The Faculty Lounge

North Carolina Sterilization Victims Compensation: Draft Act

Thanks to a pointer from Daniel Goldberg, here is the current version of the North Carolina bill to provide compensation for sterilization victims.

A key part of the bill is that each "qualified recipient" shall receive $50,000.  A "qualified recipient" is: "An individual who was asexualized or sterilized under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937, and who was living on March 1, 2010."  So anyone -- without distinction regarding the circumstances -- who was sterilized by order of the Eugenics Board and surived until March 2010 is entitled to compensation.

The trusts and estates professor in me is particularly interested in this part of the bill, which excludes compensation as available assets for determination of eligibility for government assistance programs:

§ 143B‑426.56.  Compensation excluded as income, resources, or assets.

(a)        Any payment made under this section is not subject to income tax as provided in G.S. 105‑134.6(b)(23), nor to be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.

(b)        Pursuant to G.S. 108A‑26.1, the Department of Health and Human Services shall do the following:

(1)        Provide income, resource, and asset disregard to an applicant for or recipient of public assistance who receives compensation under this Part. The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.

(2)        Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A‑70.5 from a deceased recipient's estate for payment of Medicaid‑paid services by the amount of resource disregard given under subdivision (1) of this subsection.

(3)        Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection.

JP Morgan's Whale-sized Lobbying

As I mentioned the other day, one of the reasons that the press, pundits, and politicians are taking such pleasure in bashing JP Morgan on its trading losses is because Jamie Dimon has been one of the most vocal critics of the Volcker rule and other financial reforms, insisting that they’re unnecessary and so costly as to make American banks uncompetitive. 

And JP Morgan has also been one of the (if not the) most active institutions lobbying federal regulators for favorable Volcker rule interpretations and exemptions.  For example, in the period between Dodd-Frank signing and proposed rule publication, JPMC met with federal regulators charged with Volcker rule implementation, either alone or with other industry members, a total of 27 times – more than any other single entity, organization, or person.  (Table 8 at right shows this information, this paper has more details.)

This meeting activity continued after rule proposal, though the rate appears on first cut to have declined.  I’ll have more detailed information on that down the road, as my RAs and I finish going through the meeting logs beginning the day after the Volcker rule proposal.  JPMC also filed a substantial (65 page, not counting the appendix) comment letter complaining that the proposed Volcker rule was too restrictive and went beyond Congress's wishes as expressed in the statute, and outlining its suggestions for appropriate revisions. 

Although it can sometimes be difficult to get an accurate sense of meeting content from logs, the Federal Reserve’s are pretty good and give at least some indication of the points being discussed.  Those logs show that JP Morgan met with fed staff to argue that the proposed Volcker rule needed more narrow definitions of prohibited activity and more broadly defined exemptions, that the rule as proposed would negatively impact their own business and markets generally, and would render US banking entities uncompetitive.  On the substance, the logs show that JPMC discussed with fed officials both the proprietary trading and fund investment restrictions of the Volcker rule, as well as concerns regarding the effective date, the conformance period, the use of specific metrics to gauge Volcker rule compliance, and the hedging, market making, underwriting, and customer service exemptions of the rule, among other items. 

I should be circulating a draft of a new paper by the end of the summer that details these meeting logs and comment letters more systematically, and places them in the context of rule changes from inception to final product (whenever we finally have one).  But even from the limited preview here, you can, I think, see why reform-minded commentators are taking particular pleasure in this JP Morgan misstep.  

 

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Thurgood Marshall, Uncle Tom’s Cabin & Texas State University for Negroes School of Law

I’d like to thank Al for inviting me to blog here for a stint. 

 As he mentioned in the post introducing me, I’m finishing a manuscript on the epithet Uncle Tom.  In the book, I start from the premise that racial solidarity is one tool that can help blacks advance their legal goals, as perfectly illustrated by the Montgomery Bus Boycott.  I argue that social norms—the rules that regulate behavior in groups that are enforced through sanction—that punish racial treachery can help strengthen the bonds of solidarity.  My thesis, in short, is that the maintenance of constructive social norms to police racial loyalty, by helping build solidarity, can aid blacks in promoting their legal interests and ability to affect public policy.  This is observable by following the life of Uncle Tom, a common punishment for disregarding these “racial loyalty norms.”  Constructive norms help build solidarity.  Destructive norms operate in the opposite direction.  This work distinguishes between the two and argues for a continued use of constructive norms.

 I’ll talk more about the substance of the book later perhaps.  But while researching, I found what I thought was an interesting tale.  All readers, I’m assuming, know the story of Sweatt v. Painter (1950)—Heman Marion Sweatt’s successful effort to integrate the University of Texas School of Law.  In 1947, Texas, because the state had no black law school, created the Texas State University for Negroes School of Law, which the Baltimore Afro-American, a black newspaper, derisively called the “Texas JC (Jim Crow) Law school.”  It consisted of three rooms in a basement across the street from the state capitol. 

 Thurgood Marshall, while an NAACP attorney, called the school “Uncle Tom’s Cabin” and said that one of the first students at the school “had the remnants of a Negro slave.” Marshall hated the idea of the school as he was in the middle of a strategy to desegregate American education.  He also criticized the black students who enrolled in the school because their presence might have legitimated the institution and supported the argument that the new law school and UT Law were equal and not violative of the Equal Protection Clause.

 What’s odd is that “Uncle Tom’s Cabin” now bears his name.  Thurgood Marshall School of Law in Houston was formerly Texas State University for Negroes School of Law. 

 I wonder if Marshall ever spoke at the school after the name change.  If he did, how awkward was it?  Did those who were responsible for the name change know this back story?  I don’t know the answers to these questions; they are beyond the scope of my book.  But I thought the curious story was worth recounting.

 Edit: Bob Jarvis writes:  "When TSU named its law school for him, Justice Marshall spoke at the naming ceremony (held on Saturday, February 14, 1976).  His speech is reprinted at 4 TSU Law Review 191-95 (1977)."

Logic Lane Easement

St. Louis University Law Professor Eric J. Miller sent along the photo at right of Logic Lane in Oxford.  There's apparently an easement in gross on it for public access during the day.  

Two Paul Carringtons

For the revisions on University, Court, and Slave, I've been re-reading Paul Carrington's work on pre-Civil War law professors and the possibilities of education regarding Union and anti-slavery thought -- especially The Revolutionary Idea of University Legal Education, Teaching Law and Virtue at Translyvania University: The George Wythe Tradition in the Antebellum Years, but also The Butterfly Effects: The Possibilities of Teaching Law in a Democracy.  It will surprise no one that I'm more skeptical than Professor Carrington about the ability of lessons learned (or perhaps I should say taught) in law school to influence people later in life -- though I recognize that studying the ideas conveyed in all sorts of places, from graduation speeches, to literary addresses, to cemetery dedications, can help us understand the world intellectuals sought to create.

So you can understand my amazement when  -- as I was driving through the Virginia countryside recently, headed home from a visit to Hampden-Sydney College -- I saw a roadside marker headed "Paul Carrington."  Of course I stopped my car and went out to take a picture of it.   It's in Wylliesburg, Virginia.  Ever heard of it?  I didn't think so.  

The earlier Paul Carrington was a member of the Virginia Supreme Court of Appeals; he also had a house at Mulberry Hill, which I know understand is part of a state park.  Perhaps I'll look for something from the earlier Paul Carrington to cite in University, Court, and Slave, so I have two of them in one place.

JP Morgan Updates

Jamie Dimon called to testify before the Senate Banking Committee next month. BLT

Securities Suit Filed Against JP Morgan Chase Over Trading Losses. Professor Bainbridge

The unit at the centre of JPMorgan Chase’s $2bn trading loss has built up positions totaling more than $100bn in asset-backed securities and structured products. FT

And Tracy Alloway, Felix Salmon, and Lisa Pollack all have more information on the exact nature of the JP Morgan whale trades.  

The Berlin Wall -- American Version

Senators Schumer (D-NY) and Casey (D-Pa) plan to introduce a bill to impose an additional capital gains tax on Americans who renounce their citizenship and to bar them from ever reentering the United States.  The news story is here.  Of course the Berlin Wall was much more harsh -- you got shot if tried to exit -- but the Democratic version is a financial kneecapping.  Schumer and Casey need to amend Emma Lazarus's inscription on the Statue of Liberty with some new lines:  Give me your tired, your poor/Your huddled masses, yearning to breathe free/But once inside Schumer's door/Don't ever try to flee. 

What is it about Monuments and Law?

Long time readers of the faculty lounge may recall that one of my interests is the law of monuments -- the placement and removal of monuments (of which building names are a key part).  But one of the things that really interests me is why so frequently monuments themselves talk about law.  You may remember the monument at Richmond's Hollywood Cemetery that commemorates the gift of the Confederate section from the state to the cemetery.  And the Pennsylvania monument at Virginia's battle of New Market has a plaque commemorating the transfer of title of the monument from the Pennsylvania to Virginia.  And the statue of General Meade at Gettysburg has a plaque reciting Congress' act praising the United States' army's service at Gettysburg.  I understand the later -- the law is itself a monument.

Now I want to talk about the North Carolina monument at Appomatox.  It commemorates the final battle before Lee surrendered, in which troops from North Carolina participated.  There's a picture of it in the upper right.  It reads in part:  

This stone is erected by the authority of the general assembly of North Carolina in grateful and perpetual memory to the valor, endurance, and patriotism of her sons, who followed with unshaken fidelity the fortunes of the Confederacy to this closing scene, faithful to the end.  Erected 9 April 1905.

I get that monuments are placed often through the acts of a legislature, but I'm interested in why monuments so frequently have law on them?  It seems like the act of the legislature is sort of subordinate to the larger message that the monument's placers want to convey.

In a subsequent post I talk some more about the North Carolina monument itself, because it's pretty interesting how the monument discusses the North Carolina free and slave population.

 

Starkey Stepping into the Faculty Lounge

It's my pleasure to welcome Brando Simeo Starkey to the faculty lounge to sit with us for a spell.  Brando is a visiting assistant professor at Villanova.  He was previously a fellow at the Equal Justice Society and is a 2008 graduate of Harvard Law School.  He writes in the areas of constitutional law, race, and legal history, among others.  He is finishing a book manuscript on Uncle Tom & Social Norms: Improving Legal Interests and Affecting Public Policy; the prospectus for it is available here.  SSRN has some of his recent papers.  

Close readers of the faculty lounge may recall he is a frequent winner of the civil rights trivia contests.

Welcome, Brando.

Theory v. Practice

My friend, and former South Texas colleague, Dru Stevenson (pictured) has a thoughtful post on the push in legal education to incorporate more lawyering skills into the curriculum.  The post is titled "Should Law Schools Focus on Lawyering Skills," and you can read it here.

Roberts from West Virginia to Savannah

It's my great pleasure to announce that Caprice Roberts of the University of West Virginia faculty is moving to Savannah Law School, which is a branch of Atlanta's John Marshall.  Caprice is a scholar of remedies, federal courts, and jurisprudence and served as associate dean of academic development at WVU   Her scholarship includes two books -- Federal Courts, co-authored with Michael P. Allen and Michael Finch (Aspen 2009), and Remedies: Cases and Materials, co-authored with Doug Rendleman  (West, 8th ed. 2009)  -- and numerous articles on remedies and federal jurisdiction.  Caprice has also taught at FSU, UNC, and Washington and Lee. 

I realized as I was looking at their list of faculty that Savannah and John Marshall have advantage of the market and their prime location to assemble a really terrific faculty.  Long time readers of facutly lounge will recognize Marc Roark and Kelly Anders as prominent faculty who're joining Savannah.

Something else that's been on my mind to talk about is the building that Savannah recently purchased and is rennovating -- the famous Chandler Hospital, which goes back to before the Civil War.  (Hence the illustration of this post.)  Congratulations to everyone!

"That" Time Magazine Cover

For anyone who hasn't seen or heard about it, this week's Time magazine cover depicts a young mother breastfeeding her three year old son.  One story, including copy of the cover, is here.  The lead article is about attachment parenting which is not a new phenomenon but which certainly raises strong opinions amongst parents and others.  The cover of the magazine itself was clearly meant to provoke discussion - and has provoked a lot so far.  It got me to wondering which other magazine covers have made the most impact (and sold the most magazines) over the years.  The year that Time magazine nominated "You" as "Person of the Year" springs to mind.  Any others?

Experience Taking in Reading Fiction

An English teacher just drew my attention to a recent study which demonstrates what many of us have probably suspected about ways in which identifying with a fictional character can alter one's behavior or perceptions of the world.  An interesting article is here.  Some researchers at Ohio State attempted to measure ways in which reading fiction can alter behavior in terms of concrete actions (like voting) and empathy with others who are different (eg different sexual orientation, race etc).  They found that factors such as first person versus third person narrative, creating easier identification with a character before exposing major differences etc had significant impacts on empathy and the way in which the reader was affected by the character.

Putting the JP Morgan Loss In (Real) Perspective

Ever since JP Morgan’s announcement of a $2 billion loss on Thursday from what might or might not be a hedging transaction, advocates for financial reform have used the news as a basis for calls to strengthen rules currently in the works, most notably the Volcker rule.  This is not the least bit surprising, given both the nature of politics and the fact that Jamie Dimon has been the most vocal opponent of such reforms, insisting that they’re unnecessary and so costly as to make American banks uncompetitive.  So it’s really a given that reformers and pundits are not going to waste an opportunity to hit back when Mr. Dimon announces losses from egregious sloppiness that are multiple times his own estimates of the costs of Volcker rule compliance. 

Perhaps just as predictably, less reform-minded commentators are now fighting back.  Notably, Jonathan Macey has a piece in today’s WSJ arguing that we should keep the JP Morgan losses in perspective.  Says Macey:

The truth is that nobody should care about J.P. Morgan's loss—nobody except J.P. Morgan stockholders and a few top executives and traders who will lose their bonuses or their jobs in the wake of this teapot tempest. The three executives with the closest ties to the losses are already out the door.

After the $2 billion in losses, J.P. Morgan still had $127 billion in equity. This means that J.P. Morgan could lose another $100 billion and creditors would still have an equity cushion that could absorb 10 times the losses that the bank suffered on this trade. . . .

Thus, far from serving as a pretext to justify still more regulation of providers of capital, J.P. Morgan's losses should be treated as further proof that markets work. J.P. Morgan and its competitors will learn from this experience and do a better job of hedging the next time. They will learn because they have to: In the long run their survival depends on it. And in the short run their jobs and bonuses depend on it.

Yes, of course the losses are small change given JP Morgan’s size and, of course, politicians are opportunists.  Moreover, I’ll even grant Macey’s basic position that markets typically work better than governments.  More to the point, I’ve been quite vocal on this blog about the limitations of the Volcker rule, along with many other Dodd Frank reforms.

But, this “let’s put the JP Morgan loss in perspective” tale making its rounds the past few days quite misstates both the concerns of the proposed Volcker rule and what is worrying about the JP Morgan losses.  The rationale behind the Volcker rule became embodied in a “too big to fail” and “no government bailouts” narrative, perhaps because those were winning spin points for Obama and because those rationales are easier for the general public to grasp.  But the real rationale of the rule was really about subsidies: depository institutions receive a variety of federal subsidies, including underpriced federal deposit insurance and liquidity assistance.  The sense of most Volcker rule proponents (or at least the more thoughtful ones) is that these federal subsidies, designed to provide stability to such institutions, should not then be leveraged into risky trading activities that bear no relation to traditional banking services.  I’ve discussed my own views on this before: the Volcker rule’s goals are noble in theory, but I’m not persuaded the rule will be at all workable.  And, as I discussed in this earlier post, the JP Morgan loss – rather than illustrating the need for the Volcker rule -- demonstrates the many hurdles to successful implementation. 

But we should be straight about the purposes of the rule. 

Yes, markets typically work.  Maybe if we allowed them to work for banking entities we wouldn’t need to worry about JP Morgan’s risk profile.  But we don’t . . . so we do.  

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

Updated Faculty Visitors List ...

Here's the list as of today.  If there are any more updates, let me know (JDL14@case.edu).

Plotting the Salt Salary Survey Against US News Ranks

Following up on my recent posts on the Salt Salary survey for tenured professors and for untenured professors at each of four tiers of school, I want to look further at the relationship between the Salt Salary Survey data and the U.S. News law school rankings.  First off, let me talk about overall U.S. News rank and salary of tenured professors.  There is a -.54 correlation between U.S. News rank and median salary of tenured professors -- that is, as school rank decreases (as it gets better), there is an increase in median salary.  The plot at the upper right is of the overall U.S. News rank against the median salary of tenured professors.  The more highly ranked schools tend to pay better.  Why this is -- and what's cause and effect are really open to question.

Now I want to look at another relationship -- the median salary of tenured professors and the U.S. News peer assessment scores.  There is a .47 correlation (n = 66, p < .001) between the median salary of tenured professors and U.S. News peer assessment scores.  The outliers on the upper left are Drexel and Touro.

Also, I have a paper on a parallel topic: the relationship relationships between U.S. News law school rankings and African American student enrollment (and several other variables).

Chanbonpin on Apology, Truth, Narrative, and Torture

Close readers of faculty lounge may have intuited that I am returning to writing about reparations after about a half dozen years away; and in many ways I feel like Rip Van Winkle returned to his much-changed village.  There's been some scholarship that looks much more deeply at issues -- especially apologies and truth commissions -- than we had a decade ago.  And also scholarship is looking at the case for reparations in different areas.  John Marshall Law School Professor Kim Chanbonpin's article "'We don't want dollars, just change': Narrative Counter-Terrorism Strategy, an Inclusive Model for Social Healing, and the Truth About Torture Convention," in the Northwestern Journal of Law and Social Policy is an example of both of those trends.  Here is Chanbonpin's abstract:

In 2007, Professor Eric K. Yamamoto acknowledged that reparations theory and practice had reached a crossroads and called for a new strategic framework that reparations advocates could utilize in working to achieve redress for social and historical wrongs. This Article attempts to answer Yamamoto's call. In it, I situate my proposal for a truth commission to redress the post-9/11 torture program in a new Inclusive Model for Social Healing. In the past, reparations advocates have relied on litigationa strategic model that excludes participants other than the named partiesto obtain redress. By increasing the number of stakeholders in a reparations scheme, the Inclusive Model for Social Healing has the potential to attract more widespread support from the public and is more resilient to criticism than exclusive litigation models.

Read the article here.

Ball on The Right to Be Parents

My friend Professor Carlos Ball of Rutgers Law School has just published The Right to Be Parents: LGBT Families and the Transformation of Parenthood with NYU Press.  Cribbing now a little from the Press' webpage:

In 1975, California courts stripped a lesbian mother of her custody rights because she was living openly with another woman. Twenty years later, the Virginia Supreme Court did the same thing to another lesbian mother. In ordering that children be separated from their mothers, these courts ruled that it was not possible for a woman to be both a good parent and a lesbian.

 

The Right to be Parents is the first book to provide a detailed history of how LGBT parents have turned to the courts to protect and defend their relationships with their children. Carlos A. Ball chronicles the stories of LGBT parents who, in seeking to gain legal recognition of and protection for their relationships with their children, have fundamentally changed how American law defines and regulates parenthood. Each chapter contains riveting human stories of determination and perseverance as LGBT parents challenge the widely-held view that having a same-sexual orientation, or that being a transsexual, renders individuals incapable of being good parents.

 

To this day, some courts are still not able to look beyond sexual orientation and gender identity in order to fairly apply legal principles in cases involving LGBT parents and their children. Yet on the whole, stories are of progress and transformation: as a result of these pioneering LGBT parent litigants, the law is increasingly recognizing the wide diversity in American familial structures. The Right to be Parents explores why and how that has come to be.

You may recall that Carlos' previous work includes From the Closet to the Courtroom: Five LGBT Lawsuits That Have Helped to Change Our Nation (Beacon Press, 2005).

 

New on SSRN: "Of Nazis, Americans, and Educating Against Catastrophe"

I've just posted to SSRN my new article "Of Nazis, Americans, and Educating Against Catastrophe," which just came out in the Buffalo Law Review.

It compares the lives of two architects of "racial" deportations that took place in the spring of 1942:  Benno Martin, the police chief (and lawyer) who oversaw the eastward deportation of thousands of Jews from Nuremberg, and Karl Bendetsen, the U.S. Army official (and lawyer) who oversaw the eastward deportation of thousands of Japanese and Japanese Americans from the West Coast.

It deploys this comparison to support an effort to explore some of the all-too-human forces that tend to lead societies—as they led Germany and the United States in the years after the war—away from honestly reckoning with the choices people make to harness their professional energies to advance systems of repression.

It's somewhere between possible and likely that you scoff at the fairness of comparing any American involved in the deportation of Japanese Americans with any German involved in the deportation of Jews.  I try hard in the article to explain exactly how, and exactly why, this particular comparison is fair and useful.  If you read the piece, let me know if you're at all persuaded.