The Faculty Lounge

Slavery and the History of Federal Powers

Revisionist scholars like Jack Balkin and Richard Primus argue that expansive federal powers are consistent with the principles of the Founding, the views of the early Congress, and/or Marshall Court decisions like McCulloch.  In a forthcoming article, I argue that this scholarship ignores slavery’s profound influence on the Constitution. Before the Civil War, virtually everyone agreed that Congress had no power to interfere with slavery in existing states. Because slavery was fundamental to the political, social, and economic order of the South, this national consensus on slavery dictated that Congress’s powers were extraordinarily narrow by today’s standards.

Of course, slavery’s influence on federal powers is well-known and widely accepted among historians.  My article seeks to “move the ball” by connecting this historical scholarship to the revisionist work of Balkin, Primus, and others. Although I am sure that they are well versed in history, this only makes their lack of any serious engagement with slavery so difficult to understand. (For example, in five articles on the topic, Primus’s most in-depth consideration is found in his most recent essay, which has only 3 pages of discussion). I hope my article encourages them to give more serious consideration to slavery’s influence moving forward.  As the current debates over teaching critical race theory have made clear, we must acknowledge and understand the implications of racism in the law in order to fight against it.  In fact, I argue that slavery’s influence on the historical understanding of federal powers provides a strong reason to reject any theory of interpretation that makes history dispositive of constitutional meaning (including Balkin’s Living Originalism, at least with respect to powers).

My article also engages with the work of David Schwartz, who, unlike Balkin and Primus, does seriously engage with slavery while still arguing that history supports expansive federal powers. In my opinion, however, he does so only by underestimating slavery’s influence.  In sum, Schwartz seems to suggest that, at least for the early Congress and Marshall Court, slavery was an exception to otherwise broad federal powers. His argument, however, gets it exactly backwards. Slavery did not operate as an external constraint on otherwise broad federal power. Instead, slavery was a powerful motivation for the antebellum consensus that all federal powers were limited in scope. This distinction matters, and we do a disservice to history by minimizing slavery’s pervasive influence on constitutional history. Only by fully acknowledging slavery's role can we  build the best case for the type of living constitution that would allow for meaningful change in the Supreme Court's federalism doctrine.

Assistant Dean of Legal Information Services and Professor of Practice (2021) Washington and Lee University: Law School

The listing is here https://apply.interfolio.com/93228

Location
Lexington, Virginia
Open Date
Aug 26, 2021
Description
Reporting to the Dean of the Law School, the Assistant Dean of Legal Information Services manages all aspects of the operation of the Wilbur C. Hall Law Library in a manner that supports the mission of the Law School. While this is a 12-month administrative appointment, the Assistant Dean will also hold faculty rank (non-tenure track) and the title of Professor of Practice, teaching one or more legal research courses annually as needed.

Washington and Lee University promotes a dynamic and inclusive environment that allows students and employees of multiple backgrounds, cultures, and perspectives to learn, work, and thrive together. Successful candidates will contribute to that environment and exhibit potential for excellence in teaching and for vigorous scholarship. In keeping with the University Strategic Plan, we welcome applications from underrepresented minority candidates and members of other communities that are traditionally underrepresented in academia.

Status: Full-Time, 12 Month, With Benefits
Position Type: Administrator with Faculty Rank
Work Hours: 8:30 a.m. - 4:30 p.m. Monday - Friday
FLSA: Exempt
Minimum Pay: $127,652

Essential and Related Functions

The Assistant Dean of Legal Information Services manages all aspects of the operation of the Wilbur C. Hall Law Library in a manner that supports the mission of the Law School. Specific responsibilities include the following:

Works with the Dean to establish objectives of the Law Library that best support the research, teaching, and programmatic needs of the Law School community.
Promotes a positive and creative work environment while undertaking supervisory functions relating to hiring, performance review, and professional development.
Establishes budgetary priorities for the Law Library in a manner that maximizes the benefit of library resources.
Creates and maintains print and digital collections appropriate to the mission of the Law School.
Oversees the management and development of innovative digital initiatives, including an institutional repository and the widely recognized W&L Law Journal Rankings.
Manages the Law Library’s physical space to maximize the benefit of this resource for the Law Library and the Law School more broadly.
Collaborates with the University librarian on a range of administrative matters to leverage University resources and to promote efficiency in the delivery of library services across the entire University.
In addition to managing the Wilbur C. Hall Law Library, the Assistant Dean of Legal Information Services will hold the title of Professor of Practice. In this capacity, the Assistant Dean will teach one or more legal research courses, including the first-year legal research course and advanced legal research, as needed. Additionally, the Assistant Dean may teach a doctrinal course in an area of expertise subject to need and feasibility.
Required Competencies

Strategic Thinking - Actively develops and aligns the departmental strategy with the University's vision, mission and values. Able to rally others behind the University's mission and create commitment to achieving long-term goals. Looks beyond the surface of problems, connects unrelated information and integrates it when making decisions. Able to quickly assess changing situations and recognize key risks involved in order to handle the problem or opportunity efficiently.
Change Adaptability - Champions change initiatives in own department, communicates rationale and provides updates throughout the change process to help others deal with ambiguity. Anticipates and addresses staff concerns throughout the change process, creating and maintaining open dialogue to obtain commitment and buy-in. Supports the practical utilization of new ideas that show promise and encourages diversity of thought in own department and others.
Communication and Networking - Adapts own style to deliver persuasive messages by understanding the audience, communication objectives and intended outcome. Serves as a role model by advocating a culture of openness and two-way communication across departments. Develops and maintains knowledge of key areas, persons in the University or larger community and uses social networks to build support for common purposes.
Drive for Results - Champions continuous improvement of work methods, policies and practices by providing resources and sharing success stories and lessons learned. Engages department in setting challenging goals and targets, encourages others to overcome obstacles and holds people accountable for results. Guides establishment of customer service processes to standardize a culture of customer service and sensitivity.
Talent Development - Supports processes to identify and reward talent by creating development opportunities, mentoring and coaching others to develop the next line of leaders. Proactively identifies and ensures development of critical future skills and capabilities for talent across the University and not just within a department. Takes time to actively build individual relationships on a formal and informal basis with University employees. Leads by example, by supporting the implementation of a sustainable performance development system (e.g., encouraging participation in goal setting activities, final year review, etc.).
The university requires employees to become fully vaccinated for COVID-19 and new employees must provide proof of at least their first shot prior to the first day of employment. Individuals may seek a medical or a religious exemption to the vaccination requirement.

Qualifications
The Assistant Dean will hold a J.D. degree from an ABA-accredited law school and a M.L.S. or equivalent degree from an ALA-accredited institution. Additionally, the Assistant Dean will have considerable experience in law library administration, including personnel management and management of financial resources.

In addition to possessing strong supervisory, communication, and leadership skills, preferred candidates will have an appreciation for the changing roles of law libraries in legal education and a willingness to continue the Law Library’s record of innovation in deploying resources in a manner that best serves the needs of the students, faculty, and other members of the Law School community.

Physical Requirements

Fingering: Picking, pinching, typing or otherwise working, primarily with fingers rather than with whole hand or arm as in handling.
Grasping: Applying pressure to an object with the fingers and palm.
Repetitive motions: Making substantial movements (motions) of the wrists, hands, and/or fingers.
Working Conditions

The worker is not substantially exposed to adverse environmental conditions (as in typical office or administrative work).
Sedentary work: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently or constantly to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
Application Instructions
To be considered, applicants should submit the following materials through the Interfolio portal: http://apply.interfolio.com/93228

CV
Personal statement
Contact information for three professional references
Review of applications will begin immediately and continue until the position is filled. For more information please contact Brian Murchison, chair of the search committee, at murchisonb@wlu.edu.

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Application Process
This institution is using Interfolio's Faculty Search to conduct this search. Applicants to this position receive a free Dossier account and can send all application materials, including confidential letters of recommendation, free of charge.
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Equal Employment Opportunity Statement
Washington and Lee is an Equal Opportunity Employer. As such, we are interested in candidates who are committed to high standards of scholarship, performance and professionalism and to the development of a campus climate that supports equality and diversity in our faculty, staff and student body. Job description requirements are representative, but not all‐inclusive of the knowledge, skill, and abilities needed to successfully perform this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform essential functions.

Statement of Commitment to Diversity

Washington and Lee affirms that diverse perspectives and backgrounds enhance our community. We are committed to the recruitment, enrichment, and retention of students, faculty, and staff who embody many experiences, cultures, points of view, interests, and identities. As engaged citizens in a global and diverse society, we seek to advance a positive learning and working environment for all through open and substantive dialogue.

CUNY Law Seeks Dean

This just in:

The City University of New York (CUNY) seeks an engaged and highly collaborative leader for the position of Dean of its School of Law. Reporting to the Chancellor, the Dean will have an extraordinary opportunity to lead a school that is a national and international leader in experiential legal education and recognized as one of the premier public interest law schools in the nation. CUNY School of Law is the nation's #1 public interest law school, its dual mission to educate lawyers in the service of human needs, and to transform the teaching, learning, and practice of law to include those historically excluded, marginalized, and oppressed make it a singular institution. As the only publicly funded law school in New York City, CUNY Law increases access to excellent legal training by pursuing its mission. The Law School's access mission is further served by its four year part-time evening program, launched in 2015.

CUNY Law is built on a tradition of radical lawyering: movements for social change are built with leadership and collaboration from the people and communities who have experienced injustice. The law school’s #1 ranking in diversity of the faculty and student body is an example of how its mission is realized through intentional recruitment and its status as a top-three clinical education program is a manifestation of CUNY Law’s commitment to partnering with local and grassroots organizations in the field. The CUNY Law community is one of activists, organizers, scholars, and advocates that stand united in the belief that only when the world can see the full range of human experience reflected and represented in the law will we have justice for all. This is an exciting opportunity to join the nation’s leading urban public university, led by a strong executive team and a highly cohesive group of leaders of all CUNY institutions, allowing for a plethora of unique collaborative opportunities.

What Can We Learn from Justice Thomas's Tocqueville Lecture at Notre Dame?

Josh Blackman has helpfully transcribed Justic Clarence Thomas’s recent Tocqueville Lecture at Notre Dame Law School and posted it on the Volokh Conspiracy. Most of the media attention has focused on Justice Thomas’s defense of SCOTUS’s independence and warning against jeopardizing “faith in the legal institutions,” but Josh points out that the entire talk has many more worthwhile observations, which he calls “gems.” Josh includes one full passage in the body of his post, but I don’t think it is as admirable as either he or the Justice think it is.

Question: Has there been times in your career when the legal questions you must resolve conflict with your Catholic faith? If so, how do you proceed?

Justice Thomas: No, not really. I think if it did, if I think if it gets something conflict, that great. Where I fundamentally think it's wrong, I would just go and do something else. The I'm at a point, you know, I said that early on, and I still believe that, but I have lived up to my oath. There are some things that conflict very strongly with my personal opinion, my policy preferences. And those were very, very hard, particularly early on. But you don't I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone. But there have been some words. But there have been some that broke my heart. And that just were really, really high. And I've been there sometimes, particularly early, you sit with the more seasoned members of the court, and you explain to them what's wrong. And when I first became a judge in 1990. My colleague, Judge Silberman, Larry Silberman, sat down with me. And one of the things that's really interesting is no judge ever tells you how to do your job. The only people who tells you tell you how to do your job, or people who've never been judges. But anyway, he said to me, he said, I'm just going to give you a little bit of advice, unsolicited advice. Before you sit on a case, ask yourself this question, what is my role, in this case, as a judge, not as a citizen, not as us as a as a as a Catholic or any What is my role, in this case, as a judge? That is a hard one. Because if you stay in that lane, there are some things that you as a citizen, or you as a personal preference would want to come out a different way. And that's what I've tried to do the other thing, and then I'll be quiet about it. But I have four law clerks, four wonderful law clerks. And they're very, very bright like your students. And they watch you I tell them to watch me. And that's something my grandfather always told us watch me and do as I do not, as I say. So he didn't really mean that do as I don't do as I say, part I can tell you that. But the I tell my clerks that you watch me for a full year, and my job is that you leave here with a clean with clean hands, clean hearts and clear conscience. We will never do anything that's improper. And I encouraged them to tell me every clerk works on every case. So if you see something, your job is to let me know. And we sit and we talk about it. But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have that anything other than our job. (Boldface per Blackman.)

The first problem, of course, is that Justice Thomas does not tell us anything about the cases he cried over. Exactly which decisions did he join that were contrary to his policy preferences, and how often did that happen? Without any specifics, it is impossible to evaluate the frequent claim that originalist methods lead to determinable results independent of the judge’s personal values. Josh is evidently willing to take Justice Thomas’s word for it, but I would like more information.

Less obvious are the greater implications of Justice Thomas’s anecdote about his clerks. Justice Thomas informs us that he tells his clerks they must leave their positions with “clean hands, clean hearts and clear conscience.” To that end, he encourages them to watch him, making sure he does his job “as a judge, not as a citizen.” They need to tell him if they “see something” so that they can sit and “talk about it.” Again, we don’t know if any clerk has ever raised a conscientious objection of an opinion, much less questioned his clean hands. And if this has happened, we don’t know the outcome: Did Justice Thomas convince the clerk of his position, or did the clerk persuade Justice Thomas to change his mind?

We do know that all 120 clerks would stand up for Justice Thomas today. “But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have [done] anything other than our job,” Justice Thomas assures us. Well, of course not. Like all other SCOTUS clerks, Thomas’s are hand-chosen. They are dependent on him for references, and they will benefit from their association with him for the rest of their careers. Who would expect any of them to report that the justice had been allowing his preferences to interfere with his job?

Approval from his clerks is certainly evidence of their loyalty to Justice Thomas, but it tells us nothing about the rectitude of his decision-making. (To be clear, I do not question Justice Thomas’s rectitude or sincerity, but his Tocqueville lecture provides scant evidence of deep reflection.)

Josh ends his post with the observation “well said.” I have a similar reaction, but only because Justice Thomas revealed more about his self-awareness, or perhaps lack of it, than he intended.

Songs about Songs and Musicians [UPDATED with The Heart of Rock & Roll + Garden Party]

There were fewer of these than I expected to find, but they do transcend genres.

Emory Law Faculty Hiring Announcement

Emory Law seeks to fill four faculty positions to begin in the 2022-23 academic year.  Entry-level candidates are strongly encouraged to participate in the AALS Faculty Appointments Register. Lateral candidates should complete the online application which requires creating an account, uploading a resume or CV, and providing basic personal information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Faculty Appointments Committee: Fred Smith, at law.faculty.appointments@emory.edu. Applications will be considered on a rolling basis. The positions are as follows: 

 

Assistant or Associate Professor- Criminal Law 

The Emory University School of Law invites applications from entry-level or lateral candidates. The position is open to entry-level and lateral candidates for appointment at the rank of assistant professor (tenure track) or associate professor (tenure track). Candidates should be either new to law teaching or junior lateral candidates with no more than four years in a tenure-track position. The successful candidate should have a demonstrated record of exceptional scholarship and teaching in the area of criminal law along with an evident commitment to institutional service. This position requires the applicant to have obtained a J.D., Ph.D., or equivalent degree.  

 

Assistant or Associate Professor- Environmental Law 

Emory University School of Law seeks to fill a tenure-track position in environmental law. The position is open to entry-level and lateral candidates for appointment at the rank of assistant professor (tenure track) or associate professor (tenure track). Candidates should be either new to law teaching or junior lateral candidates with no more than four years in a tenure-track position. Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in environmental law (including, for example, land use, environmental justice, climate change, and natural resources) and the ability to teach the basic environmental law course and allied courses, especially property.    

 

Assistant or Associate Professor- Tax Law 

Emory University School of Law seeks to fill a position in tax law. The position is open to entry-level and lateral candidates for appointment at the rank of assistant professor (tenure track), associate professor (tenure track), or associate professor (with tenure). Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in tax law or related fields, and the ability to teach one or more tax courses.  

 

Sam Nunn Chair of Professionalism and Ethics 

Emory University School of Law seeks applications from distinguished scholars for the Sam Nunn Chair in Ethics and Professionalism. Candidates should have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should also currently hold a tenured academic appointment.     

  

The subject-matter focus of the Sam Nunn Chair is intentionally broad. Under the terms of the endowment supporting the position, the Chair will have the support of the law school in hosting a conference on issues related to ethics and professionalism approximately every four years. Candidates for the position, however, need not focus centrally on these themes in their work.    

  

The Chair may be of particular interest to scholars whose research examines ethics, professionalism, complex litigation, judging, dispute resolution, representation of corporate entities, implications of AI and big data for the profession and legal practice, and other related areas. Nevertheless, distinguished scholars with an interest in ethics and professionalism are encouraged to apply, regardless of their area of specialization.  Previous chairholders include scholars in the fields of products liability, feminist theory, law and religion, family law, and federal housing policy.  

Donald Tobin Stepping Down as Dean of Maryland Law

Donald Tobin, who has served as dean of Maryland Law since 2014, will step down at the end of the 2021-2022 academic year and return to full-time teaching as a member of the faculty.  The school will begin a dean search in the coming weeks.

Does College Football Have a Future?

The Academe Blog has my essay today about the looming decline of big-time college football.

The NCAA Business Model and the Inevitable Decline of College Football

Big-time college football is back, with all the tradition and pageantry, but the sport may soon face a well-deserved existential reckoning for two reasons—one physical and the other financial. First, parents may no longer allow their children to participate in youth and high school football, where the numbers have been declining for years. Even former Green Bay Packers quarterback Bret Favre says tackle football is too dangerous for children under fourteen, and nothing makes it any safer when kids get bigger and faster. As evidence of chronic traumatic encephalopathy continues to mount, more parents will steer their children to safer sports such as basketball and soccer.

There will always be high school students hoping for college scholarships, but that brings us to the second problem. Recent changes in the law, although aimed at ending the unjust exploitation of players, are likely to have the unintended effect of undermining the competitive balance in college football. That will ultimately reduce the number of teams and thus the number of scholarships, further diminishing football’s lure for aspiring students from all economic backgrounds.

Bowing to pressure from state legislatures and the courts, the NCAA has reluctantly suspended its “name, image and likeness rules for all incoming and current student-athletes,” meaning that top players can not only sell autographs and personalized jerseys—which they have always done under the table—but can also endorse products, businesses, and trading cards. That has been a bonanza for stars at high visibility programs such as Alabama and Ohio State, where quarterbacks have already signed seven-figure deals, but it won’t mean anything for offensive linemen at downstream programs. Even Stanford’s coach acknowledged that his top-tier university, with an endowment of almost $30 billion, will not be able to compete with Alabama for prospects.

The handful of schools that perennially contend for championships will have even greater rewards to dangle before high school recruits. What outstanding seventeen-year-old would turn down a guaranteed $1 million to play at, say, Georgia or Texas, in favor of an otherwise desirable spot at Kansas State or Purdue? Unlike the National Football League, there is no draft for college football, and thus no way to ensure even a minimal distribution of talent. The best players are already concentrated at the top programs. That is only going to intensify, especially if sponsors like shoe companies begin steering players to favored coaches and schools.

And the future is more fraught than that. In a unanimous decision formally limited to “education-related benefits, the US Supreme Court has given a strong indication that antitrust law will eventually apply across the board to college football. As Justice Kavanaugh explained in his powerful concurring opinion in NCAA v. Alston, “it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues.”

Touro Faculty Hiring Announcement

Touro College Jacob D. Fuchsberg Law Center Seeking to Fill

Two Tenure Track Positions in Torts and Business Organizations

The Touro College Jacob D. Fuchsberg Law Center is pleased to announce that it is currently seeking applicants for two tenure-track appointments to its full-time faculty starting in August 2022. The law school has a number of curricular needs, but is especially interested in candidates specialized in Torts or Business Organizations.

A candidate must have a J.D. degree from an ABA accredited law school and a commitment to teaching in an environment dedicated to excellence in teaching and mentoring of students. We look for innovative faculty with a preference for both practice and teaching experience. Applicants must demonstrate a commitment to service to legal education and to the wider community as well as a desire to engage in the intellectual life of the Law Center. With one of the most diverse student bodies in the country, Touro Law Center is dedicated to the aims of diversity and strongly encourages applications from women and minorities.

 Applicants are expected to be willing and capable of teaching in-person and remotely, and familiar with best practices in both modalities.

Touro Law Center, a member of the Association of American Law Schools (AALS), is part of the Touro College and University System. Established in 1970 to focus on higher education for the Jewish community, the Touro College and University System has grown to serve a widely diverse population of over 18,000 students across thirty-five schools. We are uniquely attuned to the importance of an education for students of all backgrounds and circumstances.

Located in beautiful and historic Long Island with its many beaches, coastlines, and parks, Touro Law Center has a unique location directly across the street from the federal and state courts, providing substantial opportunities for teaching and learning. Within the New York City metropolitan area, we are a train ride to the City and an even shorter train ride to JFK Airport.

If interested, please apply through the portal here, and send a copy of your Curriculum Vitae and a list of three references to Professor Jorge R. Roig at jroig@tourolaw.edu, Chair of the Faculty Appointments Committee.

Touro College is an equal opportunity employer.  Touro College treats all employees, job applicants, and students without unlawful consideration of race, religious creed, color, national origin, ancestry, sex (including pregnancy, childbirth or related medical condition), age, disability, medical condition, marital status, genetic information, sexual orientation, gender identity, gender expression, military service or veteran status, citizenship status, or any other classification protected by applicable federal, state or local laws.  We are committed to ensuring the fulfillment of this policy in all decisions, including but not limited to, recruitment, the administration of  educational programs and activities, hiring, compensation, training and apprenticeship, placement, promotion, upgrading, demotion, downgrading, transfer, layoff, suspension, expulsion and termination, and all other terms and conditions of admission, matriculation, and employment.

Why the 9/11 Trial is Taking so Long

I was recently asked to be interviewed by Fox News for a piece they were planning on running about the 9/11 military commission trial at Guantanamo. (I am a former Guantanamo military defense counsel and have published several articles on the commissions.)  I am sure there is not a lot of overlap between The Faculty Lounge's readership and Fox News viewership, so I'm sure very few, if any, TFL readers saw the piece. If you missed it, don't worry, you didn't miss too much.  Fox only used about a 10 second soundbite of my 20 minute interview.  However, they did weave a couple of other pieces of information that I provided into the story, and the overall piece is largely unobjectionable, if not exactly illuminating.   

As background information, the 9/11 defendants were first arraigned before the military commissions at Guantanamo in May 2008.  After significant pretrial motion hearings had taken place, those charges were later withdrawn during the Obama administration, as the Administration originally planned to transfer the defendants to be tried in federal court in New York.  However, after that plan ran into opposition, new military commission charges were sworn in 2011 and referred to trial in 2012.  So, the current case has been in pre-trial motions for the last 9 years.  I don't know if this is the longest period of pretrial motion practice in a criminal case in U.S. history, but it certainly has to be up there near the top.

Just in case any TFL readers are interested in this question, or might even want to discuss this question in class, here is my take on why the 9/11 trial is taking so long:

First and foremost: torture.  What should have happened when the 9/11 suspects were captured is that they should have been arrested by the FBI, and transferred to Federal Court to face terrorism charges.  Had this occurred, the trial likely could have taken place within a couple of years and these men would all have been convicted, likely sentenced to death and probably executed by now, as happened for example, with Timothy McVeigh, the Oklahoma City Bomber. But instead, the 9/11 co-conspirators, including the alleged mastermind, KSM, were taken to secret CIA black sites, or ghost prisons, where they were subjected for many months to torture before it was determined they had no more intelligence value, at which point these so called "High Value Detainees" were transferred to Guantanamo in 2006.

The fact that all 5 of the co-defendants were tortured has caused major obstacles and delays in bringing them to trial, as the Court has tried to work through motions relating to torture issues.  Some of these issues are evidentiary issues, include the admissibility and reliability of evidence obtained through coercive means, and whether subsequent self-incriminating statements made by the defendants after the active torture had ceased were untainted, or should be considered tainted derivative statements or fruit of the poisonous tree.

Another issue stemming from torture realties to the mental state of the defendants after being tortured and their ability to meaningfully assist the defense. In fact, there were originally 6 people charged, but charges were dropped against one co-defendant, Mohammed al Qatani, at least in part because he had been tortured so badly and suffered such severe mental health consequences that their were serious concerns about his mental fitness to stand trial.  The issue of torture has also been raised as a potential defense or mitigating factor related to the death penalty.  The defense has argued that, by torturing the defendants in violation of international law, the U.S. government has engaged in such outrageous conduct that it should be penalized by not being allowed to execute the persons that it previously tortured.  The 9/11 court has yet to rule on this issue.

Another issue is the high level of classification of all the information related to the CIA torture program.  The government has been extremely reluctant to provide information about the program and the black sites, information which the defense considers essential to its ability to have a fair trial.  There have been numerous lengthy battles over getting evidence declassified or otherwise getting defense counsel access to the classified evidence.

Another huge issue is logistics.  None of the prosecutors, defense lawyers and judges are stationed at Guantanamo. They, along with all of the court personnel, witnesses, interpreters and other court personnel have to be flown into Cuba for every single court-proceeding.  This requires coordinating the schedules of dozens of people -- including many civilian defense attorneys with busy private practices who have been brought in as learned death penalty counsel -- just in order to have a motion hearing.  It is impossible to have a quick status hearing or any other kind of short hearing to keep the process moving forward.  Transporting the entire prosecution and defense team to Guantanamo, along with the press, NGO human rights observers, and 9/11 family member spectators has proven to be a logistical nightmare.  And of course, the COVID-19 pandemic just complicated matters even further, causing multiple planned hearing dates to be cancelled or postponed.

Key personnel changes have also slowed down the military commissions.  The military commissions were originally envisioned to be prompt summary procedures entirely staffed by military personnel, but this kind of military commission with limited due process was rejected by the U.S. Supreme Court in Hamdan v. Rumsfeld.  Under the 2006 Military Commissions Act and 2009 amendments thereto, the military commission came to be more of a hybrid of court-martial and federal court procedures, with quite robust due process for the defendants.  As the original military commissions morphed into something else, almost all the military personnel involved had to be swapped out.  Military officers typically change assignments every two to three years, and, once they have served their initial military commitment, they are typically eligible to separate at any time.  And military officers can retire after 20 years of service.  Over the years, quite a few personnel, including judges, prosecutors and defense counsel, have been reassigned, honorably discharged or retired.  There have been 7 different judges involved in 9/11 pretrial hearings.  As the proceedings have dragged on for over a decade, some older civilian counsel have developed health issues and had to step down.  On top of that, in the early years of the commissions, several prosecutors resigned in protest over the intended use of tortured evidence.    Each time someone new has to be brought in as a replacement, it can take months for them to get the necessary security clearances and to review the vast amount of evidence and records from the case in order to get up to speed.  In the meantime, court proceedings typically grind to a halt. 

Another major factor slowing down these cases is the fact that the government is seeking the death penalty.  As we all know, death is different and capital cases are much lengthier than non-capital ones.  In capital cases, the defense counsel are obligated to raise every possible issue that could potentially result in sparing their client from the death penalty, no matter how farfetched or unlikely to succeed.  Because the military commissions are a completely invented court system with no prior precedent, each issue raised by the defense is an issue of first impression that the court has to address.  The fact that the defendants were all tortured to varying degrees is an issue that the defense has sought to raise in numerous ways to prevent their clients from being executed.

This is just a partial list of the factors that have slowed things down. There have also been self-inflicted wounds that have resulted in delays, such as revelations of government eavesdropping on defense counsel and the defendants that had to be investigated.  As a cumulative result of all of these issues, at this point, it appears that a trial is still multiple years away.

On the 20th anniversary of 9/11, it is almost unbelievable that none of the persons responsible have ever been held accountable in a court of law for their role in the worst terrorist attack in U.S. history.  For those who believe that justice delayed is justice denied, the inability of the U.S. to bring the alleged 9/11 co-conspirators to trial is a monumental failure and an affront to justice.

 

 

Hit the Road Jack

"Hit the Road Jack," written by Percy Mayfield, was a number one hit and Grammy winner for Ray Charles in 1961. (More Ray Charles at the bottom of this post.)

Tropical Trump and Regulating Speech

Brazil's embattled president, Jair Bolsonaro has temporarily banned social media companies from regulating content. The Tropic's Trump has long been compared to our former president, each with their jarring and controversial style, along with their often unfiltered conservative views. But Bolsonaro now goes a step further, after claiming the only way he loses next year's election is if the election is rigged. What does Jair do?  He takes steps to help ensure he can influence the narrative about himself and other political matters by passing his ban under the pretext to combat so-called "arbitrary removal" of accounts, profiles and content. 

This brash and dangerous measure is the first time a country has stopped internet companies from taking down content that violates their rules. We consequently now witness the dangers of unchecked power. Indeed, Bolsonaro's decree should remind us of the value of our First Amendment and the steps our Constitution takes to protect speech. Certainly, President Biden, especially the weeks after the Afghanistan exit, might have enjoined such an power. But it is not clear Biden would take such measures even if he had the power to do so. Trump on the other hand, with his obvious love for the media, would have likely enjoyed the power Bolsonaro is now exercising. Should Bolsonaro's effort cause us to pause? Duh??? Sadly, I am fairly confident such efforts will one day be part of our future. 

Call for Abstracts: The Future of Food

The Future of Food

CALL FOR ABSTRACTS

Business, Entrepreneurship, and Tax Law Review Symposium
at the University of Missouri School of Law

March 10 & 11, 2022

The Business, Entrepreneurship, and Tax Law Review will host a live symposium in March 2022 considering the future of food.  We invite scholars, industry, practitioners, policymakers, and other interested individuals to propose papers that consider law or public policy and the future of food, broadly speaking.  We will welcome proposals that consider any relevant bodies of law or policy (for instance, from international trade law to domestic patent law) and any problems or promises for the future (for instance, from food security to sustainability).  What lies ahead for food and the humans and animals that depend on it?  How might law and public policy play a role?  How should they?  Symposium papers — which may take the form of traditional law review articles or essays — will be published in the Business, Entrepreneurship, and Tax Law Review by the end of 2022.

• Abstracts should not exceed 750 words and should be submitted to mulawbet@missouri.edu by Thursday, September 30.
• On the basis of these abstracts, the symposium committee will select papers for presentation by Friday, October 8.
• Draft papers will be due to mulawbet@missouri.edu by Friday, February 25, and circulated amongst the speakers for discussion.
• After the symposium, on March 10 and 11, speakers may finalize their papers, which will be due to the journal on Friday, March 25. Essays should not exceed 10,000 words.  Articles should not exceed 20,000 words and may not exceed 25,000 words.

The Business, Entrepreneurship, and Tax Law Review is housed at the University of Missouri School of Law and is edited and managed by an editorial board of law students.  Professors Dennis Crouch and Erika Lietzan at the University of Missouri School of Law will serve as faculty advisors for this March 2022 symposium.