Dean Kellye Testy has announced that she will step down after eight years as the Dean of the University of Washington School of Law, effective at the end of the academic year. Testy was the President of the AALS in 2016.
The University of Akron School of Law invites applications and nominations for the position of Director of the Center for Intellectual Property Law & Technology, a tenure-track or tenured faculty position, with an anticipated start date of August 2017. Review of applicants will begin immediately and continue until the position is filled. The Committee is open to candidates in any area of IP, but experience and expertise in the areas of Copyright, Internet Law, Privacy, International IP, and Health Law are of particular interest.
Akron Law's Center for IP Law and Technology is renowned for its extensive curriculum, an LL.M. in IP, joint degree program, non-J.D. and post-J.D. certificates, rich scholarly and practical programming, and strong relationship with the national and international IP community.
The Director of the Center for Intellectual Property Law and Technology is responsible for developing, articulating, and implementing a long-term vision for the Center that will achieve greater distinction for the University of Akron School of Law. The Director, in coordination with the Associate Dean for Academic Affairs, is responsible for implementing the IP curriculum within the School of Law. The Director also manages and supervises the law school’s special IP degree and certificate programs, and may help propose and create additional new programs in intellectual property for attorneys and other professionals as appropriate. The Director is responsible for the management and coordination of all law school programming in the area of intellectual property law, including programs for both attorneys and academics.
The Director fosters and advances external relationships, including the law school’s ongoing international relationships with other universities, where those relate to intellectual property and technology. The Director also works with the law school’s Intellectual Property Advisory Council in advancing the intellectual property program. The Director serves as a faculty advisor to the Intellectual Property and Technology Law Association, a law student organization, oversees the advising related to the annual issue of the Akron Law Review devoted to intellectual property law, and also oversees the law school’s participation in intellectual property-related moot court competitions.
As a member of the law school faculty, the Director will engage in relevant scholarship, teach in the area of intellectual property law, and serve on administrative committees.
The University of Akron School of Law is a public, mid-size law school of approximately 450 students located in the Akron/Cleveland metropolitan area. Akron Law offers excellent teaching, relatively low tuition and a commitment to student success. Akron Law prides itself on outcomes including our high bar passage rate, award-winning clinical programs, national championship trial team program, outstanding job placement rate, and various areas of academic excellence in which students can distinguish themselves.
Required Qualifications: Juris doctor or equivalent law degree with intellectual property law experience.
Preferred Qualifications: A demonstrated record of successful scholarship and teaching and commitment to continue producing both at a high level; record of or potential for appropriate administrative leadership; entrepreneurial skills to advance the impact of the Center; ability to create and sustain a network of IP leaders; ability to articulate and implement long-term vision to achieve greater distinction for Akron Law’s IP program.
For complete details and to apply for this position, visit: http://www.uakron.edu/jobs. Job ID#10009. While all candidates are required to submit their applications via this centralized system, please feel free to direct any inquiries to Professor Tracy Thomas, Chair of the search committee, at firstname.lastname@example.org. Review of applications will begin immediately. Anticipated start date: August 2017. The University of Akron is committed to a policy of equal employment opportunity and to the principles of affirmative action in accordance with state and federal laws.
This article on The Daily Beast argues that Thomas may be recused because of some emails sent by his wife, but it is wrong.
It seems that Virginia Thomas has written some emails to a conservative listserv -- and leaked to the DB reporter -- expressing support for President Trump. In one, she wrote:
What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left's resistance efforts who are trying to make American ungovernable?
She went on to complain about the liberal group Daily Action, and asked for suggestion on setting up a comparable organization for activists who "want to join the fray on social media for Trump."
According to the Daily Beast story -- quoting Georgetown Prof. Heidi Li Feldman -- this might lead to sufficient grounds for "a non-frivolous disqualification motion." Feldman said that she was "taken aback" by Virginia Thomas's emails, and called them "pretty egregious." She also linked the email to Trump's executive order on immigration:
It's pretty clear that it's quite partisan and in context given the date of the email and that the tool is meant to rebut activity on the left -- what has the left been really active on? The executive orders. So minimally, I would say the author of the email is thinking of that executive action.
According to the Daily Beast reporter, Justice Thomas's recusal could therefore be required due to his wife's "apparent support for specific activism on specific issues that could come before the court."
I disagree. Virginia Thomas has been a Republican activist since before her husband was on the Supreme Court. She has worked at the Heritage Foundation, and she played a role in the Bush 43 transition. There is no rule or principle that constrains the political activities of judges' spouses. Marjorie Rendell (3d Circiut) was married to Ed Rendell when he was the governor of Pennsylvania; Stephen Reinhardt (9th Circuit) is married to Ramona Ripston, who was the executive director of the Southern California ACLU for almost 40 years (1972-2011), and Judge Reinhardt declined to recuse himself in at least one case where the ACLU had filed an amicus brief. In that light, there is nothing remotely egregious about Virginia Thomas's continuing work on behalf of President Trump.
It would be different if Ms. Thomas had played some sort of direct role in drafting or promulgating the EO, but that does not appear to be the case. Prof. Feldman's line of reasoning is far to attenuated, however, to implicate Ms. Thomas in the specific case. "What has the left really been active on?" she asks, but the answer is much more than the immigration order. Nor does the date of the email -- which was February 13 -- connect it specifically to the EO. Trump's order was issued on January 27, enjoined by the district court on February 4, and ruled upon by the 9th Circuit on February 9.
Ms. Thomas's email could just as easily have been referring to the confirmation vote on Attorney General Jefferson Sessions (February 7) or Treasury Secretary Steven Mnuchin (February 13), or the then-looming vote on the Labor Secretary nominee Andrew Puzder (since withdrawn). The most likely interpretation, however, is that Ms. Thomas was referring to the entire Trump agenda, rather than any particular aspect of it.
But even if Ms. Thomas had written to her allies specifically about the EO, that still would not be a sufficient basis for recusal under 28 U.S.C. 455 (a), which requires disqualification when the justice’s “impartiality might reasonably be questioned.” Simply stated, a judge or justice cannot be disqualified on the basis of a spouse’s general political activity. In the Twenty-First Century, it is just unreasonable to expect judicial spouses to keep their opinions to themselves or to refrain from working for causes in which they believe. It is consequently unreasonable to expect judges or justices to disqualify themselves from cases because they have ramifications for a spouse's political party.
Even if a motion to disqualify Justice Thomas would be non-frivolous, as Prof. Feldman says, it would still be futile. The Supreme Court practice is to refer all recusal motions to the affected justice, who then makes the decision himself or herself. Justice Thomas has already made it quite clear that he will sit on politically charged cases notwithstanding his wife's activism, the ACA case (NFIB v. Sebelius) being the prime example.
The University of Hawaii is seeking applicants with the ability and interest to teach in the area of federal taxation and preferably also trusts and estates. Hawai`i is a culturally rich and diverse community. We encourage applicants from minority group members, women, and others whose interest will contribute to diversity in the faculty. Applications from both experienced teachers and those new to teaching are welcome.
Application review will begin in March 2017. Submit cover letter indicating ow you satisfy the minimum qualifications, and include the names and contact information (including e-mail addresses) of at least three professional references, as well as a résumé and law school and graduate school transcripts. Copies of transcripts are acceptable, but original transcripts will be required at time of hire. Send electronic submissions to: email@example.com (preferred); or to Appointments Committee, William S. Richardson School of Law, c/o Personnel Office Room 110, 2515 Dole Street, Honolulu, HI 96822 Inquiries: Associate Professor Kapua Sproat; 808-956-7489; firstname.lastname@example.org
Fangda Career Development Fellowship in Chinese Commercial Law
Applications are invited for the fixed-term post of Career Development Fellow in Chinese Commercial Law at St Hugh’s College, tenable from 1st October 2017 for three years. Career Development Fellowships combine research opportunities within the Faculty of Law in the University of Oxford with teaching experience, and the position is intended for an individual who has recently completed a doctorate (or equivalent law degree) and wishes to embark on an academic career.
The field of Chinese Commercial Law will be interpreted broadly by the appointing committee; more details of this and the other selection criteria are given in the further particulars.
China Commercial Law CDF – Further Particulars here.
Salary: £31,076 p.a., plus pension and allowances To apply: Applications and references should be submitted by Noon on Thursday 16th March 2017; details of how to apply are given in the further particulars. St Hugh’s College, Oxford is an equal opportunities employer
My friends Rachel Maines and Garrel Pottinger (both historians) have enlisted me in their campaign to add a much-needed new word to the English lexicon: "Iatromoric," or doctor-baffling. Garrel and Rachel were moved to coin the term when he was diagnosed with “idiopathic” – meaning self-caused – seizures, which struck Garrel as patient-blaming. Hence, the need for a more descriptive term. "Iatromoric" derives from the Greek roots for doctor (iatros) and fooled (moros, the opposite of sophos). Thus, an iatromoric diseases is one that fools, confounds, or baffles the doctors. It corresponds etymologically to the well-known category of iatrogenic illnesses, which are caused by hospitalization.
This all struck home for me. Although it hasn’t happened to me, virtually every other ME/CFS patient has at some time been referred to a psychiatrist after a battery of tests failed to identify a known disease. In the most benign version, the doctor says something like, “There is nothing wrong with you that I can find. Would you like to see a psychiatrist?” In the more patronizing version, the doctor says, “You are experiencing ‘false illness beliefs.’ You need to see someone for psychotherapy.” The latter is still the standard response in the U.K., although we are seeing it less and less in the U.S.
ME/CFS patients would be much better off if their physicians would simply admit that they do not know the cause of their symptoms. If the tests are all negative and the patient is obviously sick, the word “iatromoric” would provide a much needed term for a physician’s current inability to provide a diagnosis.
The rush to declare ME/CFS a psycho-social or psychogenic illness – rather than admit bafflement – has caused incalculable harm to patients, including the decades-long delay of serious biomedical research. It is admittedly hard for doctors to say “I don’t know,” and it is understandable that they would search for a psychological diagnosis as a fall-back. In the mid-twentieth century, asthma, rheumatoid arthritis, ulcerative colitis were all included in the “holy seven” of psychosomatic diseases, although they are now recognized as biomedical. As should be obvious, not all unexplained symptoms are psychological (nor are they caused by “ill-humors” or “unbalanced bile,” as physicians thought in the eighteenth and nineteenth centuries).
Fortunately, leading institutions in the American medical establishment -- including the Institute of Medicine and the National Institute of Health -- have been shaking off the regrettable influence of British psychiatry, and have now recognized ME/CFS as a biomedical disease. Progress on identifying biomarkers has been made at Stanford, Columbia, and other medical centers.
Still, there is much that is unknown, and “iatromoric” provides a good way to describe it.
UPDATE: In an email, a psychotherapist friend of mine added that "doctors need the legitimacy of a category like iatromoric to have a way to not just respond to but to think about the existence of medical conditions that aren’t yet known or understood. [Most] doctors are trying to be helpful and have no construct to guide them. This new word is helpful not just to patients but to doctors as well."
What could be more fitting for a Valentine’s Day Taboo Trades class than some readings on commodification of the body? For today’s class I chose:
(1) Martha Nussbaum, Sex and Social Justice, Taking Money For Bodily Services, pp. 276-298
(2) Carl Elliott, Guinea-Pigging, The New Yorker
(3) Cari Romm, The Life of A Professional Guinea Pig, The Atlantic (2015)
The concept of guinea pigging is one that I’ve written about here before, in Medical Research Subjects: Guinea Pigs, Laborers, Or Altruists? According to the Oxford English Dictionary (as discussed by Romm), the first use of the word “guinea pig” as “human subject of an experiment” was in 1913, when George Bernard Shaw decried “the ... folly which sees in the child nothing more than the vivisector sees in a guinea pig: something to experiment on with a view to rearranging the world.”
As used here, guinea pigs are healthy, professional medical research subjects who make money primarily through Phase 1 clinical trials (the trials meant to assess the safety and possible side effects of medications, rather than their efficacy). As noted by Romm, “The members of this group call themselves guinea pigs, or lab rats. They also call themselves professionals.” This notion, of course, flies in the face of the preferred ethicists’ understanding of human subjects research, which likes to conceive of subjects as motivated by altruism. As noted by Elliott:
Of course, ethicists generally prefer that subjects take part in studies for altruistic reasons. Yet, if sponsors relied solely on altruism, studies on healthy subjects would probably come to a halt. The result is an uneasy compromise: guinea pigs are paid to test drugs, but everyone pretends that guinea-pigging is not really a job.
The fact that egg donor compensation occurs within a gift-based cultural account poses other problems as well. Payments of up to $10,000 are hard enough to square with a gift narrative, but participants managed it. Egg donation is physically risky, after all, and there was a general consensus that egg donors deserved something for their efforts. Besides, all market participants recognized that without some compensation there would be very few egg donors. But once incentives enter the picture they threaten to undermine gift framing entirely. Would fertility centers and patients compete for the most desirable egg donors? How do you square extremely large payments that vary with the donor’s beauty, intelligence, or race with the notion that payments to egg donors are mere thank-you gestures or a token in recognition of physical discomfort? (emphasis added)
So, how does Nussbaum’s chapter on prostitution fit into all this? In some years, I opt to assign Nussbaum’s chapter together with readings on sex work, but in some ways I find it a better fit with the human guinea pigs readings because Nussbaum makes her points about prostitution by analogizing to the commodification of the body more generally. Many readers, for example, will be familiar with Nussbaum’s famous example of the “colonoscopy artist,” who “gets paid for having her colon examined with the latest instruments, in order to test out their range and capability.”
When considered in this light, the job of guinea pig and that of prostitute (as with all cases of bodily commodification) share some similarities – and some differences as well. In the end, Nussbaum is skeptical of commodification critiques, concluding that:
We need to scrutinize all our social views about money making and alleged commodification with extra care, for they are likely to embed class prejudices that are unjust to working people.
Boston College's Law Library has an exciting website up about Robert Morris, one of the first African American lawyers in the United States. He argued Roberts v. City of Boston, arguing in favor of integration of the Boston public schools. This is built around Morris' library -- and it reignites my interest in the use of books to reconstruct the ideas, particularly of pre-Civil War Americans. For instance, Morris had a copy of David Walker's Appeal in his library -- and he was a mentor to Walker's son, who became a lawyer. It has Morris' copy of Harriet Beecher Stowe's Dred: A Tale of the Great Dismal Swamp; and maybe most exciting it has Morris' copy of R. B. Lewis' Light and Truth, a response to the historical and "scientific" racist literature about the inferiority of African people. Check it out!
The University of Kentucky College of Law invites applications for the position of Director of Academic Enhancement and Assistant Professor of Legal Research & Writing beginning in the 2017-2018 academic year. The successful candidate will oversee all aspects of the Academic Enhancement program at the College of Law. This includes planning the Academic Enhancement Pre-Orientation Legal Reasoning program, teaching regular Academic Enhancement workshops, and continuing to enhance the College of Law’s Bar Exam Support program.
In addition, the successful applicant will usually teach one section of legal writing in the first-year Legal Research and Writing course. The course is a year-long, four-credit course that introduces first-year law students to legal writing, analysis, and research. Law librarians teach the research component of the course, which is approximately 1 of the 4 credits. Thus, the new faculty member must be able to work collaboratively with other faculty involved in the Legal Research and Writing program.
The position offers an initial contract as Director of Academic Enhancement and Assistant Professor of Legal Research and Writing (clinical title series) for a term not to exceed three years. After the initial appointment period, the successful candidate will be eligible for renewable five-year appointments. The salary will be commensurate with experience. This is a twelve-month appointment due to the requirements of the Academic Enhancement program.
Qualified candidates will have a J.D. degree from an ABA-accredited law school, a distinguished academic record, strong analytical, writing, and research skills, and substantial legal-practice experience (a minimum of three years is strongly preferred). Experience teaching in higher education and knowledge of adult learning theory is preferred.
Applicants should submit a cover letter, C.V. or resume, writing sample, and at least three references. Apply online for requisition # FE00870 atwww.uky.edu/hr/ukjobs. Applicants who submit their materials by March 1, 2017, are assured consideration, but applications received after that date will be reviewed until the position is filled. For further information, please contact Scott R. Bauries, Chair of the Appointments Committee, at email@example.com.
The University of Kentucky College of Law is an Equal Opportunity/Affirmative Action Employer.
My main disagreement with Doug Richmond’s Comment is with his leadoff assertion that Crystal Riggins “was not punished for doing her job.” That can’t be right. There’s no serious question whether Stanford punished her (by which I mean penalized her in retaliation for criticizing Stanford’s Title IX dispute-resolution rules), and I don’t think Doug disagrees. So our disagreement comes down to whether what she was punished for was “doing her job.” Her job was to act as the attorney for students seeking to have Stanford’s Title IX system recognize and remedy disputed claims of sexual violence. It cannot seriously be contended that it was either legally or ethically improper, or outside the legitimate scope of her engagement, to criticize and seek to change the rules of Stanford’s Title IX procedures that she contended (well within the realm of rational argumentation, whether you agree with her or not) were unfair to her clients. Period. So she was doing her job, just in a way that Stanford—who Ms. Riggins correctly and pointedly observed was not her client—disagreed with (and more to the point appears to have found embarrassing).
Doug’s Comment analogizes to attorneys who remain liable for defamation for statements outside official proceedings or for ethical violations for improper pretrial publicity. Both are bad analogies, as they depend on the attorney’s doing something legally or ethically prohibited. Ms. Riggins did neither.
John Steele takes a different tack, and points out that it’s hard to isolate a legal theory under which what Stanford did was either unlawful or unethical (in the sense of violating attorney disciplinary rules). I agree, and was careful in my post to emphasize all the legal norms Stanford most likely did not violate. The closest I could get to a legal wrong on Stanford’s part is a possible violation of Title IX (either in its procedural rules themselves or their application in particular cases), but I conceded that it's debatable.
I didn’t consider attorney disciplinary violations on Stanford’s part, mainly because I was focused on how proper and ethical Ms. Riggins’ conduct was. But that’s worth a moment’s consideration. Let’s start with the observation that the Stanford officer in charge of these policies (and who excluded Ms. Riggins from the referral list), is Senior Associate Vice Provost Lauren Schoenthaler, who formerly served in Stanford’s University Counsel’s office and is a licensed California attorney.
Bearing in mind that Stanford was never Ms. Riggins’ client, and only recommended her and obligated itself to pay for a certain number of hours of her services, one way to look at what Stanford did was to seek to define a limited scope of engagement for its referral counsel’s representation of aggrieved or accused students that does not include challenging or criticizing Stanford’s procedural rules, even if that would be in the represented student’s interest. Remember that the ethical rules cited in my original post require an attorney (here, Ms. Riggins) whose services are being paid for by someone other than the client (here, Stanford) to ensure that the attorney remains independent of the payor’s influence and loyal exclusively to the client. It could be argued that Ms. Schoenthaler, who bears the same ethical obligations that every lawyer in California does, sought to induce Ms. Riggins and other referral attorneys to violate their duties of loyalty to their student clients in violation of Cal. R. Prof. Cond 1-120 (see also Model Rule 8.4(a) to the same effect). The problem here (if you can call it that) is that the effort failed, and Ms. Riggins refused to compromise her loyalty to her clients.
It also could be argued that Ms. Schoenthaler caused Stanford to make or offer an agreement limiting a lawyer’s practice in violation of Cal. R. Prof. Cond. 1-500, specifically the agreement to recommend and help pay for client services so long as the panel lawyer does not in the course of those services criticize Stanford’s rules. (Model Rule 5.6(b) limits this prohibition to such agreements as part of settlements of “a client controversy,” but California’s Rule specifically disclaims that limitation.)
And it could be argued that Ms. Schoenthaler caused Stanford to improperly demand something of value in return for a referral, specifically a limitation on what panel lawyers would do for their clients, in violation of disciplinary and other rules limiting referral fees, capping and running. Again, this may seem a stretch, but the facts reported in the press can be seen to fit some of those prohibitions pretty literally.
I confess I have not done any detailed research to see how any of these disciplinary rules may have been applied in similar contexts, and I have my doubts about whether the State Bar of California would pursue any of them for any number of reasons. I also question whether they could be machined into some kind of civil claim if Ms. Riggins felt so inclined (though California’s broadly capacious Unfair Practices Act, Bus. & Prof. Code §§ 17200 et seq., is a candidate worth watching).
But ultimately none of this is the point.
The point I was trying to make, quaint though it may seem to an audience of lawyers, is that whether or not Stanford’s efforts to marginalize Ms. Riggins are enforceably unlawful or unethical, they are certainly unethical in the broader, moral sense: Stanford acted badly, and ought to be ashamed. On this, I think both Messrs. Richmond and Steele agree with me (John perhaps a little more strongly than Doug), and I’m glad for the company.
Speaking only for myself, I think that Stanford’s conduct especially deserves public condemnation (and voluntary reversal) for two reasons. One reason is that, in this context, Stanford’s interests as adjudicator may be colored if not tainted by other institutional interests. One such interest may be the desire to present itself to the public as a safe space free from sexual violence, making determinations of such violence an evil to be avoided as much as the actual assaults themselves. Another may be the desire to avoid criticism regarding both student conduct and the processes by which it is judged that could lead to serious sanction from the Department of Education.
The other reason that Stanford deserves condemnation is the one I emphasized in my original post: Stanford is not an ordinary commercial actor whose conduct ought to be judged merely by the morals of the marketplace. As a great university, it is infused with a public interest to act in exemplary fashion, to show the world how to Do Right under difficult and ambiguous circumstances. The failure to live up to that duty may not create a cause of action, but it ought to create a cause for remorse.
The answer is not very well, as my colleague Andy Koppelman and I explain in an oped for CNN.com. Here is the opening paragraph:
Rep. Jason Chaffetz has some explaining to do. As chairman of the House Committee on Oversight and Government Reform, the Utah Republican spared no effort in leading the multiple investigations of Hillary Clinton. Yet he has shown little interest in investigating, or even questioning, President Donald Trump's myriad financial entanglements. His explanations of the difference suggest that Chaffetz doesn't even understand why Congress has the power to investigate in the first place.
From our friends at Santa Clara comes the following Call For Papers:
THIRD BUSINESS AND HUMAN RIGHTS SCHOLARS CONFERENCE (2017)
CALL FOR PAPERS
The Santa Clara University School of Law, the Leavey School of Business at Santa Clara University, the University of Washington School of Law, the NYU Stern Center for Business and Human Rights, the Rutgers Center for Corporate Law and Governance and the Business and Human Rights Journal announce the Third Business and Human Rights Scholars Conference, to be held September 15- 16, 2017 at Santa Clara University in Santa Clara, California. Conference participants will present and discuss scholarship at the intersection of business and human rights issues. Upon request, participants’ papers may be considered for publication in the Business and Human Rights Journal (BHRJ), published by Cambridge University Press.
The Conference is interdisciplinary: scholars from all disciplines are invited to apply, including law, business, human rights, and global affairs. The papers must be unpublished at the time of presentation. Each participant will present his/her own paper and be asked to comment on at least one other paper during the workshop. Participants will be expected to have read other papers and to participate actively in discussion and analysis of the various works in progress.
To apply, please submit an abstract of no more than 250 words to firstname.lastname@example.org with the subject line “Business & Human Rights Conference Proposal.” Please include your name, affiliation, contact information, and curriculum vitae. The deadline for submission is March 15, 2017. We will begin reviewing submissions on a rolling basis on March 1, 2017. Scholars whose submissions are selected for the symposium will be notified no later than April 15, 2017. Final papers will be due August 25, 2017.
Doctoral candidates not holding current academic/research positions are not eligible for this conference, but are welcome to apply to the Young Researchers Summit (more information is available here: http://www.iwe.unisg.ch/en/initiativen+und+veranstaltungen/bhr or http://bhr.stern.nyu.edu/young-researchers).
About the BHRJ
The BHRJ provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice.
BHRJ strives for the broadest possible scope, authorship and readership. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Editors welcome theoretical, empirical and policy/reform-oriented perspectives and encourage submissions from academics and practitioners in all global regions and all relevant disciplines.
A dialogue beyond academia is fostered as peer-reviewed articles are published alongside shorter “Developments in the Field” items that include policy, legal and regulatory developments, as well as case studies and insight pieces.