The Faculty Lounge

Thomas Jefferson Seeks New Law Dean

The Thomas Jefferson School of Law is starting up a dean search this fall.  Their announcement follows after the jump.

Return of the Jukes: Eugenic Mythologies and Internet Evangelism

Paul Lombardo, the Bobby Lee Cook professor of law at Georgia State University, has posted an abstract of  "Return of the Jukes: Eugenic Mythologies and Internet Evangelism," which appeared in the July 2012 issue of the Journal of Legal Medicine at pages 207-33:

Francis Galton coined the term eugenics in 1883, launching a movement that would eventually advocate widespread state legislation for restriction of marriage and sterilization of those considered “defective.” That movement occurred at the same time two “family studies” became popular tools for teaching eugenics. The first involved the Jukes family, a clan of social outcasts from New York State. The second was the model Christian family of Jonathan Edwards, famous leader of the evangelical Great Awakening of the 18th Century. In the late 19th and early 20th Centuries, the characteristics of the Jukes and the Edwards were used both by evangelical preachers and the leaders of the eugenics movement to exemplify how bad traits become a family curse and good traits yield familial bounty, passed down from generation to generation. In the religious context, the stories were coupled with biblical verses prescribing how the “sins of the fathers” constitute an inescapable, divinely ordained legacy. Though the accuracy of both the Jukes and the Edwards family stories were seriously discredited decades ago, several recent books written from the evangelical perspective have revived their popularity. Dozens of web sites similarly invoke the Jukes and Edwards mythologies as grist for sermons, religious counseling or self-help messages. The argument of these latter day evangelists often includes a tone of contempt for the poor and dependent that echoes the rhetoric of the most common strain of eugenic reasoning from the early 20th century.

I have not yet had the chance to read this because I'm apparently not smart enough to figure out how to use UNC's electronic subscription to this journal -- but I'm quite sure that I'll figure this out soon.  And I hope to have some further comments on what looks to be a great article by one of our leading scholars of eugenics.

Obama's Debate Silver Lining: The 47% Comment Lives

Now that he's disowned his 47% comments on Fox, the day after a debate in which - unbelievably - the topic never came up, we can probably infer that Mitt Romney intended to apologize before 68 million viewers during the debate.  Having missed that opportunity, he tried to get the word out last night.  The problem is that his mea culpa is now buried under news about the 7.8 unemployment figure.  It will have limited visibility.

I suspect this means that in the minds of a big chunk of those 68 million debate viewers, the comment remains "good law" - something that Romney continues to own.   Blowing the chance to address 60 million voters on the issue is, I believe, a material loss to Romney - one that the campaign is probably quietly regretting.   We can't know how much of a difference this will make, but it is a good example of how the world is often more complicated than it first appears.  (Another example: Obama's "spanking" will not only energize GOP base, but also Dems whom, it seemed to me, were getting bit complacent.)

For Obama fans looking for a silver lining in the debate, this may be it.  

Interim Deans and Illegitimacy

When I began my guest-blogging stint here at the Lounge last month, it was not my intention to focus so heavily upon the the unfolding events at Saint Louis University and its School of Law.  I will eventually turn to incidents at other law schools that have significant implications for faculty governance.  But before doing so, I feel compelled to address SLU President Lawrence Biondi's appointment of Tom Keefe, Jr. to serve as interim dean for the 2012-13 academic year at SLU Law.

All indications are that Keefe is a talented attorney with a lucrative law practice, an enthusiastic and committed alumnus of SLU Law who has been rather generous with financial gifts (including a pledge to donate his decanal salary back to the school), and a rather interesting character who isn't shy about making provocative statements.  I have no doubt that he's a huge hit at parties.

And who knows?  Perhaps Keefe, despite his lack of experience in academia, has the qualities necessary to be an outstanding dean.

Putting all of that aside, however, three aspects Keefe's appointment as interim dean have the effect of rendering it illegimate from the outset.  First, Keefe intends to maintain his law practice throughout his tenure as interim dean.  Second, Keefe became a member of the SLU University Board of Trustees shortly after accepting the appointment.  And third, and most significantly from a faculty-governance perspective, the SLU Law faculty was deprived of any opportunity to participate in the selection of Keefe as interim dean.  I will focus for now on the first of these concerns, and address the other two in subsequent posts.

Standard 206(a) of the ABA Standards for the Approval of Law Schools provides that "[a] law school shall have a full-time dean, selected by the governing board or its designee, to whom the dean shall be responsible." (emphasis added).  According to the definition set forth in Standard 106(7), the term "dean" includes "an acting dean or interim dean."  ABA Standards thus envision that the demands of the position of dean require a total commitment on the part of the individual holding that position, regardless of how long he or she intends to hold it.

Keefe, however, has stated publicly that his service as interim dean at SLU Law was conditioned on his ability to maintain his law practice.  Keefe has suggested in this regard that forsaking his clients would be inconsistent with his fiduciary duties to them.

While Keefe's commitment to the interests of his clients is commendable, it should occur to him that, in his capacity as interim dean, one of his essential functions is to ensure that SLU Law is acting in compliance with ABA Standards.  Even though he may be satisfied that he has what it takes to serve SLU Law effectively while maintaining his practice, the fact remains that SLU Law does not presently have a "full-time dean" within the meaning of Standard 206(a).  If leaving his clients behind is not an option, then serving as interim dean is not an option either. 

Thursday Morning Levity

For anyone concerned about writing that is concise and to the point, I couldn't resist sharing this one ...

Baseball and Presidential Debates

Some fun for the evening before the first presidential debate, thanks to the ingenuity of Aaron Zelinsky.

John Yoo, Deferred Action, and the Take Care Clause

Berkeley's John Yoo has released a working paper on SSRN that contends that President Obama's executive order that effectively suspends deportation for certain illegally resident aliens violates his constitutional obligation to "take Care that the Laws be faithfully executed."  Yoo makes a persuasive case for this proposition, but the problem remains that this obligation is enforceable only through political measures.  

Public Constitutionalism in the 1830s: The Toast

I talk every now and then here about how constitutional ideas appear in public -- often in really abbreviated form, sometimes even as bumper stickers.  A few words can often convey a whole lot about our intellectual world in a short compass.  One of the sources I've been using of late to gauge public constitutional ideas are debate topics at college literary societies.  My hypothesis is you can tell a lot about what's on the students' minds by their weekly debate topics and if you put all the ideas together over a span of years, you can help to map the minds of southerners.

So I'm surprised that I haven't done more with toasts at public occasions before now.  G. Edward White made effective use of dueling toasts between Andrew Jackson and John C. Calhoun in The Marshall Court and Cultural Change.  But it's only recently that I've realized how many toasts are out there in newspapers. Take, for instance, the toasts that were given at a Fourth of July celebration in Surry County Virginia in 1832 -- the first fourth following Nat Turner's rebellion.  Those toasts included:

"The Surry Troop of Cavalry--Men prepared to march at a moment's warning--who can view them and fear an insurrection."

"The People, too wise to be led into Nullification and too honest to be bribed by appropriations for internal improvement."

"United we stand, divided we fall."

"Robert Y. Hayne: One of the brightest stars in the Southern Constellation."

"Principles and not men."

And how about these, given at Red Oak in Brunswick: "tools made to work in clay can never make an impression on old hickory."

"The North and the South.  Their mutual interests legalize their union.  But when one seeks to oppress the other, their Union is disgraceful and meretricious. 9 cheers."  (This is a focus on utility as it relates to Union earlier than I'm used to seeing it.)

And how about this praise for someone who gave a revealing Democratic address at UNC in 1847: "John Y. Mason, our distinguished representative in Congress.  The talented, firm, and patriotic statesman; his faithful adherence to his constituents will deserve their everlasting gratitude."

There's a lot to talk about here, once I start to compile a comprehensive list of the toasts.... I am in need of a photograph of the Brunswick Court House to illustrate this post.  I have designs on getting that on my next trip to Richmond to use the State Library, which I hope will be soon.  For now one of the Davidson College literary society buildings will have to suffice.

Recent Scholarly Attacks on Obama' Deferred Action Program Miss the Point...

As some of you may have read, Professor John Yoo recently wrote a piece challenging President Obama's recently created deferred action program. While as a constitutional scholar that would gladly debate Yoo at any place of his choosing, I doubt that he will defend his stance in such a setting. I am nevertheless confident when I write that Yoo has a basic misunderstanding of separation of powers when he takes a stance guided more by politics than by law and history.

More importantly, I add this post to provide a brief counter-narrative from a friend and young student activist. Not unlike the civil rights struggles of the 1960s, it is now young people that are leading an effort to change the hearts and minds of Americans concerning the equity of the claims of  the undocumented. Their voice is one we rarely acknowledge in our academic venues. Here is what Gaby Pacheco, a leader of SWER and United We Dream, wrote today:

"Three years ago, the student group fighting for the rights of the undocumented,  SWER, had a rally/press conference at the FIU Law school claiming that despite Congress' failure to pass the DREAM Act, we had hope for the future. Then three years later at the SAME LOCATION, SWER would partner with the FIU College of Law, FLIC, DAD, AIJ, and others to host the first and most extensive Deferred Action Clinics in the country ( thus far helping over 1,000 families).

This makes my eyes water. SWER has come a long way. And I am very proud of the work that SWER and folks in FL have been doing. Thank you to MDC and FIU for always supporting our efforts. 

I KNOW OUR WORK WIll CONTINUE...BECAUSE WE HAVE 140,000 DREAMers in FL who WE WILL NOT LEAVE BEHIND!

http://blogs.orlandosentinel.com/news_hispanicaffairs/2009/03/plan-to-legalize-young-immigrants-back-for-debate.html  

GP"

Peace,

ER

Law Teaching and Legal Education

Thanks, Dan, for that very generous introduction, and thanks to the permanent denizens of the Lounge, and to its regular readers, for allowing me to hang out here for a little while.

Pepperdine Law Review Seeks Article

From my friend (and Pepperdine law professor) Greg McNeal comes this email:

NOTICE: The Pepperdine Law Review is one article away from finalizing its Volume 40 line-up and announces this call for articles—or exclusive submission window—to fill the final spot.  This year’s volume already features a wide array of excellent articles from both established and emerging professors on topics ranging from constitutional interpretation to corporate law to bankruptcy. 

The article will be placed in Issue 4 and is slated for publication in Spring 2013.  The Law Review guarantees that one of the articles submitted in this exclusive submission window will be chosen.  Further, articles will be accepted from today until October 8, 2012, and the article will be selected by October 15, meaning expedited review is assured.  The only condition of submitting an article is your commitment to publish with Pepperdine Law Review in the event that the article is chosen.

To submit, please e-mail an attached copy of the article, your curriculum vitae, and a cover letter to lawrevsubmis@law.pepperdine.edu with the subject line “Exclusive Fall Article Review.”

Articles already passed over by the Law Review may be resubmitted, as should articles still pending review.

Welcome Mike Madison To The Lounge

I'm exceptionally excited to have Professor Michael Madison, from the University of Pittsburgh School of Law, joining us as a guest here in the Faculty Lounge.  Mike is a prodigious scholar and recently he's been doing extremely interesting work around the notion of a cultural commons.   Many of our readers are familiar with Mike's writing;  his Madisonian blog is mandatory reading for law and technology scholars.  On a personal level,  I've also come to know him as an incredibly generous colleague.  Welcome to the Lounge!

Call for Articles: Southern Illinois University Law Journal

From an email that I received earlier today:

CALL FOR PAPERS: GUANTANAMO BAY: WHAT NEXT?

The Southern Illinois University Law Journal is seeking scholarly legal articles from newer legal scholars for possible inclusion in a special Symposium issue on legal issues arising from the continued detention and trial of detainees at Guantanamo Bay. The SIU Law Journal is dedicated to producing scholarly publications of the highest quality attainable.

There have been several recent developments pertaining to Guantanamo Bay, ranging from the constitutionality of the process of indefinitely detaining so-called "enemy combatants" to the hurdles faced by the attorneys who have chosen, or been chosen, to represent those detained there.  For years now, Guantanamo Bay has been a focus of the debate about the proper balance between liberty and security.  Despite its unpopularity among many, it appears that Guantanamo Bay, for the time being, is not going away.  This Symposium issue of the SIU Law Journal will seek to address many of the continuing legal issues surrounding Guantanamo Bay from all viewpoints and provide a platform for legal scholars to present new research and ideas on this important topic.

The SIU Law Journal will choose the best Symposium article from a newer law faculty member (defined as a law faculty member who has been part of the legal academy for seven (7) years or less) on a legal issue pertaining to Guantanamo Bay.  The article should be approximately twenty to twenty-five pages in length.  Three law professors from Southern Illinois University School of Law and the Editor-in-Chief of the SIU Law Journal will select the best article submitted, which will be published in the Symposium issue of the SIU Law Journal.  In addition, the author of the chosen article will be invited to attend the Guantanamo Bay Symposium at SIU School of Law on February 22, 2013, all travel expenses paid, to give a presentation on the topic of his or her article.  Although only one scholar will be invited to participate in the symposium through this call for papers, the SIU Law Journal will consider the other articles submitted for publication in the Symposium issue.

The full manuscript, in Word format, should be e-mailed to the Editor-in-Chief by the deadline indicated below.  Please feel free to contact the Editor-in-Chief, Brian Lee, at bdlee@siu.edu if you have any questions or concerns.

IMPORTANT DATES:
Full Version:       November 19, 2012
Decision Date:   December 21, 2012