An Open Letter to the ACLU, on Civil Liberties

Dear American Civil Liberties Union:

I am a law professor who teaches Torts, Speech Torts, and Criminal Procedure.  I am also a longtime fan and donor.   I even met with one of your attorneys in Ohio to discuss possible collaborations (he was highly competent, principled, and conscientious about free speech).   I write, in all sincerity, because I believe your current organizational priorities are undermining the very credibility that earned you prominence.  I think you are losing sight of the meaning of the term civil liberties.

Continue reading “An Open Letter to the ACLU, on Civil Liberties”

Thoughts on Enforcing Non-Disclosure Agreements

This month, two women have come forward who credibly claim to have engaged in sexual relationships with a married Donald Trump, prior to his becoming President.  These women cannot speak about the affairs because of non-disclosure agreements.  Fitness model Karen McDougal and pornography actress Stephanie Clifford (aka Stormy Daniels) have both sought declaratory judgments invalidating their NDAs.  Their lawsuits speak of their being “silenced,” and commentators discussing the cases frame them as involving free speech.

Although states can and do void some NDAs as violations of public policy, this “free speech” framing elides important distinctions between government suppression of speech and voluntary decisions to exchange one’s ability to speak for compensation.  Courts should be cautious about interfering with this right to contract by invoking vague notions of free speech.

Continue reading “Thoughts on Enforcing Non-Disclosure Agreements”

How to Create a Great Law School Outline


Most law students know that creating an outline for a law school class is a useful tool.  However, many students aren’t aware of the precise reasons that outlining is useful.  As a result, students create outlines that don’t serve them particularly well.

There are two main purposes for outlining.  An optimal outline helps a student (1) better understand how the material is organized as a coherent whole and (2) better apply the material to new hypothetical situations.  Throughout the semester, you learn the information in isolation. True understanding comes from appreciating how all of the rules and principles fit together, and how the cases illustrate the legal principles that logically flow from one to the next in an organized system.  Outlines are great for ensuring true understanding.

Here are some tips, with examples, for how to optimize your outline.

Continue reading “How to Create a Great Law School Outline”

Essay: “Good Orthodoxy” and the Legacy of Barnette

Free speech has become so politically polarized that I fear that the First Amendment is losing its legitimacy as a non-partisan tool.  Without consideration of ultimate viewpoint, the First Amendment safeguards dissenting voices, promotes expressive autonomy, and fosters both the search for truth and genuine participation in our democracy.  Some increasingly argue, however, that the First Amendment has become a Lochnerian de-regulatory political tool, while their opponents believe that respect for the First Amendment has waned simply because it has become politically inconvenient.

Continue reading “Essay: “Good Orthodoxy” and the Legacy of Barnette”

Are You a Rules Person or a Standards Person? (Quiz Included)

I tell my law students that you cannot get through law school without knowing your general approach to  the rules versus standards debate.  So many legal questions turn on whether you prefer the (1) simplicity, clarity, predictability, and fairness of rules, or the (2) flexibility, complexity, and justice of standards.

Rules create bright-line tests that apply exactly the same to everyone, in a fair and predictable way.  The problem, however, is that rules don’t allow for the case-by-case analysis of standards, which provide more flexible, balancing-type approaches that give judges discretion to determine what’s right in a given situation.  Rules make things fair; standards may make them just.  Rules may also be over- or under-inclusive, sweeping up people into the rule who don’t belong, or not including people in the rule who should belong there.

Continue reading “Are You a Rules Person or a Standards Person? (Quiz Included)”

Products Liability Exam Hypo

Arya Stark purchased a knee brace directly from the manufacturer, Lannister Industries.  Arya bought the brace so that could keep her knee stable while practicing her sword fighting.  The knee brace, which was sold for the low cost of $7.75, came with instructions on how to use it, which included the language, “Do not use this knee brace when making sudden, choppy movements.”  Arya, who believed herself to be a very fluid sword fighter, knew she would not make any jerky movements while practicing sword fighting.

Arya did not examine the knee brace carefully, so she did not notice that the knee brace is designed to slip all the way down the leg when sudden movements are made.  Two weeks after purchasing the knee brace, Arya was practicing her sword fighting when her father, Ned Stark, the most honorable man alive, unexpectedly knocked on her door.   She jerked suddenly, startled by the door, and the knee brace fell off her leg.  She tripped over the knee brace getting to the door and broke her leg in two places, requiring several surgeries.  Because of the injury, Arya would never be strong enough to sword fight again.

Arya sued Lannister Industries for compensatory damages.  Discuss the possible claims that Arya could assert, how the court would analyze those claims, and what affirmative defense Lannister Industries could use to defend against Arya’s claims.  Also discuss what damages Arya could be awarded if any of the claims succeed, and how a court will calculate those damages.

Continue reading “Products Liability Exam Hypo”

Monica Lewinsky, #MeToo, and the Dangerous New Vision of Womanhood

As a First Amendment scholar, I was optimistic about the #metoo movement.  Here was a way to raise awareness about unspoken issues, to add information to the marketplace of ideas, to share previously unshared stories.  We all benefit from new perspectives.  The movement achieves that goal.  It is a triumph of new voices and, with that, new complexities.

But while all perspectives enlighten, they are not all equally creditable, or honorable, or worthy of emulation.  Since Katie Way’s story, and now with the reinvention and embrace of Monica Lewinsky, the movement is evolving to represent a vision of womanhood that we should reject.  This vision of womanhood is anathema not only to free speech values such as autonomy and emotional fortitude – but to important moral values such as honesty, courage, and accountability.

Unless we are celebrating victimhood for the sake of victimhood – which I believe we should not be – there are lessons we should learn from some of the #metoo protagonists about how it is possible to be in a bad situation and also behave badly.  I would like to see a vision of womanhood that recognizes our capacity for good moral choices and strength, while also appreciating that people should not take advantage of those with less power.

Continue reading “Monica Lewinsky, #MeToo, and the Dangerous New Vision of Womanhood”

Criminal Procedure Midterm Hypo

Respond fully in essay form to the question below.  Make sure to leave time for organization before and polish after. 

The Dayton Police Department received an anonymous letter that said the following: “Marie Curie is illegally running a fake ID business from inside her apartment, at 12 Stewart Street.  She produces falsified documents like fake passports.  My friend purchased a fake driver’s license from her.  If you look through her garbage, you will see all sorts of fake documents.”  The next day, Officers Green and Brown of the Dayton PD went to Curie’s home.  From the street, they observed, over the course of five hours, about 10 different people entering the home and each exiting one hour after he or she entered.  That night, the police walked onto the front porch of Curie’s home.  By the front door, they found an opaque garbage bag.  Officers Green and Brown went through the bag and found what appeared to be many falsified documents.

On the basis of the information they had, Officers Green and Brown procured a warrant from a magistrate judge.  The warrant allowed the officers to search for “any item in any location that seemed suspicious.”  When the police knocked on the door, no one answered for 20 seconds, so the police kicked the door down.  Inside, the officers searched the house and found an entire fake ID production ring.  Marie Curie eventually saw the officers holding a search warrant and searching her home, and she attacked them.  She was promptly placed in handcuffs,

Discuss the officers’ actions.  Analyze, comparing to cases when helpful, whether each action was legitimate, illegitimate, or a close question under the Fourth Amendment.


Continue reading “Criminal Procedure Midterm Hypo”

Why Compelling Narratives Aren’t Good Law

In the wake of the Parkland, Florida mass shooting, students are no longer willing to sit idly by as we adults do nothing about gun violence.  The high school students who have led protests and rallies are excellent speakers, and their activism is inspiring. What is concerning is that their activism is not sufficiently distinct from how many adults engage in politics, although adults should have a more sophisticated and nuanced view of the world.  Part of the problem is that the political stories we tell ourselves, which favor emotion over analysis and lead to demonization and polarization, are deceptively compelling.



This morning, the following insightful thought went viral on Twitter: “I’m not sure why people are so surprised that the students are rising up—we’ve been feeding them a steady diet of dystopian literature showing teens leading the charge for years. We have told teen girls they are empowered. What, you thought it was fiction? It was preparation.”


Of course, dystopian fiction generally involves people rising up against oppressive, totalitarian governments, whereas these students are seeking more government control. Plus, dystopian fiction usually involves an obvious villain.  In our case, we have politicians who take money from the National Rifle Association instead of enacting common-sense gun restrictions on assault rifles and high capacity magazines. However, none of the NRA members or politicians has actually perpetrated these mass shootings, and accepting money from lobbying groups is how our faction-based, advocacy-oriented government works (for good and ill).


Of note, this morning’s tweet was written by an English teacher.  Part of the problem afflicting our current political climate is that many base their views of the law on compelling narratives, in literature and on television. These narratives are too simple.  They generally involve an underdog-archetype fighting high-powered political players or a wealthy corporation. This leads to political thinking that the “little guy” is always right, and going after the “big guy” is always the proper course of action.


Some examples come to mind as to why this isn’t always the case. Insurance companies are often depicted as evil on television.  Indeed, the debates surrounding the Affordable Care Act have labelled politicians and insurance companies as literally killing people. This ignores the omission/concussion distinction (allowing an act is very different than committing it), and the idea that our system, developed based on civil liberties as against the government, generally doesn’t believe you have a “right” to someone else’s labor.  Once students take Insurance, they realize that certain laws regulating insurance markets create adverse selection effects, raising premiums for everyone. Health care is a complex area, and shouldn’t be reduced to easy stories.


Similarly, my own law students now recognize that high damages awards, which feel satisfying (and are sometimes fair and just) when sympathetic plaintiffs sue large companies, affect us all.  Companies pass off their costs to consumers in the form of increased prices. This especially affects poorer people.  But the tendency to want to redistribute money against corporations, even when they haven’t committed any legal wrong, remains.


Finally, in our efforts to find a compelling narrative to fit Parkland, some have found the perfect villain- men. The problem is male entitlement, they argue, and toxic masculinity. Although it is true that mass shooters are basically always men, the five people who purposely served as human shields, saving the lives of other students, were also male students and teachers (four died, one is now in fair condition). The way we socialize men is complicated, leading to some vices but also virtues that should not be ignored.


Although I am heartened to see students involved in politics, sensible, rational solutions require more adults.  Proposals to lower the voting age strike me as unwise- and perhaps politically self-interested.  Young people mostly echo their parents’ views, until they are exposed to new communities and ideas, once they leave their homes.  (Some parents are more forceful than others in indoctrinating their children; the good ones also encourage their children to think for themselves.)  My intellectual development, greatly affected by my parents and teachers in high school and college, truly matured in law school- where I learned the value of systemic thinking, and the need for a law to be administrable, not simply just (for example, who defines “mental illness” when we tighten gun laws on this population, and how will that affect the stigmas they already face).  Law school also taught me the importance of rule-based approaches to ensure fairness and consistency, looking beyond the facts of any particular case to the broader principle.  These values don’t make for compelling narratives, but they do make for good law.