The Faculty Lounge

The Fragility of Academic Freedom

I have a new column up on the Hill, about increasing threats to academic freedom in the U.S. Here is the gist:

THE HILL

 The fragility of academic freedom

 BY STEVEN LUBET, OPINION CONTRIBUTOR — 12/01/21

 “Educational gag orders” have become distressingly common across the country, as too many university administrations claim to support academic freedom while weakening it in practice.

At the University of Florida, three political science professors were recently denied permission to provide expert testimony in a lawsuit challenging the state’s restrictive voting law. In an initial ruling from university administrators, the faculty members were barred from testifying because a “conflict of interest to the executive branch of the State of Florida create[s] a conflict for the University of Florida.” Under that diktat, the results of faculty research were effectively suppressed – by prohibition from presentation in a courtroom – because they are contrary to the current governor’s political views.

Florida is not the only state where academic freedom is on increasingly shaky ground. Administrators at the University of Texas have ordered researchers to suspend recruiting subjects for a study on the effectiveness of anti-racism training for white children. The project planned to involve up to 200 pairs of white-identified children – ages four or five, and not yet in kindergarten – along with their caregivers, who would watch professionally produced videos and follow discussion guides. It was approved by the university’s institutional review board and passed a peer review process for internal funding.

In other words, one over-hyped complaint, magnified on various websites, and the extraordinarily unlikely prospect of OCR intervention, were sufficient to disrupt previously approved faculty research that the administration should always have defended.

You can read the entire column here (not paywalled).

Idaho Law Seeks Clinical Professor

This just in:

The University of Idaho College of Law seeks a clinical professor to teach the College’s legal writing & analysis (LWA) course on a full-time basis at its Boise, Idaho location. The position is an academic-year appointment with faculty voting rights and associated faculty governance responsibilities. The successful candidate may be hired at the assistant, associate, or full professor level, depending on experience.

The LWA course is a two semester, five credit, required first year course. The successful candidate will be an integral part of the legal writing faculty team, responsible for teaching up to two sections of LWA and working collaboratively with the other LWA faculty members to develop the course curriculum and major writing assignments. The successful candidate may also (1) teach an additional course depending on areas of interest and the College’s curricular needs, or (2) help coordinate the College’s upper-level Advanced Advocacy course.

As a land grant law school, the College is committed to public service and to providing an accessible, high-quality education in an inclusive environment. The College offers outstanding law programs in two locations:  one in Moscow, on the University of Idaho’s main campus, and one in Boise, which is Idaho’s capital and its hub of economic and government activity. The law school’s new Boise campus at 501 W. Front Street is situated near the Idaho State Capitol, Idaho Supreme Court and Idaho State Bar. The College’s Boise location also houses the Idaho State Law Library, which provides attorneys, judges, students and the public access to a vast array of legal research tools.

Boise, Idaho is one of the fastest-growing and most livable cities in the country. Nestled in the foothills of the Rocky Mountains, Boise has numerous options for outdoor recreation. The city also has a rich and dynamic downtown area with first-rate shopping, dining, and entertainment.

The University of Idaho is an equal opportunity and affirmative action employer committed to assembling a diverse, broadly trained faculty and staff. Women, minorities, people with disabilities, and veterans are strongly encouraged to apply.

Applicants must provide a letter of qualification, resume or CV, inclusion statement, three references, and an 8–12 page writing sample demonstrating legal analysis. Interested candidates should apply online at https://uidaho.peopleadmin.com/postings/33842. Please direct questions regarding this opportunity to Professor Rachelle West, LWA Hiring Committee Chair, at rketchum@uidaho.edu.

The Trials of Rasmea Odeh -- Published Today

Today is the official publication of my new book, The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.

On February 21, 1969, a bomb exploded in the largest supermarket in Jerusalem. The blast killed two and injured many more, triggering an intense search for the terrorists behind the plot. Israeli security forces quickly apprehended, tortured, tried, and eventually convicted twenty-one-year-old Palestinian Rasmea Odeh for murder. Twenty-five years later, however, Odeh was not serving a life sentence in an Israeli prison but instead starting a new life in the United States, first in Detroit and later in Chicago, eventually becoming a naturalized citizen and working as a community organizer. Her arrest by U.S. federal authorities in 2013 on charges of unlawful procurement of citizenship and subsequent trial ignited defenders and detractors, even as the facts of the case, the previous conviction, and those of Odeh’s life were obscured or ignored.

Based on extensive research, The Trials of Rasmea Odeh separates fact from fiction as it follows the remarkable twists of this story, even―or especially―where those facts subvert one political narrative or another. The result is that rare book that is both an extraordinary achievement of scholarly research and a gripping, accessible, and engaging narrative, making it an invaluable resource for discussion of the issues of citizenship, statehood, and the limits of legality this story engages.

Here are some of the advance comments:

The Trials of Rasmea Odeh weaves together an intricate historical and legal account of Middle Eastern conflict and U.S. denaturalization. Rasmea Odeh's story, told with nuance and in crisp prose, grips the reader every bit as much as a fictional thriller would. A highly informative and fascinating book of great value to scholars and general readers alike. --Irina Manta, author of Maurice A. Deane School of Law at Hofstra University

Professor Lubet takes no shortcuts with this book, unflinchingly examining the record of Odeh's life ... Professor Lubet is able to explain the underlying law and legal strategy in a way that is clear and comprehensible without losing any technical nuance. He brings the courtroom alive to the reader, showing how both political and legal strategies influenced how the case was litigated. [It] is beautifully written and will be of interest to a wide audience. --Cassandra Burke Robertson, John Deaver Drinko--Baker Hostetler Professor of Law and Director, Center for Professional Ethics, Case Western Reserve University School of Law

What an exemplary gem of scholarship. Combining thorough inquiry with critical empathy, Lubet has written a superb classic that young scholars whatever their field will benefit from reading. The Trials of Rasmea Odeh is truly one of the most impressive books I've ever read. --David J. Garrow, Pulitzer Prize-winning author of Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference and Rising Star: The Making of Barack Obama

 

Another Reason That Employees Need Unions

This is from Slate's workplace advice column:

Dear Direct Report,

My office announced it’s closing for the week between Christmas and New Year’s, since so many people take time off then anyway. Great! But then they announced that we’ll need to use our PTO for that week, even if we were otherwise planning to work. That makes no sense to me! If we were ready and willing to work, why should we lose vacation time just because the office decided to close? Our unused vacation time rolls over to the next year, so this means we’ll have a week less to use next year than we had counted on having. Is this even legal?

—Fuming

Dear Fuming,

It’s legal, but it’s a bad policy. Unfortunately, it’s not an uncommon policy; a lot of offices that close that week handle holiday closures the same way. But when you’re talking about a full week, that’s a significant bite out of most people’s vacation leave.

You and your co-workers can try pushing back! Point out that some employees have that vacation time allotted for other uses, and this will wreak havoc on anyone who needed that week for, say, their kid’s wedding or a long-planned family trip next year. Your employer may or may not budge, but the more of you who speak up, the better your chances of getting it reconsidered.

First, the appropriation of employees' vacation time may not be against the law, but it certainly might violate the terms of employment, especially if they are set out in an employee handbook. If so, employees would have a much stronger argument than merely speaking up or pointing out that the policy will "wreak havoc" with their plans. The employer obviously knows that already, however, and does not seem to care.

In a union setting, of course, there would be a contract that firmly spells out an employee's PTO, and it surely would not require the use of vacation days when the employer chooses to close the office. Most important, there would be a grievance procedure for raising such issues, and it would be far more effective and available than a few people "pushing back."

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.