The Faculty Lounge

The Talk of the...Bench

Of the 327 films I watched to select the films for Advocacy to Zealousness, one of my favorites is The Talk of the Town (1942), which chronicles the experiences of a persnickety law professor who is trying to complete a book while a felon secretly hides in the attic of the cottage he is renting for the summer. The felon is brilliantly portrayed by Cary Grant (pictured, far left, and born today in 1904). The storyline includes the possibility of the professor's appointment to the U.S. Supreme Court. With the recent appointment of Associate Justice Elena Kagan, we know that such an honor -- although somewhat rare in recent times -- is far from fictitious. So, in honor of this wonderful film, and what would have been Grant's 108th birthday, today's question concerns High Court appointments. Which current law professors or deans would make good candidates? (Bonus points will be awarded to anyone who can list Cary Grant's given name.)

Cromwell Foundation Article Prize in Legal History

Here's some really exciting news for early career legal historians ....

The William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2011.  Articles published in 2011 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed.  Please send a brief letter of nomination no longer than a page, along with an electronic or hard copy of the article, by May 31, 2012, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email abrophy@email.unc.edu

Just to emphasize what is probably obvious, the subcommittee very much encourages folks to submit nominations of articles they've read and enjoyed.  Authors should also nominate themselves.  This is a moment where we want to recognize and celebrate the outstanding work that is being done in legal history.  If I might add a personal note, I'd like to say that I'm very much looking forward to reading the entries for this prize.  It should make for a very enjoyable time.  

The Cromwell Foundation also has a book prize and a dissertation prize in legal history.  Information on the nominating process for those prizes will be coming along very soon, I am reliably informed.  Here's information on last year's Cromwell Foundation prizes.

The "Ethics" of Nazism

I attended an outstanding talk on Sunday at the Museum of Jewish Heritage in New York City by Holocaust scholar Thorsten Wagner on the subject of what one might call "Nazi Ethics" -- the emerging notion that the Nazi system of  terror might be understood as grounded in a coherent (while also of course evil and horrifying) set of ethical norms.  This enterprise is no exercise in Holocaust denial or justification -- far from it.  It is rather an effort to understand the Germany of 1933 to 1945 as in some way continuous, rather than discontinuous, with ordinary (perhaps even universal) human experience.

A centerpiece of Wagner's presentation was an astonishing excerpt from a speech that Heinrich Himmler delivered in October of 1943 to a large gathering of SS officials in Poznan (German: "Posen"), Poland.  Most obviously astonishing is Himmler's frank discussion of mass murder in simple, direct terms, without any of the code language that the leadership typically used to conceal their program.  At a level beneath that, though, is the equally astonishing ethical framing of Himmler's appeal to the SS.  That framing should be quite recognizable to us all; it's the invocation of the honor that comes from a loyal commitment to the uglier aspects of duty.

The excerpt lasts about 6 minutes.  If you have the time, have a look/listen:

 

South Carolina Monuments: Primary Election Edition

Well, given the impending South Carolina primary I guess it's time for a South Carolina monument picture.  At right is the monument to the Revolutionary War battle at Cowpens.  The monument was put up around 1932, so it's not as old as the ones I'm usually interested in.

Rutgers-Newark Hiring Announcement: Corporate Law

This semester, Rutgers-Newark is beginning an off-cycle faculty search:

Rutgers School of Law-Newark is seeking entry level and lateral faculty candidates for a tenure track corporate law position commencing July 1, 2012.  The School seeks candidates whose scholarship focuses on corporate governance, financial systems, corporate finance, securities regulation, or the Dodd-Frank financial reforms.  Interested candidates should contact Professor Gary Francione, chair of the appointments committee, by email at gfrancione@kinoy.rutgers.edu.

Lateral News: Dana Remus (Back To) Drexel

I'm very pleased to announce that my former colleague Dana Remus (formerly Dana Irwin) will be returning to Drexel University Earle Mack School of Law this fall as a tenured member of the faculty.  Professor Remus was an inaugural faculty member at Drexel.  In OT 2008, she clerked for Justice Alito and the next year moved back to her home state and joined the faculty at the University of New Hampshire.  She is currently visiting at Duke Law  and visited at St. Johns this past fall.  

Hartog on Age and Social Security

Princeton University History Professor Hendrik Hartog's op-ed in yesterday's New York Times, "Bargaining for a Child's Love," begins in this way:

ECONOMIC malaise and political sloganeering have contributed to the increasingly loud conversation about the coming crisis of old-age care: the depletion of the Social Security trust fund, the ever rising cost of Medicare, the end of defined-benefit pensions, the stagnation of 401(k)’s. News accounts suggest that overstretched and insufficient public services are driving adult children “back” toward caring for dependent parents.

Such accounts often draw on a deeply sentimental view of the past. Once upon a time, the story line goes, family members cared for one another naturally within households, in an organic and unplanned process. But this portrait is too rosy. If we confront what old-age support once looked like — what actually happened when care was almost fully privatized, when the old depended on their families, without the bureaucratic structures and the (under)paid caregivers we take for granted — a different picture emerges.

The concluding line is "We may not love the bureaucracies and the institutions that shape our lives today. But would many of us really want to live in a world without them?"  The rest is here.  Hartog's op-ed draws from his new book, Someday All This Will Be Yours (Harvard, 2012), which I suspect will appear on the reading lists of a number of classes next year -- perhaps including my trusts and estates class.

Sophisticated with a Short Attention Span

In The Writer's Journey (3 ed, p 232), Christopher Vogler notes in terms of screenwriting that today's youth have a shorter attention span than ever but at the same time are more sophisticated than ever in terms of the ideas they can assimilate in short fragments.  While he is instructing Hollywood screenwriters on modern approaches to writing and editing films, this description of today's youth perhaps rings true for what we see in our classrooms - certainly the short attention spans.  Although it seems somewhat paradoxical to speak of this generation as having more sophistication than ever but shorter attention spans than ever, if it is true, is there some way we can harness this in the classroom ie using more intricately spliced ways of presenting material to appeal to the way today's youth processes information?  Has anyone experimented with applying these ideas to law teaching?

 

Quickest Fix for MLK Monument

I'm not sure why I haven't focused more attention on the controversy over the MLK monement's inscription that "I was a drum major for peace, justice, and righteousness."  I guess perhaps I don't find it such a misrepsentation of Dr. King as others -- those are, after all, his words -- even if taken somewhat from context.  I guess it may be that all those years of reading gravestones has left me with the realization that if you're reducing a life to a line or two, you're going to have to flatten out a lot of nuance.  But we're going to re-write it.  The precedent for this includes the Strom Thurmond monument at the South Carolina statehouse, where an artisan used caukling and a chisel to change the number of children from four to five and to add the name of Strom's daughter, Essie Mae.  God I love American history!

Anyway, this leads me to ask, how can the monument be changed the easiest?  I'd say change the "I" to "He."  Any better suggestions?

The Washington Post's Rachel Mantueffel has the full story here.

Don't Read if Disillusioned About Legal Academia ....

With thanks to a colleague - I won't embarrass her by identifying her here - some of you may enjoy this comic novel excerpt from Cameron Stracher's new work, The Law School Trifecta.

Thoughts on Coleman and the 14th Amendment's Enforcement Power

Coleman v. Maryland Court of Appeals, argued earlier this week at the USSC, poses a narrow but interesting question about the scope of Congress's power to abrogate state sovereign immunity by exercise of its power to enforce the equal protection guarantee.  A transcipt of the oral argument is here.  At issue is the self-care leave provision of the Family and Medical Leave Act.  The provision requires up to 12 weeks of unpaid leave be provided for an employee who becomes ill, can't work, and must care for their own recovery, and creates a private cause of action to recover money damages for violation of the provision.  Coleman, a male, was employed by the Maryland Court of Appeals.  He became embroiled in an internal personnel controversy, then he requested sick leave.  Instead, he was fired.  The Fourth Circuit upheld dismissal of the FMLA claim (see Part III of the opinion here) because there was insufficient evidence that the self-care provision was intended by Congress to address sex discrimination in employment and there was no evidence that governments were discriminating by sex in granting or denying self-care leave to their employees. In Hibbs, of course, the USSC held that the portion of the FMLA that deals with unpaid leave to care for an ill family member was a valid prophylaxis of sex discrimination, given the stereotype that woman are caregivers to others.  Here, the Court has an interesting choice.  If it adheres to its Tennessee v. Lane analysis, in which it carved out a specific application of a general prohibition and said that all the Court need do was focus on that application without regard to the broad sweep of the statute, it should focus only on the self-care leave provision, where the evidence is scant that it had anything to do with prevention of sex discrimination.  But if it rejects Lane, or distinguishes it in some way, and relies on the entirety of the FMLA as a device to prevent sex discrimination, it will come out as it did in Hibbs.  The Court should reject Lane, as the congruence and proportionality test is crafted to measure the connection between the statute as a whole to the constitutional injury that Congress seeks to prevent.  That would result in a reversal of the Fourth Circuit because the evidence is pretty good that the entire original FMLA was an attempt to prevent sex discrimination in employment.  Maybe the dissenters arguments in Hibbs are sound, but that's not the issue here. 

In reading the oral argument transcript, it helps to know that A is the FMLA provision pertaining to leave for child-bearing or newborn child care, B is the provision for adoption or foster care, C is the provision for care for a spouse, child, or parent (the issue decided in Hibbs), and D is the self-care provision.

More LaVerne Turbulence: Dean Allen Easley Resigns

The University of LaVerne School of Law has been going through a series of tough shocks of late.  Last year, the ABA decided to deny the LaVerne full accreditation and instead strip it of provisional accreditation entirely.  Recently, one of the school's faculty stars - John Linarelli - accepted a position heading the Swansea School of Law in Wales.  

New California bar results show LaVerne's first-time pass rate at 56.3% - not helpful from an ABA point of view.  (Remarkably, two other California ABA accredited schools posted even lower California bar pass rates.  But even those two schools don't have to suffer the vexation of this accredited school's 5% California pass rate.)

Now, Dean Allen Easley has announced his resignation effective immediately.  I don't envy Philip Hawkey, the interim dean who has to guide LaVerne for the next while.  

 

A Few Ways NOT To Solve America's Unequal Access To Justice

“The very rich,” F. Scott Fitzgerald famously observed, “are not like you and me.”  True enough, Dorothy Parker reportedly quipped: “They have more money.”  Parker's remark also backhandedly lends some perspective on a genuinely serious contemporary problem receiving more currency than usual these days:  America's unequal access to justice.

We find ourselves at a sadly ironic moment in the history of the American bar.  After many years of increasing demand for lawyers, structural changes in the pricing and staffing of legal services that have been both exposed and amplified by the Great Recession have created a downdraft in the demand for new lawyers.  As a result, something like one-third of recent law school graduates have found it impossible to find or keep a job requiring or preferring a law license.  Some appreciable additional quantity of recent graduates have been able to find only episodic "legal process" piecework such as document review, often yielding relatively meager rewards, no security or benefits, and virtually no hope of meaningful training or advancement.  Talk about quiet desperation.

At the same time, for many years legal aid programs have been turning away substantial numbers of applicants for their services, not for ineligibility or lack of expertise, but simply for lack of the resources necessary to meet the poverty population's needs.  The recent slashes in the budget of the Legal Services Corporation (a congressionally created and funded entity that distributes money to programs providing legal services to the indigent), and plummeting revenues from states' IOLTA funds (Interest on Legal Trust Accounts, the funds many states derive by requiring depository institutions to remit the interest on lawyers' trust accounts to the state to fund legal services for the needy) resulting from swan-diving interest rates, have only made things worse.

The irony emerges when we lay these two points side by side:  There are currently tens of thousands of unemployed or underemployed recently-licensed lawyers, and hundreds of thousands of low- and moderate-income consumers in aching need of legal assistance with housing, employment, education, healthcare and government benefits issues (among other things).  Why, it would be fair to ask, has this excess supply not linked up with this excess demand?

One plausible explanation is simply the inverse of Dorothy Parker's rejoinder:  The poor are poor because they have no money.  As a result, an economist might easily conjecture, their needs provide a meager draw for the many lawyers in today's economy with no (or insufficient) work. 

Up to this point, I imagine that my readers (assuming one or the other of them isn't otherwise occupied) will consider this discussion obvious.  But it raises some potentially interesting implications:

First, a hat-tip to David Segal, the New York Times' cheerful basher of the legal academy and the organized bar with a striking knack for getting things almost exactly half-right, who in one of his recent jeremiads suggests that law schools' costs of meeting ABA accreditation standards have so raised the price of a legal education that graduates simply can't afford to serve the legal needs of the poor and middle class.  (Full disclosure:  I spoke with Segal at some length before his recent and widely remarked-upon New York Times piece about how law schools don’t teach “lawyering.”  The story completely ignored several issues with Segal’s perspective I had brought to his attention during our conversation that I thought he had agreed were worthy of consideration.  For the record, I am disappointed.)  Segal offers the alternative of the multi-tier system in the UK, in which there reportedly are different levels of licensure to practice law, with the most modest requiring only limited education at inexpensive institutions roughly equivalent to community colleges, and authorizing the holder to perform a correspondingly limited array of less complicated tasks.  I confess ignorance of the UK's professional licensing scheme (other than the existence of a mandatory two-year postgraduate apprenticeship for at least some practice certifications, which I take quite seriously); and I also confess that this multi-tier idea presents some genuinely interesting possibilities worth examining.  But the notion that it would make any significant dent in our current access to justice problems seems doubtful at best. 

Why?  To reiterate, the poor are poor because they have no money.  The hundreds of thousands of American families currently facing foreclosure can't afford to pay their mortgages.  Obviously they can't afford to pay attorneys, even if they could get them at minimum wage.  To put it slightly differently, if there were any paying market to provide legal services to low- or moderate-income consumers (outside legal aid, whose shrinking resources come from sources other than clients) thousands of recent law graduates would be rushing in to serve it.  In fact, what is striking about the current excess supply of lawyers is that it has not apparently found any substantial untapped lower-price market even among the middle class.

The obstacle is not that these new graduates have large student loans to pay.  Though many of them do, bear in mind that many recent government-funded student loans require the borrowers to pay only a percentage of whatever income they earn, rather than a fixed monthly amount.  More importantly, most unemployed law graduates understand that the best way to clear a path to a more satisfying and remunerative law job is to get actual experience doing legal work, even at subsistence wages; and that the surest way to make yourself less competitive and eventually unemployable in the legal job market is to lie fallow and do nothing (or to put food on the table with work that makes no use of the expensive diploma hanging over that unsightly crack in the wall).

Please understand that I am in no way suggesting that our unemployed law graduates are lazy, or stupid, or elitist.  In fact, I believe exactly the opposite--I think a great many are doing everything they can think of to address a terribly difficult situation, bringing tremendous effort, initiative and creativity to bear day after day after day.  Which is exactly why it ignores reality to recycle old suggestions that all we need to do to moderate the cost of legal services and meet currently unmet needs is lower the cost of entering practice.  (Examples include Segal’s New York Times article referred to above, and the buffoon at Brookings who recently enjoyed his fifteen minutes of fame advocating—as if it were a new idea—the abolition of any license to practice law.)  Excess capacity already exists and has effectively left those problems untouched; why would you want to create even more, even if it spawned none of the serious externalities these suggestions drag into the picture?  There may be other reasons to consider adjusting the barriers to entering the legal profession, but the ones most commonly advanced these days are refuted by current events.

--Bernie

California Surprises: Bar Results For Out-Of-State Schools

As Paul Caron noted, the July California bar results are out.  Although Paul has highlighted the results for California schools, it seems worth sharing the results for ABA schools outside California.  There are a few eye-raisers here - including one school that had 20 takers and only a 5% first-time bar pass rate.  

California lists all schools with ten or more takers.  I've posted the list below in order of bar pass rate for first timers.  Click on the image to expand it or view the overall results here.

Thoughts on Dirty Words: FCC v. Fox

There's been a lot of discussion of the oral argument in FCC v. Fox, the case that poses the constitutional validity of the FCC's ban on indecent words -- like f*** and s*** -- on the over-the-air broadcast media.  Lyle Denniston, at SCOTUSblog, has an excellent summary of the oral argument.  I don't want to go over that ground again; rather, it seems to me that the basic problem is a cultural one.  We live in an increasingly coarse and vulgar age, probably the result of our willing conversion to the post-modern notion that there are no fixed standards about much of anything.  So if you like to use F-bombs as oral punctuation, by all means do so.  It's the inevitable result of the brain-dead slogans of the 60s -- "Let it all hang out," "If it feels good, do it."  One wonders why we ever let these witless fools take control of our culture.  But it has largely happened.  Against that background, it's difficult to carve out a haven from this vulgarity on broadcast television, and yet tolerate it (and much worse) in virtually any other media setting.  And to proscribe dirty words everywhere is plainly unacceptable; Cohen v. California shredded that idea.  So, what are we to do?  Law has its limits, and it has hit its limits here.  We either accept censorship here (and open the door to other and more pernicious forms of censorship later), or we surrender to the pressure of our post-modern culture.  The latter course can produce a short opinion, of course.  "F*** it; just let it all hang out."  We need cultural limits, not legal limits.   

John Linarelli From LaVerne To Swansea

John Linarelli, among the most prolific and establsihed scholars on the University of LaVerne School of Law faculty, has moved to Wales.  He is now the Head of School, and Professor of Law, at Swansea University School of Law.  

Finalists In Missouri Law Dean Search

They are:  Gary Myers (Mississippi), Andrew Klein (Indiana-Indianapolis), Robert Pushaw Jr. (Pepperdine), Marcella David (Iowa), and Beverly Moran (Vanderbilt).

Is Being in a Dysfunctional Relationship an Excuse for Not Filing Tax Returns?

Of course not.  

The New York Law Journal reports here on the case of former Sullivan & Cromwell attorney John J. O'Brien, the man who failed to report more than $9 million in partnership income over the period 2003 to 2008.  Here's an excerp from the NYLJ article:

The reason he initially fell behind, according to his lawyer, solo practitioner Russell T. Neufeld, was his involvement in a destructive relationship with his partner, Michael Phelps, who persuaded him to sink $3 million into Hudson Street Books, a rare books venture.

Mr. Phelps, Mr. Neufeld wrote in his sentencing memorandum, "is a very unstable, fragile and emotionally needy person" who was "particularly unstable" during the genesis of Mr. O'Brien's tax problems, on medication and prone to suicide threats and attempts.

"The business was a total failure and John O'Brien continued to pour bad money after good down its black hole—all in an effort to maintain his relationship with Michael and to try and keep Michael emotionally together," Mr. Neufeld wrote.

A psychologist who examined Mr. O'Brien for the defense concluded that "his persistent fear of losing Michael has caused him to become so overwrought with anxiety and depression that he lost his ability to make a rational choice."

Read the full NYLJ article here.  

It sounds like Mr. O'Brien had plenty of other issues to confront, so the reporting (or perhaps the defense) may have over-emphasized the relationship troubles.   If being in a dysfunctional relationship were an excuse for failing to report taxable income, very few tax returns would be filed at all!  

Updated 2011-12 Law School Dean Search List

I have uposted an pdated 2011-12 law school dean search list here.  (I don't move it to the top of the blog for fear that I'll lose the permanent link.)

Mentoring Traps and Tricks

I was at a general meeting today (ie not law school specific) about approaches to effective mentoring for tenure track faculty.  In particular, we were asked about what advice we would give junior faculty members about ensuring satisfactory mentoring experiences eg what we wish we had thought to ask when we were on the tenure track.

The variety of responses was interesting.  Some people spoke about transparency in promotion processes, salary information etc.  The real issue here was how do you know what you don't know that you actually do need to know on the tenure track.  That's a tough one and I'd be interested in people's thoughts.  For example, how do you know if you are obtaining fair compensation at a private school, sufficient research support etc.

We also talked a little about gendered differences in giving and receiving criticism and how to shape mentoring programs to ensure that mentees and mentors are aware of those differences to the extent they exist and impact a person's career planning.

One issue that came up that was particularly interesting was how to make the most of unconstructive criticism.  What can you learn from unhelpful comments about your work in terms of learning something from the comments themselves and/or whether the mentee has any responsibility or opportunity to educate the mentor about giving more constructive/useful feedback.

In this context, some really great examples of fairly ineffective criticism were discussed.  A couple of my personal faves are:

1/ You need to show us what you bring to the table.

2/ You have a great voice, but you don't have anything to say.

I'd be interested in people's thoughts about their experiences on the tenure track, what they know now that they wish they'd known then, how open they felt about questioning their mentors, and what to do if a mentoring relationship just isn't working out.  And of course if you have any great zingers people have given you about your work in the past, feel free to share them too.

 

North Carolina Sterilization Victims Compensation

There is some forward progress in the movement to provide compensation to people who were sterilized in North Carolina.  The LA Times' story is here and CNN's is here.  Here is the home page of the North Carolina Justice for Sterilization Victims Foundation and their reports are here.

Hosanna-Tabor v. EEOC Decided: Unanimous Reversal

  Today, the Supreme Court unanimously reversed the Sixth Circuit's ruling that an ordained Lutheran minister performing a mix of religious and secular duties as a teacher was not a minister within the meaning of the ministerial exception.  Opinion here.  The Court squarely endorsed the existence of a ministerial exception, rooted in the Establishment Clause, that forbids the civil courts from reviewing claims of employment discrimination made by a minister against his or her church.  The Court grounded this conclusion in the long line of church property cases that firmly hold that the government may not interfere with a church's selection of its clergy.  In the opinion by Chief Justice Roberts, the Court also concluded that Cheryl Perich, the plaintiff teacher, was a minister.  The Court refused to provide any bright-line test to identify ministers, but it relied on three factors in this case to conclude that Perich was a minister:  She was ordained as a minister, she held herself out as such, and she performed significant religious duties to advance the Lutheran faith.  Said the Court, based on "the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception."

The Court expressed no view on the question of whether the ministerial exception applies to claims made by ministers based on something other than employment discrimination.  Justice Thomas concurred in  the opinion but contended that the courts should defer to a good faith determination by a religious institution that a person is a minister of that faith.  Justice Alito, joined by Justice Kagan, also concurred in the opinion, but argued that because many religions do not employ any concept of ordination, the question of who is a minister should be decided by examination of the functions performed by the person in question. 

UPDATE: Here is Notre Dame law professor Richard Garnett on Hosanna-Tabor.  The Court got it right.   And here is Ed Whelan's view. 

Royal Furgeson Named Dean Of University Of North Texas Law School

The University of North Texas, which plans to open a law school in Dallas in August 2014, has named Senior U.S. District Judge Royal Furgeson as its founding dean.  Furgeson, a University of Texas law graduate, will take over in April, 2013.  

Recess Appointments Redux

   The continuing debate over the validity of President Obama's exercise of the recess appointment power when the Senate is not in not in recess has some more entrants.   Writing in the Wall Street Journal, Yale law professor Bruce Ackerman calls on President Obama to release the legal opinions on which he relied to make these dubious appointments.  Also in the Journal former Circuit Judge and now Stanford law profesor Michael McConnell shreds the legal justification for these appointments, noting that should they stand the effect will be to " push unilateral executive power beyond constitutional and customary limits. ...  [T]his president lacks a proper respect for constitutional checks and balances.  ... Democrats ... like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good." 

The basic constitutional problem is that Article I, section 5 "requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break)."  Moreover, the pro forma sessions of the Senate, designed to prevent recess appointments, were adopted by the Democratically run Senate when G.W. Bush was President, and President Bush acquiesced in the Seante's declaration that it was not in recess.  Even Laurence Tribe has admitted that it would be absurd to contend a suspension of Senate business for up to a fortnight is a recess. 

Defenders of President Obama's action say that the President must have a broad recess appointment power to effectuate his obligation to take care to execute faithfully the laws.  A forthcoming student note in the Yale Law & Policy Review, written by Alexander Platt, a current Yale 3L, argues (as does Laurence Tribe) in this vein that the pro forma sessions should be ignored and the recess appointment power be treated under the vague, subjective test that the Court has employed with respect to the removal power.  Most notably, in Morrison v. Olson, the Court upheld very significant limits on presidential removal of an independent counsel, reasoning that "the real question is whether the removal restrictionsare of such a nature that they impede the President's ability to perform his constitutional duty ... ."  There are at least two major problems with this line of reasoning.  First, the Court simultaneously applies a much more textual approach to separation of powers issues when the Constitution speaks directly and specifically.  Chadha v. INS is perhaps the foremost example.  Here, the Constitution speaks clearly in Article I, section 5, clause 4, so invocation of the subjective "impede-his-duty" test is not applicable unless and until you surmount the antecedent hurdle posed by the Constitution's text.  Second, even if one does apply that squishy test, it is by no means clear that the President's constitutional duty to enforce the laws is impeded by pro forma sessions.  This is not an era in which the Senate will disappear as a body for months on end.  The President will have the chance to have his nominees considered.  And even if the frustration is the filibuster, that lies within the Senate's power to alter its own rules -- it has nothing to do with whether the Senate is in recess. 

I conclude that this President is an even more unreasonable exponent of unilateral (and, in this case, unconstitutional) executive power, than any of his recent predecessors.  It is a bad business to let this stand.  As Robert Jackson said in Korematsu, this "principle," once imbedded, "lies about like a loaded weapon ready for the hand of any" President that wants to avoid the Senate's obligation and right to deliver its advice and consent (or not) to presidential appointments of principal officers of the United States.

UPDATE:  Here is Victor Davis Hanson with a somewhat related take.

Voter Photo ID and Pre-Clearance Under Section 5 of the Voting Rights Act

   Ever since the Supreme Court upheld Indiana's photo ID law against a facial challenge, states have begun to enact photo ID laws.  There are now 14 such laws on the books, and more in the pipeline.  Another 15 states have some form of ID requirement, but not necessarily photo ID.  A convenient summary of the laws is here.   Photo ID laws enacted by Georgia, Texas, and South Carolina are subject to DOJ pre-clearance because they are covered jurisdictions under the increasingly antiquated section 5 of the Voting Rights Act.  The DOJ (in the Bush administration) cleared Georgia's law, but in December the Obama DOJ denied pre-clearance to South Carolina's law.  The DOJ letter of denial is here.  What stands out in the South Carolina denial is the flimsy evidence on which the DOJ based denial.  Quoting the letter:  "[T]he state's data show that 8.4% of white registered voters lacked any form of DMV-issued ID, as compared to 10.0% of non-white registered voters."  While it is true that this disparity means that "minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters," it does not follow axiomatically that they are "thus ... effectively disenfranchised."  The South Carolina law, as was true of Indiana's and Georgia's laws, has several methods to make photo ID easy and free in order to preserve the franchise.  Photo ID may or may not be a good idea, but the use of the pre-clearance power to frustrate a racially neutral attempt to ensure an honest vote illustrates how anachronistic section 5 has become in practice.  One can justly celebrate the benefits of section 5 and simultaneously doubt its current utility, to say nothing of its questionable status as a current exercise of the enforcement power. 

Tulsa Online MJIL Program

Tulsa Law, which has excellent strength in Indian law, has started an innovative online master's degree program in Indian law. Here is a report on its development, courtesy of Janet Levit at Tulsa:

The second term of The University of Tulsa College of Law's online Master of Jurisprudence in Indian Law (MJIL) http://indianlawmj.org/ program began this week with an enrollment of more than 20 students. Launched last fall, the 30-credit-hour program is for college graduates, particularly those working in tribal governments and businesses, and government agencies, who are interested in learning about Indian law. Current enrollees include a tribal treasurer, casino compliance manager, social service director and tribal legal advocates.

The online MJIL joins TU's Native American Law Center campus based programs: a Native American Law Certificate, which allows J.D. students to specialize in Native American jurisprudence and an LL.M. in American Indian and Indigenous Law.

MJIL courses, developed by TU faculty and other experts, include: Principles of Federal Indian Law; Tribal Government; Water Rights and Water Law; Tribal Economic Development; Social Services Delivery in Indian Country; Indian Child Welfare Act; Energy and Mineral Development in Indian Country; Tribal Gaming Law; Environmental Protection and Remediation; Civil Jurisdiction in Indian Law Federal Contracting and Compacting; Criminal Jurisdiction in Indian Country; Police Theory and Practices; Taxation in Indian Country; Cultural and Intellectual Property; Research Methods in Indian Law; Intro to Legal Writing. A master's thesis or professional paper is required.

The MJIL program was developed in association with Concord Law School, the leading online law school program. Curriculum is delivered on its proprietary learning management system customized for TU and takes advantage of Concord's 13 year expertise in delivering legal education online. MJIL coursework includes module based asynchronous reading, writing and other assignments as well as live online classes.

Judge Patrick E. Moore of the Muscogee (Creek) Nation has endorsed the program saying, “As a tribal leader, judge and educator, I have observed and participated in the field of Indian law for more than 35 years. Educating those who are or will be involved in the operation and management of tribal government is essential for our continued growth and prosperity. Tribal leaders must study, at the graduate level, the duties and responsibilities of Indian government and the basics of Indian law, all of which are covered in The University of Tulsa College of Law’s excellent MJIL program.”

Dean Search Update: St. Thomas (MN)

The University of St. Thomas School of Law (MN) has announced the membership of its search committee to replace outgoing law dean Thomas Mengler.  Details here.

Levi on Roll in the National Law Journal

Duke law dean David Levi, who served as Chief United States District Judge for the Eastern District of California prior to his appointment as dean in 2007, has an article in yesterday’s National Law Journal on Chief Judge John Roll of the District of Arizona.  Judge Roll was shot and killed as he stood in line to see Congresswoman Gabrielle Giffords in a shopping center parking lot in Tucson a year ago. Levi uses the instance as an example of the informal relations between judges and legislators, which he argues is “the every day job of making democracy work.”

 

Clearinghouse For Summer Teaching Positions

(This announcement is posted at the request of friend, and St. Thomas (FL) law professor, Katharine Van Tassel):

Although many law schools hire faculty members other than their own to teach summer school, both in the United States and to a lesser extent abroad, this has always been a haphazard process.  Given the success of sharing information about entry level teaching jobs over at Prawfs Blawg, establishing a general clearinghouse for law school summer teaching positions is likely to provide a great benefit for both law faculty and law schools across the country and the world. The Health Law Prof Blog has agreed to host the clearinghouse by posting all of the notices of teaching opportunities for the Summer of 2012.

Please share the following information in your announcement and send it for posting on the Health Law Profs Blog to either Jennifer Bard at jennifer.bard@ttu.edu or Katharine Van Tassel atkvantassel@stu.edu:

(a) the name of your school; (b) the name of the chair of your summer hiring committee and that person's contact information; (c) any particular subject areas in which your school is looking to hire; (d) the dates that the summer class(es) will be taught; and, (e) any other information you think might be relevant.

Should I Share My Book Review With the Book Author Before the Review Is Published?

Over the summer, I wrote about a short book review I was asked to write for a non-legal publication.  The book review is written, edited, and now in final form.  It will be published several months from now.

In the meantime, it occurred to me that I should send a copy of the review to the author before the journal publishes it.  To me, it seems like the courteous thing to do.  I've written about this person's book, what I've written will be published for the world to see, so the author should know what I'm saying before it's out there.

For whatever it's worth, the review I wrote is not scathing, is actually full of praise, and is only very-mildly critical, and mostly just at the end of the review.  This is not going to be something that the book author reads and is shocked and horrified.  I guess if what I wrote were highly critical, I would feel even more of a sense of obligation to send along a copy before publication, but even without that, I think it would be the appropriate thing to do.

The only downside I can see is that the author would nitpick and argue, even with what I believe is just very mild criticism.  Taken to an extreme, the author might go to the journal and say that he doesn't believe what I've written is fair.  I want to stress how unlikely that is given what I've written, but in some world that is a possibility, even with very mild criticism.

So I welcome others' thoughts about it before I do anything.  Have others who have written book reviews done this in the past?  Is it expected?  Is there anything wrong with my gut instinct, which is to send it along before publishing?

Setting a Record

On this date in 1949, vinyl records were introduced by RCA (45 rpm) and Columbia (33.3 rpm). Can you name the first film that included the release of a soundtrack?

Emory's Jurist Master Program

Emory University's law school is starting a jurist master program, aimed at professionals in such areas as accounting and tax, architecture, business, diplomacy, energy, engineering, finance, health care, journalism, politics, public health, and the religious ministry, among others.  Cribbing now a little from Emory's description of the program:

Today's professionals cope with growing regulation, intensifying risk and liability concerns and increasingly complex decision environments.  Developing a clearer understanding of law's influence on our individual and institutional decisions has never been more crucial. Regardless of your background, by building your expertise in law with the JM degree, you will be better equipped to deal with these rapidly changing scenarios, by gaining insight into questions such as:

• What laws and regulations apply to my profession?
• What trends in law and regulation should I incorporate into decision-making?
• How does regulatory reform impact my profession, and how can I influence regulatory change?
• How can I assess risk in a changing environment?
• How can I communicate better with my organization’s attorneys?
• Can we get sued for this?  If so, who will win?

Whether you are a working professional interested in gaining a better grounding in law and regulation to advance your career, or a prospective graduate student whose primary degree would be enhanced by an integrated study of law, Emory Law’s Juris Master program offers the insight and flexibility to help you achieve your goals. 

Here's the webpage describing the program and here is a brochure about the program. Students start with several weeks of intensive instruction in US law and then enroll in law school classes, mostly upper-level courses it seems.    The program looks exciting!  I can easily understand how having students from other professional fields would enrich the experience for both law students and teachers.   

There's obviously a trend emerging here in legal education -- master's degrees in law for professionals who want to have additional knowledge of law, but who aren't going to be practicing.  You may recall that Calvin posted about a master's program in health law at Hastings.  

Calling All Contracts Profs!

The 7th Annual International Conference on Contracts will be hosted by the Thomas Jefferson School of Law (San Diego) in early March.  Click here for details.

Rick Matasar From Dean Of New York Law To NYU

Richard Matasar, who has just left the deanship at New York Law School, has set up shop a few blocks away at NYU.  He has assumed the position of Vice President for University Enterprise Initiatives within NYU's  School of Continuing & Professional Studies.  He also has the title of Professor - which he presumably holds within the School of Continuing & Professional Studies as well.

Hans Smit (1927-2012)

I have just learned from my colleague Tom Hazen that Hans Smit, who taught at Columbia Law School for more than fifty years, has passed away.  Cribbing now from his Times obituary:

For more than 50 years, Hans was a powerful presence at Columbia Law School, where he made a remarkable contribution to the institution, to generations of students, and to the field of international arbitration. After earning his LL.B. and LL.M. from the University of Amsterdam in 1946 and 1949, respectively, Hans worked in private practice in The Hague and New York City. He earned a master's degree at Columbia in 1953 and graduated first in his class with an LL.B. from the Law School in 1958.

 Here is his New York Times obituary.  And here is Columbia Law's announcement, which includes a vignette that will resonate with everyone who was Smit's student:

[Smit] was also an accomplished water polo player. He said he missed an Olympic spot with the Dutch national water polo team only because of a dispute with the coach, who suspended him for gambling instead of resting in the hotel during the 1947 European Championship in Monte Carlo. “In the middle of the day—it was absolutely ludicrous!” Smit told the New York Daily News in the early 1980s. “I told him I would get all nervous and sweaty trying to rest. Gambling was far more relaxing.”

With his powerful 6-foot-4-inch frame and refined throwing technique, Smit was relentless on offense, and he was considered among the world’s top water polo players in his prime. “Water polo balances my life,” he told the Daily News.

This is shocking news to me, because Smit loomed as such a large presence for everyone who was his student -- including me and I'm guessing Calvin Massey, too.  

Today is the first day of classes here in lovely Chapel Hill, so I have less time to reflect on this news than I'd like, but I do recall that one of the first law review articles I read was Smit's "The Enduring Utility of In Rem Rules" -- because I had him for civil procedure in my first semester and I was trying to get a gauge on his thinking.  Perhaps I'll have a chance sometime soon to go back and re-read that as a sort of memorial of Professor Smit.  His family are in my thoughts.

Update: Among the many stories people have been recalling about Professor Smit today is one about his house, along Riverside Drive.  Here is a Times story about it from a few years back.  I recall him joking about the building where Harlan Fiske Stone lived while he was a Columbia professor -- before going on the Supreme Court.  It had a plaque mentioning that Stone had lived there. And then he asked with a twinkle in his eye, "and do you know what the plaque out front of my house says?"  "351."  (Or some such number -- which was the street address.)

Derrick Bell's Legacy: Of Madison and Meta-History

At the AALS conference last week there was a panel on Derrick Bell's legacy.  It's looks like it was terrific.  Here's the description from the AALS program: 

This 2012 Annual Meeting is a first opportunity for AALS to acknowledge the debt legal education owes to Professor Derrick Bell (1930-2011), the first African American professor at Harvard and a world-renowned scholarteacher-activist. His signature written work includes his path breaking1973 casebook Race, Racism, And American Law, his 1985 Harvard Law Review Foreword, "The Civil Rights Chronicles," and his numerous books--And We Are Not Saved; Faces at the Bottom of the Well: The Permanence of Racism; Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004); Confronting Authority: Reflections of an Ardent Protester; Ethical Ambition: Living a Life of Meaning and Worth.  Not only did he enrich our scholarly debate. He acted to confront our complacency with the racial and gender status quo. 

This panel reviews his legacy and discusses the relevance of that legacy for our present and future. That legacy includes his critique of law as a limited path to equality for African Americans, his critique of Brown’s integration remedy, his work to diversify law school student and professorial ranks, the founding of critical race theory which examines the role of law in the maintenance and elimination of racial subordination, his specific narrative and interdisciplinary scholarly innovations, his pedagogical commitment to place students at the center of the learning process, his commitment to the mentoring of a broad scholarly community, and his insistence that conscience, morality, and protest remain an integral part of academic duty.

They had an all-star cast on the panel: Linda S. Greene of the University of Wisconsin, John C. Brittain, of the University of the District of Columbia, Pat K. Chew of the University of Pittsburgh, Frederick D. Greene of the University of Dayton School of Law, Kevin L. Hopkins of The John Marshall Law School, Gerald Torres of the University of Texas, and Patricia J. Williams of Columbia.

I thought that I'd use this as a chance to post a little bit about two pieces of Bell's scholarship that I think are not so frequently spoken about.

Lakhdar Boumediene on His Being Held at Guantanamo

Just in time for the start of the semester, Lakhdar Boumediene, the lead plaintiff in Boumediene v. Bush (2008) has a column in the New York Times about his experience being held at Guantanamo for seven years.  If you teach the case in class, this should be added to your syllabus immediately.

His story is chilling and heart-breaking and will help your students understand the human carnage that Guantanamo has wrought.  As a parent of two young children, I could barely hold back tears reading his story.  As an American who thinks his government should be better than this, much better than this, I felt the same.

Here are the first two paragraphs:

ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.