The Faculty Lounge

Honky Tonk Women

Thanksgiving

In addition to everything else, I am grateful for great writing, as in this passage i just read in Kevin Boyle’s The Shattering: America in the 1960s:

The headliners at the Trips Festival (San Francisco, January 1966) were “The Grateful Dead, fronted by that Garcia kid who used to hang around Kesey’s house; and Big Brother and the Holding Company, who could have used a better vocalist, if only one were available.”

[For those who are too young – or too old – to remember, Big Brother found a pretty good vocalist that June.]

Elon Law Seeks Dean

This just in:

Elon University School of Law (Elon Law), a forward-thinking law school based in Greensboro, North Carolina, and known for its pioneering blend of experiential learning and critical scholarship, seeks applications and nominations for the position of Dean of the School of Law.

Elon Law is the preeminent school for engaged and experiential learning in law. With a focus on learning by doing, it integrates traditional classroom instruction with a required, full-time (30+ hours/week) field placement for every student, known as a Residency-in-Practice. The law school’s distinctive curriculum provides a logically-sequenced program of professional preparation. Elon Law’s innovative curriculum is accomplished in 2.5 years, which provides exceptional value by lowering tuition and permitting graduates early entry into their careers.

Elon Law’s shorter academic program benefits students by substantially reducing their debt load, an attractive proposition for many prospective students drawn to the school’s trimester-based academic calendar. The law school has enjoyed significant increases in applications and enrollment in recent years when most other law schools experienced declines. In fall 2021, total enrollment reached a historic high of 429 students, driven by a record number of students matriculating in the Class of 2023.

Guided by its student-centered approach to legal education, Elon Law’s bar passage and post-graduate employment rates have seen consistent and significant increases since the implementation of the 2.5 year academic program. The increased bar passage rate has resulted from an investment in student success and undergirds the law school’s strong employment figures. Increased graduate employment rates are also attributable to Elon Law’s emphasis on experiential learning. The law school’s Residency-in-Practice Program ensures that students connect classroom learning with real-world practice. The Residency-in-Practice experience also provides students with insights that they bring back to the law school when they return to complete their studies.

Reporting to the Provost, the Dean will be a collaborative, transparent, and strategic leader who guides faculty, staff, students, and processes with empathy and integrity. With a track record of distinguished management and administration, this person must possess a deep commitment to student success, faculty teaching and scholarly engagement, and the organizational and leadership skills necessary to attract and retain human and financial resources. The ideal candidate should have a sophisticated understanding of the changing landscape in legal education and the practice of law, respect and appreciation for shared governance, fundraising experience, and a strong commitment to Elon law's role as an innovator in legal education.

The new Dean will need to lead the Elon Law community in a shared effort to create and execute a strategic vision that builds upon the existing foundation of innovative and successful programs to further distinguish the school in the modern legal education landscape. Elon Law's faculty, staff, students, alumni, Provost, and President are eager to work with a leader who is energetic, creative, supportive, and able to inspire the law school's diverse and highly engaged community. The new Dean must bring a demonstrated passionate commitment in their professional life to diversity, equity and inclusion and be eager to promote its advantages to a variety of constituents. The new Dean will be expected to maintain and nourish close relationships with the Elon Law alumni and donor community to enhance current sources of revenue for the school while also identifying potential new ones. For more information, please visit www.wittkieffer.com.

The successful candidate will offer a proven record in management or administration suitable for appointment as Dean. The successful candidate will, at a minimum, possess a J.D. degree or its equivalent, and will have an outstanding record of academic and professional accomplishment.  In addition, the successful candidate will demonstrate a commitment to inclusive excellence, as well as service to the legal profession and the public.

WittKieffer is assisting Elon in this search. Application materials can be submitted through WittKieffer’s candidate portal or by sending to the email below. Review of candidate materials will continue until the position is filled, with priority given to applications received by January 14, 2022. Confidential nominations and inquiries can be directed to Lucy Leske, Werner Boel, LL.M. and Ashlee Winters at ElonLawDean@wittkieffer.com.

Elon University values and celebrates the diverse backgrounds, cultures, experiences and perspectives of our community members. We embrace diversity in its broadest sense, including, but not limited to, diversity of age, disability, ethnicity, gender, gender identity, nationality, race, religion, sexual orientation, socioeconomic standing and intellectual viewpoint.

All members of the Elon community have a shared responsibility to act deliberately toward equitable outcomes. Inclusive Excellence is Elon’s framing of diversity, equity, inclusion, and other constructs that support belonging and well-being, resulting in the creation of a community where people strive to dismantle oppression and where individuals flourish.

Camille Carey Named Dean of UNM Law

The University of New Mexico School of Law has announced that Camille Carey, Vice Dean and Associate Dean for Academic Affairs at UNM Law, will become its next dean.  Carey, who holds a JD from UCLA, will take over on July 1, 2022.

Morse Tan Named Dean of Liberty University Law

NNorthern Illinois University Professor Morse Hyun Myung Tan has been named the new dean of Liberty University School of Law beginning on January 1, 2022. He holds a JD from Northwestern.

Trump's Executive Privilege Claim Will Fail

This essay of mine in The Hill explains why former President Trump’s executive privilege claim will not prevent the House Select Committee from obtaining White House documents relevant to the January 6 insurrection. Here is the gist:

Trump is learning what executive privilege really means

By Steven Lubet, Opinion Contributor — 11/17/21 12:00 PM EST  

Executive privilege is not absolute, even for sitting presidents. As the U.S. Supreme Court held in a case involving former President Nixon, the privilege can be “overcome by an appropriate showing of public need by the judicial or legislative branch.”

Trump’s lawyers object to Biden’s authority, however, arguing that “weakening executive privilege by allowing it to expire with a president’s term of office makes no more sense than allowing the attorney-client privilege to terminate at the end of a representation.” Trump’s legal team has the right analogy, but their conclusion is dead wrong.

It is black letter law that the corporate attorney-client privilege exists for the benefit of the company itself, and does not belong to any particular corporate officer. Although a CEO may speak in confidence to corporate counsel, seeking advice on sensitive or even potentially criminal matters, it is always up to the corporation, acting through its currently “authorized constituents,” to decide whether to disclose the content of such communications to law enforcement or other outside agencies.

In technical legal terms, it would be totally nuts to allow ex-CEOs to determine the breadth of investigations into their own misconduct. Thus, the privilege is held by the institution for whose benefit it presently exists, to be exercised or relinquished by current executives rather than the former office-holders whose communications or documents are at issue. 

You can read the entire essay on The Hill.

Buddy Guy

George "Buddy" Guy was born in Louisiana in 1936. He moved to Chicago in 1957, where he became a mainstay in the South Side blues scene. He was the house guitarist for Muddy Waters. He later formed a band with Junior Wells as the front man. He also recorded a seminal album with the pianist Memphis Slim. Guy was a session man for Chess Records in the 1960s and 1970s, backing artists such as Howlin' Wolf, Little Walter, and Sonny Boy Williamson. Because of his contractual arrangement with Chess, he sometimes performed and recorded under the pseudonym Friendly Chap, which fooled nobody. Blues fans in Chicago were well aware of Guy in the 1960s, and he was certainly recognized as a brilliant guitarist by leading rock musicians, but he did not come into his own as a solo artist until the 1980s. There is no doubt that Buddy Guy is one of the greatest electric guitarists of all time, ranking number 23 on Rolling Stone's list. He continues to perform as the sole surviving member of the original electric Chicago blues generation. (Don't miss a special guest performer at the bottom of this post.)

What Does "Both Houses" Mean? [UPDATED][UPDATED][UPDATED]

Eugene Volokh offers a hypothetical question on the Volokh Conspiracy: What would happen if Kamala Harris resigned from the vice presidency? In the case of such a vacancy, the Constitution provides:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Eugene suggests that the 50-50 Senate would have no way of breaking ties, the VP having created a vacancy, and that Republicans could therefore block any replacement nominated by President Biden. They might not want to do that because a permanent vacancy would leave Nancy Pelosi second in line to the elderly Biden. Then again, Mitch McConnell might just want to thwart anything on Biden's agenda.

But wait a minute. Eugene is assuming that the House and Senate would have to vote separately. If so, wouldn't the Constitution say "confirmation by each House of Congress"? In plain meaning, the word "both" usually indicates joint action, while "each" can indicate similar actions occurring separately. My brother and I both grew up in Chicago. My cousins each graduated from their respective colleges in the 1970s.

If you don't believe me, take a look at Article II, Section 3, regarding the presidency and the state of the Union, which draws a distinction between convening "both" houses and convening them separately:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them. . . .

Congress has historically met in joint session for the State of the Union address. Yes, Gerald Ford was confirmed as vice president by the House and Senate meeting separately, but that doesn't mean the separate sessions were constitutionally required. In any case, there has been only one vice presidential confirmation interpreting the Twenty-Fifth Amendment, but there have been 98 joint sessions -- before "both Houses" -- to receive the State of the Union address under Article II.

I will grant that Article V appears to the contrary, using "both" to describe separate votes:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. . . .

If Harris were actually to resign, which is obviously astonishingly unlikely, what would happen if Speaker Pelosi were to call a joint session of both houses of Congress? The vote in favor of Biden's nominee would pass by something like 275 - 265 (or maybe slightly more if some of the pro-impeachment Republicans vote with the Democrats). Would that be sufficient to confirm a new vice president? Would the vote be reviewable by the courts? (Note: if partisan gerrymandering is a non-justiciable political question, surely the confirmation of a vice president ought to be as well.)

One thing is certain. Eugene Volokh and I both think it is an interesting question.

UPDATE:  Sorry, I forgot about the Rockefeller confirmation. Same circumstances apply.

UPDATE: The Ford and Rockefeller votes are precedents for one way to comply with the Twenty-Fifth Amendment, but that does not make it the only way. Article II specifically gives the president the power on "extraordinary occasions" to convene a joint session. In the absence of a vice president, a 50-50 senate would have no way to elect a president pro tempore, and there would therefore be no convening officer. Wouldn't that be a sufficiently "extraordinary occasion," given that it has never happened before, for the president to convene a joint session?

UPDATE: A further thought: The Constitution provides for presidential resignation but does not say how it is to be effected. President Nixon resigned by sending a letter to Secretary of State Henry Kissinger. Was that the only way he could have resigned? Must future resignations follow Nixon’s precedent, or could a president send the resignation to the chief justice or the speaker of the house, or announce it on Twitter? (Spiro Agnew also resigned by letter to Kissinger, but I don't think anyone would look to Agnew as a constitutional authority; I don’t know how John C. Calhoun resigned.)

UPDATE: Just to make sure everyone gets the point:  "A majority vote" is a singular noun. By plain reading, it describes one vote of both houses of Congress. The language for separate voting would have been something like "majority votes" or "a majority vote in each house." Article I, Sections 5 and 7, do refer to separate voting multiple times. The Twenty Fifth Amendment does not.

Resources for New and Aspiring Administrative Law Scholars

Chris Walker (Ohio State) has some great suggestions here on Twitter that he developed in more detail in a post (here) for Notice & Comment, a blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice.

Northern Illinois Hiring Announcement - Clinical Professor of Law/Business Innovation and Economic Legal Development Clinic

NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW invites applications for an opening for an Assistant Clinical Professor of Law who will serve as Director of our new Business Innovation and Economic Development Legal Clinic. The incumbent will collaborate with the university’s College of Business. The ideal start date will be May 1, 2022, but may be later if circumstances warrant.

NIU Law is a public law school. It resides at the heart of a diverse and active university campus of over 17,000 students in DeKalb, Illinois, located on the western edge of the Chicago metropolitan area.

The Business Innovation and Economic Development Legal Clinic will provide legal assistance both to not-for-profit organizations and to entrepreneurs and small business owners from underrepresented communities. The Clinic will assist students from the NIU College of Business in entrepreneurial ventures and will represent business owners from DeKalb and surrounding communities.

Legal responsibilities of the Director will include assisting businesses with Business Enterprise Certifications, and may also include helping with incorporation, business contracts, non-profit formation, and intellectual property needs. The position will require travel to surrounding communities to engage in outreach.

The Director of the clinic will teach a law clinic seminar course each semester, will supervise clinic students, and will also work in partnership with the College of Business to develop and deliver programming that meets the demand of the marketplace. This may include teaching a summer course and/or creating content for revenue generating workshops hosted by the business school. The Director will also be responsible for developing and maintaining partnerships between the University and its surrounding communities, leading workshops, writing grant proposals, and serving on law school committees.

This is a full-time clinical faculty position within the law school, leading to the possibility of a presumptively renewable six-year contract. Clinical faculty members at NIU participate in faculty governance, excluding decisions related to the hiring, retention and promotion of doctrinal tenure-track faculty.

The Director of the Business Innovation and Economic Development Legal Clinic will report directly to the law school’s Director of Clinics, will work closely with the Dean and faculty at the College of Law on the development of the clinic, and will work in partnership with the Dean of the College of Business.

Widener Delaware Law Seeks Two Faculty

This just in:

WIDENER UNIVERSITY DELAWARE LAW SCHOOL in Wilmington, Delaware, seeks to hire two full-time, tenure-track faculty members beginning with the 2022-2023 academic year.  

Qualified candidates will have strong academic credentials, including at least a J.D. degree or its equivalent.  Candidates should demonstrate evidence of and potential for outstanding scholarly achievement and strong, innovative and engaged teaching.  We welcome applications from candidates who approach scholarship from a variety of perspectives and methods.  The University embraces diversity among our faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Criminal Law/Evidence Position:  

Criminal Law/Criminal Procedure/Evidence Position: 

One position is for a full-time, tenure-track faculty member to teach Criminal Law, Criminal Procedure, Evidence and related courses. 

First Year & Second Year Required Courses: Civil Procedure/Torts/Property Position:  

A second position is to hire a full-time, tenure-track faculty member to teach first and second year required courses as part of a teaching package, especially in the areas of Civil Procedure, Torts and Property Law.  

As the only law school in Delaware, Delaware Law School offers its faculty, students, and staff unique opportunities to engage with and have an impact on the legal, political, and social culture of the State.  Delaware attracts students from all over the nation and the world with its unparalleled legal community, its beautiful natural setting, and its ideal location between New York, Philadelphia, and Washington D.C.  Delaware Law students also benefit from the support of a dedicated and collegial faculty and support staff who are fully committed to student success and achievement.  In addition to the JD program, we offer LLM and SJD degrees in a variety of areas.  For more information, please visit our website at https://delawarelaw.widener.edu/.

Widener University has a strategic commitment to building an inclusive university community whose diversity enriches the lives of all members and where our students are prepared for living in a pluralistic and ever-changing world.  As a leading metropolitan university, Widener strives to embody the values that are inherent in our mission: civic engagement, access, inclusion, academic excellence, innovation and leadership.

Widener University, an independent, metropolitan, doctoral-intensive university, connects curricula to social issues through civic engagement.  Dynamic teaching, active scholarship, personal attention and experiential learning are key components of the Widener Experience.  Located in Chester, PA, Widener's main campus is nestled between Philadelphia, PA and Wilmington, DE, with Law Schools located in both Harrisburg, PA and Wilmington, DE.  For more information about the university, please visit our website at www.widener.edu.

Please submit a letter of interest and a CV, as well as three references, to Professor Serena Williams, Chair of the Search Committee, as a single pdf at widener.edu/employment.  Please indicate which position you are interested in, either “Criminal Law Position” or “Civil Procedure/Torts/Property Position.”  Individuals who desire accommodations in the application process should include relevant information in their email.  Widener University is an equal opportunity employer.  Applications will be reviewed on a rolling basis until the position is filled.  Only those selected to interview will be contacted.  We look forward to receiving and reviewing your application.