The Faculty Lounge

Hamilton & The Law: The Book is Out

For those of you who adore Hamilton and adore the law - or perhaps just enjoyed Hamilton and have enough interest in law to read this blog - there's a new book out. Hamilton and the Law: Reading Today's Most Contentious Legal Issues through the Hit Musical is a collection of essays edited by my colleague and Hamilton lover Lisa Tucker.  It's an impressive collection including essays by an exceptionally distinguished gang of Hamophiles, including Mehrsa Baradaran, Erwin Chemerinsky, Todd Henderson, Rebecca Tushnet, Danielle Holley-Walker, and many, many others.  More details are here.

ALI Elects 36 New Members

The American Law Institute has announced (here) the election of 36 new members, including these professors:

• Raquel E. Aldana, University of California, Davis School of Law
• Evelyn Mary Aswad, University of Oklahoma College of Law
• Lonnie T. Brown, Jr., University of Georgia School of Law
• Zachary D. Clopton, Northwestern University Pritzker School of Law
• Lisa A. Fairfax, George Washington University Law School
• Richard W. Garnett, Notre Dame Law School
• Justin F. Marceau, University of Denver, Sturm College of Law
• Lauren K. Robel, Indiana University, Maurer School of Law
• Kimberly J. Robinson, University of Virginia School of Law
• Jacob H. Rooksby, Gonzaga University School of Law
• Nancy A. Welsh, Texas A&M University School of Law

Congratulations to all!

Censorship of Leila Khaled's SFSU Webinar Was Wrong, but the Sponsors Still Need to Tell the Truth about Her

Did tech giants Zoom, YouTube, and Facebook trample core tenets of academic freedom when they refused to carry a university seminar featuring the airplane hijacker Leila Khaled? Or were they given no choice under the U.S. law prohibiting “material support” of terrorist organizations? And should that make a difference?

No living person has done more to romanticize terrorism than Leila Khaled. As an operative of the Popular Front for the Liberation of Palestine, she participated in two airplane hijackings in 1969 and 1970, threatening the lives of hundreds of people, including children. Her photograph taken after the first hijacking – a young woman in a keffiyeh, smiling broadly while holding a Kalashnikov automatic rifle – became a symbol of Palestinian resistance. That image has since been displayed all over the world, on posters, murals, and tee shirts, for over fifty years, leading The Guardian, in a 2001 profile, to call her the “international pin-up of armed struggle.” Fascinated by her daring, many of Khaled’s enthusiasts no doubt have had little understanding of the role she played in inspiring later acts of PFLP terrorism, such as the Entebbe hijacking and the massacre at the Munich Olympics. Others, however, have celebrated her for it.

It was therefore bound to be controversial when San Francisco State University’s Arab and Muslim Ethnicities and Diasporas Studies program (AMED) scheduled a presentation, to be held on Zoom, titled “Whose Narratives? Gender, Justice, and Resistance: A Conversation with Leila Khaled.” With two SFSU professors as co-moderators, the roundtable discussion promoted Khaled only as a “Palestinian feminist, militant, and leader.” In an Arabic language tweet, however, the director of AMED  called Khaled a “great fighter.”

Numerous Jewish and other organizations objected to the presentation, although stopping short of calling for its cancelation. The Anti-Defamation League, for example, noted that “it is bitterly ironic that a notorious hijacker and admitted terrorist will be welcomed at an institution of higher learning,” while stating nonetheless that the “ADL respects and defends academic freedom.” A coalition of 86 pro-Israel groups went further, condemning the event as an abuse of academic freedom that “foments a divisive and toxic atmosphere,” and calling on SFSU president Lynn Mahoney to “clarify” her position on the Khaled invitation.

Mahoney never budged. In a campus-wide statement, she “emphatically” affirmed “the right of our faculty to academic freedom and to conduct[] their teaching and scholarship without censorship,” adding, without naming Khaled or the PFLP, “and I say this while also condemning the glorification and use of terrorism and violence, particularly against unarmed civilians.”

A group called the Lawfare Project took a different approach, bypassing the SFSU administration and appealing directly to Zoom itself. In a letter to Zoom founder and CEO Eric Yuan, the Lawfare Project pointed out that hosting the Khaled event would potentially violate section 2339A of the U.S. Criminal Code, which prohibits providing “material support or resources to a foreign terrorist organization.” Khaled is an acknowledged member of the “Political Bureau” of the PFLP, which has been on the state department’s list of designated terrorist organizations since 1997. (The PFLP is also on the European Union’s list of terrorist organizations, which led to Khaled’s exclusion from Italy in 2017.)

Zoom flinched.

No Love, No Tacos

There is a great article on CNN.com about a Mexican Restaurant in Marshalltown, Iowa, where a customer took offense at this sign.

In an anonymous message, the customer complained that La Carreta had gone "leftist/marxist" (sic) and vowed never to return.

The owner responded by putting up an even larger sign:

As the article explains:

 

"I am someone who takes something negative and tries to turn it into something 10 times more positive," Medina[the owner] said. "If they don't want us, they should align their ideals and their comments with the food they eat."

 

Piggybacking on the popularity of the slogan, Medina created a new website where he is advocating to make Election Day a national holiday. He is practicing what he is preaching.

 

"My goal is to make the elections as just as possible," Medina says. "I a going to close on election Day, and not only pay my employees, but I am going to go and volunteer at the polls."

 

The whole article is tremendously uplifting. You can read it here.

The Beach Boys

Law School Hiring In The Time of Corona...

Fans of great Latin American novels would smile at the title above, or perhaps, much like my many other musings, few ever seem to understand them. A function of my brilliance, or more likely, pedestrian thinking? I bet I can guess what you are thinking right now. In any event, on to more challenging questions. During these difficult times, I have had the privilege to interview candidates, assist interviewees with mock interviews, and in a not-so-law related setting, been an interviewee myself. In each instance, I have grown to appreciate the difficulty of making sound hiring decisions based on classic criteria, but in the time of Corona, I never expected other matters would become so significant. Some of these included the lighting in the room, camera angles, etc.... Not sure how this cuts for candidates, but without question, these are trying times for institutions trying to make important decisions.  I also wonder how such challenges may level the playing field for women and other non-traditional candidates--we are all the same height during a Zoom call, for instance. This fact alone I suspect is more relevant, especially on gender, than many may realize--this screams for research from respected colleagues like Professor Meera Deo. Professor Deo, let's chat?

These and related issues make me think of recent dean hires like Beto Juarez at Nova.  I wonder how much influence technology played in that search? Personally, I think Beto is a wonderful pick, and Nova hit a homerun. He is experienced, a kind person, and an impressive leader. The fact he also looks like the lead in a Wall Street film, I suspect didn't hurt. But other questions come to mind, especially earlier in the year when the fear over the pandemic, rightly or wrongly, seemed to be heightened. Were some searches conducted completely via Zoom? I hope not. If any of you have such an experience, I would love to learn of it. On a related front, how much will the finalists at Colorado dean search benefit from or will be challenged by technology? 

If that is tough, how about the challenges faced by new teaching candidates? Will there be any impact on diversity? In other words, will faculty, which are historically not very diverse, reach out to close friends and mentors? If so, how many will promote diverse candidates? Were LLM programs focusing on law teaching affected by the pandemic? If so, how? I know at least a few schools reached out to me concerning the Olivas Faculty Recruitment Initiative. I was thrilled to suggest a few names to each. Much to my surprise, it was more challenging than I expected to convince mentees ( I call them FRI Fellows) to at times apply for positions--ah, the blissfulness of youth.  

So for now, I wonder if the most appropriate advice to candidates in these challenging times would be to follow Gabriel Garcia Marquez's advice and “Tell him yes. Even if you are dying of fear, even if you are sorry later, because whatever you do, you will be sorry all the rest of your life if you say no.” Or should hiring institutions, be cautious of Zoom and perhaps, also like Marquez, say to themselves "“Today, when I saw you, I realized that what is between us is nothing more than an illusion.”

 

Supreme Ambition, or Absence Thereof, and ACB

Writing on the Volokh Conspiracy, Josh Blackman expressed his admiration for Judge Amy Coney Barrett's modesty, in particular her acknowledgement that "I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no." To Blackman, Judge Coney Barrett's response stands in commendable contrast to others whose ambition "fermented through a lifetime of social-climbing" and who "scratched and clawed for years to put themselves in a position to be nominated."

Perhaps Josh is right that Judge Coney Barrett "didn't have to audition." I do not know enough about her, or the Trump administration's process, to agree or disagree. But then Blackman says this, which seems completely unsupportable:

On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.

How could Blackman possibly know which justices wanted the job more or less? And why would earlier ambition make any difference to a justice who already has life tenure? What does it mean to "stand resolute," especially if that involves sticking to previous positions rather than being open minded? And finally, how could anyone distinguish between bending to social pressures and recognizing changed circumstances? Presidents, after all, have in recent years made SCOTUS appointments for political reasons, so standing "resolute" would not seem to be much a virtue in a jurist.

It does appear obvious that Blackman had Chief Justice Roberts in mind as the justice most likely to "bend and sway," as well as the one whose ambition, however modestly expressed, manifested itself early on. As we know from Joan Biskupic's recent biography, the teenage John Roberts applied to a private high school, saying "I won't be content to get a good job by getting a good education. I want to get the best job by getting the best education." And of course, conservatives have angrily reviled Roberts for voting independently on the Obamacare and Census cases.

But is ambition really the explanation for Roberts's independence (or swaying, as Blackman would put it)? Brett Kavanaugh certainly seems to have been every bit as ambitious as Roberts, judging from his confirmation hearing. He repeatedly volunteered his youthful achievements, unbidden by the questioning. He told Senator Leahy:

I busted my butt in academics. I always tried to do the best I could. As I recall, I finished one in the class, first in -- you know -- freshman and junior year, right at the top. . . . I was captain of the varsity basketball team. I was wide receiver and defensive back on the football team. I ran track in the spring of '82 to try o get faster. I did my service projects at the school.

And in answer to Senator Whitehouse:

I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College . . . got into Yale Law School. Worked my tail off.

And to Senator Hirono:

I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college.

Justice Kavanaugh may be resolute by Blackman's metric, but it would be hard to call him modest.

And what of Justice Gorsuch? He seems to have been equally as ambitious as Justice Kavanaugh, and yet he might be said to have swayed "in response to social pressure" by voting to extend Title VII protection to gay and transgender people.

It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now.

CFP: 2021 Detroit Mercy Law Review Symposium Pandemic: From Disparity to Equity

The Detroit Mercy Law Review at the University of Detroit Mercy School of Law has extended the deadline for proposals for its 105th annual symposium, which will be held March 5, 2021.  This year’s topic is Pandemic: From Disparity to Equity, focusing on disparities arising from the current COVID-19 pandemic and working from those toward an equitable new normal.

Possible topics include, but are not limited to, the role of law and regulation in light of the pandemic’s disparate impacts across race and class; the impact of pre-pandemic healthcare inequities in underserved communities; effects of the pandemic on education; managing prison release programs during pandemic; housing policy and eviction protections during and after pandemic; legal flexibility and fundamental rights within pandemic “hotspots”; and any other topic related to the law’s response to COVID-19’s effects across race and class.  Quality articles based on presentations made at the Symposium will be published in our annual Symposium edition.

Current plans call for the Symposium to take place entirely online.  In lieu of our usual reimbursement for travel expenses, presenters will be provided a $500 honorarium.

Submission Procedure
Proposals should be approximately 250–500 words, double-spaced, and must be submitted by e-mail no later than 5 p.m. EDT October 31, 2020. Please submit proposals by e-mail to Marta Mazur, Symposium Director, at lawreview@udmercy.edu. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation.

Acceptances will be e-mailed on or before November 2, 2020. Preference for presentation times will be given to those also planning to submit an article for publication. Articles will be due to the Law Review on Friday, March 12, 2021.

Colorado Law Announces Search Committee for New Dean

The members include Professors Frederic Bloom,Violeta Chapin, Suzette Malveaux, Helen Norton, Scott Skinner-Thompson, and Harry Surden, among others.  Details here.