The Faculty Lounge

More Test Score Fraud, More Resignations

The fraudulent reporting of standardized test scores continues - this time with an elite undergraduate program.  A senior administrator at Claremont McKenna College, in Southern California, resigned after admitting he'd provided US News critical reading and math SAT scores that had been inflated an average of 10-20 points each.  US News currently lists the school as the #9 liberal arts college in the country.  More details here.

A couple of months ago I noted that score fabrication has created a whole new business for accounting firms.  It appears that the potential client base for these firms - as well as the law firms that clean up these messes - is ever-growing.

Fathers, Sons and Presidents

With the apparent bursting of the Newt Gingrich bubble, Mitt Romney may well succeed where his father, George, fell short.

We’ve had fathers and sons reach the White House (John and John Quincy Adams; George H.W. and George W. Bush), father and son both fail in their bids (Birch and Evan Bayh), and successful father followed by unsuccessful son (William H. and Robert A. Taft).

Have voters before elected a president whose father had ran unsuccessfully for the Oval Office?

 

Searching for Bobby Burns in the Legal Academy

Over here at Letters of Note is a reprint of Scottish poet Robert Burns's 1791 reply a critic:

Dear Sir:

Thou eunuch of language; thou Englishman, who never was south the Tweed; thou servile echo of fashionable barbarisms; thou quack, vending the nostrums of empirical elocution; thou marriage-maker between vowels and consonants, on the Gretna-green of caprice; thou cobler, botching the flimsy socks of bombast oratory; thou blacksmith, hammering the rivets of absurdity; thou butcher, embruing thy hands in the bowels of orthography; thou arch-heretic in pronunciation; thou pitch-pipe of affected emphasis; thou carpenter, mortising the awkward joints of jarring sentences; thou squeaking dissonance of cadence; thou pimp of gender; thou Lyon Herald to silly etymology; thou antipode of grammar; thou executioner of construction; thou brood of the speech-distracting builders of the Tower of Babel; thou lingual confusion worse confounded; thou scape-gallows from the land of syntax; thou scavenger of mood and tense; thou murderous accoucheur of infant learning; thou ignis fatuus, misleading the steps of benighted ignorance; thou pickle-herring in the puppet-show of nonsense; thou faithful recorder of barbarous idiom; thou persecutor of syllabication; thou baleful meteor, foretelling and facilitating the rapid approach of Nox and Erebus.

Source:The Works of Robert Burns, Vol. 4. 

Are there other examples from the legal academy of expressive rejoinders as witty as this one by Burns?  The Martha Nussbaum v. Stanley Fish dust-up from the mid-1980's doesn't come close.  Other contenders?

 

 

On to Bone Marrow

So, my Taboo Trades class has finished blood and is now moving on to bone marrow.  To celebrate the occasion, I’ll be posting some thoughts, links to  Flynn V. Holder, which held that the National Organ Transplant Act did not prohibit payments to certain bone marrow donors, and miscellaneous entertaining stuff my students brought in this week.  I’m starting with the cartoon below, courtesy of Duke Law 3L,Benjamin Wood:

 

Of course, giving bone marrow isn’t the task it once was, a point made clear in Flynn v. Holder.  There are two methods of donation: peripheral blood stem cells (PBSC) and bone marrow aspiration.  According to the Court:

Until about twenty years ago, bone marrow was extracted from donors’ bones by “aspiration.” Long needles, thick enough to suck out the soft, fatty marrow, were inserted into the cavities of the anesthetized donor’s hip bones. These are large bones with big central cavities full of marrow. Aspiration is a painful, unpleasant procedure for the donor. It requires hospitalization and general or local anesthesia, and involves commensurate risks.

See this video from marrow.org, the National Marrow Donor Program, on traditional bone marrow donation.

 

However, according to the Court, in a new technique, now used for at least two-thirds of bone marrow transplants, none of the soft, fatty marrow is actually donated. This new bone marrow donation technique, developed during the past twenty years, is called “peripheral blood stem cell apheresis.”  This procedure begins with five days of injections of a medication called a “granulocyte colony-stimulating factor” into the donor’s blood. The medication accelerates blood stem cell production in the mar- row, so that more stem cells go into the bloodstream. Then, with no need for sedatives or anesthesia, a needle is inserted into the donor’s vein. Blood is withdrawn from the vein and filtered through an apheresis machine to extract the blood stem cells. The remaining components of the blood are returned to the donor’s vein. The blood stem cells extracted in the apheresis method are replaced by the donor’s bone mar- row in three to six weeks. Complications for the donor are exceedingly rare. 

See this video from marrow.org, the National Marrow Donor Program, on peripheral blood stem cell apheresis.

 

I'll be back with more later on why this distinction matters to the question of paying bone marrow donors.

Campbell Seeks Visitor

Campbell Law School may hire a visitor to teach Sales (three credits) during Fall 2012 and Spring 2013.  In addition to Sales, the second course in the teaching package probably will include Business Organizations (three credits), Secured Transactions (three credits), Evidence (three credits), or Professional Responsibility (two credits).  Each of these five courses is taught each semester.

Interested candidates can send a c.v. to me (zinneckert@campbell.edu), along with information on preferred semester (or preference for both semesters) and the ideal course package.   Each course mentioned above is a required course, so teaching experience in each course to be taught is strongly preferred.

General information on the law school (located in Raleigh) is available here.

White on Law in American History, Volume 1

This afternoon's mail brought the first volume of G. Edward White's planned three volume history of American law -- Law in American History: From the Colonial Years Through The Civil War. This is a fabulous book.  As long-time readers of the faculty lounge might suspect, this is the volume that's of most interest to me, because my primary area of interest is the pre-Civil War South (though I sometimes glance backwards to seventeenth century Quaker thought and also forward to African American thought in the early twentieth century).  When I first started working on the pre-Civil War era one of my early and important guides was White's Marshall Court and Cultural Change, 1815-1835 -- and it's a book I still use as a model for how to integrate constitutional doctrine into its intellectual context.  I highly, highly recommend Marshall Court to people looking for a one volume introduction to the methods -- and elegance -- of legal and constitutional history.  

The book is beautifully produced and it will occupy a place of pride on my shelf next to several of White's other books -- Marshall Court, the American Judicial Tradition, Oliver Wendell Holmes and the Inner Self, and Tort Law in America: An Intellectual History (which I blogged about some over at legal history blog some years ago).  Though, for those of you who're wanting to read some of it immediately without waiting for your copy to arrive, many of the chapters are on White's ssrn page.  My favorite chapter (on slavery, the Constitution, and the coming of Civil War), is here, for instance.   This is a really interesting model for making scholarship available -- and one that White has engaged in before.  You may also recall that his introduction The Common Law is HUP's website, too.   This model deserves a lot more comment at some point.  I'm guessing that White and OUP made the judgment that putting chapters up for free help get people interested in the full book -- probably a decent calculation.  It's certainly the right decision from the perspective of disseminating knowledge.

What particularly interests me about the Civil War chapter is how much it's tied to the military and political history of the War.  That chapter, but the whole book, really, is legal history deeply embedded in  American history -- and it is legal history like I have never seen it before.  Where White's earlier work was grounded first, I'd say, in the methods of intellectual history, this is grounded more in economic, social, and military history.  I look forward to what are certain to be the many and wide-ranging assessments of how White changes the methods of legal history and the questions we expect it to answer.  One of the things I think this book does is place American legal history at the center of the story of American history, so that it tells the story of our nation through the eyes of law, lawyers, and judges.  I think this is a critical methodological move.

Cornell on Popular Constitutionalism and the Original Debate Over Originalism

The ever-thoughtful Saul Cornell, who holds the Paul and Diane Guenther Chair in History at Fordham, has a new article, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" in the Yale Journal of Law and Humanities.

Saul takes on a number of recent debates in originalism -- such as the extent to which we should be looking at the meaning among the voters, rather than the drafters, of the Constitution and its amendments.  One of his key themes is that whomever we're looking to -- whether it's the drafters or the voters or some even larger public -- that there needs to be much more attention to the intellectual context.  As Cornell provocatively phrases the issue (at page 335): " Until  Originalists  recognize that they must master the basic techniques of intellectual history and understand the major modern historical debates about eighteenth-century political and constitutional history, and gain something more than a passing knowledge of Foundingera sources, their claims will continue to generate ideological manifestos masquerading as serious scholarship."

There's a lot more that should be said about Saul's article and also about the shifting approaches of both originalism and popular constitutionalism.  I've been spending a lot of time of late thinking about Southern ideas of constitutionalism in the thirty years leading into Civil War.  I'm particularly interested in two issues -- first, the feedback loops between public ideas about the Constitution and judicial ideas.  Such as, how did southern ideas make Dred Scott look like a legitimate decision.  And,  second, how did those public ideas about constitutionalism shape the South's move towards secession?  The public ideas helped frame the South's complaints about Lincoln's election and also the ways that Southern politicians and voters responded; they also legitimated the South's actions.  While Saul and many of the other originalists are focused -- completely understandably on the eighteenth century and the post-war period -- I think their work on whose ideas matter and why those ideas matter will help us understand the constitutional origins of the Civil War.

The American Right to Health

 I’m just back from a terrific symposium on the right to health care at Boston University School of Law that was sponsored by the American Journal of Law & Medicine and chaired by Abby Moncrieff. Presentations by constitutional, health care and tax law scholars brought a very nice range of perspectives to the Affordable Care Act (ACA). The conference papers will appear in the AJLM in late spring; I’ll say a little now about mine, which builds on an earlier article in JAMA.

I’ve previously defended the commerce clause and taxing power justifications for the individual mandate to purchase health care coverage. But the chief threats to the rights in ACA lie not in any constitutional infirmities. Rather, they rest in defects of design. Even if the Supreme Court upholds the law, its basic protections may unravel in the future. As other public benefit programs have shown, it's difficult to sustain programs that serve only the poor. Universal programs like Medicare and Social Security fare much better than targeted programs like Medicaid, and ACA's access-to-coverage provisions are mostly aimed at the poor and near poor. If past is prologue, we need to worry whether the financially secure will support adequate funding for the coverage expansions over time.

A Medicare-for-all, single-payer reform would provide greater stability, but we know about the political obstacles to that path. A modified version of John McCain's 2008 health care reform proposal might be both effective and politically feasible.

Farewell to Hull House

The Jane Addams Hull House Association shut its doors last week.  The Chicago Tribune detailed the organization's financial troubles:

Jane Addams Hull House Association will be out of business Friday, leaving employees and clients scrambling to fill a void the 122-year-old organization will leave. * * *

On Jan. 19, the agency announced it would close this spring. But by the following day, Saunders said, the board realized Hull House did not have enough funds to pay employees beyond January, and the decision was made to close in a week.

With government funding taking a hit and the need for services climbing, Hull House's revenue dropped from $40 million in 2001 to just $23 million in June.

"We could not possibly raise enough money to sustain the organization," Saunders said.

Read the full article here. The Association offered services to victims of domestic violence, senior citizens, small businesses and youth.

The Jane Addams Hull House Museum, a separate entity (and part of the College of Architecture & the Arts at the University of Illinois at Chicago), is not closing.  Here's how the Museum describes the importance of Hull House in American History:

Founded in 1889 as a social settlement, Hull-House played a vital role in redefining American democracy in the modern age. Addams and the residents of Hull-House helped pass critical legislation and influenced public policy on public health and education, free speech, fair labor practices, immigrants’ rights, recreation and public space, arts, and philanthropy. Hull-House has long been a center of Chicago’s political and cultural life, establishing Chicago’s first public playground and public art gallery, helping to desegregate the Chicago Public Schools, and influencing philanthropy and culture.

For more on Jane Addams and Hull House, a few books come to mind: Jane Addams, Twenty Years at Hull-House (1910); James Weber Linn, Jane Addams: A Biography (1935); Louise W. Knight, Jane Addams: Spirit in Action (2010) and Jean Bethke Elshtain ed., The Jane Addams Reader (2002).

Villanova Law Seeks VAP's

The folks at Villanova Law are in the market for two visiting assistant professors for the 2012-13 school year.  A job announcement is here.

Profs to Watch Out For

As the hiring season winds down and the new profs prepare themselves to enter the academy, it might be a good time to share some 'office politics' tips and tricks, to the extent that there are any worth sharing and/or of general application.

In reading an essay in Charles Baxter's, Burning Down the House this weekend, I ran across this description of a faculty member in an English department... 

I once had a rumpled and messy friend who was a colleague where I worked.  The crucial word here is "once".  Most offices have someone around like this person.  He was, for a time, unfailingly helpful to young faculty members.  He invited them for dinner.  A great raconteur and gourmet, he could cook and talk simultaneously and brilliantly.  He loved to help out people who were in a weak position.  In this role, he was lovable.  When they established themselves, when they no longer depended on him, he dropped them.  He invented imaginery crimes that they had committed and wouldn't speak to them and would pass them in the hallways without nodding.... He went away for a year and when he came back he was speaking to almost no one.  ("Maps and Legends of Hell" in Burning Down the House,  2 ed, 2008, p. 130)

Anyone run across this type in law schools?  Any other stereotypes that new profs should avoid or tread carefully around?

Any advice for the unwary?

It's a great profession - goes without saying - but there's office politics like everywhere else.  What do you wish you had known when you started out?

 

Oscar Disappointments

A couple of weeks ago I blogged asking readers for advice on what movies I should see to prepare myself for the Oscar race.  Boy did I choose wrong.  After dragging myself through Take Shelter, enjoying Young Adult and hanging in there for the U.S. remake of Dragon Tattoo, I find I have missed most of the movies that got the big Oscar noms.  I still haven't seen The Descendants, The Help or The Artist.  And Iron Lady only just opened in Cleveland...

But as bad as I feel, I have to feel worse for poor Michael Fassbender who garnered so much 'early buzz' and then completely struck out despite having donned some truly ludicrous costumes in X-Men, taken it all off in Shame and had a contentious affair with a patient in Dangerous Method. 

Who else do folks feel bad for this year?

Boydton Prison

The Washington Post has an article on the impending closure of the Boydton, Virginia, prison, which will have a devastating effect on the local economy.  I'm particularly interested in this because I've visited Boydton a few times over the past several years to see the remains of Randolph Macon's pre-war campus there.  (And a Confederate monument in front of the courthouse, of course!)  It's a beauitful part of Virginia and I recommend the trip if you're driving down I-85 and can spare the time for a side-trip.  It's also a place I want to go back to sometime to look at their probate records, but that's a story for another time.  What I find important is how the prison represents a lifeline for that small and poor community, especially after the local candy factory and mill closed.  And now even that's going to be closed, in large part because Pennsylvania no longer wants to pay Virginia to house 1000 of their inmates.

This also reminds me of something I've been meaning to blog about for a while now: a trip I took last summer to Chester, Pennsylvania, shortly after the trip I made out to Cherokee, North Carolina.  The nicest -- by far -- building in Cherokee is the Harrah's Casino.  I was there with a friend who studies indigenous people and so one of the things we wanted to do was to see the effect of the casino on the community.  While I fully realize that the casino brings in money to the community, it sure looked like that money wasn't well-distributed.  The casino is beautiful; the surrounding buildings aren't.  The casino is also the only place in Cherokee Country where you can buy alcohol.  Yes, really.  Anyway, to get back to the story, a couple weeks later I was up in Chester and a friend there mentioned to me that the local casino -- which looks remarkably like the one in Cherokee -- is across the street from the Chester jail.  There's something incredibly poignant about the juxtaposition of those two American institutions across the street from each other.  The casino and the jail.  Next time I'm back there I'm going to try to get both in the same picture.

Dean Search Update: Brooklyn

The four finalists to become the next dean of Brooklyn Law School are Patton Boggs partner Nicholas Allard, Tulsa law dean Janet Levitt, former Cornell law dean and former Grinnell College president and current Washington University visiting law professor Russell Osgood, and Brooklyn law professor Lawrence Solan.

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

The Case for Transfer on Death Deeds

Jennifer Jiang has the latest on the case for transfer on death deeds in the North Carolina Law Review.   Jennifer makes the case for these deeds, because they're of use to people of relatively modest means and sophistication and I hope we'll see more of this kind of scholarship and legislative action, too.

But there's also a scholarly story in here, too.  This is part of a trend of increased scholarship on trusts and estates.  That trend is moving in two directions -- first, toward solid and traditional doctrinal analysis; and, second, and of special interest to me, of the exploration of historical and critical perspectives on trusts and estates.  I'm thinking here, for instance, of Jason Kirklin's empirical study of probate in pre-Civil War Indiana last year in the Ohio State Law Journal, but also of what seems to be increased focus on the race and gender as they relate to trusts and estates.  One example of this that comes to mind immediately is Bernie Jones' book, Fathers of Conscience.  Will be most exciting to see where this all goes! I think that old idea that trusts and estates scholarship is an intellectual backwater is, well, outdated. (More thoughts on the field of trusts and estates, especially as it relates to the gender of faculty, here.) 

Dean Search Update: St. Thomas (Minnesota)

Our friends at St. Thomas (Minnesota) have posted a position announcement for the next dean of the law school.  Applications, nominations, and inquiries can be directed to Professor Tom Berg, co-chair of the search committee.

Orentlicher Stepping Into the Lounge

It's my pleasure to welcome my friend David Orentlicher into the faculty lounge.  David is the Samuel R. Rosen Professor of Law and Co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University's Robert H. McKinney School of Law, where he teaches in health law, constitutional law, professional responsibilty, and trusts and estates, among other areas.  He has also held visiting professor positions at Princeton, the University of Iowa, and the University of Richmond.  From 2002 to 2008,  David served in the Indiana House of Representatives from 2002 to 2008.  His emphasis in the legislature included making health care insurance more affordable, increasing the pool of venture capital for new businesses, and ensuring better protection of children from abuse and neglect.

David, who holds both medical and law degrees from Harvard, is also one of our nation's foremost scholars of health law.  He is the author of  Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law (Princeton University Press, 2001) and co-author of Health Care Law and Ethics (Aspen,  2007), as well as numerous articles.  You can read some of his recent scholarship on ssrn here.

Very much looking forward to hearing David's thoughts about health care and all manner of other things, too.

Handling Rejection

During this time of year, many faculty recruitment committees are charged with the unfortunate task of advising faculty hopefuls that they were not selected for the position. A recent article highlights feelings from the perspective of candidates and offers suggestions for improved rejection letters, but we seldom explore how this is handled by schools. Certainly, we all have friends and colleagues whom we've supported through this process, and we've provided an ear for them to vent about how long it took to hear anything, and heard (or personally experienced) the too-common examples of cryptic letters or e-mails informing candidates that the job went elsewhere. Some schools don't bother to acknowledge receipt of applications from candidates they're not interested in interviewing until the process has been completed. Law schools are charged with teaching students the importance of professionalism in all areas of practice, and this should extend to the dreaded notifications of rejections that they, themselves, send to applicants. Ideally, how should notifications of rejection be relayed? What steps can schools take to ensure this is handled appropriately -- and professionally?

From Rutgers-Camden Law To Rowan Law?

In what would be fairly radical restructing of higher education in New Jersey, Governor Chris Christie has proposed that Rutgers-Camden be merged with Rowan University - the former Glassboro State College, in Glassboro, NJ.  At the same time, the University of Medicine and Dentistry (UMDNJ) would be folded in as well.  All of them would operate under the banner of Rowan University.  

This would a signficant change for Rutgers-Camden, in particularly, since its research structure - in everything from the law school to the history department (home of a newly minted MacArthur fellow) - appears better developed than Rowan's.  In addition, those individuals associated with Rutgers-Camden - students, faculty, alumni, and donors - will likely smart at the loss of the school's highly respected name.  (It didn't take long to get a nice petition going.)  On the other hand, there would no doubt be efficiencies in the merger and it would bring together a South Jersey med school and law school under a single banner.

Cross-listed at Leiter.

Dean Search Updates, Plus

The 2011-12 law school dean search list is updated here.  

One notable story: it appears that Emory Law announced its dean search on Jaunary 12, 2012 with a call for nominations of tenured Emory faculty.  Based on the timeline set out in this document, it's not even clear the committee was considering outside candidates at all.  Indeed, the committee has apparently already identified three finalists - all from the existing Emory faculty and one the current interim dean.  There's nothing wrong with doing an internal dean search; it's just unusual for a search committee to be so open about it.

Legal Ethics on the Interwebs

The law firm of Fitzworth & Schnoogle is a well-known criminal defense firm.  Another criminal defense firm in town, Gasbottom & Plonk, purchases the term "Fitzworth & Schnoogle" as a google advertising keyword, which means that when somebody runs a google search for "Fitzworth & Schnoogle," the Fitzworth & Schnoogle site shows up as the first hit on the search results, but over on the right side, an advertisement for the firm of Gasbottom & Plonk appears under the words "sponsored links."

Rule 8.4(c) of the ethics rules says that "[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

Has Gasbottom & Plonk violated the rule?

Discuss.

Counseling Students - The Socially Awkward Student

There's a lot about this job that most of us are at least minimally trained for.  When we teach, we at least have our experience as a student to draw on.  Hopefully, we've also thought about pedagogy, sat in on others' classes, talked with experienced teachers, and done other things to make ourselves the best we can be in the classroom.  When we write, we can draw on our academic background, training we might have from graduate school (if we went), and our experience as writers throughout our careers.  Maybe others who go into other academic fields have more training, but we have some training or at least some professional experience in these areas.

However, one aspect of our job that most of us have no training for is counseling students.  We can draw on our life experiences with family and friends, but most of us have no academic or professional experience as job, career, or life counselors.  Yet, so much of what we do is exactly that.

In that vein, I want to consider a few of the more difficult counseling situations I've faced in my time as a law professor.  My hope is that we can share our thoughts, successes, and failures around these situations (because I'm pretty sure we've all faced them) and in the process improve how we all help students.

I'll have future posts with different types of situations, but I want to start with the socially awkward student.  I'll posit here that the student is very strong academically.  However, the student is incredibly socially awkward.  She has stunted conversations, is very shy, has odd communication habits, is off-putting in the way she uses language or carries herself physically, or something else that is obviously socially awkward.  As a result, she has gotten a lot of interviews based on her paper resume, but she has had trouble actually landing jobs.  What's worse, she may or may not know the reason for the difficulty, and you don't know one way or the other.

When she comes to you asking for help or advice or just to talk about where things are with her professionally, what do you do?  How do you handle her awkwardness and the difficulties it's posing her in getting herself into the professional world?

January Surprise: SLU Law Is Moving Downtown

Dean Annette Clark announced yesterday that as of this coming August, Saint Louis University law school will be moving from midtown to downtown St. Louis.  The announcement appears to have been a surprise to many people.  The school will be taking over an 11 story, 260,000 square foot building.  It even has its own parking deck inside!  The structure was built in 1965 and was once occupied by AT&T.  

Looks like there's a lot of renovation ahead in the next 8 months!

Exploring "Educational" Epithets

The image of the t-shirt in Eric's post, and the various reactions it received (mine included) have been very enlightening. The use of insults and slurs can be used as "teachable moments" in various classroom settings, but we all have a moral compass that makes us seriously take pause when a certain usage crosses the line. In Advocacy to Zealousness, many of the films I've included have a secondary purpose of encouraging the exploration of various elements of diversity in the legal profession. Some of the films include the use of slurs. Perhaps the most famous example is To Kill a Mockingbird (1962). Another is Gentleman's Agreement (pictured, 1947), an earlier film starring Gregory Peck that explores Anti-Semitism. My question concerns open discussions of diversity in classroom settings, either with law students or during CLE presentations involving attorneys. How do you approach these topics in classroom settings? What steps do you take to ensure that these potentially-heated subjects are discussed openly and civilly?

Sometimes, All You Can Say Is "Wow."

Yom Hashoah is just around the corner, folks.  Do your shopping early.

 

Flynn v. Holder – The Fight Continues

Via Al Roth comes news that the government is fighting the recent Flynn v. Holder decision, which held that bone marrow donors could be legally compensated (for peripheral blood stem cells obtained through apheresis).  According to press reports (here and here), the Department of Justice has asked the Ninth U.S. Circuit Court of Appeals for en banc review of the Dec. 1 panel ruling. I blogged about the case earlier here.

Interesting timing, from my perspective: my Taboo Trades seminar is discussing Flynn v. Holder next week, concluding a two-week segment on blood.  I vary the readings from year to year, but this year assigned Titmuss, Arrow’s response to Titmuss, Singer’s response to Arrow, Lacetera, et. al, and Flynn v. Holder.  I’ve included full cites below the fold for anyone interested.

I’m sure I’ll be back again with more on the case and/or our discussion of taboo trades more generally.  This year’s group seems particularly bright and interesting (yes, I do say that every year . . . but every year it’s true).

I’m actually a bit surprised that the government continues to fight this, especially through the courts (and especially on a 3-0 decision), as opposed to through the legislature, though I’m certainly no expert on appellate litigation strategy.  I note that in his recent New England Journal of Medicine article on the case, Glenn Cohen stated that, though the government could ask for a rehearing en banc:

Given the narrowness of the Ninth Circuit holding, however, the government may be content to leave it in place and instead seek redress through the legislative process — or merely accept the formation of markets for peripheral-blood stem cells. Nothing in the Ninth Circuit decision foreshadows the creation of markets in any other types of organs.

And I guess that’s what I figured as well.  Perhaps some of our many Loungers with DOJ or other government experience will have thoughts to share on the government’s possible strategy, which I welcome.

 

 

Barack Obama, Law School Dean

I have not read Jodi Kantor's new book, The Obamas, but thankfully many other people have - and two have now shared this nugget: earlier in his career, Barack Obama's greatest aspiration was to become a law school dean!  That's a tad different than W's pre-presidential aspiration of becoming the commissioner of baseball.

This new factoid provides some important blogging points.   First, might he become a law school dean after the presidency?  Sure, it'll be  tempting to take over an entire univesrity such as - say - Harvard.  But that would require him to focus on so many large institutional issues and problems.  Why take on those headaches?  And of course, there will be other job options: he could create a TV network .  He could make a new neighborhood safe for Starbucks.  Hell - he could suspend the constitution and become the General Secretary of the United Socialist States.  (Yes, somebody really believes this.) 

But it seems to me that he'll want to follow his inner compass and become a law school dean.  So the obvious question is: which law school?  Personally, I hope that the President will be able to keep his current gig for four more years.  But if not, there are a few schools with existing openings that might be willing to wait if he shows serious interest immediately.

The University of LaVerne is an obvious choice.  The President has shown that he knows how to take decisive action under extreme conditions.  Given all the complicated noise going on in the Inland Empire, LaVerne needs a leader with the sort of bold vision led to a takeover of GM and Chrysler back in 2009.   Feeling entrepreneurial?  Oxy Law sure has a nice ring!   If he's looking to integrate his "left wing liberal" values with his burning desire to lead an ABA accredited, JD granting institution, the food stamp President can head to Northeastern Law.  There, students can alternate classes in payment systems and employment law with a co-op in which students represent Dorchester residents in their SNAP denial hearings.   On the other hand, if he's missing the sturm and drang of  Rahm Emanuel, can you spell UT?

Second, everyone will surely wonder whether he has developed the skill set for the job.  No matter what position he settles into, Obama will have to stare down the Law School Bubble.  But as a fellow who already lives in a bubble within a bubble, this is going to seem like old hat.  It's not like he'll be co-opted by all old guard law faculty types; after all, this is the guy who passed through Chicago without absorbing much of the internal culture.  And we've been told that legal education may soon provide an object lesson of what happens when we do nothing: bad things happen. Other than Harry Truman, there's probably no person better situated to harness the power of a bunch of do-nothings to produce an excellent result. 

Right now, the Republicans are doing their best to insure the President of a second term. Maybe they'll succeed.  If not, those of us in the law school industry may soon have a new fellow traveler. 

I just hope he's not too cocky.  Sure, he might be able engineer a leaner military that can fight two wars at once.    But if he thinks law professors are going to get their finals graded before Christmas, he's as crazy as a betsy bug.

The Law Professor as Novelist

Why would a law professor write fiction?  Scott Douglas Gerber (Ohio Northern) answers that question in the National Jurist here (free registration required; sorry).  Here's the kernel of his advice:

For those of us who don’t teach at Yale, Stanford, Penn and the like, it’s much more difficult to get fiction published than it is nonfiction.  Like it or not, those of us toiling in the hinterlands have a tougher time getting the attention of New York literary agents and publishing houses.  But, as a novelist friend once reminded me during one of my many moments of frustration about how the publishing industry really works, if you write fiction because you enjoy is – nothing more, nothing less – you will never regret that you do.

"Write because you enjoy it" is a good maxim, but what about those for whom writing -- even non-fiction -- is painful and difficult?  "Enjoy it because you have to do it" may be more apropos. 

As for me, I'm squarely in the "I hate to write; I love having written" camp.  Incidentally, does anyone have a cite for that quote?  I've seen it attributed to Robert Louis Stevenson, Eudora Welty, Dorothy Parker, and others.

Possible West/Foundation sale, fewer law students next Fall, and why law education should look to dental education

On Thursday, Thomson Reuters announced that it may sell its law school publishing business, comprising the West and Foundation Press casebooks. I suspect that part of the motivation to dump casebook publishing is the near certainty that the market for casebooks is about to become smaller.

Casebook sales are a function of the number of law students, and that number is likely to shrink. And soon. One of the best early predictors of law school matriculants is the number of LSAT tests given. On Friday, supposedly secret (but readily available here) data show that year-to-date tests are 16.7% fewer than last year and a whopping 25% fewer than two years ago. Could it be that Thomson Reuters sees that fewer law students mean fewer casebooks sold?

The high likelihood of fewer students is, of course, a major strand in the current discussion of the crisis in legal education. I’m currently writing about the lessons law schools can learn from the way dental schools survived a similar crisis.

Dental school enrollment decreased by 34% in response to

an over-supply of dentists,

the decreased profitability of general dentistry, and

the curtailment of federal funds to dental schools.

Sound familiar?

Twelve percent of dental schools closed, the equivalent of more than 20 law schools going under today. But dental education stabilized and, arguably, became stronger and I believe legal education can, too, especially if law schools and our accreditors learn from the experience of dental education.

My research suggests that dental education responded to the crisis by

Implementing more practice-relevant curricula,

Basing assessment on outcomes not processes,

Revamping accreditation standards to let schools experiment with different educational methods and different missions,

Demonstrating the value to practitioners of academic research, thus enhancing the status of research faculty,

Improving the relationship between schools and their universities, which made school closures less likely, and

Developing sustainable revenue models that reduced reliance on student tuition revenue, making dental education more affordable to students

I will have more to say about the lessons for survival that law schools can learn from the dental schools’ experience as my research develops. But for now, the potential West/Foundation sale is objective evidence that the probable decline in the number of law students will have real consequences throughout all of legal education.

How to Write a Good Abstract for a Law Review Article

When you write an abstract, you are marketing your own work--you act as your own PR agent.  You've already done the work of writing your article, and now you must do the good work of presenting your research Lite-style to articles editors. Aside from your school's letterhead, it's the most influential aspect of your paper.  Think of it as intellectual plastic surgery: you augment the exterior to convey to others how you think you should be seen. (See, Jocelyn Wildenstein)

We've seen fabulous advice on other blogs about writing a really good abstract (Dudziak and Volokh). They are great for achieving the appropriate tone and style that will impress student editors.  Missing from these instructions is a MadLib-style skeleton. Sometimes, it's nice to sit back and be uncreative in your creativity. (See, "Sh!t [insert very specific demographic here] People Say" meme. If you have no idea what this is, click here.)  First time writers or seasoned scholars all can benefit from a 1040-EZ approach to abstract writing that conveys scholarly import without seeming overtly boastful.

After all, your paper is the most important thing ever written, right?  The other people that wrote on the same thing tried to do it right, but your new idea is so amazing too?  And you have a recommendation for improvement or a different way of seeing things?  Just like my new way of writing abstracts?

Here is is: short and sweet.  Fill in the blanks and Voila!  You are on your way to publication. Follow this abstractoskeleton, and you will have an excellent abstract. Other people may have their own way of doing it, or disagree with my ordering...but then they should write their own abstracts.

Live Blogging from the Archives

What do we do in Chapel Hill on cold, overcast Sunday afternoons in winter?  Spend time in the archives, of course!  I'll be talking soon about the constitutional origins of secession -- and in preparation for this, I'm reading some more about UVA law professor James Holcombe.  (You may recall I wrote about a frightfully difficult exam he gave at The University in 1859 some time back.)  There's a lot -- a lot -- that needs to be said about Professor Holcombe's legal ideas.  But right now I want to focus on a vignette about his uncle, which seems like it should go straight into the trusts and estate course as a very amusing story:

Uncle Thomas Anderson Holcombe was ... educated as a lawyer and practiced awhile in lower Virginia.  He was one day summoned to the bedside of a Miss Royall, a homely old maid, 10 years older than himself, with whom he had a slight acquaintance.  She was said to be dying and wished to make a will.  To the amazement of the young lawyer, the good spinster bequethed to him the bulk of her property, assigning as her reason the vast and unappeasable love she had conceived for him, declaring that she could not die in peace until he accepted her offering.  To the astonishment of everybody and the chagrin of my uncle, Miss Royall recovered and common gratitude, as everyone knows, demanded that he should make her Mrs. Holcombe.

Actually, there's a ton more substantive things to talk about in what I'm reading now, about concern over keeping property within the family -- and disinheriting children if they stray from the parents' wishes, and all other manner of stuff on wills.  But that will have to await the paper that Doug Thei and I are writing on probate in Rockbridge County, Virginia, from the 1830s to the 1850s.  Never ceases to surprise me how much people in the old south worried about family and property.

University Website, Redux

A frustrating search last night of a law school website in an attempt to locate the school's street address prompted me to repost this xkcd gem from 2010:

Joe Paterno Dead At 85

News here.  It's hardly the end of the Penn State story, but it certainly adds a potent dramatic turn. 

Random Thoughts on Election Evening

Sticking my head up from work on the constitutional arguments surrounding secession this evening, which I'll be talking about much more over the next couple of months....  Did anyone else notice that the Romney campaign headquarters played Randy Travis' "Forever and Ever Amen" as it was warming up the crowd before Governor Romney's address?!  Do you think this could have something to do with Newt Gingrich?    Looks like it may be time to dust off those posts about the use of songs by Senator McCain's campaign back in 2008 -- and by the Democrats, too.