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We're Requiring Administrative Law in the First Year, We're Requiring Administrative Law in the First Year!

As you might have surmised from the title of this post, we at Boston University School of Law are, as of this year, requiring all first year students to take a course in Administrative Law.  The course will be three credits (compared to the four credit courses we require in Property, Torts, etc.) and, just to reiterate, it will be called "Administrative Law."  Not Legislation or Leg-Reg or Reg-Leg or Regislation or Legulation or Fundamentals of the Regulatory State or Thinking About Public Law or anything like that, but Administrative Law.  Personally I'm excited to be teaching it (we teach it in the spring semester, so it starts in a few weeks) because, among other things, it signals the importance of understanding regulation and the other things that agencies do to being a practicing lawyer.  I also like to imagine that we are the first school to do this (require straight-up Administrative Law in the first year, that is), because it lets me walk around with a swagger bragging about how we're the first school to require Administrative Law in the first year, but at the same time I sort of doubt it's true.  But on the other hand, maybe it's true!!!  Is it true?  Or are there other schools out there that are doing it or have done it?  And if so, how is it going/did it go?

Publishing with a Trade Press

Because I've chosen to publish with trade presses rather than university presses (even the book I'm working on for Stanford University Press is probably going to be published by the press's new trade imprint Redwood Press), scholars who are thinking about going that route sometimes ask me what they should do--do they need an agent, how do you find one, etc.  So I thought I'd share some of the things I usually say when I'm asked.  I'm sure others who have published with trade presses will have their own thoughts on the issue, and I hope they'll share their advice as well.

First, trade presses buy books on the basis of proposals, rather than full manuscripts (this is for non-fiction; for fiction the whole book needs to be done).  The proposal generally consists of a short overview section which describes what the book will be about, a short bio, an annotated table of contents, a short "publication specification" section that says when the book will be done, how long it will be, and whether it will have any special features like maps or charts or paintings of fruit saying weird things, a "marketing analysis," which is where the author tries to describe who might buy the book (trade presses are very interested in who the audience for the book is going to be), and a section that lists "comparable titles," which is not a literature review but rather a list of what books are out there that are like your book and how your book is different from them.  Finally, you usually need to include a sample chapter, which should not be the first chapter.  Of course, through the sample chapter and the overview, you need to communicate that you can write for the general public.  For goodness sakes, do not include footnotes.  There's a great book called "Thinking Like Your Editor" which describes the proposal-writing process really well.  I highly recommend it.

Once you have a proposal, you have to decide whether to try and get an agent.  To sell to the big trade publishers, you absolutely need one.  But there are some awesome smaller trade presses which will accept non-agented submissions.  My thrice-publisher Beacon Press is one of them, and the trade imprints of university presses will also take submissions directly from authors.  Just go to their websites and find the right editor and send him or her a catchy query email asking if they would like to read your proposal (see below).

If you want to try and sell your idea to a big, for-profit publisher so they can send you on a national book tour on their private Lear jet, then you will need to get an agent.  First, try to identify a set of 10 or 15 or so agents who you think might like your book.  You should certainly start by asking people you know who have an agent whether they will recommend you to their agent (assuming they like their agent), but beyond that, you can try and find out who represents authors who write stuff like you write.  Use the internet.  Also, you can subscribe to Publisher's Marketplace for $20 a month and find out all sorts of information about who sells what and how well they sell it.  Once you get your list together, send each agent a short and catchy query email and ask them if they'd like to read the proposal (don't send the proposal without being asked to, unless the agent's website tells you to).  Agents read hundreds of these a week, so you have to get their attention quickly.  Do not be scholarly.  Do not say "orthogonal" or "problematize."  Show them you can write for a general audience and sell millions of books

Some agents will reject you within minutes.  For others it will take days.  Some will never respond to you.  There's actually a site called Query Tracker or something like that which will tell you the average response times for each agent.  Hopefully one or more agents will be excited about your project and want to talk more about it.  Then one will agree to represent you, and you will sign a contract that gives 15% of your earnings to her or him.  The agent will take over from there.  If you're lucky, you will be on the jet drinking goblets of Remy Martin Louis XII on your way to readings in San Francisco and London and Istanbul within no time.

Tuttle, Taoism, and my Tour

As someone who studies law and religion, I've long been interested in the question, debated by many legal scholars and philosophers over the years, of whether public officials, including judges, should be able to consult their religious views when deciding difficult, controversial, and indeterminate legal questions.  Usually this means Christianity of some sort, but as someone who is more partial to Asian religions, I've always wondered what would happen if a judge became a Taoist of the Lao Tzu/Chuang Tzu sort.  If a Christian judge can consult his or her Christian views on, say, abortion, wouldn't it be interesting to know what a Taoist judge might do if she consulted her Taoist views in, say, a death penalty case?  For a while I thought I would try my hand at writing a law review article called "The Tao of Law" about this, but when I got down to really considering what I might say, it took about two seconds to realize that the law review genre, magnificent though it may be, was not up to the task of exploring this issue.  So instead I wrote a novel.

Today is the official pub date of "Tuttle in the Balance." The novel is about a Supreme Court justice having a mid-life crisis in the middle of one of the biggest terms in recent years.  Now, it's true that a recent Amazon review described the book as "complete and utter trash," and it's also true that an agent who rejected the book once said that "the notion of a sixtyish man in that important a position suffering like a 14-year-old girl is probably more true to life than I might wish, but it makes me so uncomfortable that I just cannot enjoy the story," but when you're thinking about buying it, I hope you'll instead put more stock in the opinions of Larry Tribe, who said that, "for a painless lesson in constitutional theory for the layman, underscoring the 'lay,' you’ve got to read this book," or Chuck Klosterman, who wrote that "this is the best — and, I must admit, only— novel I’ve ever read that deftly utilizes the possible reversal of a decision by the Third Circuit Court of Appeals regarding the Establishment Clause as a plot device within a light romantic comedy."

For anyone living in Boston, NY, DC, or Philly, I hope you'll consider coming out to one of my upcoming reading events.  I'll be at the Harvard Bookstore on Dec. 8 at 7pm, at Cardozo Law on Dec. 10 at 7pm ("in conversation with" the awesome and hilarious Judge Paul Oetken), at Teaism in Penn Quarter (in DC) on Dec 14 at 6, and the Ethical Society of Philadelphia on Dec. 15 at 7 (w/ special guest, stand up comic, and former Prawf-er Brian Foley) at the Ethical Society of Philly.  More details on these events are here.  Oh, and over here is a video my son made of our hedgehog trying to eat a blueberry.

My Trip to the Town of Greece

In the book I'm writing now (and by "writing" I mean I've signed a contract for something I should be writing but actually haven't written a word of) for Stanford University Press,  I'm looking at how non-Christians--Wiccans, Hindus, Atheists/Humanists, Satanists, the Summum, etc.--are increasingly trying to participate in public life by, for instance, giving legislative prayers and invocations, putting up displays on government property, and using public voucher funds for their schools, etc.  I'm calling the book, tentatively, "Our Non-Christian Nation: How Atheists, Wiccans, Satanists, and Other Non-Christians are Demanding Their Rightful Place in American Public Life." 

Like in two of my other books about religion, this too will be a book where I travel places to observe actual events and to talk to people involved in the controversies I'm writing about.  My first trip was to the Town of Greece back in October.  You may remember that a couple of years ago, plaintiffs successfully challenged in the Second Circuit the town's policy of beginning each of its town hall meetings with a prayer because almost all of the prayers were given by a Christian, and they were usually extremely sectarian in nature (meaning they expressly invoked Jesus and the like).  The Supreme Court, in a 5-4 decision, reversed the Second Circuit and held that sectarian prayers were okay so long as towns like Greece don't prohibit other groups from also giving invocations and/or prayers.

One of the plaintiffs in that case was Linda Stephens, a wonderful lady who has lived in Greece for many years and who happens to be an atheist.  Following the Supreme Court's decision, she asked the town council if she could give a secular invocation, and the council agreed. Somehow I came across the schedule for the town's prayers/invocations online, and when I saw that Linda was giving the invocation, I decided to take a plane to Rochester and check it out myself.

I met with Linda at her home and talked with her for a long time about the case, and then later in the day headed over to the town hall.  The town Councilor, whom I also met with, is apparently a huge pickle ball fan, which is a game I had never heard of before, sort of like tennis but not tennis, and there are a set of pickle ball courts next to the town hall.  This is not relevant.  I was interested in seeing if there would be any controversy at the meeting, given that Linda was one of the people who brought the suit that had brought so much attention to this small town.  Linda's was actually the second secular invocation given in Greece since the case came down, and at the first one, the only sign of dissent was a single man holding up a sign that said something like "Jesus Saves."  I thought, however, that this event might be different since it was Linda doing the invocation.

In fact, there was no controversy whatsoever.  Not even that one guy seemed to be there, and if he was there, he was not holding a sign.  Linda gave the invocation.  It was very nice (I thought).  Everyone was very respectful.  Nobody seemed to sigh.  Nobody left or groaned audibly.  The guy sitting next to me had removed his baseball hat when the Councilor announced that it was time for the "prayer," but when the baseball hat guy realized that Linda was not really giving a prayer, he put his hat back on.  It was a Red Sox hat, incidentally.

There's more, but for that you'll have to wait for the book.

Also, here is a picture of me and my hedgehog.

Supreme Court [Laughter] Update

Much like Toni Basil of "Mickey" fame or the guys who sang the "Pac-Man Fever" song, I too plan on milking my one-hit wonder for all its worth.  And that means talking about which Justices get the most [laughter] at oral argument.  I'm not talking about the most laughs, mind you, much less which Justices are the funniest--simply which ones get the audience [laughing] enough for the Court Reporter to note [laughter] in the transcript.  For those of you who do not follow me @SCOTUSHUMOR (why is that again?), you may not know that last year's results were much like all of the other years' results, meaning that Justice Scalia topped the charts, followed closely by Justice Breyer.  Interestingly, however, Justice Kagan, by getting two [laughs] on the very last day of argument, tied the Chief Justice for third place in the standings.  (The circumstances there were fascinating--the arguing lawyer called Justice Kagan "Scalia," to which she responded: "He's Scalia" which got one [laughter], bringing her within one of the Chief.  But did she stop there, like someone who doesn't know how to bring the [laughter]? Oh, no.  Instead, she followed up with, "We're not often confused," which is what got her the tying miracle [laughter] that sent us Court [laughter] watchers into what can only be described as a [frenzy]).  In any event, the current standings, through yesterday's arguments, are as follows: Scalia 14, Breyer 11, the Chief 7, Kagan 3, Kennedy 2, Sotomayor 1, Alito 1, Ginsburg 0, Thomas 0.  These results, of course, as always, are subject to the caveat that I perform my calculations in a haphazard and slipshod manner and therefore should not be relied upon by anyone for any purpose whatsoever.

I am looking forward to my first Prawfs guest stint in a couple of years, in which I plan to talk about this book and this book and this book and also my new pet hedgehog.

A Fun Reading for You on Saturday Night in Chicago

Hello there.  Thank you, Dan, for letting me sneak on for a minute to advertise a reading I am doing at Quimby's Bookstore in Chicago this Saturday night at 7 pm.  I'll be reading from my book of inane stories, The Adventures of Ed Tuttle, Associate Justice, and Other Stories.  Somehow, Time Out Chicago has declared this a Critics' Pick event, so if you live in Chicago and you're a law prawf or a lawyer or a law student or a person, I hope you will consider checking it out.  If you don't live in Chicago, would you please consider telling your Chicago friends about it?  Facebook?  Twitter (#TuttleReading)?  I would be grateful.  Thank you.

Oh, and drinks after!  And during (if you bring them, or if you convince me to share my scotch)!  Here's the poster for the event, designed by my crazily talented friend Dave Croy):

Boy, Do I Love it When I Agree With the Other Guys

I presume that most people in the legal academy, like me, have strong political views, and that their judicial views tend to align quite closely to those political views.  Shocking, yes.  But if you're like me, and you're a political liberal, and you find yourself agreeing time and time again with the liberal wing of the Court and think Justice Ginsburg is always right and that Justice Scalia is always wrong, and if you have any amount of self-awareness at all, however small, then from time to time you're going to inevitably ask yourself something like: Oh my god, am I just a total hack? 

That's why I love this case I taught yesterday in Environmental Law called Alaska Department of Environmental Conservation v. EPA. The case involves the interpretation of the Clean Air Act's requirement that new and modified sources of air pollution in non-attainment areas get a permit that includes a Best Available Control Technology (BACT) provision.  The statute gives the state permitting agency the authority to choose the specific BACT, but the question in the case was whether EPA, if it thinks the state's BACT choice is unreasonable, can issue a stop order against the new or modified source, or whether instead it has to go to state (probably) court and challenge the state's BACT determination as unreasonable.  Justice Ginsburg, writing for 5 justices (Breyer, Souter, Stevens, and O'Connor) held for EPA.  Justice Kennedy, joined by Justices Scalia, Thomas, and Rehnquist, dissented.  Now, I love the feds and the environment as much as any card-carrying liberal, but in this case I just happen to think the conservatives were right and that the CAA gives the states the right to insist on their BACT determinations unless those determinations are unreasonable under state law.  Whenever I teach the case, I always feel good about myself, and toast myself with Champagne, and give myself a big hug, and sleep the safe luxurious sleep of a small child cuddling his favorite stuffed penguin.  Are there cases that make you do this (you know, roughly speaking)?

Now as I was thinking about writing this post, I realized that for me this issue runs a little deeper and affects my scholarship.  When I write law review articles (which, let's be honest, I do at a less than Sunstein-ian pace) I'm often attracted to topics that people looking at me from the outside in a not very sophisticated manner would think are counter-intuitive, given my general political and legal views.  To be sure, I have written articles in the mode of "this is my real, most important commitment, and here's how the legal system should recognize that commitment, and here's why," and those pieces have tended to be among the more well-received of my articles (again, not talking Nomos and Narrative here).  But the pieces I enjoy writing more are those where I take a position that's incidental (orthoganal? what the hell does that even mean?) to my main beliefs and that may seem surprising to people who know me.  I'm thinking here of my articles about why we should teach about religion in public schools or why Kitzmiller was wrong to say that intelligent design isn't science or my forthcoming BYU piece on when and why the government shouldn't "disapprove" of religion. I believe all these things (they're not, in other words, simply art projects, although I still wonder about whether it would be ethically wrong to write two articles about the same issue, each one coming down on the exact opposite side and disagreeing with each other on every point), but they're not the things that I care most about (which would be, for example, that public schools shouldn't promote religious truth, that public schools should not and cannot usually teach intelligent design, and that the government should not endorse religion).  Of course, writing about these things results in occasionally finding myself in a weird position, like when I was at a Liberty University Intelligent Design Symposium and Michael Behe put a picture of me up on a gigantic powerpoint presentation he was giving to a packed crowd and lauded me as a critic of Kitzmiller (that was weird).  Okay, I'm done sharing now, thanks.

 

Eco-Palms, Baby

When I first started researching this new book I'm working on about religious practices that harm the environment, and what to do about them (if anything), I asked around to see if anyone knew of good examples from around the world.  John Nagle from Notre Dame pointed me to this fascinating article from Audubon Magazine about how the use of palm branches from the wax palm tree for Palm Sunday celebrations in a certain area in Columbia had resulted in the near extinction of the yellow eared parrot.  The story has a happy ending, as the church decided to use different kinds of palm trees instead, and the parrot has since recovered at least a little way from the edge of extinction.

I did some more research into palm trees and Palm Sunday and came across another interesting story.  Many of the palm forests in Guatemala and southern Mexico and Belize have been suffering from unsustainable harvesting practices, as harvesters cut down as many trees and branches as possible to supply the North American market for palms.  Part of the market is for churches which use the palms for Palm Sunday.  At some point, the Commission for Environmental Cooperation, a body that was set up by NAFTA to promote pro-environmental trade policies, recognized the problem and contacted Dean Current, a professor at the University of Minnesota (and a terrific guy, as I found out when I visited with him last fall), to conduct a study on the palm market in the US.  Current learned that lots of religious organizations in the US would be willing to pay a premium price for sustainably harvested palms.  Starting in 2005, Current, working together with a number of religious organizations in the US and NGOs in Guatemala and Mexico, began the so-called "Eco-Palm" project.  This project allows religious congregations to order sustainably harvested palms for a somewhat higher price than they would pay for other palms, and then this extra money is sent to communities in northern Guatemala and southern Mexico who harvest the trees in a slower, more careful fashion that protects the forests.  The communities use the extra money for things they need, such as improving their schools, building community kitchens, and the like. The New York Times reported on the project in 2007 here, and here is another piece about it from the Pittsburgh Post-Gazette.

To me, this project seemed like a fascinatingly creative approach to a difficult problem--an example of using the market as opposed to regulation to protecting the environment from a dangerous practice--and I decided to make it one of the core case-studies in the book.  In February, I'll be heading to northern Guatemala (Flores) and Chiapas, Mexico for about 8 days to meet with the NGOs (which have been terrific in helping me plan the trip) and to travel to the communities and forests where the harvesting is taking place to try and understand more fully what's going on there. It should be pretty exciting, and I'm looking forward to getting lots of good material for the book.  Wish me luck, won't you? 

 

Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause

If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible.  (Here is the trailer).  I say this even if you're not a law professor who teaches church/state law.  If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.

In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected.  This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious.  Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.

So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life.  Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever.  At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected??  Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.

Or the New York Giants, for that matter.  Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies.  His fandom is the one thing that gives his life meaning.  He  dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio.  The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.

I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems.  The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday.  What if Paul refused to work on Sunday?  Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)?  I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.

Do others use film in this way, or related ways, in their courses?

Yesterday at the Court

For those of us who care deeply about Supreme Court oral argument humor, yesterday was the best day in the history of the world.  As has been widely reported, Clarence Thomas spoke for the first time in seven years, telling a joke at the expense of Yale Law School.  The key point here is that, although the joke was not itself captured on the official transcript, the "[laughter]" was.  For the record, the official laugh line was:

JUSTICE THOMAS: "Well--he did not--"

[laughter]

Just to state the obvious here, Justice Thomas now has a 100% laughter to comment ratio at oral arguments over the past 7 years.  In terms of raw statistics, then, this makes him funnier than Louis CK, Sarah Silverman, and Weird Al Yankovic combined.   

It wasn't just Thomas getting laughs, though.  In the first argument of the day, there were six laughlines, three by Justice Scalia alone.  Six for a single argument is almost unheard of.  I wasn't there, of course, but it sounds like the morning was more "Night Court" than "Supreme Court."  Perhaps it was this night-club atmosphere that inspired Justice Thomas to tell his joke.  Indeed, there were four laughs in the second argument--the audience even laughed once at something Justice Alito said, which is about as rare as someone laughing at an episode of "Don't Trust the B--in Apt. 23."

As the Court heads back to business this morning, one wonders whether some of the other justices might feel moved to follow Justice Thomas and break type.  I predict that Justice Breyer shows up with one of those Steve Martin arrow through the head things on his giant dome, and that Justice Kagan, well known for her ventriloquism prowess,** poses her questions through a fancy dressed mouse hand puppet.

**Justice Kagan is not in fact known for her ventriloquism prowess

Failure Chronicles, Pt. 3: On the Road to Non-Failure

Today, the final installment in my three part series on my professional failures.  I'll start by noting that despite the awesome Above the Law linking to my last post on how I'd like to be the next Clerk of the Supreme Court, I have heard nothing yet from the Chief--not even a polite rejection email!  (actually, the really sad thing about this, from the perspective of my own mental well-being, is that, despite the absurdity of my "application,"  I am *in fact* disappointed not to have heard anything).

Anyway, back to my quest for a book contract.  As I noted in my last post, my previous editor (let's call her "H") was not impressed with my idea about a book on the evolving nature of the bald eagle as a national symbol.  The story is actually a little bit more complicated.  I sent her an excited email about this idea, and she wrote back saying that I'd "given her something to think about" and would I like to come by her office and have some scotch and talk it over.  I was delighted.  I love scotch!  Also, I thought that she had finally decided to indulge my bald eagle obsession.  I found my son's bald eagle finger puppet and told it the good news.  And I drew a little sketch of what the cover might look like, with the woozy, broken-wing eagle and whatnot.  Yay, I thought.

So I went over, and H poured me some scotch, and we chatted.  I kept waiting for her to say yes let's go forward with your bald eagle idea, but that was somehow not happening.  I tried to make my case, suggesting why the eagle and its feather is a great microcosm like thing for the macro issue of American identity and blah blah blah (at this point I was a little buzzed).  Her reaction was that the micro might be fine, but the macro wasn't big enough or compelling enough.  I despaired.  Why not, I wondered?  Anyway, at this point, I threw out a new idea--what if the macro wasn't American identity, but rather the relationship generally between religious practice and environmentalism?  I had long thought about writing an article on this topic, because there are a number of situations in the US where religious practices happen to have a harmful effect on the environment and on natural resources--not only the bald eagle, but also Santeria animal sacrifice, Amish refusal to use wastewater technology to treat contaminated water, expansion of churches claiming exemptions from zoning laws under RFRA, indoor mercury use in the rituals of various Caribbean religions, etc.  As soon as I mentioned this idea, H's expression completely changed.  She was intrigued.  The idea of religious practices in some cases harming the environment was compelling because it runs counter to the current dominant narrative of religious organizations working together with environmentalists to solve environmental problems (this is by no means the only narrative of course--some religious beliefs and traditions continue to contribute to environmental harms in various ways, including by promoting a skepticism of science, but I do think the big story these days is religion and environmentalists working together).  We ended the meeting with me agreeing to go do some research and see if there might be a book in this idea somewhere.

So, long story short, I did the research, got back to H a week later, and signed a contract for God is Not Always Green not long after.  The book will be largely international in scope and involve lots of Holy Hullabaloos like travel to different places in the world where we see conflicts occurring between religious practice and environmentalism.  I'll blog more about some of these conflicts in the coming weeks, but just to quickly name a few--idol immersion in India, joss stick burning in Singapore, palm forest depletion in Latin America, coastal whaling in Japan, turtle sacrifice in Bangladesh, and mercy releases in countries with large Buddhist populations, most notably Taiwan.  The book will take a long time to research and write, but it's very exciting and I'm having a great time with it so far.

So, what's the moral of this three-part tale?  I don't know.  But I suspect it might be that I should be the next Clerk of the Supreme Court.  (should we start a thread to track who has heard back from the Chief and whether they've received offers, etc.?)

I Would Like To Be The Next Clerk of the Supreme Court

As all SCOTUS watchers know, General Suter, the long time Clerk of the Supreme Court, has announced that he will soon be retiring from the position.  The Court, presumably acting through Chief Justice Roberts, will have to appoint General Suter's successor.  Indeed, maybe it already has, I don't know.  But if it hasn't, I would like to officially put my name forward as a replacement.  I really like the Court, and I could give entertaining lectures about it to visitors and schoolchildren, and I'm a tremendous filer, and, most importantly, I look great in a morning coat.

Call me, Chief.

--Jay Wexler

 

Failure Chronicles, Pt. 2: "Illegal Eagles"

Buoyed by the veritable stampede of academics who have come forward with their own tales of professional failure in the comment section of my last post, I will now continue on my narcissistic parade through some of my recent professional fiascoes. As I noted in that last post, before I had the idea for the ill-fated "Bleep!" I wanted to write a book about eagle feathers. After I published Holy Hullabaloos, which was about my travels to different places where big Supreme Court religion cases originated, I wanted to write something about Native American religion, a topic that I had unfortunately not gotten to in HH. Since I also teach environmental law and natural resources law, I was excited to come across the case of Sam Wilgus, a non-Indian who practices Native American religious rituals and who was arrested for possession of eagle feathers in violation of the Bald and Golden Eagle Protection Act, which prohibits the possession of eagles and their parts without a permit.  Members of federally recognized Indian tribes can get permits in some circumstances; for instance, by applying to the National Eagle Repository, a macabre federal agency in Colorado that collects and distributes dead eagles and their parts to applicants in a first-come, first-served manner (I recount my visit to the Repository in a Green Bag piece that I read here).  Wilgus argued that his arrest violated RFRA; the government responded that prohibiting non-Indians from possessing eagle feathers promoted compelling interests in both protecting eagles (bald eagles are no longer on the Endangered Species Act list, but they arguably are still pretty shaky, extinction-wise) and in protecting genuine Native American religion and culture.  Wilgus's case went on for a dozen years; at one point he won in the district court, but ultimately in 2011 lost in the 10th Circuit, and the case did not end up going to the SCOTUS. If you're interested in the controversy over the use of eagles and their parts in religious rituals, I commend to you Professor Kati Kovacs' excellent and comprehensive article on the subject, which can be downloaded here.

I thought the case was totally fascinating, in that it sort of symbolized many of our ongoing national controversies--religious freedom, environmentalism, racial identity, Native American sovereignty, etc.--in something so ephemeral as a feather. I went out to Utah to talk to Mr. Wilgus and also his lawyer, visited the Eagle Repository, and wrote up a proposal for a book about his case.  No interest.  Again, that old chestnut, "this would make an interesting article, but it really isn't a book" got tossed around (I also tried to sell an article about the case, but that didn't work either).  By this point, I had developed enough of an interest in American Indian law that I taught a course in it, and in the course of teaching the course, I decided to broaden the book proposal to be not just about the Wilgus case but about the controversy generally--I would talk also about US v. Dion, which is a Supreme Court case holding that Congress had abrogated a tribe's eagle hunting rights through the Bald Eagle Act, as well as some of the RFRA cases brought against the Act by Native Americans themselves.  No interest.  My fruitless fascination with bald eagles and their feathers was now 18 months old. It has become a bit of a joke around the law school, where at events, I'm now sometimes introduced as the guy who is obsessed with eagle feathers. 

At this point, with the advice of an ex-editor friend of mine, I decided to reframe the issue once more, into a short book about the history of the bald eagle as a symbol in the United States.  The thesis was going to be that the bald eagle is in fact a terrific national symbol, but not for the reasons it was originally chosen.  It's a perfect symbol not because it represents freedom and grandeur but because it turns out, given all the controversies surrounding it over the past 100 years, to represent a clash of a variety of contested values, all of which are important to American identity but which are often also in conflict.  This editor friend suggested that the cover could have a picture of an eagle with maybe a broken wing and kind of messed up feathers, looking kind of woozy.  I was so excited about this new idea.  I pitched it to my agent.  He said, the problem with this book idea is too profound to be fixed by any minor tinkering.  Really?  I ran it by my editor at Beacon Press.  Also unimpressed. 

But, she did invite me to come by and drink some scotch.  And that's where I'll pick up next time, in Failure Chronicles, Pt. 3, in which failure turns finally, finally, into . . . something that almost resembles non-failure. 

Failure Chronicles, Pt. 1: "Bleep!"

I'm currently working (slowly) on a book that's under contract with Beacon Press, tentatively entitled "God is Not Always Green: When Religious Practice and Environmentalism Collide."  I hope to blawg about that a bit before my month here is over.  But first I thought I'd blawg about two or three books that I wanted to write but which I couldn't get a contract to write--projects, in other words, that failed.  I'm not sure we talk enough about professional failure here in the blogosphere, which I guess is not surprising, but which is nonetheless unfortunate, because obviously a lot can be learned from why and how people fail.  Anyways, I feel I'm just the guy to do it. (But, you know, feel free to comment about your own failures and keep me company).

After I finished The Odd Clauses, I wanted to write a book about a single case, preferably one that had been to the Supreme Court. The case had to be interesting and related to at least one area that I know about and it also had to be quirky in some way because I have no confidence that I could write a book-length manuscript without something weird about the topic to sustain me through the year or two of research and writing it was going to take.  My first idea was to write about a case involving bald eagles, an idea that also failed, but since some of the stuff that would have been in that book will end up in the God is Not Always Green book, I'll talk about that failure in my next post about failures.

My second idea was to write a book about FCC v. Fox, the fleeting obscenity case that made it to the Supreme Court not once but twice--once on an administrative law issue and once on a first amendment issue.  Two Supreme Court trips!  Two areas of law I know and love!  Obscenity!  What could be better?  Plus, as I've previously blawgged about here, the first oral argument at the case was outstanding, featuring the Justices telling counsel not to say "fuck" or "shit" and then Justice Scalia's on-the-spot invention of the best euphemism ever for "fuck," namely: "golly waddles." (for my discussion with Steven Pinker about "golly waddles," look here).  I'd call the book "Bleep! Fleeting Expletives, the First Amendment, and the Case that Almost Changed Broadcasting."  I was certain someone would give me a contract to write it, and I even thought that unlike my three other books, maybe someone would actually buy it--after all, it would get lots of media attention, wouldn't it, given that doesn't the media like to cover books about the media??

So I did some research, read a couple of books about George Carlin, scanned the FCC's recent opinions on obscenity (talk radio, it turns out, is really nasty, who would have guessed?) and wrote up a proposal.  Since I was interested in publishing with a trade press rather than a university press, I found a high flying agent at a big New York firm who thought it seemed pretty good (though quirky) and could probably sell and was willing to represent me on it, and then I went out and bought two matching Jaguars (cars, not cats), one for my wife and one for me. 

Needless to say, given the title of the post, nobody was interested.  Not even the publisher of my previous two non-fiction books.  One publisher was wondering if I might write a non-quirky book about the first amendment generally.  I said, umm, no, I want to write Bleep!  They said no thank you.  I've learned that one of the typical ways editors will reject a proposal is by saying something like "this is a really interesting idea, but probably more suitable to a magazine article or a blog post or a fortune cookie than a book"; I got that a lot.  And who knows, they were most likely right,  I have absolutely no idea what makes a book saleable in the market, and although I don't think editors have anything likea firm handle on that either, they certainly know more than I do.  In any event, the book Bleep!, while fun to say, will sadly never see the light of day.  

Anyone want to buy a Jaguar? 

Are You Following @SCOTUSHUMOR?

So after much hemming and hawing I finally joined the twitterverse a couple of weeks ago.  It's been pretty fun.  If you think facebook is a timesuck, try twitter.  But the upside is pretty good too--you can "meet" new people (unlike facebook, which is generally for people you already know from shop class twenty-eight years ago) and there are a lot of funny people tweeting funny things (check out, for example, @SupremeHaiku, for Supreme Court related haiku).  Also, I'm told there are a good number of knowledgeable people tweeting important information about real issues, so that might be good if you're into that kind of thing.  As for me, since it's the only thing I've done that anyone's ever noticed, I thought I'd try to track Supreme Court oral argument "(laughter)"s on a daily basis when the Court is in session, and relay the actual laughlines as a service to those who don't have the time to read the Court transcripts themselves.  At first I was sketpical that the laughlines could be summarized in 140 characters, but it turns out that tweeting the "jokes" actually makes them funnier.  For the curious, the current standings are as follows: AS 19, SB 13, JR 8, SS 5, EK 4, AK 3, RBG 0, SA 0, CT 0.  Will the January sitting see Justice Breyer finally blast his way out of second place?  Will Justice Kagan live up to her comedic potential and stop underperforming?  Will Justice Alito or Justice Ginsburg get a laugh first?  Follow @SCOTUSHUMOR and find out!  You know, or don't.

Are You a Syllabus Maximalist, a Syllabus Minimalist, or a Syllabus Somethingelsealist?

Well, it's time to start getting ready for a new semester, and that means putting together a new syllabus or two.  I've noticed over time that my syllabi, never particularly complicated or fact-filled, have gotten simpler and simpler over the years.  Two pages at most.  The materials.  A couple lines about how students will be evaluated.  A tentative list of topics and assignments.  Nothing much if anything else.  I prefer to talk in some detail about the class at the first meeting rather than putting together a long complex document.  But in reviewing tenure cases and whatnot, I've come across all sorts of syllabi--some as simple as mine, but most longer and more detailed, some with pages and pages of suggested readings and questions to guide the readings and DVD recommendations and puzzles like maybe one of those intricate mazes where you have to help a hungry mouse find its hunk of delicious cheese, etc. etc.  Anyone want to share some thoughts about what they put in their syllabi and why?  What makes a good (or bad) syllabus?  I'm particularly interested in what students think.  My own memory of being a student (and I still take undergrad courses in Spanish language at my university, so this memory isn't so distant actually) is that all I want was a clear roadmap to the course--what topics we were going to study, and when, and what materials go with what topics.  And a few words about what the evaluation would be based on.  In other words, what I provide to my students now.  But I bet there's a wide variety of opinion on the issue, yes?

Original Jurisdiction Standings

I realized this morning that Dan has not officially cut me off from Prawf access yet, so I thought I'd sneak in just for a moment to inform the readership here that I have just published some groundbreaking new "research" over at my blog, Odd Clauses Watch.  If you're any sort of self-respecting SCOTUS watcher, then you probably have been wondering for many many moons (as I had been, not long ago) how your favorite state has fared in State versus State cases decided under the Supreme Court's original jurisdiction.  Luckily, I've "filled the gap," as we say in the prawfing game, by producing (shoddily, admittedly) the first-ever (maybe) Original Jurisdiction Standings, which you can view here.  Bye bye.

What Makes an Odd Clause Odd?

Today is the long-awaited (by me) day that my second book comes out.  It's called The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions, and, as the title suggests, it's about a bunch of constitutional clauses that many people don't know that much about but that are nonetheless really interesting and often important.  As the first two paragraphs put it:

The Constitution of the United States contains some of the most powerful and well-known legal provisions in the history of the world.  The First Amendment, for example, gives us the right to speak our minds without government interference.  The equal protection clause of the Fourteenth Amendment stops the state from discriminating against us because of our race or gender.  And the Fourth Amendment, as our television crime dramas continually remind us, prevents the police from searching our homes without a warrant.  I would bet that in the past twenty years, several hundred books have been written about these important clauses, and for good reason.  This book, however, is not one of them.

Instead, this book will shine a much-deserved light on some of the Constitution's lesser-known clauses--its benchwarmers, its understudies, its unsung heroes, its crazy uncles.  To put it another way, if the Constitution were a zoo, and the First, Fourth, and Fourteenth amendments were a lion, a giraffe, and a panda bear, respectively, then this book is about the Constitution's shrews, wombats, and bat-eared foxes.  And believe me, if you've never laid eyes on a bat-eared fox before, you are in for a treat.

The idea for the book came to me when I was working at OLC about 10 or 11 years ago. 

Lots of the work of that office has to do with clauses that nobody (at least not me) learns about in law school or hears about in the papers or on television.  One day, the question came up whether President Clinton could accept some sort of honor from an African village, or whether that would violate the Titles of Nobility Clause.  I had no idea what the Titles of Nobility Clause even was.  But I thought it would be cool to someday write a book about clauses like that one that seemed really odd to me on some intuitive level.

It turned out, however, that actually choosing which ten clauses to write about was pretty difficult.  I was forced to think about what, to me, makes a clause like the Titles of Nobility Clause odd.  I workshopped the book idea at a few law  schools and got incredibly helpful feedback on what clauses to include and what not to include.  The original scheme for the book included the Property Clause and the Ex Post Facto Clause, for instance.  Neither made it to the final version.  At these workshops, there was a lot of discussion of oddness.  Lots of theories were suggested.  Some argued that it's the anachronistic clauses that should be considered "odd."  Others thought that the oddest clauses were those dealing with things (post roads, maybe) that seemed below the dignity of a constitutiton.  Other ideas were tossed about as well.  Clearly, thinking about what makes a clause odd forces you to think about what makes the non-odd clauses non-odd, or to put it another way, what is it we expect to see in our Constitution, what clauses seem perfectly suited for a Constitution, what is a Constitution supposed to have in it and be like anyway?

In the end, because the book is more of a popular volume than a scholarly one, I didn't feel I needed to develop any sort of sophisticated theory of oddness.  I do explain in the book that, for me, what makes a clause feel odd is its specificness, that it furthers some important objective in a very targeted way, rather than establishing some broad but vague principle.  So, I talk about the Incompatibility Clause, the Weights and Measures Clause, the Letters of Marque Clause, the Third Amendment, and the like, that all fit this criteria, at least in my mind.  But I did find these discussions of oddness theory to be quite interesting, and I wonder if people out there would like to share their ideas about what makes an odd constitutional clause odd.  And while you're doing that, remember that The Odd Clauses makes a great stocking stuffer, assuming that the stocking we're talking about is on the largish side, and that the book is the only thing you plan on stuffing into it.

Small Change, Big Case

In my American Indian Law class, I just finished teaching the case of McLanahan v. State Tax Commission of Arizona, which held that the state of Arizona could not tax the income of an enrolled member of the Navajo tribe earned on the reservation.  It's a pretty big case about state power to tax American Indians in Indian Country.  The actual monetary amount at issue was $16.20.  While I was teaching the case, I thought of how Wisconsin v. Yoder, the case holding that the Wisconsin Amish had a right to keep their older kids out of school despite a state mandatory attendance law, involved a fine of $5. 

What other cases out there involve disputes over big principles but small amounts of money?  What do you think about a book collecting discussions of these cases?  What would it be called?  Will you contribute a chapter?  If you're an editor, will you publish it?

Is Creative Writing About Law an Academically Worthy Interdisciplinary Endeavor?

Let's face it, we're all interdisciplinarians now.  Even if we aren't.  But what other disciplines count, such that if you put them together with law, you get something that law schools consider worthy?  Obviously, the mainstays of interdisciplinary work--law and economics, history, philosophy, and political science--are here to stay, and these days we're happily seeing other disciplines added to the mix--anthropology, religious studies, various hard sciences, and the like.  But what else should count, be welcomed into the legal academy with open arms, respected at tenure time, attract the attention of appointments committees, and so on?  At Boston University, our schools and colleges grant degrees in over 250 disciplines, from archaeology to journalism to sculpture to oral and maxiollfacial surgery.  Should we be looking to start hiring in the field of law and sacred music?  Should we at least signal somehow that this is something we would be happy to consider, were somebody to show up with such a specialty?

Specifically, I'm wondering about whether Law and Creative Writing should "count" as a serious interdisciplinary endeavor.  About 200 universities and colleges offer creative writing programs that teach students how to write fiction, poetry, and creative non-fiction.  Some of these programs exist within English departments; others stand alone.  All, I presume, see their mission as a serious academic one that deserves respect and support from their universities.  As an example, here's a beautifully written statement of purposes from a top program at the University of North Carolina Wilmington.

Clearly, many law professors engage in creative writing endeavors.  Some write stories.  Some write novels.  More would probably write novels if they thought that their schools would value such work.  Of course, to "count," the novels would have to be good, as measured by those who are professional creative writers.  A tenure letter evaluating a novel about law would have to come from Joyce Carol Oates, not your friend who is a fifth year associate at Debevoise.  But I get the sense that even strong creative writing about law is presumed not to count.  For example, look at page 144 of the Green Bag's introduction to its "Deadwood Report" project.  The piece says that, in reporting on scholarship listed on the web pages of law schools, the Report will be "taking account of "scholarly books and articles in scholarly journals.  Not novels."  Now, the piece does thoughtfully go on to note that if the school's website includes official regulations stating that works of fiction count for tenure, and if further inquiry reveals that the school has in fact granted tenure on the basis of such work, then the Report will consider those works in its faculty measurements, "with a flag and a note about your interesting tenure policy."  My sense is that this document accurately encapsulates the academy's view about law and creative writing--absent super duper exceptional circumstances, it doesn't count as an academically worthy interdiscplinary endeavor. 

But of course, creative writing can help us see and understand the world in ways that academic writing cannot.  There are some truths that cannot be conveyed by traditional expository writing.  This has got to be the same for law as it is for other potential subjects of fiction and creative non-fiction.  Try and express what Kafka gave us with The Trial in a law review article, I dare you.  It's an extreme example, of course.  But then again, one wonders whether, if Kafka were coming up for tenure at an American Law School, his classic novel would  be considered a "plus in the file."

Have you ever taken a class at your university?

One very nice benefit that Boston University gives to all of its employees is the opportunity to take classes for free pretty much anywhere at the university.   Despite its greatness, I had not availed myself of this opportunity for my first nine years here.  Nor was I alone in my nonavailing.  As far as I know, very few if any faculty members had taken a class here during that time (of course, it's possible--quite possible, actually--that I've just been oblivious).  Last summer, though, I took first semester Spanish during the summer session.  I have various personal and professional reasons for wanting to learn Spanish that I won't bore you with here, and the timing worked out well, and, as I mentioned before, the class cost me exactly zero dollars, so I took it.  It was a blast.  Apart from one other person who was around my age, everyone else in the class was 20.  I kept waiting for someone to ask me to buy them beer.  I made flash cards and studied them.   I got stressed about upcoming exams.   I tried to work the phrase "I like to ride a horse" into every class session.  It was all very fun.

I also have to say that's it's a great change of pace to be a student again instead of teaching, and you get a little bit of a feel, anyway, for what it's like to be a student these days, which is probably a good thing because it's easy to forget.  I can't help but think it will make me at least a tiny bit better of a teacher. 

I wonder if anyone else out there has done a similar thing at the school where you teach.  Do most/none/all/some schools give a similar benefit?  I would think that if you wanted to get all interdisciplinary and what have you, taking courses in the relevant other discipline would be a good way to get started on that.  Indeed, maybe this could tie in to some of the other discussions going on here at Prawfs and on other blogs about what AALS candidates should ask in the last 5 minutes.  "I was thinking of doing some cutting edge work in law and epistemology.  Could I enroll in Epistemology 101 at your university for free?"

Janine Turner/Maggie O'Connell, Will You Go on a World Tour With Me to Discuss the Constitution?

Remember the show "Northern Exposure"?  If you're like me, you missed much of the show when it originally aired because you were doing things like working as a legal assistant for a weird law firm in Xiamen, China, but then watched it religiously every night of 1L and 2L year after you finished your homework and had cracked open the beer that signaled the end of serious labor for the day.  It's the fantastic show that featured a Sam and Diane relationship between Fleischman, the conservative doctor from New York City, and Maggie O'Connell, the fiery liberal Alaskan bush pilot who (mostly) couldn't stand him.

Well, the actress who played Maggie O'Connell (and many other roles, including a recent stint on Friday Night Lights and an early one on Dallas, the best show ever of all time in the history of the world), is Janine Turner, a conservative commentator and activist who runs a group called Constituting America, the mission of which, according to its website, is to "utilize the culture and multi-media outreach such as music, film, internet, and social media to reach, educate and inform America's adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights."  Among other things, the organization put together a collection of essays by scholars on pretty much all of the different clauses of the Constitution, including what I like to refer to as the "odd clauses." 

A while back, I issued an open invitation to Ms. Turner to tour the country and/or universe with me to debate the various parts of the Constitution, as well as to provide me with an autographed picture.  Sadly, I never heard from her.  She didn't even accept my friend request on facebook.  :(

I thought that since I now have this more public forum at my fingertips, I might as well reissue my invitation, though this time I want to make it clear that what I've got in mind is not really a debate, because, let's face it, I suck at debating and would get crushed and mangled and ridiculed at every stop (really, ask Sam Bagenstos about our debate round back in 1985), but rather a fun-filled discussion tour to engage the citizenry and also spread the word about our respective projects (Constituting America and The Odd Clauses, that is) and generally bring happiness and joy to every great city and small town we visit. 

I would also, in the alternative, accept that autographed picture.

Have you ever been to a bar (or other entertainment establishment) named after some part of the Constitution?

I'd like to second Rick Garnett's endorsement of Daniel Okrent's book on Prohibition called Last Call.  It's a great read, and I relied on it a lot when writing the chapter of my forthcoming Odd Clauses book on section 2 of the Twenty-First Amendment, which says that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."  As Larry Tribe once pointed out, this is one of only two instances where the Constitution directly regulates private individuals rather than the government, with the other instance being the Thirteenth Amendment's prohibition on slavery.

I should probably say that I enjoyed Okrent's book somewhat more than the Ken Burns special on Prohibition that's been airing over the past few days, but that might be the historical present tense, wildly overused in these kinds of documentaries, tends to make me vomit.

Unsurprisingly perhaps, there are a lot of bars around the country named after the Twenty-First Amendment.  We have one here in Boston, and there are also such places in San Francisco and Washington DC.  Not to mention Fayeteville, Arkansas.   I've been thinking of doing a tour of them to promote my book.  Not really. 

This makes me wonder whether there are other bars, restaurants, or different kinds of entertainment establishments named after parts of the Constitution, and if not, whether there should be, and what they would look like.  I've thought about opening up an Incompatibility Clause Theater here in Beantown next to my new Letters of Marque Clause teahouse, but frankly, I don't have any idea what would play there.   Thoughts?

 

Hello, and Has Scott Brown Violated the Constitution?

Hello.  First I'd like to say that it's just absolutely prawftastic to be back here blogging on PrawfsBlawg.  I love PrawfsBlawg!!

ahem.

Anyway, for the past two years or so, I've spent a lot of my time writing a book about some of the lesser-known clauses of the Constitution called "The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions."  I came up with the idea for the book about a decade ago when I was working at OLC, where much of the work has to do with parts of the Constitution that don't really come up in law school.  The book will be published by Beacon Press on November 1st. 

In connection with the book, I launched a new blog a few months ago called Odd Clauses Watch, where I post items that I come across having anything to do with any lesser-known clause (not just the ten that I write about in the book).  In a future post, I'll say something about what makes a clause "odd" for me, which is not necessarily what would make it odd for somebody else, but at least on the blog, I have a pretty broad view of what counts as odd.  In addition to posting on things that I find for sale like third amendment t-shirts and books for children about the seventh amendment or the letters of marque and reprisal clause, I also link to articles--scholarly and otherwise--and occasionally engage in analysis of some odd-clause-related issue like whether it was constitutionally legitimate for the Queen to knight Mater at the end of Cars 2.

Most recently, I raised the question of whether Senator Scott Brown, by continuing to serve in the National Guard as a JAG lawyer, has been violating the Incompatibility Clause of Article I, section 6, which prohibits members of Congress from "holding any Office under the United States."  This clause, which is the subject of the first chapter of my book, began as an anti-corruption provision (kings used to promise members of parliament plum executive positions to support their legislative agendas) and is now a key separation of powers provision.  Instead of researching the issue myself, I asked Seth Barrett Tillman, one of the premier experts on many of the Constitution's odd clauses, what he thought of the matter, and he told me that "today . . . there is an incompatibility between being a Senator/Representative and a commissioned officer in the National Guard."   His analysis--as well as the rest of my original post--is here, if you're interested.

Shockingly, however, the post has not resulted in Senator Brown's resigning either of his positions.  I'm looking forward to posting about other odd clauses, and lots of other issues as well, over the next bunch of weeks.  

Farewell, and May All Your Dreams Come True

That is, unless one of those dreams is a nightmare, in which case I hope that particular dream does not come true.

Anyway, thank you again to the Prawfsers for letting me do a little blogging here this past month.  I'm sorry I didn't have more to say.  It's actually been a busy month, as I'm getting ready to teach our new 1L class in Legislation and also trying to finish up the Weights and Measures Clause chapter in my new book, The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions, before disappearing into teaching for the semester. 

I'll leave you with this R-rated story I published a while back about a Supreme Court justice who takes off to Jackson Hole for the summer and develops a crush on a Liz Phair type rocker.  The journal it appeared in is called Barrelhouse, and I highly recommend it to anyone looking for some fun, lively fiction and non-fiction.  The story is one little piece of my still sitting on my shelf not being published book of short stories, "Objection!  Stories About Lawyers and Non-Lawyers," which is currently wagging its tail and being cute and looking for a kind editor to publish it.

One More Pain in the Ass: Holiday Cards in the Age of Facebook

***WARNING: THIS POST INVOLVES NO LAW.  REPEAT: NO LAW***

It used to be bad enough—designing a holiday card to send to friends you haven’t laid eyes on for decades.  First, spend days selecting the perfect picture from the past year, the one that captures the essence of your beautiful family.  Will it be the one of all four of you on the slopes in Aspen?  Or do your wife’s nostrils look like canyons in that one?  Maybe the shot Stella took on the Fourth of July with all of you on the beach?  But where’s the damned dog?  Argue about it endlessly.  Once you’ve chosen the picture, carefully pick the two or three key facts to share from the prior twelve months.  Billy learned to read!  Sally got her first part-time job!  That pimple on my forehead is turning into a third eye!  I can’t stop lactating!  Once you’ve got your design, pay a copy center two hundred bucks, lick a hundred envelopes, collect seven searing paper cuts, and you’re done.  

And that was back when making a holiday card was easy.   

In the age of social networking, of status updates and blog posts, of tweets and twitters, the holiday card game has changed.  These people you hadn’t heard from in decades now share with you their every trip to the supermarket, their kids’ every report card, their every episode of lactose intolerance.  What do you not know about these people that you could possibly learn about them from a holiday card?  And what do they not know about you?  Let’s face it, this year’s “we’re friends on Facebook” is last year’s “we trade Christmas cards.”  

So, what should you do now?  One possibility, if you happened to think of this early enough, would have been to purposefully withhold your best picture of the year and most juicy news tidbits from Facebook to save for the holiday card.  Imagine the surprise of your 312 friends (you are going to send each Facebook friend a card, aren’t you?) when they realize, after following your every move for the past 365 days, that your wife actually gave birth to twins back in July!  If you have the willpower to do this, then mazel tov to you—Facebook has actually made your holiday cards more of a thrill than they used to be.  

The rest of you, though—those who lack the willpower to purposely withhold your spouse’s death from your closest friends to ensure a big surprise come holiday season—will have to come up with something else.  If you’re not going to add some value to the picture and the news blurbs, then what’s the point?  You might as well save your money and your finger blood and forget about it.  Just make “Consider my year’s worth of status updates your holiday card this year” your status update for a week around Christmas, and call it a day.  Nobody will mind, and maybe you’ll also save a tree while you’re at it, which is all the rage these days anyway.  (perhaps mention that in your next status update.)  

But say that you don’t want to give up on holiday cards quite yet.  You’re a real sticker for tradition, you are.  Then what?  If you’re artistic, maybe draw a funny picture of a snowman or something.  If not, perhaps consider sharing a piece of information that you would feel queasy about sharing on Facebook or Twitter.  For example, if you own a home, mention how much you paid for it, as well as its current value.  Sure, your friends could figure this out for themselves with Zillow, but who has time with all the cookie baking and tree decorating and twittering about cookie baking and tree decorating that has to be done during the holiday season?  Plus, everyone loves to hear about people losing money in the real estate market.  Why should your friends be any different?  

Alternatively, on the back of your card, draw one of those maze puzzles that children love to play—you know, the ones where you have to help the pirate find his way through all the swirly lines and wrong turns and dead ends to get to his treasure?  Imagine how much fun you’ll be providing for the more dim friends on your holiday card list!  Plus, if you’re feeling particularly Grinchy, you could make a really complicated maze with lots of twists and turns but all dead ends and no way to get to the treasure.  If you’re lucky, maybe some of your friends will get so pissed off at you about the trick maze that they’ll cross you off their holiday card list for next year.  Do it enough years in a row, and before long you won’t have to send any holiday cards to anyone.   

With the internet, who needs them anyway?

(previously posted on Holy Hullabaloos)

Okay, fine

Just a note: due to the underwhelming response to my previous post on OLC and Second City, I have officially shelved the OLC book project.  But come on, surely some of you Chicagoans have seen the new iteration of Coed Prison Sluts--how is it?

Could OLC be the Second City of Law?

I just finished reading a new book on Second City called The Second City Unscripted: Revolution and Revelation at the World's Famous Comedy Theater, by Mike Thomas.  It was great fun to read.  For one thing, it made me nostalgic for Chicago, my favorite city in the U.S. (when I was going to start work in DC and so needed only to pass a bar somewhere, I decided to take the Illinois bar basically so I could spend a few days in Chicago).  Also felt nostalgic for the Old Town Ale House, which makes three appearances in the book.  I love comedy and improv and Second City in particular (though the one year I did live in Chicago I favored the more absurdist Annoyance Theater, which I see is now up and running again and even rerunning Coed Prison Sluts, which I remember as being maybe the funniest thing I had ever seen back in 1992 (anyone seen the new version?  is it any good?)).

The book, like Tom Shales and James Andrew Miller's earlier book on Saturday Night Live, is told through snippets of interviews that the author/editor Thomas did with cast members and various other people connected to the theater over some long period of time.  Thomas writes introductions to the various chapters and little transition paragraphs, but other than that he lets the people involved speak for themselves and weaves excerpts from all the interviews together to create a really easy to read and interesting narrative.  It's a great technique, at least for a book like this, because you get the feeling that you're hearing the inside story directly from the mouths of the really fascinating, often bizarre and always talented people who made the theater the institution that it's become over the past 50 years.  Though I should note that the parts about Chris Farley's apartment are not for the squeamish.

As I was reading the book, I was wondering whether one might do a similar kind of book for some legal institution, and having worked at Office of Legal Counsel in the Justice Department for a couple of years, it struck me that a book on OLC told in this format might actually work.  Obviously it wouldn't be as funny (though it wouldn't be totally unfunny either--I mean, don't forget that Cass Sunstein was a member of the Harvard Lampoon) but it might be even more interesting.  OLC shares a lot of characteristics with Second City--both are small and prestigious institutions in their fields where for the most part talented people spend short parts of their careers, usually early on, before going on to  bigger things (like being Supreme Court justices, as at least 3 OLC alumni have done).  At the same time, both places have critical long-term players who give the institutions continuity and can speak to the changes in the places over time.  And while OLCers are not as quirky perhaps as Second Cityers, anyone who has worked there knows that it's certainly seen (and continues to see) its share of absolutely brilliant, one-of-a-kind characters (hi, Marty!).  I guess the big question is whether it would be possible to tell a compelling part of the real story of OLC--what it's done, how it's changed, what it's like to work there, etc.--without disclosing confidential information.  Some things obviously can't be told and careful attention would clearly need to be paid to figuring out what can and what cannot be said.  But I have a feeling that the story could still work, and work well, without giving away particulars that would go over the line.

I wonder if anyone has any thoughts on this.  Can it be done?  Would you want to read it?  Would you be able to convince someone who wasn't a lawyer to read it?  If you have worked at OLC, would you do an interview?

Some Solace for Job Seekers?

I thought I would share this video I made with you folks on the job market this year.  Just know that if you're trying to tell people about your article and they're looking at you like you're crazy or a doofus or, in the words of the Dean at the University of Chicago in my case, that there has occurred  "a really poor topic selection on your part," perhaps you can take some solace in the fact that maybe, just maybe, you can use your article ten years down the road as part of a comedy routine.

Law Professor Olympics

Umm, hello?  Is this thing on?  Ahem.  Hi.  I'm delighted to be back at PrawfsBlawg for another month of prawfblawgging.  The first thing I wanted to talk about is an idea that recently came to me as a way of solving one of the strange problems of the law professor world.  Like many who have commented here and elsewhere in the blogosphere, I often find myself surprised that law professors don't seem happier--not just that they aren't somewhat more happy about their lives and careers but rather that they don't come to the office every day singing and dancing.  With the money they pay us and the freedom we have and the students we get to teach, it seems like every day in the law school should be a lot more like that musical where all the songs are by ABBA.

(incidentally, I do sometimes come to work singing and dancing, though the songs are more likely to be Smiths tunes than anything by ABBA)

One of the diagnoses for this state of affairs--and this is hardly an original observation either--is that law professors tend to be incredibly competitive people who no longer have any outlet for their competitiveness.  Yes, there's always the chance of visiting at a higher ranked school (though not for me), or having one's article on blah blah blah be accepted by the Whatever Law Review, but for the most part our days go by without any chance to compete directly with our peers.  This leaves us empty and confused and unlikely to come to work singing Mamma Mia.

A possible solution after the break.

What we really need in the legal academy is a Law Professor Olympics, sort of a "lumberjack games" for law professors where we can all get together for four days or a week or something during the summer and compete on all sorts of skills that we use everyday in our work but never get a chance to exercise in direct competition with our peers.  The key here would be coming up with the right events.  Some are obvious, like the "best question in a workshop" event where each school nominates its best question asker and in a series of preliminary rounds these question askers compete against each other to ask the most elegant, most insightful, most deliriously delicious question of some random paper presenter (judged by a panel of 3 or 10 other profs who award points to each question asker on squares of paper like in ice skating in the old days), and then the winners move on until the final round on the last day of the Olympics in which the greatest of the great question askers compete against each other while everyone looks on and cheers for their favorite question asker (perhaps this takes place in an auditorium, or a football stadium, depending on how popular the event becomes).

But we need some non-obvious events as well, and here's my first suggestion.  Do you ever arrive in your classroom and find that the previous professor teaching in there has either not erased the blackboard or whiteboard or has erased it so poorly that it's pretty much like the person has never before seen an eraser and could use a short tutorial in eraser-using?  There are all these random scrawlings on the board--a partial case name, a giant "B" with an arrow that goes to a couple of dollar signs, a big "SCALIA" with a bunch of question marks next to it, etc. etc.  Have you ever wondered if you could yourself just pick up a piece of chalk and use those notes on the board to give your own lecture on whatever the topic of the notes is?  It would sort of be like improv comedy except with the notes being the suggestions from the audience and without the comedy part.  To be really good at this, you would need to be a great teacher and a great improviser, and also have an incredibly broad knowledge of the law, since who knows what class you might be coming in after--secured transactions, animal law, a seminar or the Seventh Amendment, whatever.  I think this would make for a great competition for law professors.  Someone teaches a real class in secured transactions, animal law, the Seventh Amendment or whatever, makes a half-assed effort to erase the board, and then leaves.  Competitors take turns trying to give fifteen minute lectures using the remaining scrawlings and are judged by a panel of their peers.  Again, the competition starts off in preliminary rounds early in the week and proceeds to the final round at the end, right before the closing ceremony and the Dionysian kegger that finishes off the week at the host school's dean's house.

Other event suggestions?

Bye Bye (and a McSweeney's Piece for the Road)

I just wanted to say farewell for now, as this will be my last Prawfs post for a long while, though I expect to be back for another guest stint in December.  Thank you to Dan and all the Prawfsers for letting me hang out here long after I ran out of anything to say.  If you want, you can always find me somewhere on my webmpire, which includes my personal website where you can view my paintings of goofy pears, click on links to various stories I've written, and read my script for a sitcom about death row; my blog; and of course the webpage for Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, which you might want to buy now if you haven't already because the Boston Globe recently called it "stunning[]" (OK, they said I pulled off an unlikely feat "stunningly") and "zanily irreverent".  There, how's that for one last pathetic smarmy piece of self promotion.

As a parting gift, I'll leave you with this piece I have this morning on McSweeney's about the Sotomayor hearings.  There has been a lot of talk in the blogosphere of course about what might transpire there, but as far as I know, nobody has yet to consider what the hearings might look like if they were held in front of the 1977 Kansas City Royals rather than the Senate Judiciary Committee.  As the law reviews say, I have attempted to "fill this gap."

Supreme Prudes

Remember back in the fall when the Supreme Court heard oral arguments in the so-called (by me, anyway) "fuck and shit case"?  The case involved a challenge by various television broadcasters to the FCC's relatively new practice of fining "fleeting expletives," like when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse?  It's not so fucking simple" at the Billboard Music Awards.  The most interesting thing about the oral argument  was that nobody--not the Justices, not the lawyers, nobody--said "fuck" or "shit."  Instead the lawyers used euphemisms like "the f-word" or "the f-bomb."  Awesomely, Justice Scalia made up a euphemism for "fuck" right in the middle of the oral argument, saying to counsel at one point, "Don't use golly-waddles instead of the F-word."  This "golly waddles" reference attracted a lot of attention in the blogosphere, and I expect that my own investigative contributions to the discourse--interviewing language expert Steve Pinker about the phrase's lingustic origins and ex-porn-screenwriter Eric Spitznagel about the phrase's erotic potential--will soon be earning me my first Pulitzer.

Anyway, the case is in the news again.  Not because of how the Court actually decided the case (it held that that the FCC had not violated the Administrative Procedure Act by changing its position on fleeting expletives without sufficient justification and explanation; the Court was not asked to consider the first amendment arguments in the case, which will be addressed by the second circuit on remand) but because it turns out, according to Justice Ginsburg, who made the revelation at a speech she delivered last Friday, that the reason the lawyers did not say "fuck" or "shit" during the oral argument was because "the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court."  Got that?  Some of the justices thought it would be "unseemly" for the words "fuck" and "shit" to be used within the hallowed chambers of the marble palace, and so the Court (probably through the Chief Justice) told the lawyers to use euphemisms instead.  Yeeks.

Ginsburg did not reveal which Justices thought it would be unseemly to have to hear these awful, horrible words.  Nor was there any indication that the justices had instructed the lawyers to use the phrase "golly waddles" instead of "fuck." (Wouldn't that have been glorious?)  So, one question that naturally comes to mind is which justices are most likely and least likely to have been the ones to have issued the order not to say "fuck" and "shit"?  Moreover, one wonders whether this issue will make it into the Sotomayor confirmation hearings in July.  Should the Senate Judiciary Committee ask her point blank if she would mind it if a lawyer said "fuck" in the courtroom?  Or what she thinks of "golly waddles" as a possible euphemism?  I hope these issues come up so much I can hardly stand it. 

(Cross-posted, more or less, on Holy Hullabaloos)

How Do You Write and Publish an Op-Ed?

One thing it seems that a good number of law prawfs do from time to time is to write op-ed pieces for newspapers.  I've tried to do this a number of times.  My attempts have always failed.  Generally, some issue comes up that I think I could say something about, so I write 700 words about it and email it to the editors of some newspapers and then nothing at all happens.  Maybe the pieces are still under consideration, but given that I sent most of them at least three years ago, I doubt it.

So, I'm wondering if those of you who have successfully written and placed op-eds could provide some advice for those of us who would like to publish one but have no idea how to best go about it.  I guess one question is whether people really do just write up op-eds and send them cold to editors and get them published, or whether they are instead generally solicited.  Assuming that they are not all solicited, what are your tips for getting an op-ed published?  To what papers and what people do you send them?  Do you send them to one place at a time or are multiple submissions OK in some circumstances?  What papers are most receptive to unsolicited submissions?  What issues are most likely to grab an editor's attention?  What else?

What's Your Family's Catch Phrase?

Did anyone else here catch the show that was on the other night which counted down the fifty top funniest phrases in TV history?  It was a pretty funny program, although the absence from the countdown of either Good Times' "Dyn-o-mite!" or Different Strokes' "What you talking 'bout Willis?" was really inexcusable.  Among the fifty were such gems as "Two wild and crazy guys," "Aaaaay," "Nanu-Nanu," and "Up your nose with a rubber hose."  The top phrase was "Yada Yada Yada" from Seinfeld.

The program got my family thinking that maybe we should have a catch phrase.  Doesn't every family really need one?  I talked to my wife and son about it, and we decided to adopt the phrase "Daddy Doesn't Know" as our catch phrase.  It's something I say all the time in response to their questions because I don't really know a damned thing.  The catch phrase, though, involves more than just saying the words.  There's kind of a special way to say them and some body movement as well.  If you're interested in checking it out, we've posted a very short movie on YouTube, and I invite you to give it a look.

Does your family have a catch phrase?  If so, I hope you will share it with us here.

Amazon's "Tag Suggestions"

I was curious what happens when you tell Amazon that you want to write a review, so I clicked on the relevant link on my book's Amazon page, and it took me to a screen where I could enter a review (no, I didn't actually enter a review of my own book).  Under this, though, it asked if I wanted to "tag" the book.  I don't really know what it means to "tag" a book, but I was a little taken aback by the following "tag suggestions" offered by the nice folks at the Amazon corporation (reported here verbatim):

crappy, humorous, foreign relations, murder, suspense, educational, jay wexler, sex, oh john ringo no

What to make of this, I have no idea?  Do you?

When is the Movie Better Than the Book?

Well, for my 40th birthday last month my wife did not get me a Ferrari (do they even make those in an automatic transmission?) but she did get me something almost as good: a rare, perfect condition, first edition copy of Cameron Crowe's 1981 book Fast Times at Ridgemont High: A True Story.  For those of you like me, who didn't know at least until pretty recently, that this was a book before it was a movie, let me tell you that it was a book before it was a movie.  That's right, before Cameron Crowe made the film that launched the careers of not one not two not three but four, yes four academy award best actor/actress nominees (three have won the award), he wrote a book that was based on his experiences as a 22 year old impersonating a high school senior for an entire year at an actual high school in Redondo Beach.  The principal only let him do it because Crowe knew Kris Kristofferson, who apparently the principal was very fond of, and only a few teachers were in on the plot.  Anyway, once I found out the thing had been a book before it was a movie, I knew I had to get it, and my wife, bless her heart, obliged.

The thing is that Fast Times at Ridgemont High, the book, is no Fast Times at Ridgemont High, the movie.  It's fine, and maybe if I had read the book before having seen the movie 14 times and before the movie permanently imprinted itself upon my consciousness, I would have loved reading the book.  But as it is, I find it interesting because of course I'm comparing it with the movie, but not any sort of great piece of even kitschy literature.  This "movie better than the book" thing, of course, is pretty rare.  Anyone who knows anything knows that you're always supposed to say that the book is better than the movie.  And indeed, it's almost always true.  Just looking at my bookshelf here, I realize that even some really good movies that came from books, like Trainspotting for example, were better books.  But from time to time there must be books that became better when they were turned into movies.  I'm thinking off the top of my head of "Election," which I liked as a book but loved as a movie.  So my question for you is: name one or more movies that were better than the books they came from.  Or, if you'd prefer not to do that, then don't.

Now, lest you think that this post has nothing to do with the law, let me just use this whole discussion to pathetically segue into announcing that my book Holy Hullabaloos is now available from Amazon.  I assure you that when this does get turned into a movie starring Steve Buscemi as me and Seth Rogen as the cell-phone-using-cigarette-smoking-motorcycle-accident-recovering-from-hatless Amish guy I talked to in New Glarus (home of the famous Yoder case), it will be much better than the book.  But since that won't be out until 2012 or perhaps sometime later than that, like never, maybe you'd like to purchase the book that Christopher Buckley, author of Supreme Courtship, has called "the sharpest, the most insightful, the most side-splittingly funny book on law since--Supreme Courtship." 

Style and Scholarship

Bill Stuntz's recent post on the virtues of nominating Pam Karlan for Justice Souter's seat on the Supreme Court has gotten some well-deserved attention in the blogosphere.  Stuntz argues that Karlan, because she is a "spectacularly gifted" writer, would be a good counterweight to Justice Scalia, "whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions."  I couldn't agree more with this, and indeed suggested much the same thing last Friday, although I focused on how Karlan could parry with Scalia during oral argument rather than through her writing. 

But here I wanted to talk about something else Stuntz says.  At the end of his post, Stuntz makes a point about legal scholarship.  He writes, "productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase.  That is a mistake.  The legal and academic markets are filled to overflowing with smart opinions and law review articles.  The ones that stand out are fun to read--and those are few and far between."  I wonder what people think of this.  My view is that style is wildly undervalued in legal academia, whether it's in hiring decisions or law review placement decisions or tenure evaluations or anything else that makes a difference in the legal academy.  In my experience, although one sees from time to time a mention of a scholar's style in an appointments reference letter or a tenure evaluation letter, it invariably is thrown in as an afterthought, once the letter evaluates the scholar's (or potential scholar's) analytic skills, capacity for original thought, and productivity.  Likewise, I can't remember ever being at a workshop where someone has made a serious comment about the style of a piece as opposed to its content. 

Does this comport with other people's experiences?  If so, is it something to bemoan?  Shouldn't we care if someone can write beautifully or poetically?  Shouldn't we want scholars to write with wit or passion?  Shouldn't we provide incentives for such writing?  Shouldn't we reward it?

Me for Supreme Court Justice

So, it looks as if Justice Souter will be retiring.  That's a shame, but of course it will make life very interesting for those of us in the legal academy who will spend endless hours thinking about and debating who should be/will be the next Supreme Court justice.  We will all have our official hopes and predictions, whether they are Diane Wood or Elena Kagan or Jerry Springer or whomever, but let's be honest with ourselves: aren't we all sort of secretly hoping and thinking that maybe, just possibly, with a little luck, we could be the next justice?  Isn't it at least possible that our friend who works in the Justice Department will make an offhand mention of our name to someone "at a higher paygrade," and that person will in turn become intrigued by the possibility of this stealth choice and do some research into our scholarship and records of past service and decide that yes, indeed, this obscure law professor from wherever would make the perfect nominee?  I think that maybe we all do this, but that we are all too humble, and modest, and "well brought up by our parents" to actually come out and say it.  Well, I say screw that: I'm endorsing myself for the next justice of the Supreme Court.  And here's why.

For one thing, since I'm not a federal judge and have only written enough scholarship to barely get tenure, I don't have a long paper trail and therefore should be easily confirmable.  Yes, so I've written a short story about how I got caught making out in the girl's bathroom at a seventh grade dance, but since when do sexual improprieties such as this render one unfit for the bench?  Second, while I may be smart enough to write a decent Supreme Court opinion, I'm not too smart that I would write opinions that nobody could understand.  See, that's the problem with all the hoity toity candidates.  They all have "subtle" and "sophisticated" views of the law and see "connections" between various areas of law that seem unconnected.  I don't see those things.  And therefore my opinions will be straightforward and easy to understand and, moreover, will be fundamentally unsound at anything beyond a purely superficial level, which will in turn give legal academics a lot to gripe about and critical law review articles to write, which will be fine by me since who the hell cares, I'm a Supreme Court justice.  Finally, since I'm on facebook, I will be able to open the process up far more than it is now, as I comment on pending cases in my daily status reports.  Hell, I might even be convinced to tweet from the bench during oral argument.

So, President Obama, what do you think?  Call me.  (now I better write down the area code for Washington DC so I can look at caller ID and know when he's on the phone).

Can I Say "Hullabalooza?"

So, I'm in Moscow, hoping that I'll get over this stomach bug in time to give a series of talks about church/state matters around town on Friday.  It should be interesting, and if something comes up that seems worth sharing here, I certainly will.  My current concern, however, is this.  Since my book is called "Holy Hullabaloos," the temptation to say the word "hullabalooza" like a million times a day is quite strong.  For all those IP people out there, can I do this, or does Perry Ferrell or whoever own some sort of IP right--copyright?  trademark?  patent?  I really don't know anything at all about IP--that would stop me?  I assume that I can whisper the word "hullabalooza" to my wife in the confines of our own bedroom, of course, but what can I do beyond that?  Can I make a t-shirt that says "hullabalooza"?  Use it in a marketing campaign?  Would it change things if I added an "o" so it was "hullabaloooza"?  Or more "o"s: "hulabaloooooooooooooooooza"?  What if I instead went for the darker, more conflicted, "hullabaloser"?

In any event, if anyone's interested in reading the starred review Publisher's Weekly gave HH, you can do so here.

Admit it! It Sucks! Law Prawfs Version

Fans of Joe Queenan will recall a series of articles he wrote for Spy Magazine in the early 90s called "Admit it!  It Sucks!" in which he skewered various things--jazz, "San Francisco"--that all good serious cultured intellectuals are supposed to say they love but that, if they were honest with themselves, would admit actually suck.  So, for example, in his jazz column, he runs a hypothetical: your friend calls you up with two tickets to see Wynton Marsalis's 11:00 pm show at the Blue Note, and you beg off, citing various excuses about how your mother is coming to visit you that night and how cigarette smoke "isn't really good for your asthma."  But, he says, "after you put down the phone, you know that it's time to be honest with yourself.  You blew off your friend because deep down inside, gnawing away in your bosom, is an ugly, horrible secret that you dare not share with anyone else--even though everybody else in the country shares it.  Jazz sucks."  He continues:

Admit it and you'll feel a whole lot better.  You've never had the slightest interest in an art form dominated by guys named Toots and Dizzy and Philly Joe Something-or-Other.  From the first time you heard Art Tatum playing "Tea for Two," you've always felt that jazz is a dipshit idiom that chomps the big one. 

OK, so I actually love jazz, but you know Queenan has a point here.  And the question that follows for this group of readers is what about the legal academy: What are the things that we as purportedly serious intellectual scholars are all supposed to say we love, love, love, but actually, deep down sort of think kind of actually suck?  Here are some nominations: (1) peer-reviewed journals (I mean, come on, we whine and whine about student edited law reviews, but for the 95% of us out there that don't write groundbreaking scholarship--and here I'm making the controversial assumption that there is a distinction between "good" legal scholarship and "not good" legal scholarship--isn't it better that we can blame the "ignorant" students when the Harvard Law Review once again rejects our article on the original understanding of the Weights and Measures Clause?); (2) interdisciplinary work (really--if I wanted to hear about philosophy all the time, I would have gone to philosophy grad school . . . and taught six classes a year for $46,000); (3) workshops and conferences (oh, great, here's another "comment followed by a two part question" to which the speaker "will take the second question first" (incidentally, do you ever wonder what would happen if the person giving the talk actually took the first question first?)); (4) pursuing "social justice" (OK, never mind, I guess that one's pretty solid).

What do people think?  Any of these fit the bill?  Other ideas?  Anonymous comments are welcomed and danced with, vigorously.

Should I Be Sad?

So, I recently read somewhere in the blogosphere that the deadline for accepting a visiting position at another law school during the 2009-2010 school year has just passed, and so I'm wondering whether I should feel sad that one more year has come and gone without anyone asking me if I'd like to visit at their nice law school. I mean, I don't think I know anyone who hasn't visited somewhere. Most people I know have visited many places and are scheduled for visits already right through the 2013-2014 season--"yeah," they'll say, "I'm set up for a visit at Fordham in spring 2010 and Michigan for fall 2011 and am working on getting something together at the not-yet-quite-created Brown Law School for the January term 2013." It's not like I'm exactly itching to visit somewhere--I love where I teach and how do people see their "families" when they teach halfway across the country, anyway?--but still, I wonder--in the same way that I wonder, when I'm on the subway and there's an empty seat right next to me and the person standing right next to the empty seat won't just sit down, why why why doesn't the person sit down, what is wrong with me, what do I smell like anyway?--why no law schools want me to visit. How does this whole visiting thing even work? It's not like I don't answer my phone. Indeed I sometimes sit whole days staring at my phone waiting for it to ring with a visiting offer, occasionally picking it up and listening to the dial tone to see if it's still working, but nothing, and then it's another evening of coming home, hanging up my hat, and facing the inevitable question from my wife: "Did anyone ask you to visit today, dear?" she says, and I have to put my head down and say "no" and even though she always smiles politely and pats me on the head and says "that's OK, dear," I know what she's thinking, and not just because she turns to my five year old son and says, "sorry, honey, nobody asked daddy to visit again," and he cries.

Is Working for House Like Clerking?

For those of you who watch the television show "House," do you feel like those people who work for House are kind of like law clerks working for a judge?  I mean, I realize there are some important differences.  For example, the people who work for House are doctors, while the people who work for judges tend to be law clerks.  Also, House's workers do things like save lives, while law clerks write memos.  But, still, there are some parallels, right?  The close knit quarters, the ego stroking, the long hours.  And if I'm right that working for House might be like clerking for a judge, then what judge is most like House?

What Does it Mean to Have a Theme Song for a Book?

A few weeks ago, Chris Lund asked whether it was "crazy" to ask what it meant when I pointed out that Mike Newdow, of "under God" fame, had agreed to write the theme song for my book Holy Hullabaloos.  I don't think it was crazy to ask such a thing.  Let me explain.  I realized after finishing my book that there were two things I could do.  Either I could just stay silent and let the book come out without any fanfare, or I could work to publicize the book so that people would buy it (yes, yes, I understand there are many points in between doing nothing and doing what I've done).  As much as I feel smarmy when I do all this self-promotion, and as much as I realize there are people out there who are going to say, please please let this guy shut up about this stupid book if I have to hear about Holy Hullabaloos one more time I'm going to puke, I figured that this state of affairs would be better than the alternative, which is to have worked for two years to write something I'm very proud of and then have it come out and stay at #1,742,389 on the amazon rankings and be read by seventeen people, which is basically the number of people who have read my law review articles (including the several external reviewers for my tenure file who panned it).

Doing the smarmy publicity is made much more fun and palatable by the internet and all the multimedia opportunities there are to publicize a book these days.  It's sort of like turning the book into something bigger--an all consuming multi-dimensional art project or something.  I don't have a video book trailer yet, which is something that people are doing a lot of these days, but having a blog and a website and my 4 year old son "reading" the book on YouTube  ("blah blah blahbetty blah," he says, over and over) has been a great deal of fun.  So one day I was thinking about what else I could do and I thought, aha, why not a theme song, and my wife suggested that maybe Mike Newdow would agree to do it, and since I'm a huge fan of his, I asked him, and luckily for me he said yes.  Well, the other day he sent it to me, and I'm delighted.  I can't stop listening to it over and over and over.  He captured the idea of the book and some of the details while still putting his own distinctive personal stamp on it.  For example, the ending lyrics, which pick up on my observation regarding Marsh v. Chambers (holding legislative prayer basically constitutional) that it was written by Justice Burger in five minutes on the can, Newdow sings:

A case that many think was one where the court did shrink
From its job they sure did stink that time.
In five minutes sitting on the can, Chief Justice Burger wrote pure slime.
Not a single word about equality, absurd
Was that decision like a turd to flush.
Anyone who's proud of our great nation reads that case and then does blush.
Religion can do wondrous work.
But government should never shirk
From making sure not to confuse
The seat of legislation and our pews.
Hey don't you all just sit around and snooze.
Keep watching out for Holy Hullabaloos.

If you'd like to listen to the song, I've put it on my blog and website.  Enjoy.

Justice Ginsburg's Footnotes

In the shameless plug department, I just thought I'd let the world know that I've posted this piece about Justice Ginsburg's footnotes on SSRN.  It's a contribution to a symposium on the jurisprudence of Justice Ginsburg that is being held at the New England School of Law on Thursday.  In the piece, I develop a nine-part taxonomy of Supreme Court footnotes and demonstrate, once and for all, that unlike the late, great David Foster Wallace, Justice Ginsburg never uses her footnotes to demonstrate the fractured nature of reality in her work. 

Can I Get Through Without Saying "So . . ."?

In about 90 minutes I'm scheduled to do a workshop here at BU on my new book project, The Odd Clauses: Twelve Parts of the Constitution You Might Not Know About But Should.  I think the title tells the story of what the book will be about, although I've only written one chapter, that being one about the Titles of Nobility Clauses, which weirdly became slightly newsworthy yesterday when it was announced that Sen. Kennedy was getting knighted by the Queen of England.  Over at Volokh, Eugene Volokh reported that several people had asked whether this violated the Titles of Nobility Clause of Article I, section 9, and he rightly suggested that it did not, because members of Congress do not hold an "office" as that term is used in the Constitution.  In any event, I hope I get lots of good comments and questions at the workshop, but most of all, I'm going to try as hard as I possibly can to avoid using that "So . . ." formulation that we've talked about before here when beginning an answer to some inquiry from the floor.  I am not optimistic, but I'll let you know later today how it went.

What's a Mentor?

The other day I was wondering what I should do with the rest of my life, and I thought, boy at this point it would be great to have a mentor.  But then I thought, what is a mentor, anyway?  Have I ever had one?  Have I ever been one?  I really don't know.  Do you?

I know I've had a lot of great advisors, but I take it that a mentor is not the same as an advisor.   Am I right about this?  A mentor does more than just respond with some advice when you send him/her an email saying, what judges should I apply to or what schools should I interview with or to what literary journal should I send this prose poem written in the voice of a just-neutered Abyssinian Blue kitten, doesn't he/she?  Is a mentor someone who plays a more active role in your life, who comes down to your office or calls you up without invitation to suggest that you pursue a Guggenheim and then offers to write a letter for you?  If that's what a mentor is, then I'd reiterate the earlier suggestion that I would like one.

Or am I too old?  How old can you be and still get a mentor?  (I turn 40 in a month.)  I suppose this turns on whether you're looking for a mentor in your own field rather than a new one.  So, I guess it would be a lot harder for me to find a legal academic mentor (though I'm sure I could use one) than it would be if I decided to scrap it all and go to med school, in which case I suppose even a much younger person than me could be my mentor, assuming that he or she was a successful doctor of some sort.  This raises a further question of whether there are different types of mentors: more general life mentors vs. mentors for specific goals or purposes.  How targeted can a mentor be?  Can I have a mentor who only helps me work on my omelette making?  I have a good friend who tells me that when he was learning how to drive back in high school, his driving instructor took a really active interest in teaching him and keeping him informed about the road conditions, even going so far as calling him one night to let him know that the roads were apparently covered by black ice.  This is exactly the kind of thing I'm looking for.  Which raises the final question: How does one go about applying for a mentor?  Can you get one on Craig's List?

Law and Religion Toy Idea

So I had in mind the Summum case with the competing religious monuments over the weekend when my son and I were playing with his Colorform Thomas the Tank Engine toy, Colorforms being those popular old-school toys with vinyl cut-out pictures that you can stick to a background and then remove them and restick them and remove them and restick them a million times because they never turn non-sticky, when it occurred to me that someone should make an "Endorsement Test" Colorform set.  It would provide hours of fun trying to predict what the Supreme Court would do with any given religious display, and students could use it to review their understanding of Lynch v. Donnelly!  The set would include a creche, several menorahs of varying sizes, the hypothetical 18 foot high dreidel from Allegheny, a Summum monument, a statue of Ganesha, a sitting Buddha, a giant Confucius, a Ten Commandments monument (or, better yet, three monuments, representing the Protestant, Catholic, and Jewish versions, since they're all different), and of course the teddy bear, elephant, and clown from Lynch.  Lots of municipal greenery, too.  Have you ever wondered whether a floral frame really brings extra attention to a creche on public property?  This would be your chance to find out. 

(incidentally, I actually like the endorsement test, but look, I'm as prone as anyone to use it for joke-making purposes)

(if anyone wants to read a little interview thing with me about my upcoming book and take a look at my painting of Justice Alito with a small green bunny on his shoulder (which my editors cut), check out Religion Dispatches, a cool religion website)

Monday TV Quiz (with associated legal point)!

OK, here's the quiz: name the two hour-long dramas in the history of television (I think) that were spinoffs of half hour sitcoms.  Answer, and associated legal thing, after the jump.

The answer is (1) Lou Grant, spun off from Mary Tyler Moore; and, more controversially, (2) Trapper John, MD, spun off from M*A*S*H.  Why is #2 controversial?  According to this unbelievably great website, which catalogs all of the spinoffs and crossovers in TV history (a "crossover" being when the reality of two shows intersect, like when the Bewitched characters became animated and appeared on the Flintstones), there was a legal batttle over whether people involved in the original M*A*S*H TV show would share in profits from Trapper John, and so the creators of the latter styled it as a spinoff of the original movie rather than of the TV show.  But still, come on, who are we kidding?

Anyone have any ideas for similar types of spinoffs?  I would actually like to see an example of the reverse situation: "Medevoy," a 1/2 hour sitcom spinoff of the hour long drama NYPD Blue, starring that red headed goofball detective who is always getting himself in wacky situations!

Workshops and Wine

Like many schools, we at BU have a weekly workshop in which someone from the faculty or someone invited from outside presents a work-in-progress, takes questions, defends their arguments, says "So . . ." and then reformulates the question to suit their purposes before responding, etc.  But one thing I've noticed over the past 8 years is that, while lunch is regularly provided, we never have any booze.  I've always wondered how the workshop would be different if people were drinking.  I remember in graduate school I took a workshop-like class that met at the professor's house and there was wine.  The class was still terrible, but I'm pretty sure the wine made it slightly less so.  I'm wondering whether workshops at other schools involve alcohol.  If so, what type?  Just wine and beer, or the hard stuff as well?  And if the latter, is it top shelf or rotgut?  How does the booze affect the discussion?  Does the speaker drink as well as the audience?  Any information would be greatly appreciated.

Mike Newdow is Doing My Theme Song, etc.

Hello.  I would like to echo Dan's Happy Valentine's Day or Not message.  Unlike Dan, though, I didn't get to the movie theater.  Indeed, the last time I actually saw a movie in a theater was about a year ago when I saw the awful "21" in the theater on the bottom floor of the Palace of Culture and Science in Warsaw.  I did rent Miranda July's "Me and You and Everyone We Know" and I have to say that I've since been wondering whether I want to live in a world where that movie did not get nominated for best picture.

I would also like to apologize for falling down on my guest blogging duties and being silent for a while.  I was busy giving talks on evolution-related topics at Liberty University and West Virginia University, where the faculty I must say consists of some of the friendliest and funniest people I've ever met in legal academia (or anywhere else, really).

I have an announcement regarding my book that leads to a general question.  I'm delighted to say that Mike Newdow, the guy who sued (successfully, for a time) to have "under God" removed from the Pledge of Allegiance, and who is also a musician in addition to being a lawyer and a doctor, has agreed to write and perform the theme song for my book Holy Hullabaloos.  I'm a big fan of Mike's, and I think he gets a bad rap in the media.  If you go to his website, I think you can tell that he's not interested in anything like establishing an atheist country; he simply wants the government to stop discriminating against atheists like him (and me).  You can also buy some of his very funny (to me, anyway) CDs, of which I own and enjoy two.  My question, I guess, is am I wrong about Mike?  What do people in law school and the academy think of him?  Isn't he just a guy who is standing up for the rights of a minority?  Don't we generally approve of that sort of thing?