The Faculty Lounge

New Resource! Confronting Structural Violence: Law Teaching Guides

Guest post by Jocelyn Getgen Kestenbaum:

This week, the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) launched Confronting Structural Violence: Law Teaching Guides to provide open-access teaching resources for professors.

Law faculty in a range of disciplines can download and immediately use any of the 10 Law Teaching Guides, which are grounded in cases many professors already teach and cover topics that are currently making headlines. The Law Teaching Guides, which cover constitutional law, international law, criminal law, corporations, and intellectual property law, are a flexible resource that professors can easily adapt for introductory survey courses or upper-level seminars. Please feel free to take a look and share with any law faculty or others who may find the Guides useful.

As students demand course materials that confront issues of structural and identity-based discrimination, these Guides begin to meet those demands with a positive preventative message toward recognizing and responding to structural violence through law. The hope in sharing this resource is to help law faculty bring into lectures rich discussions about the role that the law and lawyers can play to prevent systematic discrimination and violence.

To download the Guides and for more information about the project, visit: https://go.yu.edu/cardozo/lawteachingguides

To read more about the project’s goals, find a Q&A here.

What Does It Mean to Be "Shortlisted"?

This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. The second shed some light on how we found the women profiled in the book. Today’s examines what it means to be “shortlisted.”

When we set out to write this book, we thought the mystery to be solved was the number of women who had been shortlisted before Ronald Reagan placed Sandra Day O’Connor on the Supreme Court. We followed clues through presidential archives and news accounts.

Little did we know in solving that mystery (the answer is nine, by the way) we would uncover another revelation, what we call being “shortlisted.” Here’s how we define it:

shortlisted, adj. qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo

Nixon is perhaps the most egregious example of this “shortlisted” phenomenon. He put Sylvia Bacon and Mildred Lillie on his publicly-known shortlist, all the while trusting that, in his words, “the bar may take us off the hook on the damn thing.” That “thing?” A woman on the Supreme Court. (Chief Justice Burger had written to Nixon's attorney general a letter stating that "he’s not anxious to have a woman" join the Court and Nixon, himself, did not think women should even be allowed to vote.)

Image source: Richard Nixon Presidential Library. Sylvia Bacon (second from left) listens to Nixon.

Then, after preserving the all-male Court following the confirmations of William Rehnquist and Lewis Powell, Nixon turned around and bragged about his commitment to women in remarks at the Convention of the National Federation of Republican Women: “While I know that a great number in this audience, including my wife, felt very strongly that not only should a woman be considered but that a woman should be appointed, let me say that at least we have made a beginning, and there will be a woman on the Supreme Court in time.”

Image source: Richard Nixon Foundation.  Nixon presents Powell and Rehnquist gifts recognizing their same-day confirmations Dec. 22, 1971.

Reagan’s shortlists illustrate another form of this phenomenon. Known famously for the historic O’Connor appointment, Reagan would go on to have two more opportunities to add women to the Court. When Chief Justice Burger announced his retirement in 1986, Reagan elevated Rehnquist and replaced him with Antonin Scalia. Reagan shortlisted no one for the position of chief, and shortlisted only Robert Bork with Scalia. The final opportunity came with Justice Powell’s resignation in in 1987. For this seat, Reagan shortlisted two women—Cynthia Holcomb Hall  and Amalya Kearse—along with Bork, whom he ultimately nominated. The Senate rejected Bork, however, after a fiercely contested battle led in part by civil rights and women’s rights groups. Interestingly, Carla Hills (shortlisted for the Court by President Ford—recall that she served as his Secretary of Housing and Urban Development) testified before the Senate Judiciary Committee on Bork’s behalf. Reagan’s final shortlist included three women—Hall (again), Edith Jones, and Pamela Rymer—and Anthony Kennedy, who he selected. As a commentator noted in the New York Times: “The women, particularly Judge Hall and Judge Rymer, reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.” All of these women were as qualified as the men selected to serve on the Court.

The concept of being “shortlisted” helps to identify and explain latent discrimination and bias both within and outside of the judiciary.

Montana Supreme Court: Dinosaurs Fossils Do Not Constitutes Minerals

Murray v. BEJ Minerals.   This is interesting.  Missoula Current has an article about it.

The Beatles Tribute 2014

Bob Dinerstein Named Acting Dean of American Law

American University's provost, Dan Myers, has announced that Professor Robert Dinerstein will serve as acting dean of the law school when Camille Nelson departs this summer.  Dinerstein has deep experience in administration, serving as associate dean for academic affairs and associate dean for experiential education at the law school, each for six years. 

James Madison and Citizens United

I have posted to SSRN my new article, which is titled "James Madison, Citizens United, and the Constitutional Problem of Corruption." The American University Law Review is publishing it this spring as part of their annual symposium issue. Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation. The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates. Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.

The full article is available here.

Dutton & Mohapatra on "COVID-19 and Law Teaching: Guidance on Developing An Asynchronous Online Course for Law Students"

Yvonne Dutton (IU McKinney) and Seema Mohapatra (IU McKinney) have posted to SSRN their article, COVID-19 and Law Teaching: Guidance on Developing An Asynchronous Online Course for Law Students. Here is the abstract:

Most law schools suspended their live classroom teaching in March 2020 due to the COVID-19 pandemic and quickly transitioned to online programming. Although professors can be commended for rapidly adapting to an emergency situation, some commentators have nevertheless suggested that the emergency online product delivered to students was substandard. Based on our own experiences in designing and delivering online courses, we caution against embracing a broad-reaching, negative conclusion about the efficacy of online education. Indeed, much of this emergency online programming would be more properly defined as “emergency remote teaching,” as opposed to “online education.” Delivering online education to students involves more than giving the same classroom lecture on Zoom. Online education requires professors to design their courses to be delivered at a distance, with the goal being to create a course driven by pedagogy using technological tools to inform and enhance the learning experience. COVID-19 is going to be with us for the foreseeable future, and because some schools might be unable to bring all of their students back into the classroom in the fall, we urge faculty to prepare to deliver their courses online. Law schools and faculty should not wait for another emergency and should prepare to deliver at least some of their courses online in the fall. To aid with this transition, this Article offers some guidance on how to develop and implement an effective asynchronous distance-learning course for law students.

The full article is available here.

A Boring Person's Idea of What a Funny Person Sounds Like

 

 

AALS CFP: Outsourced Borders and Invisible Walls

This just in:

The Section on Immigration Law of the Association of American Law Schools invites papers for presentation at its principal session during the 2021 AALS Annual Meeting in San Francisco, California, which will take place January 5-9, 2021. This session has not yet been scheduled. We will send updated information when we have it. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses

The Session theme is: “Outsourced Borders and Invisible Walls.”

This panel explores the many ways that the U.S. government relies on outsourced borders and invisible walls in its immigration policy. In recent years, the U.S. has outsourced many of its immigration enforcement functions. The federal government has delegated power and responsibility for immigration enforcement to state and local governments, to private actors, and to foreign governments. In its operation of and within detention facilities that are privately owned and maintained, its formal and informal collaboration with Mexican border agents and police, in its reliance on private contractors for building a border wall, and more, the U.S. government extensively leverages other entities and governments in its immigration enforcement efforts.

At the same time, the government has constructed a number of invisible barriers to immigration. In recent years, the White House has leveraged its control of administrative agencies to promote new barriers to immigration. Agencies and actors formally charged with protecting immigrants and workers have been repurposed to bolster immigration enforcement efforts. The resulting barriers block access to opportunities to immigrate legally under existing law and complicate individuals’ efforts to regularize their immigration status.

This panel will assess these outsourced borders and invisible walls, unpack the history behind them, and discuss the impact that these developments have had on democratic accountability and on the rights of migrants and long-term U.S. residents, including citizens.

Submission Guidelines: The deadline for submissions is August 15, 2020. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by September 30, 2020.

Please email submissions in Microsoft Word format to chacon@law.ucla.edu with the subject “AALS Submission.” In your email, please indicate whether you have previously presented your work at an AALS Annual Meeting, and if so, when and in what capacity.

Inquiries: Please direct any questions or inquiries to Jennifer M. Chacón (chacon@law.ucla.edu) and Kit Johnson ( profkitjohnson@gmail.com)

Law Teaching During the Pandemic: What Profs Want Their Deans (and Other Administrators) to Know

Today I close out my 5-part series of blog posts reporting my very unscientific survey of law faculty experiences during the pandemic. I asked colleagues an open-ended question: Reflecting about your personal experience or about the experience of faculty generally during the pandemic, are there things you would like your law school dean/administration to know?

Representative responses after the fold.

Finding Women on Supreme Court Shortlists

This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. Today’s sheds some light on how we found the women profiled in the book.

More than a decade ago, when President Obama announced the nominations of Sonya Sotomayor in 2009 and Elena Kagan in 2010, Hannah and I noticed media’s fixation on their single status and appearance. Headlines like “Then Comes the Marriage Question” and “Elena Kagan v. Sonia Sotomayor: Who Wore it Better”? were common. We didn’t recall reading much about the appearance or marital status of John Roberts or Samuel Alito when President Bush nominated them just a few years earlier. This led us to conduct an empirical media study. We read and coded for dozens of variables every newspaper article written about a Supreme Court nominee in the New York Times and Washington Post from the early 1970s through 2010. The study revealed, unsurprisingly, that women are portrayed and judged in explicitly gendered and often unfavorable ways, specifically in the context of motherhood, marital status, sexuality, and appearance.

From the thousands of articles we read for our media study one, in particular, stood out. The New York Times ran a short piece about President Nixon’s shortlist in 1971, when he faced two vacancies. Two women’s names appeared among six possible candidates—Sylvia Bacon and Mildred Lillie who, according to the article, fortunately had no children and “maintained a bathing beauty figure” even in her 50s. Of course this commentary fit the thesis of our media study, but that wasn’t what captured our attention. We wondered…who were these women? Why had we never heard of them before? How many other women were shortlisted by presidents before Sandra Day O’Connor became the first female justice?

To answer these questions, I spent a lot of time in archives. Some of this material is available online, but mostly it meant traveling across the country to comb through stacks of files housed in presidential libraries. (I could write another book about that experience alone!) We did have work from other scholars, like Christine Nemacheck’s Strategic Selection, to build on. Sometimes the shortlists were relatively easy to identify mixed among paperwork on judicial appointments. For example, I found Gerald Ford’s list in his papers housed on the University of Michigan campus and you can see it for yourself now on his Wikipedia page—at the bottom of a typed list you’ll find two women’s names handwritten, “Judge Kennedy” as in Cornelia Kennedy and “Carla Hills.” Sometimes we had to rely on a combination of oral histories, news stories, and personal accounts. (Only one president has publicly posted his shortlist, even when not faced with a vacancy—Trump’s shortlist is available on the White House website.)

We found nine women who appeared on presidential shortlists going back to the 1930s. 

Ben Spencer Named Dean of William & Mary Law

The William & Mary Law School has announced that its new dean will be A. Benjamin Spencer.  Spencer, the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, holds a JD from Harvard.  He will take over on July 1.

CFP - Columbia Journal of Gender & Law Symposium, April 9, 2021: "Are You There Law? It's Me, Menstruation."

Columbia Journal of Gender & Law

Symposium Announcement and Call for Papers

Are You There, Law? It’s Me, Menstruation

April 9, 2021

The Columbia Journal of Gender & Law is pleased to announce a call for papers for its Spring 2021 symposium: Are You There, Law? It’s Me, Menstruation.

This symposium explores the intersection of law and menstruation. Over half the population menstruates for a large portion of their lives, but the law has mostly been silent on the issue. Virtually all people with female biology menstruate, although not all who menstruate are girls or women. A truly inclusive law reform movement will take all who menstruate into account, without regard to race, economic class, age, or gender identity. A legal system that takes into account the biology of over half the population is the foundation for a more just society. 

Judy Blume’s young adult classic, Are You There God? It’s Me, Margaret, first captured readers’ attention fifty years ago, but only recently have periods entered the public discourse. The “tampon tax”—the state sales tax on menstrual products—is currently the subject of multi-state litigation and legislative advocacy. Public awareness of the unfairness of the tax has inspired many people to start speaking and mobilizing about other obstacles, including the lack of employment-related accommodations for menstrual needs, the lack of access to safe and affordable products (particularly in schools and prisons), and the anxiety and harassment that menstruating students can face at school.  Increasingly, litigation is being brought about some of these issues, and some states and localities are also taking action on their own, notably by requiring free menstrual products in settings like prisons, schools, and shelters. “Period poverty”—being unable to afford menstrual products—remains an obstacle to school, work and full participation in public life. 

The Symposium will be held at Columbia Law School on April 9, 2021. The conference will include a full day of panel discussions and will be open to the public. The program concludes with a reception celebrating the journal’s thirtieth anniversary.

Papers

To be considered for a paper presentation at the symposium, please submit an abstract of your proposed paper by 5:00 p.m. on August 15, 2020 to columbia.jgl.submissions@gmail.com. Abstracts should be no longer than 500 words and should relate to the conference theme.  Possible topics might include:

• Affordability, availability, or safety of menstrual products.
• Challenging the state sales tax on menstrual products.
• Menstruation-related discrimination and harassment in employment, education, and/or other contexts.
• Menstrual education in schools.
• Menstruation-related challenges unique to prisoners, incarcerated people, and visitors and employees in carceral facilities.
• Menstruation-related needs of homeless and low-income individuals and families.
• Cultural stigmas and taboos related to menstruation.
• Lawyering and social movements that are inclusive of all who menstruate, including trans boys and men, people with gender fluid identities, and people with non-binary gender identities.
• Research related to health issues connected with menstruation and menstrual products.
• Environmental issues related to menstruation, including access to water, disposal of menstrual products, and toxic chemicals used in menstrual products.
• Alternatives to commercial menstrual products, including micro-lending for financing of menstruation-related small businesses.
• Human rights concerns, including the right to dignity, the right to education, and/or the right to employment, and their connection to menstruation.
• The relationship of popular culture, including Judy Blume’s Are You There God? It’s Me, Margaret, to the understanding of menstruation.
• The use of female empowerment and feminist messaging in selling menstrual products and menstrual education.
• Menstrual-related activism, including litigation and legislative reform.
• Coalition-building between and among groups around issues related to menstruation.

AALS CFP: New Voices in Immigration Law

This just in:

The Section on Immigration Law of the Association of American Law Schools invites papers and works in progress for its “New Voices in Immigration Law” session at the 2021 AALS Annual Meeting in Washington, DC, which will take place January 5-9, 2021. This session has not yet been scheduled. 

This session will be structured as a series of simultaneous works-in-progress discussions, rather than as a panel. Preselected commentators will lead small-group round-table discussions of papers.

Submissions may address any aspect of immigration and citizenship law. We also welcome papers that explore these topics from alternative disciplines or perspectives.

Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

Submission Guidelines: The deadline for submissions is August 15, 2020. Feel free to submit an abstract, a précis, or a work-in-progress. Priority will be given to individuals who have never presented an immigration law paper at the AALS Annual Meeting, works not yet published or submitted for publication, and junior scholars.

Please email submissions in Microsoft Word format to profkitjohnson@gmail.com (Subject: AALS 2021: New Voices in Immigration Law). In your email, please indicate how you meet our selection priorities. If you have participated on previous AALS panels, please indicate when and in what capacity.

Inquiries: Please direct any questions or inquiries to Kit Johnson (profkitjohnson@gmail.com).

CFP - AALS Section on Islamic Law: Islamic Law and the Modern International Legal Order

Call for Papers: Islamic Law and the Modern International Legal Order

AALS Section on Islamic Law

For the 2021 AALS Annual Meeting

The Section on Islamic Law is pleased to announce a Call for Papers from which one or more presenters will be selected for the section’s program to be held during the AALS 2021 Annual Meeting in San Francisco on the subject of Islamic Law and the Modern International Legal Order. The program description is as follows:

The United States and Europe are awash in ethnic nationalist and quite often protoauthoritarian movements that show some level of contempt for transnational and international law.  From Brexit to America First to Hungary’s identity based Orbanomics, many in the West have turned their back on the idea of international cooperation in favor of localism. The underlying conviction seems to be that local values and local institutions serve the populations of these respective nations better, and therefore they should not subject themselves to foreign arrangements created by others.   These phenomena raise deeper questions respecting the future of the modern international order.  Is there truly an unmanageable tension between a preference, perhaps even a universalist one, for a particular political arrangement and a willingness to subject the state to a higher order set of rules that recognizes that arrangement as only one among many?  This sort of question is hardly new to Islam, which is both traditionally universalist in its conviction that an Islamic political order fulfills the Will of God, and an awareness of the necessity of finding a way to manage relationships with others.   Our panelists will discuss these questions others relating to the relationship of international law and Islamic law, and the manner in which these might prove relevant to an international legal order that finds itself in near existential crisis. 

Papers should be between 7500 and 15,000 words in length, not previously published, and relate to the above topic.  The selected presenter will have the opportunity, but not the obligation, to publish the article in the Arab Law Quarterly if they so desire.  Applicants may be academics or nonacademics at any level and in any relevant discipline.

Papers should be submitted electronically to Professor Haider Ala Hamoudi (hamoudi@pitt.edu) no later than August 14, 2020.  The author of the selected paper will be notified by September 1, 2020.  The Call for Paper presenter will be responsible for paying their registration fee and hotel and travel expenses.   Presenters who do not hold a faculty position at an AALS law school will not be require to pay registration fees.    

Any inquiries for the Call for Papers should be submitted to Professor Hamoudi (hamoudi@pitt.edu).

Hard Times Come again No More [UPDATED with James Taylor and Yo Yo Ma]

Guest post by Jeff Rice.

Written by Stephen Foster in 1854: