The Faculty Lounge

Rosh HaShana

 

 

Taboo Trades Podcast: Indentured Servitude, Specific Performance, and the Thirteenth Amendment with Nate Oman

In this episode, we continue our discussion with Nathan B. Oman, the W. Taylor Reveley III Research Professor and Co-Director of the Center for the Study of Law and Markets at William & Mary School of Law. Nate specializes in Contract Law, the Economic Analysis of Law, Jurisprudence, Law and Religion, and Legal History. Today, we’re discussing his 2009 article, Specific Performance and the Thirteenth Amendment, published in the Minnesota Law Review.

As I mentioned in episode 1, the article first came to my attention this summer, when the internet erupted with suggestions that the specific performance clause in the Elon Musk (more precisely, X Holdings) merger agreement with Twitter wasn’t enforceable because of the 13^th Amendment. As you heard in our last episode, Nate strongly disagrees with that take.

I’ve split my discussion with Nate into two parts. In Episode 1, largely driven by questions from UVA Law 3Ls Bridget Boyd and Jenn Scoler, we discussed the Musk-Twitter litigation and the various provisions of the merger agreement, including the specific performance provision and the termination fee. In this episode, we delve more deeply into Nate’s analysis of the scope of the 13^th amendment’s prohibition against indentured servitude and its relation to the specific performance of personal service contracts. As always, we spend some time on examples from the world of sports . . . because hey, we’re in Virginia.

 

 

Links:

Nathan B. Oman faculty bio https://law2.wm.edu/faculty/bios/fulltime/nboman.php

 

Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020 (2009). https://www.minnesotalawreview.org/wp-content/uploads/2012/01/Oman_MLR.pdf

 

Amendment and Plan of Merger by and among X Holdings I, Inc., X Holdings II, Inc. and Twitter, Inc. dated as of April 25, 2022 https://kimberlydkrawiec.org/wp-content/uploads/2022/09/Musk-Twitter-Agreement.pdf

North Carolina Central University (NCCU) invites applications and nominations for the position of Dean of the School of Law

North Carolina Central University (NCCU) invites applications and nominations for the position of Dean of the School of Law. The Dean will work closely with the Provost and Vice Chancellor for Academic Affairs, and other deans and academic leaders, under the overall University leadership of Chancellor Dr. Johnson O. Akinleye.

North Carolina Central University is a top-ranking historically black university founded in 1910 in Durham, North Carolina, by pharmacist and religious educator Dr. James E. Shepard. The university serves as a hub for intellectual dialogue and discourse and a source of academic distinction and game-changing innovation for North Carolina, the United States and the world.

The next Dean of NCCU School of Law must be someone with vision, tenacity, and a heart dedicated to service. The next Dean must possess an entrepreneurial and innovative mindset that embraces “grit,” because while the landscape for the practice and teaching of law is undergoing dramatic change, the need for well trained, practice ready lawyers continues to be critical in underserved communities. Of equal importance, the next Dean must understand, promote, and advocate for the Law School’s founding mission, providing an opportunity for an outstanding legal education to those who continue to be underrepresented in the legal profession because of their ethnicity, gender, or the communities from which they come.

Battle Hymn of the Republic

On September 22, 1862, President Abraham Lincoln issued the Preliminary Emancipation Proclamation, declaring that as of January 1, 1863, all enslaved people in the states then engaged in rebellion against the Union “shall be then, thenceforward, and forever free.” It was the beginning of the end of the Confederacy's treason in defense of slavery. 

Julia Ward Howe's lyrics to "Battle Hymn of the Republic" had already been published in The Atlantic in February 1862, including this verse:

In the beauty of the lilies Christ was born across the sea/

With a glory in his bosom that transfigures you and me.

As he died to make men holy/Let us die to make men free/

While God is marching on.

The song was set to the tune of “John Brown’s Body,” which was more than appropriate, given that the lyricist was married to Samuel Gridley Howe, one of the Secret Six who had funded John Brown’s attempt to free the enslaved people of Virginia at Harpers Ferry.

Although revisionists have repeatedly attempted to recast the Civil War as a struggle over states’ rights, it was evident almost from the beginning that it was ultimately a battle to end slavery.

Many contemporary artists challenge us to "live to make men free," but that does not change the poignancy of Union soldiers marching to battle willing to die for the cause of freedom.

UCLA School of Law Seeks Dean

This just in:

The University of California, Los Angeles (UCLA) invites inquiries, nominations and applications for the position of Dean of the UCLA School of Law.

Founded in 1949, the UCLA School of Law is one of the youngest top-ranked law schools in the United States and is committed to advancing the field of law through strong traditions of excellence in teaching, curricular innovation, influential scholarship and public engagement. One of UCLA’s 12 professional schools, the law school has approximately 200 full-time and part-time faculty (of whom 70 are tenure track) who teach approximately 1,400 students enrolled in Juris Doctor (J.D.), Master of Laws (LL.M.), Master of Legal Studies (M.L.S.) and Doctor of Juridical Science (S.J.D.) programs. The school houses a wide array of centers and institutes in such areas as business law, climate change, entertainment law, human rights, immigration law and policy, international and comparative law, reproductive health, technology law and policy, and sexual orientation and gender identity law. The school offers academic specializations in business law and policy; critical race studies; environmental law; international and comparative law; media, entertainment and technology law; law and philosophy; and public interest law and policy. Eight concurrent degree programs allow students to pursue a J.D. along with a degree in African American studies, American Indian studies, management, philosophy, public health, public policy, social welfare and urban planning. UCLA Law faculty are recognized worldwide for their contributions to scholarship, teaching and law reform in a broad spectrum of fields that have significant societal impact — including constitutional law, civil rights and critical race studies, environmental law and policy, criminal law, corporate law, public interest law, immigration law, international law and intellectual property.

 

SMU Dedman School of Law Seeks Multiple Faculty

This just in:

SMU Dedman School of Law is hiring several faculty members this year.  We seek faculty who will teach contracts, property, or professional responsibility. In addition to teaching one or more of these required courses, faculty may teach and write in the areas of intellectual property, artificial intelligence, data science, environmental and energy law, business, commercial and corporation law, labor and employment law, international law, or a wide variety of other areas. 

For details about how to apply, please see the position advertisement below. If you have any additional questions, please contact the chair of our appointments committee Jeff Kahn (jkahn@smu.edu). 

THE SMU DEDMAN SCHOOL OF LAW is seeking applications from qualified persons for tenure-track faculty positions to begin Fall of 2023.  We are seeking candidates with expertise in Property, Contracts, and Professional Responsibility (PR).  We will consider both experienced and beginning teachers with excellent legal credentials and scholarly distinction or promise.  Candidates must hold a J.D.  To ensure full consideration for the positions, applications must be received by October 1, 2022, but the committee will continue to accept applications until the positions are filled.

Applications need to be submitted here: http://apply.interfolio.com/110620.   Reference Position No. and (Area of Law) in which you are applying:  #6285 (Contracts), #6008 (Property) or #5719 (PR).

Southern Methodist University (SMU) will not discriminate in any employment practice, education program, education activity, or admissions on the basis of race, color, religion, national origin, sex, age, disability, genetic information, or veteran status. SMU's commitment to equal opportunity includes nondiscrimination on the basis of sexual orientation and gender identity and expression. The Executive Director for Access and Equity/Title IX Coordinator is designated to handle inquiries regarding the nondiscrimination policies, including the prohibition of sex discrimination under Title IX. The Executive Director/Title IX Coordinator may be reached at the Perkins Administration Building, Room 204, 6425 Boaz Lane, Dallas, TX 75205, 214-768-3601, accessequity@smu.edu. Inquiries regarding the application of Title IX may also be directed to the Assistant Secretary for Civil Rights of the U.S. Department of Education.  Hiring is contingent upon the satisfactory completion of a background check.

Nina Totenberg's Conflict of Interest

My new essay, now posted at The Hill, addresses Nina Totenberg’s unacknowledged conflict of interest in covering the Supreme Court, as revealed in her new memoir Dinners with Ruth.

Here is the gist:

The Hill

Nina Totenberg’s conflict of interest

by Steven Lubet, Opinion Contributor - 09/21/22 10:30 AM ET

Nina Totenberg’s new memoir, “Dinners with Ruth: A Memoir on the Power of Friendships,” is the beautifully touching story of an enduring friendship between two exceptional women. Ruth, of course, is the late Supreme Court Justice Ruth Bader Ginsburg, whose relationship with National Public Radio (NPR) reporter Totenberg began in 1971, long before either woman achieved national prominence. It continued, often over dinner, until Ginsburg’s death in 2020. The barely acknowledged subtext in the book is a conflict of interest between Totenberg’s obligations as a reporter and devotion to her friend.

It was the sort of relationship that objective journalists do not maintain with the subjects of their reporting, but Totenberg shrugs it off.

In the summer before the 2016 presidential election, Ginsburg made several disparaging statements about then-candidate Donald Trump, calling him a “faker” and suggesting that she would move to New Zealand if he were elected.

Totenberg was scheduled to interview Ginsburg a few days later. Following her “usual practice,” she told the justice that “I was going to ask her about what she had said.”

Ginsburg was dismayed. “Oh, please don’t do that,” she asked. Totenberg held firm. “That’s my job,” she explained.

Totenberg did not raise the ethics issue, suggesting instead that the justice had merely “goofed.” Even that was too much for Ginsburg. “It’s over and done with, and I don’t want to discuss it anymore.”  

Totenberg accepted the stonewalling. The obvious next question – to anyone not tiptoeing around a friend’s embarrassment – was whether Ginsburg would recuse herself from cases challenging the election. That would have put Ginsburg on the spot – and any answer would have been extremely meaningful in light of later events – but Totenberg let it drop.

As a decades-long NPR listener, I have always been an admirer of Totenberg’s work. But after reading “Dinners with Ruth,” l wonder which secrets were kept, which questions went unasked and what stories a more objective journalist might have reported.

You can read the entire essay at The Hill, including additional details of Totenberg’s favorable reporting (and comparisons to Antonin Scalia and Clarence Thomas).

Touro Law Seeks Multiple Faculty

This just in:

The Touro University Jacob D. Fuchsberg Law Center is pleased to announce that it is currently seeking applicants for the following vacancies:

• a lateral appointment to a tenured or tenure-track position as Distinguished Professor of Health Law and Policy. We understand the field of Health Law and Policy to broadly include legal and policy issues associated with health care delivery and regulation, health care financing, the responsibilities of health care professionals to patients, bioethics, public health, and the regulation of pharmaceuticals. Touro University is a national leader in higher education in medical and health sciences, producing the fastest growing number of graduates in medical, health, and pharmaceutical fields, and in leading research in these fields. The Distinguished Professor of Health Law and Policy will develop and serve as the founding director of an interdisciplinary Institute that builds and fosters collaboration between the Law Center and Touro’s constituent colleges and schools in the medical, pharmaceutical, and health sciences fields. A requirement of the position is that the applicant have a substantial record of scholarship and a commitment to continued leadership in scholarship in the health law field. You can apply for this vacancy here.
• Specialized tenured or tenure-track clinic faculty appointment to direct our Immigration Law Clinic. Candidates must have a commitment to teaching in an environment dedicated to excellence in teaching and mentoring of students. We seek candidates with a commitment to justice and a record of or interest in clinic pedagogy, and will consider both lateral and entry level applicants. The position requires experience in the practice of immigration law with the ability to develop clinical teaching skills or significant clinical teaching experience in other fields with the ability to apply that experience to an immigration law clinic. Touro's Immigration Law Clinic has, in recent years, provided successful representation to Suffolk County immigrants in venues from Suffolk Family Court to the Court of Appeals for the Second Circuit. The clinical program is an integrated law office and we often collaborate between clinics on cases. It is expected that the Immigration Clinic will not have an existing case load and we invite candidates to share their own vision for the clinic and how it can achieve the program’s dual goals of social justice in client work and education of law students.  You can apply for this vacancy here.

LMU Law Seeks Assistant Professor of Law in its Academic and Bar Success Program

This just in:

Lincoln Memorial University Duncan School of Law (LMU Law) is seeking to hire an Assistant Professor of Law in its Academic and Bar Success Program to begin as early as January 1, 2023, but no later than July 1, 2023. LMU Law’s Academic and Bar Success Program is designed to benefit all students by enabling them to succeed throughout law school, preparing them to pass the bar exam, and equipping them to practice law at the highest levels. As one of four full-time faculty members in the department, the Assistant Professor will teach courses designed to introduce, reinforce, and develop skills to enable students to be successful in law school and beyond. Academic and Bar Success faculty also work with students one-on-one to provide individualized instruction and coaching, as well as teach courses outside of the Academic and Bar Success Program as resources allow.

This is a non-tenure-track faculty position with a presumptively renewable twelve-month contract. The position includes future eligibility to apply for a long-term contract and governance rights as to all matters except hiring and promotion of tenured and tenure-track faculty. LMU prioritizes diversity, equity, and inclusion and strongly encourages applications from members of underrepresented groups, particularly those related to race and ethnicity.

Requirements for the position include a J.D. degree; bar membership in any U.S. jurisdiction (can be inactive); demonstrated ability to devise, coordinate, and implement innovative programming; teaching experience with adult learners; effective presentation skills in both small-group and large-class settings; knowledge of learning and teaching strategies for law students; experience working with, and demonstrated commitment to supporting, diverse populations;  and dedication to LMU Law’s  mission. The preferred candidate will have a personal record of strong academic achievement; experience working with law students, inside and outside the classroom, to improve their academic and bar exam performance; and experience or demonstrated interest in data collection, data management, and basic statistics.

LMU Law was founded in 2009, is fully accredited by the ABA, and has consistently maintained high first-time and ultimate bar passage rates. We are a student-centered institution with the mission of improving access to the legal profession and legal services in Southern Appalachia and other underserved regions. LMU Law has a rigorous, practice-focused curriculum that is designed to emphasize student learning outcomes and ensure that students have the knowledge and skills needed to make positive contributions to their communities as lawyers and leaders.

Inquiries may be sent to the Faculty Recruitment Chair, Stevie Swanson, at stevie.swanson@lmunet.edu. For more information about LMU Law, see https://www.lmunet.edu/duncan-school-of-law/index.php.

Taboo Trades Podcast: Specific Performance, Twitter, and Elon Musk with Nate Oman

In this episode, UVA Law 3Ls Bridget Boyd and Jenn Scoler join me to interview Nathan B. Oman, the W. Taylor Reveley III Research Professor and Co-Director of the Center for the Study of Law and Markets at William & Mary School of Law. Nate specializes in Contract Law, the Economic Analysis of Law, Jurisprudence, Law and Religion, and Legal History. Today, we’re discussing his 2009 article, Specific Performance and the Thirteenth Amendment, published in the Minnesota Law Review.

The article first came to my attention this summer, when the internet erupted with suggestions that the specific performance clause in the Elon Musk (more precisely, X Holdings) merger agreement with Twitter wasn’t enforceable because of the 13^thAmendment. As you’ll hear in this episode, Nate is having none of that.

I’ve split my discussion with Nate into two parts. In this Part, largely driven by questions from Bridget and Jenn, we discuss the Musk-Twitter litigation and the various provisions of the merger agreement, including the specific performance provision and the termination fee. If you’re covering that litigation in class this year, in my completely and wholly unbiased view :-), the episode makes a really nice introduction for students to some of the issues.

 

 

Links:

Nathan B. Oman faculty bio https://law2.wm.edu/faculty/bios/fulltime/nboman.php

 

Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020 (2009). https://www.minnesotalawreview.org/wp-content/uploads/2012/01/Oman_MLR.pdf

 

Amendment and Plan of Merger by and among X Holdings I, Inc., X Holdings II, Inc. and Twitter, Inc. dated as of April 25, 2022 https://kimberlydkrawiec.org/wp-content/uploads/2022/09/Musk-Twitter-Agreement.pdf

Taboo Trades Returns for Season 3

Welcome to Season 3 of the Taboo Trades podcast! Hear more about this year's topics and guests and listen to UVA Law students introduce themselves and talk about why they're taking time out of their busy law school schedules to produce this podcast with me.

This year's co-hosts are: Bryan Blaylock, Bridget Boyd, Makenna Cherry, Reider Compasano, Ryan Fitzgerald, Rahima Ghafoori, Caroline Gozigian, Marley Peters, Meghana Puchalapalli, Jennifer Scoler, and Mary Talkington