, Texas consolidated all Jewish prisoners in the system into a few prisoners, and installed kosher kitchens at those locations.

Earlier this month, I had the opportunity to visit a prison outside of Houston with Rabbi Goldstein, and look at the kosher kitchen, and meet with the Jewish inmates who participate in the program. Every week Rabbi Goldstein visits the prison, makes sure everything is kosher (literally and figuratively!), and leads a one-hour discussion on religion in the chapel (a huge schmata is placed over the cross on the wall).

So how is it determined who can partake in the meals? This is a really, really difficult theological question that many modern Jews struggle with–who is a Jew. Apparently in other systems, quizzes about religion are given, or stuff like that. Rabbi Goldstein applies the traditional Orthodox approach to judaism–if your mother is Jewish, you are Jewish. There are no half-jews. A Jewish father doesn’t get you anything. This presents difficulty when an inmate insists one parent is Jewish, but won’t say which one. Ultimately, Rabbi Goldstein is responsible for making the decision.

At the prison I visited, there were about 15 or 20 inmates who participated in the kosher program and attended the classes. They take shifts working in the kitchen, and help prepare and serve all the food. The kitchen itself was a cage (literally) inside the mess hall. It is essential that there be no cross-contamination with unkosher food, so all the dishes, pots, pans, and other utensils are kept separate from the general population. Only those who are familiar with the rules of Kosher can participate. Inmates wait on line at the mess hall, but branch off to get their kosher meals. From what I can tell, the kitchen looked immaculate.

Sitting with the inmates in the chaplain was a fascinating experience. Rabbi Goldstein gave a lecture on spirituality and using your faith to become a better person, and the inmates seemed to be paying very close attention. The guys also took an interest in me, and were peppering me with lots of questions. They were happy just to have someone else to talk to. I resisted (as hard as I could) from telling them I was a law professor. (As sympathetic as I am, I am not at all qualified to be a jailhouse lawyer, in addition to not being licensed in Texas, and was not prepared to answer the impending barrage of habeas questions). I talked to a couple of them one-on-one, and they seemed genuine in their desires to learn more about Judaism, and reform themselves. Rabbi Goldstein later told me that a few of them were also trying to prove to him that they were Jewish, without identify a Jewish mother.

After my visit, I asked Rabbi Goldstein whether he thought that the inmates seeking kosher meals were dong so out of a religious belief, or because the food was better. He told me it didn’t really matter. In his mind, he was not only enriching their diets, but their souls. All of the inmates that participate in the kosher program are expected to attend Rabbi Goldstein’s weekly class. The Rabbi told me that even if they are being forced to sit there, they are still being exposed to some spirituality–and maybe, just maybe it will impact them. Maybe it will help with their redemptions, and to become better people. Chabad rabbis love a captive audience.

I asked the Rabbi how many of the prisoners stay kosher once whey leave prison. He said he didn’t know. Some of the inmates keep in touch with him, and some even go to temple once in a while. But for him, having their attention, and atending to the religious yearnings of people who are in serious need of support made the endeavor worth it.

As an aside, during my brief visit to the prison, I was struck by how significant food was. I’ve had similar discussions with Shon about this. When you are an inmate, there aren’t many luxuries that can make your life easier. One of the few, tiny perks, is the ability to buy food from the commissary. Inmates are given an amount of money they can spend each month at the commissary. At a specific time, they line up with sacks, and hand their orders of items they want. The inmates I spoke with were very concerned with the availability of kosher food in the commissary, and the fact that the kosher food cost significantly more than the unkosher food–so much so that it was eating into their tiny budgets. Apparently the cream-cheese was kosher, but no longer had a kosher symbol on it.

The rabbi is only allowed to bring in kosher food from the outside of the prison, if it was donated to a “trust fund,” and all of the participating kosher inmates are allowed to partake. So one of the gentleman’s mother mails each year his favorite Baklava for Chanukkah. I went in January, and they were still talking about how delicious it was.

Going to the prison was an eye-opening experience.  I’ll admit, it is a bit scary. Right before you enter the main prison area, there is a sign that says something to the effect of, “enter this area at your own risk. We will not open this door for any reason, even if you are held hostage.” Great, I thought. Walking up and down the cellblocks was harrowing. Everyone walks around, wearing the same jump suit and sneakers. They all hold their flip flops (or crocs as it were), as those are stolen, I learned. There are guards everywhere, watching everything you do. There are lines on the floor, and inmates are only allowed to walk on certain sides of the line. When I first arrived, one of the smart-ass inmates said, “Oh man, you just missed a massive riot. Someone got stabbed.” He was joking, but I didn’t realize this right away. I was told this is a fairly stable prison, with very little violence (relatively speaking, I suppose).

Now, the prison I visited was medium security, and was for significant offenses. The people I spoke with were convicted of murder, rape, and other serious crimes. I cannot forget that, and at the same time, while talking to them as human beings, I forced myself to put that out of mind (in truth, I only asked the Rabbi after the trip what each inmate was convicted of). Some of these guys were in for life, others for 30 to 40 years. One of the inmates, convicted of statutory rape of a 17-year-old (not his first offense) was sentenced in his early 20s, and he is now in his 50s. It is staggering to think that he has been in prisoner longer than I’ve been alive.

I encourage everyone–especially law students–to volunteer to visit (I’m sure you can find some group that sponsors you).

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Jan 27, 2014

Justice Sotomayor is judging a moot court at U.C. Irvine Today

Report from Rick Hasen:

Not even the SCOTUSBlog folks knew this. They had to Google it.

That’s why she was not present at Court today, and the Chief had to announce her opinion.

It frustrates me to no end that the Justices do not publish their speaking and touring schedules. I know the Supreme Court Press Corps  shares this frustration, when they find that a Justice gave a talk somewhere, and no one knew about it. And, because these events are open to the public, there may, or may not be media coverage, but the reporters aren’t often tuned into the things the members of the Supreme Court press corps are. Though we don’t know about it before, we always find out about it after.


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Jan 27, 2014

RBG On “But For,” Canons of Construction, and The Rule of Lenity

In a brief blitz, RBG concurs in judgment, along with Justice Sotomayor in Burrage v. United States, to express some quick thoughts on the meaning of but-for causation, and how we should read similar terms in different legal rules, subject to the rule of lenity.

For reasons explained in my dissenting opinion in Uni- versity of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013), I do not read “because of ” in the context of antidiscrimination laws to mean “solely because of.” See id., at ___–___, ___–___ (slip op., at 20–21, 23–24). And I do not agree that words “appear[ing] in two or more legal rules, and so in connection with more than one pur- pose, ha[ve] and should have precisely the same scope in all of them.” Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933). But I do agree that “in the interpretation of a criminal statute subject to the rule of lenity,” where there is room for de- bate, one should not choose the construction “that disfa- vors the defendant.” Ante, at 12. Accordingly, I join the Court’s judgment.

This is like a drive-by jurisprudential shooting. Bang bang lenity.

I previously noted that Justice Ginsburg, Breyer, and Sotomayor would not rely the rule of lenity in 2011, but RBG did apply it in Skilling.

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Jan 27, 2014

The Hunting Bloc – Scalia, Thomas, and Kagan Dissent

There was an interesting breakdown in Air Wisconsin Airlines Corp. v. Hoeper. Justice Sotomayor wrote the majority opinion, and Justice Scalia, joined by Justices Thomas and Kagan, dissented in part. I shall call this the hunting bloc.

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Jan 27, 2014

“Sixty Minutes” Laws – “something happens and legislation is introduced.”

Another species of Black Swan laws are “Sixty Minutes” Laws, as explained by a Maryland Delegate, commenting on a recent tragedy at Columbia Mall.

There will likely be a lot of discussion of the shooting in Annapolis this week, said Del. Joseph F. Vallario Jr. (D-Prince George’s), chairman of the House Judiciary Committee. He also expects discussion about the laws surrounding shotguns, which generally have fewer restrictions than handguns.

“It’s too early, but I’m sure there will be something,” he said. “We call it ‘Sixty Minutes’ legislation – something happens and legislation is introduced.”

We gotta do something!

I should note that the assailant used a double-barrel shotgun, the very type of gun that Joe Biden urged us all to possess instead of AR-15s–and a type of gun that was not banned by Maryland last year. A shotgun was also used at Arapahoe High School.

H/T OverLawyered

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Jan 27, 2014

Prop1 Class 4: The Capture Rule: Oil and Gas, Acquisition by Creation

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here. The livechat is here.

Oil & Gas

And, “I drink your milkshake.”

Here are some pics illustrating slant drilling. One of which may be from a cartoon.



You can learn more about the Manziel family and oil here.


International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.


The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.


The author of the dissent, Justice Brandeis, was a big deal.


Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

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Jan 27, 2014

ConLaw Class 3 – The Separation of Powers

The lecture notes are here. The live chat is here.

The Separation of Powers

  • Separation of Powers (173-175).
  • Youngstown Sheet & Tube (175-190).
  • The Powers of Congress – Article I (190-192).
  • Enumerated Powers (192-193).
  • M’Culloch v. Maryland (193-209)

This is a postcard of the Youngstown Sheet and Tube Mill.


Here are photographs of the actual steel mill at issue in Youngstown, Ohio.




This is Secretary of Commerce Charles Sawyer, whom Truman ordered to seize the steel mill.


 The lead opinion in Youngstown was authored by Justice Hugo Black.


There were also concurring opinions written by five Justices. This is Justice Felix Frankfurter.


This is Justice William O. Douglas.


This is Justice Robert H. Jackson. Justice Jackson, who would serve as the lead prosecutor at Nuremberg, authored what has been seen as the definitive opinion in Youngstown.


This is Justice Tom C. Clark (a graduate of University of Texas at Austin).


Chief Justice Vinson dissented, joined by Justices Reed and Minton.



You can read Executive Order 10340, Executive Order 10340 – Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companiesm, here:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.

This was Marshall’s original draft opinion in M’Cullough v. Maryland.


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