The Faculty Lounge

St. John's Church, Richmond

Since I'm posting a bunch about Richmond these days, I thought that I'd post a picture of St. John's Episcopal Church in Richmond, which I took on a trip through town in March.  The church yard is fabulous -- George Wythe is buried there, though the monument for his grave is of fairly recent vintage it appears (not sure of the story with that).  Poe's mother is there, too, as I recall.  

Though part of the church was built in the 1740s, it took its present form around 1772.  Never ceases to surprise me how impressive some of the eighteenth century Virginia buildings were.

John Marshall's Grave

Last summer I had a judge house trivia question for John Marshall's house in Richmond.  This summer I want to show Marshall's grave, which is  nearby his house.  It's in the Shockoe Hill Cemetery.  The cemetery, which somehow has escaped my attention until this spring, is really fabulous.  It was founded by the city in the 1820s -- right before the movement for private, "rural" cemeteries took hold.  There's a really important story to tell about southern town cemeteries -- they weren't set up by individual churches, but by the government.  (Another example of this is the Marion City Cemetery in Perry County, Alabama -- where the faithful slave Harry was buried; I think that was founded around 1820.)

I'm going to post a bunch of photographs from my visit -- when you think of an old cemetery with ghosts trooping home at the witching hour -- this is the place.  There are a huge number of grand monuments -- and there are some people I study a lot here, including, yes, Nathaniel Beverley Tucker II (I study Nathantiel Beverlely Tucker the first, whose grave is in the Bruton Parish Churchyard in Williamsburg.)  There are the Allans -- Edgar Allan Poe's foster parents -- and also some cemetery art I want to talk about, as well a monument to an anti-slavery activist.  More on that story soon.

The Marshall family plot is enclosed in fencing in the foreground.  What's in the background is what first led me to the cemetery: it's the Richmond Alms House.  That grand building was built on the eve of Civil War -- in 1860 and 1861.  It's thus one of the final public buildings of the old South.  And it is seriously impressive -- and to my mind it's put to a positive use now, as apartments for low income and I think elderly residents of Richmond.

Comic Books in Law and Literature Scholarship

I was perusing Amazon to see if there were any law and literature books focused on comic books.  I haven’t done much reading in law and literature and I thought I might like some scholarship discussing comics.  And there is a new book that looks pretty interesting entitled The Law of Superheroes that will come out soon.  The writers of the book also have a blog, Law and the
Multiverse: Superhores, supervillains, and the law.

 

Great News from the University of North Carolina Press

The University of North Carolina Press today announced the appointment of John Sherer, currently the publisher at Basic Books in New York, as its new director.  This is fantastic news for the UNC Press.  In the rapidly changing world of scholarly publishing, it's hard to imagine someone better qualified to move the Press forward.

While it may be an election year effort, am still so proud to mention....

that Kudos are in order to the hundred or so immigration scholars that a few weeks ago urged President Obama to use his executive powers to provide administrative relief to undocumented youth. As some of you may have just learned, news outlets are reporting at this moment that President Obama announced that he will in fact provide this relief!

Congrats are in order to my friend Professor Hiroshi Motomura for his leadership in drafting the letter to the President. Congrats are also in order to the thousands of brave undocumented youth around the country that used 1960s era civil engagement for several years now to help change America. They are American heroes and are my inspiration. I am so proud to call many of them friends! 

Here is a recent news account:

President Obama will announce a new immigration policy this morning that will allow some undocumented students to avoid deportation and receive work authorization.

Under the “deferred action” policy, a Department of Homeland Security directive, students in the U.S. who are already in deportation proceedings or those who qualify for the DREAM Act and have yet to come forward to Department of Homeland Security (DHS) officials, will not be deported and will be allowed to work in the United States.

An estimated 1 million young people could benefit from the deferral. To be eligible, applicants have to be between 15 and 30 years old, live in the U.S. for five years, and maintain continuous U.S. residency. People who have one felony, one serious misdemeanor, or three minor misdemeanors will be ineligible to apply. “Deferred action” will last for two years and can be renewed.

Obama is expected to speak about this new policy later today.

Republicans blocked the DREAM Act in 2010, and this year, House Judiciary Committee Chair Lamar Smith (R-TX) has already said he would not hold a hearing on the DREAM Act in his committee.

Obama’s announcement will create a smart policy to help protect young adults at risk of deportation who have spent years establishing their homes in the United States while boostingthe U.S. economy.

 

Man Bites Dog

Everyone has been waiting for the shoe to drop in the Dewey & LeBoeuf Bankruptcy. In other words, when were the now defunct firm’s unsecured creditors going to start avoidance actions against shareholders whose bloated compensation packages sucked the firm dry of working capital? (You can see my initial thoughts here.)  On Thursday, however, the Wall Street Journal reported here (subscription may be required) that short-term D&L partner Henry Bunsow  (i.e., he started in 2011) is suing erstwhile firm chairman Steven Davis “and other leaders of the firm” for good old-fashioned fraud, for telling him that the firm “was doing very well financially.”

I’m sure there’s lots of more specific allegations of fraud, at least I hope so for Bunsow’s sake (FRCP 9(b) anyone?). Even so, Bunsow will probably get the same level of sympathy as last year’s striking NFL football players: millionaire players fighting battling billionaire owners. At least he’s taking the first shot, for what that’s worth.

Scott Pryor

Austen Parrish Named Interim Dean At Southwestern Law

With Dean Bryant Garth stepping down, Southwestern Law School has named Professor Austen Parrish interim dean effective next month.   Parrish, a graduate of Columbia Law, has been at the law school for ten years.  He has been vice-dean since 2008.

Lincoln Killed Vampires

So there’s a new movie coming out, Abraham Lincoln: Vampire Hunger, which, of course, is about Honest Abe’s well-documented history of slaying mythological blood sucking creatures.  I saw the commercial a bunch of times before I actually paid attention to what the movie was really about and I just couldn’t believe that someone thought it was a good idea to turn Lincoln into some sort of sci-fi killer.  The movie is based on a novel which may or may not suck.  Not sure.  Haven’t read it.

But this got me to thinking.  Where is the line in this sort of historical fiction?  How far is too far?  I don't have a big problem with this movie, but what about MLK killing zombies or something?  I could see uproar about such a film.

 

Chicago Law Deans Debate Class Size Reduction

Here.  I love this quote from John Marshall Law School Dean John Corkery: "People want to go to our school, and why should we say no?"  A perfectly reasonable position, of course - as long as JMLS can manage to matriculate bar-passable candidates.  And hopefully place most of them.  Just not the quote I'd want attached to my name.  (And yes, I get that it's entirely possible that this quote was inaccurate or taken out of context.)

Meanwhile, over at his blog, Northwestern Dean Dan Rodriguez that he and his  between his Hyde Park colleague, U of C Dean Michael Schill, have slightly different views on these matters.

Uproar At UVa As President Is Forced Out. Whither UVa.

Teresa Sullivan, who has served as president of the University of Virginia for the past two years, was forced to resign this week.  As Brian Leiter notes, this has relevance for legal academics in part because Sullivan is married to Douglas Laycock.  He also articulates the broader concern for the law school and every other part of the university - that Sullivan was too academically oriented for the Board of Visitors' taste.  Interesting stories from the Richmond Times-Dispatch are here, here, and here.

The story is plainly complex, but the Board is plainly guilty of engaging in an opaque process that failed to garner input from all the important academic stakeholders.  Whenever events like this occur, I wonder whether the Board members have considered both the potential reputational damage and the potential recruiting challenge generated by these decisions.  Whatever their risk assessment, the widespread opposition to the decision - which appears to be unifying academics of very different world views - has made this a deep embarrassment for the Board.  At the same time, it is possible that these eruptions may become more frequent as resources shrink and the cost of education rises.  As boards press for cheaper means to deliver education - whether that be reducing the size of research faculty, increasing teaching loads, or putting pressure on tenure itself - faculty can be expected to push back.   

UVa presents a particularly interesting case.  The university is a cusp super-elite.  All community members - faculty and students alike - have a huge stake in maintaining the (costly) choice of staying on the high side of that divide.  But Virginia taxpayers may not share that same passion.  For the law school, the answer was easy: raise prices and privatize.  Now UVa may be forced to decide whether the entire institution should follow suit.  In-state undergraduate tuition at UVa is undert $12,000.  Plainly, that price point cannot sustain a super-elite university in the absence of massive state subsidy.  

TSA Disciplines Screeners Over Lax Security. But Since Security Has No Effect On Safety, No Harm, No Foul.

ABC News reports that 43 Transportation Security Administration workers at Southwest Florida International Airport in Fort Myers have been fired or suspended after an internal investigation found they failed to perform random screenings last year. The number of workers involved makes it one of the largest disciplinary actions TSA has taken in its 10-year history.  But, says TSA spokesman David Castelveter:

"It's the random secondary (check) that did not happen.  At no time was a traveler's safety at risk and there was no impact on flight operations."

That’s good to hear.

HT: View From The Wing

 

UMass - Dartmouth Law Gets ABA Provisional Accreditation

Just in time for the arrival of the school's new dean, the ABA Council of the Section of Legal Education and Admissions to the Bar has granted UMass - Dartmouth School of Law (previously SNESL) provisional accreditation.  This is a major milestone for the institution.  

Tomb Trivia

This tomb trivia is contributed by my colleague Bill Turnier.  Who's tomb is this?

Church Schisms and Church Property: Pending Cert Petition

On the Supreme Court's calendar for its conference this Thursday are cert petitions in two linked cases, Gauss v. Protestant Episcopal Church in the United States and Timberridge Presbyterian Church v. Presbytery of Greater Atlanta.  Links to the petitions, briefs in opposition, amicus briefs, and lower court opinions may be found here.  The problem arises from the Court's muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property.  In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved -- basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church).  With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church.   A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into "ecclesiastical polity or doctrine," but must be "completely secular" and rely "exclusively on objective, well-established concepts of trust and property law."  But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.  

This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church.  The problem doesn't arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop.  That's not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church.  Enter the so-called "Dennis Canon," in the case of the Episcopal Church.  The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church.  Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary.  Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone.  This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law.  On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles. 

Given the turmoil in the Episcopal Church there is certain to be even more of these disputes.  Guidance is needed.  I'm not agnostic on this issue -- I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be.  There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can't do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise.  In short, by a modest extension of the rationale of Larkin v. Grendel's Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion. 

Mary Lu Bilek Tapped As New UMass-Dartmouth Law Dean

The University of Massachusetts - Dartmouth law school has named Mary Lu Bilek, Associate Dean and Professor of Law at CUNY School of Law, as its new dean.  Bilek is a graduate of Harvard Law and has been on the CUNY faculty since 1985.  

She joins a law school looking to make a radical transition from its identity as the  Southern New England School of Law - which failed in its efforts to obtain ABA accreditation - to an ABA accredited program.  

Notwithstanding the sudden departure of its dean in the middle of this past school year, the ABA's Accreditation Committee has recommended to the Council of the Section of Legal Education and Admissions to the Bar that it grant provisional accreditation.  The Council, which considered the issue last week, has not yet issued its decision.

Bilek will probably have the wind at her back.  Both Dickinson School of Law (acquired by, and renamed, Penn State) and Detroit College of Law (affiliated with, and renamed, Michigan State) have experience significant repuational boosts by virtue of their new identities.  I imagine that Bilek will make every effort to market the school as UMass Law.  Whether that will be tolerated by the folks in Amherst - who are probably irritated that the Dartmouth campus scored a law school when they did not - remains to be seen.  As does the question raised by SNESL alums: will they get their old diplomas reissued under the UMass name?

Wallabies Getting High

For all you fans of things Australian, this story could only have come from down under.  Apparently wallabies are getting high in Tasmania's legal opium fields and creating crazy crop circles.  I wonder if M. Night Shyamalan has looked into securing the movie rights for the story yet?

A Dark Chapter In American History ... In Brilliant Color

When I was working on the development of the core exhibit on Japanese American wartime incarceration at the Heart Mountain Interpretive Learning Center, I learned of the existence of a cache of Kodachrome photos of life behind the camp's barbed wire that an internee, Bill Manbo, took in 1943.  The photographs had sat on a shelf in the photographer's son's house for decades.

I sensed immediately that these photographs were very special.  Nearly all of the visual evidence we have of that time period is in black and white.  These photographs show Japanese Americans' interrupted lives in stunning, vibrant color.

The photos are the core of my new book, Colors of Confinement: Rare Kodachrome Photographs of Japanese American Incarceration in World War II, forthcoming in August from the University of North Carolina Press and the Center for Documentary Studies at Duke University.

In addition to around 65 of the photographs, the book features interpretive essays by Lon Kurashige, Jasmine Alinder, former Heart Mountain internee Bacon Sakatani, and myself.

Massachusetts Town Considers Ban on "Focused" Cursing

According to a Wall Street Journal article (possibly behind a pay wall) the town of Middleborough, Massachusetts is considering adoption of a local law that would make it a civil offense to "accost[] or address[] another person with profane or obscene language in a street."  The article quotes Ken Paulson, CEO of the First Amendment Center at Vanderbilt University, as opining that "the law sounds too vague to stand up in court."  Maybe; maybe not.  I think an ordinary person understands what it means to "accost or address" another person.  If there is vagueness it lies in the understanding of what's "profane or obscene."  But the real issue is that the law is not well designed to curb what it wishes to curb. What Middleborough seeks to punish is the vulgar epithet uttered to another person -- the usual litany of abusive commentary that is exemplified by what the second Justice Harlan termed an "unseemly expletive" in Cohen v. California, 403 US 15 (1971) -- and that ancient Anglo-Saxon word, in all its various forms, is neither profane nor obscene.  Vulgar, to be sure, bit not ordinarily obscene.  Nor is it profane, since it does not (without more) express contempt or irreverence for the sacred.  Of course, actual profanity would be proscribed, but the use of God in conjunction with other terms of derision is not so much profane as an expression of secular contempt and anger.  Middleborough wants to proscribe words that are fighting words, but seeks to do so by identifying certain words as outside the pale when uttered to another person on the streets.  A general prohibition of public utterance of such words, of course, collides with Justice Harlan's observation in Cohen:  " How is one to distinguish this [the ubiquitous F bomb] from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us."  But Middleborough wants to limit the ban to instances in which it legislatively thinks that these words constitute fighting words.  Nice try, but one has to wonder whether this will work, because the Supreme Court has never sustained a conviction on the basis of the fighting words doctrine since that doctrine was created in Chaplinsky in New Hampshire, 315 US 568 (1942).  Seventy years is a long time for a doctrine to lie moribund and still be relevant.  

My sympathy is with Middleborough, for I subscribe wholly to Justice Scalia's observation in Lee v. Weisman, 505 US 577 (1992), that "[w]e indeed live in a vulgar age."  One man's vulgarity may be another man's lyric, but it does not necessarily follow that your lyric should be involuntarily pressed upon me as I stroll the sidewalks of Middleborough.  I agree with Paulson that the local legislators need to narrow the focus of their proposed law.  Even then, in this vulgar age, it may not be valid. 

Mebane Bridge

Well, I guess it's time for some pictures from summer travels.   Thanks to Eric Fink's suggestion, I finally made it up to Rockingham County.  Here's the Mebane Bridge in Eden, North Carolina -- made famous by Rockingham County v. Luten Bridge Company.  The bridge is closed to auto traffic now, though I am reliably informed by locals that it's a great spot for fishing.  My informant said it's been closed for more than seven years -- and get this -- that it wouldn't be rebuilt because there wasn't enough traffic!  I think that was part of the problem back in the 1920s, too, no?

Anyway, I guess I'm making a habit of taking pictures of cases the Barak Richman writes about.  First "Ye Olde Virginnie Inn" from Lucy v. Zehmer in Dinwiddie County, Virginia (Barak's article is here) and now Mebane Bridge (Barak's article is here and a shorter version from Contracts Stories is here).

The trip where I took this netted a bunch of cool photographs, including some more gas stations, a cemetery, and one of the "Eden Drive In."  I've been in the hunt for a nice drive in photo or two.  Seems like every time I pass a drive in I'm in a hurry and can't stop.  But now I have one in my stock.  Hope to use it soon.