The Faculty Lounge

New Book Announcement: Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom

Editors Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell, and Genevieve B. Tung are thrilled to share that their new book Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom, is now available in print and digital formats from Carolina Academic Press.

Here is a description of the book:

Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Each chapter focuses on a subject traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts). Each chapter also includes an annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses.

You can see a full list of contributors and read the foreword from Boston University Law School Dean Angela Onwuachi-Willig here.

Hiring Announcement: University of Texas Rio Grande Valley (Assistant Professor of Philosophy)

From The University of Texas Rio Grande Valley:

"We seek applicants who are dedicated to serving The University of Texas Rio Grande Valley's diverse student body as a Assistant Professor of Philosophy beginning in the 2021-2022 academic year. The department is particularly interested in candidates who specialize in Critical Philosophy of Race, Critical Race Theory, Africana Philosophy, Borderlands Philosophy, or Latin American Philosophy, and Philosophy of Law. Successful candidates will demonstrate research potential consistent with UTRGV's vision of an emerging research institution. Successful candidates will also demonstrate the interest and ability to grow our department's new Pre-Law concentration by sparking student interest, working across disciplinary lines with other programs and departments, and recruiting students. In addition to general education core courses, candidates will be expected to create and teach and courses in the Philosophy of Law and their other areas of specialization. We welcome candidates to show how their work might engage with issues of importance to the Rio Grande Valley and the U.S./Mexico border, such as immigration or health, or if the candidate has the ability to engage with linguistically diverse communities."

Additional information is available here.

Distinguishing between Fact and Perception (and Recognizing That Both Can Be Important)

The below essay was posted last Monday on Social Science Space:

SOCIAL SCIENCE SPACE

Parsing Fact and Perception in Ethnography

Published on 05/03/2021 By Steven Lubet

The Annual Review of Sociology is a very big deal. Published since 1975, it was initiated by the American Sociological Association in collaboration with the nonprofit publisher Annual Reviews for the purpose of “synthesizing and integrating knowledge for the progress of science and the benefit of society.” With an impressive impact factor, the Annual Review of Sociology now covers “major theoretical and methodological developments as well as current research in the major subfields.” Because submissions are by invitation only, and then subject to peer review, placing a piece in the Annual Review is a major accomplishment for academic authors. It therefore came as a surprise to me – and really, a bit of an honor – to discover that an article in the forthcoming 2021 Annual Review of Sociology devotes almost an entire section to responding to my 2017 book, Interrogating Ethnography, in which I critiqued some common practices in ethnography and suggested how they could be made more rigorous.

The article is “Ethnography, Data Transparency, and the Information Age,” by Alexandra Murphy, Colin Jerolmack, and DeAnna Smith. Now available on the journal’s (paywalled) website, and kindly sent to me by one of the authors, the essay argues that the “growing recognition that the advancement of social science hinges upon scholars being more transparent.” The practice of ethnography, they explain, is facing a “reckoning over the long-standing conventions they follow to gather, write about, and store their data.” The article is comprehensive and insightful, focusing on four important issues related to transparency: data collection, anonymization, verification, and data sharing. Congratulations to Professors Murphy (University of Michigan), Jerolmack (NYU), and Smith (University of Michigan) for a job well done.

The engagement with my work is mostly (although not entirely) in the section titled “Data Verification,” where the authors note my efforts to fact check more than 50 urban ethnographies. “Lubet,” they say, “accuses ethnographers of treating subjects’ retellings of events as fact.” Although I would have preferred a different verb – perhaps “Lubet reports” or “Lubet relates” – it is fair enough to say that my research revealed factual problems in about half of the ethnographies I investigated. To put it gently, I found that ethnographies often resort to hearsay, folklore, and rumor, without distinguishing between first-hand observations and second-hand accounts.

The authors present three sets of responses to my work – all of them oddly negative, given that they pretty much end up agreeing with me – beginning with a rather silly assertion by the UCLA sociologist Stefan Timmermans. According to Timmermans, the authors explain, the only way to show that an ethnographer got something wrong is “to put in the work to make repeated first-hand observations in the setting under question.” It should be obvious that such a standard could almost never be met – meaning that nothing in an ethnography could ever be disproven – even in the unlikely circumstance that a subsequent researcher had the time and inclination to make multiple trips to an ethnographer’s research site.

Rising Appalachia

From the Rising Appalachia website: "Founded by sisters Leah and Chloe Smith, the band established an international fan base due to relentless touring, tireless activism, and no small degree of stubborn independence."

John Czarnetzky Named Dean of Ave Maria Law

Ave Maria School of Law announced that its new dean and CEO will be John Czarnetzky.  Czarnetzky is a professor at the University of Mississippi School of Law.  He holds a JD from the University of Virginia.  He will take over on June 1.  

Kudos to Co-Blogger!

Kudos to co-blogger Bridget Crawford, who has been named a "Distinguished Professor" by Pace University!  Announcement here.  Congrats, Bridget!

 

Information Fiduciaries and the Duty to Care for Data

My colleagues Dave Haendler and Jordan Fisher, and I, have our new article, Negligence at the Breach: Information Fiduciaries and the Duty to Care for Data, up at SSRN.  Here's the abstract:

Personal data is a cost of admission for much of modern life. Employers, tech companies, advertisers, information brokers, and others collect huge quantities of data about us all. Yet outside of a few highly-regulated industries, American companies face few legal restrictions on how they manage and use that data. Until now, individuals have had very limited remedies when their data is stolen from data collectors. But change is afoot. In a significant recent decision, the Pennsylvania Supreme Court took a consequential step holding that entities collecting personal data owe a duty of reasonable care to protect data subjects against harm.

This tort decision left a critical question unresolved. What is “harm” in the context of privacy? What is it exactly that data collectors must protect data subjects against? This paper takes one state's doctrinal move as a jumping-off point to consider a question of immense national importance – how to apply to common-law negligence principles in cases involving the disclosure and misuse of personal data, and specifically, what a “duty to care” means in the unsettled realm of privacy law. Building off Jack Balkin’s work, this article proposes that fiduciary law offers an appealing framework for conceptualizing privacy harms and the corresponding responsibilities of the entities who are collecting our data. In doing so, it begins the conversation of how tort law can take a central place in protecting individuals when data holders betray their trust.

Zelda Harris to be Interim Dean of Loyola Chicago Law

With Dean Michael Kaufman heading to Santa Clara Law, Associate Dean Zelda Harris will be stepping up to become interim dean of Loyola Chicago Law, starting July 1.  Harris holds her JD from Washington University in St. Louis.  

Further Developments on Attempts to Host Leila Khaled at University Presentations

The below piece originally appeared on the AAUP's Academe Blog on May 2 and is reposted here with permission:

U. of California Faculty Call for Action on Academic Freedom

BY HANK REICHMAN

When last October Zoom declined to host seminars at San Francisco State University and New York University because one of the speakers, Leila Khaled, was associated with a group deemed “terrorist” by the U.S. government, which the company suggested might make it legally vulnerable, faculty groups and defenders of academic freedom protested.  Among the most significant actions was a letter prepared by the University of California’s Academic Senate Committee on Academic Freedom (UCAF) and endorsed by the Senate’s Academic Council.  It called on the U.C. system administration to negotiate with Zoom for new contractual terms that protect academic freedom, scholarly inquiry, and First Amendment rights.  In response, UCAF chair Brian Soucek, a professor of law at U.C. Davis, and U.C. Associate Vice Provost for Academic Personnel and Programs Amy K. Lee worked with Zoom on the issue.  Those negotiations bore fruit — and not only for U.C. — when on April 13 Zoom released a new policy for higher education users that gives content moderation rights to universities and, thereby, protects academic freedom.

Writing on this blog, I applauded the announcement as “a significant advance,” but expressed concern that “the new policy does not yet clarify how Zoom will handle its responsibilities under a federal law barring ‘material support’ for terrorism, which the firm invoked when it censored” the programs at San Francisco State and New York universities.   Sure enough, just a week after it debuted the new policy, Zoom, along with other private internet platforms, including Facebook and Eventbrite, cancelled a U.C. Merced webinar featuring Ms. Khaled out of concern that the event could violate federal law by providing “material support” to a terrorist organization.

More than a few legal scholars have argued (see also this survey from the Congressional Research Service) that providing an opportunity to speak need not be construed as providing “material support.”  At San Francisco State the administration said they would have permitted the program to proceed had it been possible to hold it in person, urging Zoom to take a similar stance.  However, as law professor Steven Lubet pointed out on this blog, Zoom and the other firms that declined to host the programs are not universities but “publicly traded companies, with fiduciary duties to shareholders” and therefore “were rather playing it safe in a volatile and unprecedented situation.  I would like to think that no university would have acceded to complaints about the Khaled webinar — just as SFSU did not cave – but businesses answer to a different constituency.”

Jelani Jefferson Exum Named Dean of Detroit Mercy Law

The University of Detroit Mercy  has announced that its new law dean will be Professor Jelani Jefferson Exum.  She joined the Detroit Mercy law faculty in 2019, most recently coming from the University of Toledo faculty.  Exum, who holds a JD from Harvard, will take over from outgoing Dean Phyllis Crocker on July 1.

Call for Presenters, Papers and Participants: Summer Feminist Legal Theory Series

Call for Presenters, Papers and Participants: Summer Feminist Legal Theory Series

Panels, Half-Baked Ideas + Junior Scholar Paper Presentations

The U.S. Feminist Judgments Project is pleased to announce its 2021 Summer Feminist Legal Theory Series. The series is co-sponsored by the Elisabeth Haub School of Law at Pace University, the William S. Boyd School of Law at the University of Nevada, Las Vegas, The Feminism and Legal Theory Project, The Vulnerability and the Human Condition Initiative, the Institute for Feminist Legal Studies at Osgoode, the Family Law Center at the University of Virginia School of Law, and the AALS Section on Women in Legal Education.

The series is coordinated by Bridget J. Crawford (Pace) and Kathy Stanchi (UNLV). It will meet online via Zoom on Wednesdays from 2:00pm-3:00 Eastern/11am-12:00pm Pacific, starting June 2, 2021 and running for six sessions.

There will be three different types of programming held over the course of six sessions:

(1) Two panel discussions will offer “big picture” perspectives on the history, beginnings, present and/or future of feminist legal theory.

(2) One date will be reserved for up to six simultaneous “half baked” presentations. These presentations are designed to allow scholars of any level of seniority to receive feedback at the very earliest stages of thinking about a project that implicates feminist theory in some way. “Half baked” presenters should have 5 double-spaced pages of written material or notes to share with a small audience of participants approximately one week before their presentation. Each presenter will have an intentionally small audience with participants who have signed up in advance to give feedback on the particular “half baked” idea. (Details to be announced.)

(3) Three dates will be reserved for junior scholars to present their work. These are meant to be traditional “paper presentation” workshops for those with five (5) or fewer years of experience as a tenured or tenure-track instructor as of July 1, 2021.

In selecting papers for presentations by junior scholars, preference will be given to papers that are in draft form, unpublished and on topics related to feminist legal theory, broadly defined, that will be of general interest to a wide range of colleagues. Papers can involve any domestic or international issues of interest to feminist scholars. The topics can be theoretical in nature or represent applications of feminist legal theory. Papers are encouraged, but not required, to relate in some way to broadly-defined feminist influences on judicial reasoning and opinion-writing. Junior scholar paper presenters will be strongly encouraged to limit their prepared remarks to 20 minutes, to allow ample time for comments from a senior scholar assigned to provide supportive productive feedback followed by questions and discussion with audience members.

The Call for Participation opens today and will close on May 28, 2021 at 5pm Eastern/2pm Pacific. Selected presenters will be notified by June 7, 2021.

Preregistration for all speakers and participants is required (details after the fold).

Dan Hamilton Stepping Down as Dean of UNLV Law

UNLV announced Friday that Dean Dan Hamilton, who has been leading the university's law school since 2013,  is stepping down.  He will leave the post at the end of June.

Stop Using Race and Sex-Based Data to Calculate Personal Injury Damages

My friend and colleague Kim Yuracko has an important oped in the Washington Post (coauthored with my friend and former colleague Ronen Avraham) titled "The use of race- and sex-based data to calculate damages is a stain on our legal system." They point out that personal injury damage calculations are usually based on an estimate of lost future earnings, which are typically based on tables that are broken down by race and sex. As they explain,

Certainly, forensic economists need to rely on statistical tables and data — often created by the federal government and reflecting aggregate economic realities — to estimate for a court how much money it would take to make a victim whole. But the use of race- and sex-based tables means that past levels of discrimination are embedded in predictions of the future.

Therefore,

We urge the Biden administration to support federal legislation that would bar the use of race- and sex-based data in the calculation of tort damages.

Although not addressed by Kim and Ronen, the unfairness in assessing damages has been exacerbated by statutes that place limits on so-called non-economic damages such as pain and suffering. Because pain and suffering awards are not calculated according to race and gender statistics, they are at least potentially free from the influence of past employment discrimination. Although jurors may implicitly undervalue the pain and suffering of certain population groups, that can often be overcome by a skillful attorney (who has an incentive, thanks to contingent fees, to figure out how to maximize damages).

The combination of biased employment statistics + non-economic damage caps = the worst of worlds for female and minority plaintiffs.

Will the Circle Be Unbroken

"Will the Circle Be Unbroken" was written in 1907 by Ada Habershon and set to music by Charles Gabriel. The original hymn was about the glory of heaven, rather than a maternal funeral. The first recorded version, according to Wikipedia, was by The Metropolitan Quartet in 1927. I have not been able to find that version. The now familiar lyrics are from a revision by A.P. Carter, recorded by the Carter family in 1935, title "Can the Circle Be Unbroken," and covered many times since then, under both titles "Will" and "Can," in genres including bluegrass, gospel, and R&B. There are some audio clips with the original lyrics toward the bottom of this post.