The Faculty Lounge

Ben & Jerry's Is Not Violating Anti-BDS Laws by Declining to Do Business in Israel's West Bank Settlements

Ben & Jerry's Ice Cream, a division of Unilever, recently announced that it would no longer sell ice cream in Israel's West Bank settlements.  Israel’s Ambassador to the United States subsequently urged 33 U.S. governors, who head states with laws forbidding anti-Israel boycotts, to take legal action against Ben & Jerry’s.

In response, a group of progressive Jewish organizations -- including Ameinu, with which I am affiliated -- issued the following statement rejecting the proposed legal action against Ben & Jerry's. The decision to withdraw from West Bank settlements is not a boycott of Israel (and certainly not anti-Semitic, as some have labeled it):

Letter to Governors on Ben & Jerry’s and Anti-Boycott Laws

July 26, 2021

Dear Governor,

We are US pro-Israel organizations representing hundreds of thousands of Jewish Americans, including thousands of Jewish clergy, and other supporters of Israel in the United States. As advocates for Israel and a future in which it thrives as the democratic homeland of the Jewish people, we oppose calls to take legal action against Ben & Jerry’s or its parent company Unilever in response to its decision to no longer sell ice cream in occupied Palestinian territory.

A number of opponents of Ben & Jerry’s decision have incorrectly labeled it a boycott of Israel, delegitimization of Israel, or an endorsement of the global BDS movement. We are especially dismayed that some have degraded the discussion around the issue by calling the move antisemitic, a dehumanization of the Jewish people, and even an act of terrorism. Such discourse not only clouds the facts, but is extremely polarizing, deeply painful to many Jews and harms the fight against the growing tide of actual, deadly hatred that our community faces worldwide.

None of our organizations endorse boycotts of Israel or support the global BDS movement—and many of us actively advocate against them. At the same time, like Ben & Jerry’s, we make a clear distinction between the State of Israel and the Palestinian territories it militarily occupies. This critical differentiation between the State of Israel and the settlements established in occupied territory in violation of international law is rightly recognized and maintained in various ways by official US policy and the constitutionally-protected actions of private individuals and organizations.

Most Jewish Americans support policies that reflect this important distinction. For example, a recent poll of Jewish voters in the United States found that a majority support both continued US military aid to Israel and measures to ensure that such assistance is not used in connection with expanding settlements. We also note that the McDonald’s franchisee in Israel has declined for many years to open a restaurant in the settlements. In contrast, both the global BDS movement and supporters of the settlements argue against this distinction between Israel and the occupied territories, asserting that the entirety of the land should be treated as a single political entity. That approach forecloses the possibility of a peaceful two-state solution to the Israeli-Palestinian conflict—a solution supported by a supermajority of American Jews and Americans overall, and which is the official policy of the US government.

We are also deeply concerned that moves to penalize those who choose to protest settlements, the occupation or Israeli policy at large violate Americans’ fundamental constitutional rights and dangerously create a false dichotomy between freedom of speech and support for Israel. We have joined First Amendment advocates like the American Civil Liberties Union in opposing recent state and local “anti-boycott” laws, as well as similar bills at the federal level, on free speech grounds, and because they have the potential to be weaponized against political opponents and to silence Palestinians and human rights advocates. Several such laws have already been ruled unconstitutional by federal courts in states such as Texas, Arizona and Kansas. 

No matter how strongly one might disagree with or oppose the rhetoric or goals of specific movements and efforts, the right to boycott is an important part of our democracy. Over 70 percent of Americans—including supermajorities of Democrats, Republicans and Independents—oppose laws that penalize those who boycott Israel, because they believe such measures “infringe on the Constitutional right to free speech and peaceful protest.” 

Using the full force and power of government to penalize those who exercise their rights in opposition to Israeli policy does nothing but generate further attention and sympathy for boycotts, and frames backing Israel as being in opposition to fundamental freedoms in the minds of many Americans. That is a strategic disaster for those, like us, who are trying to maintain and grow a healthy US-Israel relationship.

We greatly appreciate you taking the time to consider the full range of views within the Jewish and pro-Israel community on this complex yet consequential matter, and would welcome the opportunity to further discuss it with you and other relevant state officials. 

Sincerely,

Ameinu
Americans for Peace Now
Habonim Dror North America
J Street
New Israel Fund
Partners for Progressive Israel
T’ruah: The Rabbinic Call for Human Rights

As I have often explained on this blog, anti-BDS laws are seriously misguided, as are lawsuits and other coercive anti-BDS measures. Even so, it is still important to point out potentially overbroad enforcement of the statutes where they are in force.

Hiring Announcement: Loyola University Chicago School of Law

From an email message that I recently received:

Loyola University Chicago School of Law invites applications for full-time, tenured or tenure-track, lateral faculty positions to commence Fall 2022.  We are especially interested in scholars engaged in teaching and scholarship in any area that addresses anti-racism, racial justice, health equity, and structural disparities impacting Black, LatinX, indigenous, and other persons of color.  Both the University and the law school will prioritize candidates who demonstrate a commitment to diversity, equity, and inclusion.  We are dedicated as a faculty to contribute to a deeper understanding of law, legal institutions, and systems of oppression through a commitment to transformation, intersectionality, and anti-subordination in our teaching, research, scholarship, and public service. Ability and interest to teach in the hybrid format in our part-time/weekend JD division will also be considered. 

JOB RESPONSIBILITIES: Faculty candidates will be expected to teach in our 1L curriculum; our present curricular needs include civil procedure, constitutional law, contracts, torts, and criminal law.  Faculty responsibilities will include teaching one to two courses per semester; mentoring and advising students; successful completion of research and scholarship in particular areas of academic interest; service to the law school, University, and community; active involvement in faculty governance through committee work; and representation at local, regional, and national conferences and events.

Hiring Announcement: Mercer University School of Law

From an email message that I received earlier today:

The Mercer University School of Law invites applications from entry-level candidates for two tenure-track faculty positions to begin in the fall of 2022. We welcome applications from candidates in all subject matter areas but are particularly interested in candidates with a demonstrated background or interest in criminal law, contracts, business law or commercial law.  Candidates who will add to the diversity of our faculty are particularly encouraged to apply. Mercer University is an AA/EEO/ADA employer. Applicants should have a J.D. degree from an accredited university/college, a commitment to excellence in teaching, and demonstrated potential for excellence in research and scholarship. Interested applicants will need to complete the brief online application at: http://hr.mercer.edu/jobs/ and attach a current CV with the names and contact information for three references. For information contact Professor Stephen Johnson, Chair, Appointments Committee, Mercer University School of Law, Johnson_s@law. mercer.edu

 

Yes, Driving the Getaway Car Is a Crime

So reports the Chicago Tribune:

Getaway driver in Hadiya Pendleton slaying sentenced to 42 years in prison

Cleopatra Cowley spoke at the sentencing hearing of the final defendant convicted in the shooting of her daughter, more than eight years after the 15-year-old honor student’s slaying sparked a national outcry against Chicago’s gun violence.

“Kenneth Williams is equally responsible for the physical death of our daughter, Hadiya Pendleton, the death of her dreams and the generational deaths of her children and grandchildren,” Cowley said at the hearing.

After more than an hour of testimony on Tuesday afternoon, a judge sentenced the getaway driver to 42 years in prison.

Cook County Judge Diana Kenworthy ordered Kenneth Williams, 29, to serve 35 years for a first-degree murder conviction along with an additional seven years for aggravated battery convictions.

“I cannot take responsibility for something I had no active participation, no inactive participation,” [Williams] said.

In Memory of Stephen R. Parks (1940-2021), Curator of Osborn Collection at Yale's Beinecke Library

I share the news of the passing of my dear friend Steve Parks, the inaugural curator of the James Marshall and Marie-Louise Osborn Collection of the Beneicke Library at Yale.  Here is an except from Steve's obituary published in the New Haven Register.

He was a 1961 graduate of Yale College, majoring in art history. He later earned a PhD from King's College, Cambridge, followed by a postdoctoral fellowship at the University of Edinburgh. In 1967, he was appointed inaugural Curator of the James Marshall and Marie-Louise Osborn Collection of the Beinecke Library at Yale, where until 2004 he helped develop one of the most significant collections in the world of early modern British literary and historical manuscripts. A resident of New Haven, Connecticut for nearly of all his adult life, for many years he also enjoyed writing as wine critic for the New Haven Register.

Steve was an avid collector, beginning as a child with stamps, and later turning to books, ceramics, and medals. As a graduate student in Cambridge, he began a life-long bibliophilic and decorative arts love affair with the English Gothic Revival. The Stephen R. Parks Collection of Augustus Welby Pugin and the Gothic Revival is now held by the Sheridan Libraries of Johns Hopkins University. Many objects from his decorative arts and furniture collection now reside in the Cooper-Hewitt Museum, the Yale Center for British Art, and the Yale University Art Gallery.

He was also an active and energetic member of several societies and clubs, including the Athenaeum in London, the Century Association and the Grolier Club in New York, the Club of Odd Volumes in Boston, and the Johnsonians. In addition to being a lifelong member of Manuscript, a Yale senior society, and serving in leadership positions there, Steve was Librarian of the Elizabethan Club at Yale for 44 years, energetically developing its collection of rare books and manuscripts. He served for 35 years on the Club's Board of Incorporators, as its chair from 2009-2016, and was elected President of the Club (1994-1996). He was made an Honorary Trustee of the Yale Library Associates for his contributions to Yale's libraries and was awarded the inaugural Elizabethan Club Medal for Distinguished Service.

Steve had a special gift for friendship, one that he shared generously with generations of Yale students and colleagues for more than fifty years.

The full notice, including information about a memorial service to be held Friday, July 30 in New Haven, is here.

The Osborne Collection, which Steve curated, has amazing holdings in English history, ranging from 1280 to 1956, so anyone who ever did law-related archival work in the Beinecke related to this period has Steve to thank.

Steve was a central figure in my time at Yale (and after), uniquely bringing together the worlds of students, faculty, staff, visiting scholars, fascinating alums who passed through town, and even his own family, when his mother came to visit and then live in New Haven. There are generations of Yale students who shared a lovely meal or conversation with Steve in New Haven, New York, London, Cambridge, or Paris.

To know Steve was to be welcomed into a world of quick wit and fascinating ideas, objects, books, people. I will miss him very much.

image source: here

Rosenblatt's Deans Database is Back!

Mississippi College School of Law Dean Emeritus Jim Rosenblatt alerted me that his Rosenblatt's Deans Database is again online after a hiatus to update the software.  The database can be viewed here.  In addition to his ever-popular details such as the length of tenure of current deans, a listing of interim deans, and the law schools they attended, he has added additional demographic data and info about deans' next stops post-deanship.  Let Jim know of any changes or updates at Rosenbla@mc.edu.

Hiring Announcement: Indiana University Robert H. McKinney School of Law

From an email message that I recently received:

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from entry level and lateral candidates with demonstrated interest or experience in health law for a tenure-track or tenured assistant/associate/professor of law position beginning in the 2022-23 academic year.

Hiring Announcement: Indiana University Robert H. McKinney School of Law (Chair in Environmental Law)

From an email message that I recently received:

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from experienced scholars for appointment as our Chair in Environmental Law, to begin in the 2022-23 academic year. The law school seeks applications from persons with distinguished records of scholarship and teaching who would be eligible for appointment as full professor with tenure.

Hiring Announcement: Texas Tech University School of Law

From an email message that I received recently:

Texas Tech University School of Law is seeking to fill an open tenure-track faculty position (Requisition 24852BR) in the area of legal writing.

The Legal Practice Program at Texas Tech University School of Law is currently ranked the 25th top legal writing program in the nation by U.S. News and World Report. Legal Practice professors at Texas Tech have the same voting rights as doctrinal faculty as well as pay parity. More information about the Legal Practice Program can be found at https://www.depts.ttu.edu/law/programs/lp/.

Applicants must possess a J.D. degree and have a commitment to or demonstrated record of scholarly distinction, exemplary teaching, and institutional or public service. Candidates who have very strong records of scholarship are encouraged to apply. Although we recognize that external funding opportunities have traditionally been limited in legal academia, candidates who have strong records of scholarship supported by extramural funding or who have the proven capacity or clear potential to bring externally sponsored research to Texas Tech University are encouraged to apply. Experience working with diverse student populations and first-generation students is highly desirable. Service to the School of Law and University is expected. Service duties include program-building as well as commitment to extra-curricular activities. Prior  teaching experience, law practice experience, or service as a judicial clerk is also preferred.

John Fogarty, et al

Future Business Law Professors Conference @Villanova_Law

Future Business Law Professors Conference

Presented by the John F. Scarpa Center for Entrepreneurship and Law

Friday, September 10, 2021 9:00 a.m.–3:00 p.m. Virtual Event

The John F. Scarpa Center for Entrepreneurship and Law will host the second Future Business Law Professors Conference on Friday, September 10. All visiting assistant professors, fellows, researchers, law clerks, practitioners and others who are considering entering the higher education academic teaching market in business law—including business associations, securities regulation, corporate finance and business ethics—are invited to attend. This year’s conference will be virtual.

Participants will learn more about the business law teaching market, receive advice on how to be a successful candidate and meet future colleagues. Attendees will have the opportunity to participate in mock interviews and get a sneak-peak into the hiring process from current business law faculty. Some will be able to present their job talk paper to leaders in the field and receive feedback.

Faculty from University of Colorado Law School, Georgetown University Law Center, George Washington University Law School, University of Michigan Law School, University of Nebraska College of Law, University of Pennsylvania Carey Law School, University of Pittsburgh School of Law, Rutgers Law School, Temple University Beasley School of Law and Villanova University Charles Widger School of Law are scheduled to participate.

Please note registration is required. Attendees will receive an email from Eventbrite with the Zoom link on the day of the event. Registration is here.

Oregon Law Seeks Faculty

This just in:

The University of Oregon School of Law invites applications for a tenure-track assistant professor focusing on business/corporate law, to begin in August 2022. Oregon Law has a nationally recognized Business Law Program and we are excited to continue building our institutional expertise in that area. Applicants must have scholarship, teaching, applied research experience, and/or practice expertise in business law, corporate law, and/or related fields. All methodologies and approaches are welcome.

To review our job posting and application instructions, please click here: https://careers.uoregon.edu/en-us/job/527574/assistant-professor-of-law.

The University of Oregon School of Law is a dynamic ABA-accredited law school and Oregon’s only public law school. Degrees offered include Juris Doctor (JD), Master of Laws (LLM), Master of Conflict and Dispute Resolution (CRES), and a minor in undergraduate legal studies. Oregon Law’s mission is to provide a world-class education. We prepare students through excellent classroom teaching paired with a multitude of practical experience opportunities and robust professional development. Our faculty produce exceptional research and scholarship. We accomplish our mission in a positive, inclusive environment where we strive to provide everyone opportunities to grow, contribute, and develop. Our aim is to learn, teach, and practice the principles of equity and justice as critical foundations for our overall effort to achieve excellence as a top-ranked law school. Success in this work requires a diverse group of people in various faculty and staff roles working in one of our two locations, Eugene and Portland. The University of Oregon is located within the traditional homelands of the Southern Kalapuya. Learn more about Oregon Law at law.uoregon.edu.

Enforcing Public Rights—Federal Versus State Standing (Last of a Series)

We noted in our third post in this series that three of the most recent four public trust challenges arising on the Chicago lakefront have been brought in federal court. One would expect this immediately to raise the question whether federal standing rules apply in such an action—as opposed to the Illinois rule that any taxpayer can sue to enforce the public trust. In this fifth and final post in this series reflecting on our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), we take up federal standing—and conclude with a final observation about Illinois.

1. Article III Standing on the Lakefront After Protect Our Parks

The district court’s published decisions in the first two (of the three) federal cases, involving the proposals for lakeward expansion by Loyola University and for the Lucas Museum, did not consider whether the plaintiffs had standing under Article III. This is odd. Even if the government defendants did not raise the issue, a plaintiff’s’ standing is a jurisdictional requirement, so federal courts have an obligation to raise the matter on their own initiative if it may be in doubt.

The absence of any discussion of standing was particularly glaring in Lake Michigan Federation v. U.S. Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990), where the court enjoined Loyola’s proposed campus expansion as a violation of the public trust doctrine. One would have expected some discussion of the question whether the members of the civic association, then known as the Lake Michigan Federation, faced (1) an imminent threat of concrete injury that was (2) fairly traceable to the proposed expansion into the lake and (3) likely to be redressed by an injunction. To be sure, as we discuss in Lakefront, the court’s decision in that case was glaring in other respects as well.

Federal standing principles took center stage only with the decision in 2020 by the Seventh Circuit ordering dismissal of a federal lawsuit that challenged the construction of the Obama Presidential Center in Chicago’s Jackson Park, along the lakefront on the South Side. Writing for the court in Protect Our Parks v. Chicago Park District, 971 F.3d 722 (7th Cir. 2020), Judge Amy Coney Barrett raised the standing issue even though the defendants-appellees—the Chicago Park District and the City of Chicago—argued to the appellate court that the plaintiffs had standing. As Judge Barrett observed, the reason for the defendants’ position, which was a reversal of their argument in the district court, was “easy to see—having secured a judgment on the merits, they’d prefer an affirmance to a dismissal.” Id. at 733.

Proceeding without help from the parties, Barrett easily demolished the case for the plaintiffs’ standing to raise a public trust doctrine challenge. Illinois was free, she acknowledged, to allow any taxpayer to sue to enforce the public trust. But, for a suit in federal court, Article III standing requires injury in fact. Protect Our Parks and the individual plaintiffs could point to no concrete, particularized injury. They were, in effect, “concerned bystanders,” asserting a generalized grievance—“that the government has failed to follow the law.” Id. at 731, 732 (internal quotation marks omitted).

Nor could the plaintiffs ground their standing in the alleged injury to Jackson Park in the sense of the departure from Frederick Law Olmsted’s original plan. Article III precedents require a showing of “‘injury to the plaintiff,’” not “‘injury to the environment.’” Id. at 732 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000)).

How devastating to citizen enforcement of public trust claims is the addition of Article III standing principles? Probably not much. In a footnote, Barrett observed that most environmental plaintiffs establish their standing by alleging (and proving) “‘that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.’” Id. at 731 n.1 (quoting Friends of the Earth, 528 U.S. at 183) (internal quotation marks omitted). But Protect Our Parks and the individual plaintiffs had failed to follow this route.

2. Violation of the Public Trust as a Federal Constitutional Claim

Judge Barrett was forced to confront another twist in considering the plaintiffs’ right to proceed in federal court. The theory used by the plaintiffs to establish federal court jurisdiction in Protect Our Parks was creative—but almost certainly wrong.

The theory went like this: Because Illinois itself allows any taxpayer to bring a public trust claim, every Illinois taxpayer has a “property” interest in public trust resources. Therefore, any Illinois taxpayer can bring an action in federal court alleging that a violation of the trust is either a “taking” of his or her property in violation of the Takings Clause, or a deprivation of property without adequate procedures in violation of the Due Process Clause. In other words, via the magic word “property,” a state-law standing rule was transmogrified into a federal constitutional right.

Based on a quirk of Seventh Circuit precedent, Judge Barrett did not reject this supposed federal constitutional claim on standing grounds. The problematic precedent was Seventh Circuit case law cautioning against dismissing prisoner suits brought under 42 U.S.C. § 1983 for lack of standing because the claimant could not show a sufficient interest in property. Whether the prisoner had property was thought to be determined better as a matter of the merits than as one of standing. Avoiding a confrontation over this precedent, Judge Barrett upheld standing on the part of the Protect Our Parks plaintiffs to raise the supposed constitutional claim, but ruled that the claim could be “easily dispatched” on the merits. 971 F.3d at 737.

Although this provided a way to maneuver through the minefield of circuit precedent, it is difficult to justify in terms of Article III standing principles. The Supreme Court has cautioned that jurisdictional questions should be resolved before the merits, and Article III standing is jurisdictional. Moreover, the Court has made clear that “a plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

A process of treating the public trust doctrine itself (a matter of state law) under one set of Article III standing principles and the “federally constitutionalized” version of the same doctrine under another set of Article III standing principles, and of reaching different conclusions on these (no standing as to the one, as discussed above, but standing as to the other), is in great tension with this understanding.

A better way to finesse the Seventh Circuit’s concern about section 1983 cases would have been to assume for purposes of decision that the plaintiffs had stated a valid constitutional claim and on this basis to ask whether they had standing to bring such a claim under Article III. This would have resulted in the same standing analysis being applied to all claims, as required by the Supreme Court’s standing jurisprudence.

CFP: Applied Feminism and "The Big Idea"

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Thirteenth Annual Feminist Legal Theory Conference.  We hope you will join us for this exciting conference on Friday, April 8, 2022.  This year, we aim to capture, develop, and disseminate cutting edge theorizing around issues of gender equity and intersectionality. 

We are in a tumultuous period of history in which we are grappling with a global health pandemic and sharp political polarization, while also experiencing flourishing movements for racial and gender justice.  This is a time for innovation and creativity — for highlighting ideas that create a more just society. We want to explore how feminist legal theory is responding and growing during this time and bridging toward a future of greater gender and intersectional justice. Thus, we seek submissions of papers that have “big ideas” about issues related to feminist legal theory and other critical legal theories from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, and Gloria Steinem.

To submit a paper proposal, by Friday, October 29, 2021, please complete this form and include your 500 word abstract: https://forms.gle/L4rdht7te3WuRTtPA We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 18, 2022. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Michele Gilman at mgilman@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

Kansas Law Seeks Faculty

This just in:

The University of Kansas School of Law invites applications from entry level and junior lateral candidates for two tenure-track, associate professor positions to begin fall 2022.  We will consider candidates in all subject areas, but are particularly interested in the areas of (1) property and (2) business, corporate finance, and transactional law, as well as candidates whose work engages these subjects in dialogue with other areas of law. Qualified candidates who will contribute to the diversity of our law school community, including a diversity of scholarly approaches, are especially encouraged to apply.

Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, and must demonstrate strong scholarly potential and a commitment to excellence in teaching.  The School actively seeks applications from members of groups that are underrepresented in higher education.

Review of applications begins in August and will continue until the positions are filled. Initial interviews will be conducted via Zoom. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Applications must be submitted online: 

• Property: https://employment.ku.edu/academic/19640BR 
• Business:  https://employment.ku.edu/academic/19637BR

and should include a cover letter, a CV/resume, a detailed statement of research interests/future plans, a statement related to diversity, a writing sample, and the names of three references. Materials such as teaching evaluations or additional samples of scholarly work may be requested of candidates at a later date. For fullest consideration, candidates not participating in the FAR should apply by August 25, 2021.

Contact:  Professor Uma Outka, Chair, Appointments Committee, uoutka@ku.edu  

KU is an EO/AAE. Qualified applicants will receive consideration without regard to race, color, ethnicity, religion, sex, national origin, age, ancestry, disability status as a veteran, sexual orientation, marital status, parental status, gender identity, gender expression or genetic information. Full policy at:  http://policy.ku.edu/IOA/nondiscrimination

Take Back the Court Announces Sarah Lipton-Lubet as New Executive Director

 

TAKE BACK THE COURT ANNOUNCES SARAH LIPTON-LUBET AS NEW EXECUTIVE DIRECTOR Powerhouse Hire will Bolster Efforts to Pass the Judiciary Act, Expand the Court Take Back the Court today announced Sarah Lipton-Lubet as Executive Director, adding a powerhouse leader to the team to bolster efforts to pass the Judiciary Act of 2021 and expand the Supreme Court. Lipton-Lubet spent the better part of two decades advocating for reproductive freedom, gender equity and progressive change, and brings extensive experience in the fight against the right-wing takeover of the Court. Take Back the Court Founder Aaron Belkin will continue to serve the organization, working closely with Lipton-Lubet in his new role of President. “Sarah brings decades of experience in advocacy and the movement for judicial reform to our team,” said Take Back the Court Founder and President Aaron Belkin. “Everyone who knows her calls her a ‘star’ - and that couldn’t be more true. Her dedication to critical issues affecting reproductive freedom, civil rights, and the advancement of progress through the courts is unmatched, and I couldn’t be more thrilled to have her on our team at this critical time.” “I’ve spent my career at the intersection of policy advocacy and the law, and couldn’t think of a more perfect next step than joining the passionate and talented team at Take Back the Court,” said Lipton-Lubet. “In the last Supreme Court term, we witnessed the defacing of our democracy at the hands of a stolen Court. It’s clear Court expansion is the only way to restore balance and judicial integrity, and there’s no time to wait. I’m excited to join this community that’s leading the charge to expand the Court — it is the only way to save our democracy.” “Expanding the Supreme Court is going to take bold leadership and innovation, and I’m confident Sarah’s vision and experience is going to allow us to double down on our mission and even further accelerate our progress,” said Take Back the Court Advisory Board Co-Chair Heather McGhee. “The stolen Court has already attacked voting rights, reproductive rights, LGBTQ equality, and union protections, and they’re poised to continue this egregious assault when they hear Dobbs v. Jackson Women’s Health this fall. Sarah’s deep expertise across a broad spectrum of civil liberties will be invaluable in our fight to restore judicial integrity and save our democracy.” Lipton-Lubet holds a bachelor’s degree in American Studies from Northwestern University and earned her JD at Yale Law School. She most recently served as Vice President for Reproductive Health and Rights at the National Partnership for Women & Families. She has previously clerked for the Honorable Nancy Gertner of the U.S. District Court of Massachusetts and the Honorable Richard Paez of the U.S. Court of Appeals for the Ninth Circuit. You can find her full biography below.

A Different Model of Citizen Standing: The Public Dedication Doctrine

This is the fourth of five posts that consider different models of standing to enforce public rights; here are links to the first, second, and third. These posts offer some reflections based on our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), which Steve Lubet generously introduced to readers of this blog.

In this post, as in much of both Lakefront itself and a different series of our recent blog posts (at the Volokh Conspiracy and collected here), we will consider Grant Park, the huge public space along Lake Michigan in the center of Chicago. It is essential to appreciate, at the outset, that Grant Park was saved from development—from being home to numerous museums or libraries, in particular—not by the public trust doctrine but, rather, by a different legal precept: the relatively unknown public dedication doctrine.

What is a public dedication? When new cities or subdivisions are laid out, potential purchasers of lots are commonly shown maps or plats of the planned development. These typically depict streets, parks, schools, or the like, projected as part of the development. Purchasers of lots rely on these maps or plats—and on the representations of such public amenities—in deciding whether to purchase.

And, of course, in deciding how much to pay: The representation of a nearby park or school may elicit a higher price; proximity to a busy street or commercial strip, a lower price. In its traditional form, the public dedication doctrine allows certain entities—the city, the original dedicator, or in special circumstances individual purchasers—to sue to enjoin deviations from the uses represented on the original map or plat.

In the case of the Chicago lakefront, the land south of Madison Street (here is a map from the reporter’s statement in the Lake Front Case, 146 U.S. 387, 397 (1892)) was developed by the commissioners of the Illinois and Michigan Canal, to whom the state had granted the land as a subsidy to encourage the canal’s construction. The land north of Madison (see another such map, id. at 392) was projected for development when the U.S. Government decided to abandon Fort Dearborn.

In the 1830s, to entice purchasers, the canal commissioners used maps that labeled the (southern-more) area east of Michigan Avenue “A Common to remain forever Open, Clear & free of any buildings, or other Obstructions Whatever,” or words to that effect. Around the same time, the United States produced a plat that identified the (northern-more) area east of Michigan Avenue as “public ground for ever to remain vacant of buildings.”

So, whether north or south of Madison Street, those who purchased land on the west side of Michigan Avenue had reason to expect that they would enjoy an unobstructed eastward view—that is, of the lake.

Some early suits challenging the construction of buildings in the protected area were brought in the name of the United States, on the theory that the government, as the dedicator of part of the area, retained an interest in seeing the restriction enforced. But by far the largest number of public dedication suits were brought by individuals owning property on the west side of Michigan Avenue.

The right of individual property owners to enforce such a public dedication was based on a composite of equity jurisprudence and a special rule of standing. The cause of action was grounded in familiar principles of equity: the property owners had relied to their detriment on the dedication, they had no adequate remedy at law, and the value of their property would be irreparably harmed by the erection of a building to the east. The standing rule was the somewhat arbitrary but perhaps-intuitive and, in all events, easily enforced principle that, as among the citizenry, only owners whose property directly abutted the dedicated area could sue. Those living a block away (such as on Wabash Avenue, to the west) or farther north or south, beyond the dedicated area, were out of luck.

Courts addressing public dedication controversies thus adopted an intermediate rule of standing with respect to the general public or private citizenry: A finite number of individuals could sue to enforce a public right. But unlike the special-injury rule of public nuisance, transplanted (at least in theory) to the public trust doctrine before 1970 (as discussed in our immediately preceding post), the identity of the citizens with standing was precisely rather than vaguely identified: Those who owned private property directly abutting the dedicated area could sue, without regard to whether their injury was in some sense “special.” Or, perhaps one could say that their injury was conclusively presumed to be special.

At least on the Chicago lakefront, the unique standing rule of the public dedication doctrine elicited a high level of enforcement activity. The owners of property on Michigan Avenue filed dozens of lawsuits, over decades, succeeding with some frequency. The most persistent litigator was Montgomery Ward, the catalogue merchant and (beginning in 1887) owner of an imposing set of buildings on the west side of Michigan Avenue, between Madison and Washington Streets, which served as the headquarters of his eponymous company. But both before Ward and after, others sued as well, including hotel owners—such as the forebears of Justice John Paul Stevens, owners of the Stevens Hotel, which would become known as the Conrad Hilton Hotel (and more recently the Hilton Chicago).

Ward’s efforts generated four Illinois Supreme Court decisions, from 1897 to 1910, that kept Grant Park largely free of structures for a century. His greatest success was in forcing the Field Museum of Natural History, created by a bequest from department store magnate Marshall Field, to be located south of Grant Park, rather than in its center, as city planners, including Daniel Burnham, had envisioned.

The public dedication standing rule helps tailor the reach of the doctrine. If a proposed violation of the dedication is minor or temporary, it is unlikely to elicit a lawsuit from an abutting property owner. Rational property owners will generally balance the violation’s projected impact on the value of their property against the costs of a lawsuit. (Admittedly, Ward became something of a fanatic, threatening to block tents from being erected by traveling circuses and political rallies, but, as we explain in Lakefront, he may have been worried about precedents.)

A related source of flexibility in the public dedication doctrine is the principle of unanimous consent. If all abutting owners give their consent to a violation of the dedication, it can go forward. The Art Institute (in the early 1890s) and the various structures of Millennium Park (more than a century later) were permitted on this basis.

All in all, the citizen-standing rule associated with the public dedication doctrine avoids the twin perils associated with the public trust doctrine, as we have described: underenforcement if only public officials are allowed to sue, and overenforcement if any taxpayer (including any advocacy group) has standing to sue.

This standing rule of the public dedication doctrine was far from perfect (we shift to the past tense because the Illinois Supreme Court repudiated the common-law version of the doctrine in 1970, in Paepcke v. Public Building Commission, which we discussed in our immediately previous post in this series, focusing on that decision’s treatment of the public trust doctrine). The injury to the general public from the violation of a dedication is often greater than that incurred by abutting landowners (and certainly than that suffered by any single such owner). So the select group of private citizens allowed to sue will not necessarily engage in litigation to a degree that protects the full extent of the public interest.

In addition, the interests of the abutting landowners will often diverge from those of the general public. Over time, the Michigan Avenue owners have shown hostility to baseball stadiums, band shells, and circus tents, presumably because these draw large and noisy crowds (which may affect the abutting owners’ property values). One suspects that the general public has different preferences.

Enforcement of a public dedication in the courts is also more likely where a judge identifies with the property owners and their reliance interests. This was often the case during the period of Ward’s extensive litigation and for many years afterwards. There are several reasons to believe that over time—for example, as knowledge of the original dedication fades away, and new and more diverse forms of ownership such as high-rise condominiums have entered the picture—such reflexive sympathy with private owners has become less certain.

Nevertheless, the public dedication doctrine, with its unique standing rule, reminds us that sometimes private interests can be enlisted to protect public values, and they may even prove to be especially effective in doing so.

Posted by Joseph D. Kearney and Thomas W. Merrill

Survey Anyone? Participate in a poll of legal academics

Kevin Tobia is conducting an anonymous survey, with a graduate student collaborator, to learn more about the legal academy and legal theory. Anyone who self-identifies as a member of the “legal academy” is invited to participate. Participants might include, among others: law professors, fellows, and students; legal practitioners; and scholars from adjacent fields.

The survey has three parts: 1. Demographics; 2. Your views about which areas of law are most “central” in the legal academy; 3. Your views about substantive questions in legal theory. You are invited to take all parts of the study and are welcome to skip any questions, for any reason. The survey has obtained ethical approval and no identifying information will be retained. Details about the survey construction can be found here. The survey will close on September 1, 2021. Thank you for your help!

To take the survey, follow this link.

DePaul Faculty Hiring Announcement

DePaul University College of Law invites applications from entry-level candidates for a tenure-track position expected to begin July 1, 2022. We welcome applications from qualified candidates across all areas and specializations, but we have particular interest in the areas of Constitutional Law, Criminal Law and Criminal Procedure, and Race, Inequality and the Law. DePaul College of Law is dedicated to fostering an equitable and inclusive academic community. We enthusiastically encourage applicants who would enrich the diversity of our community to apply.

All candidates must hold a J.D. or equivalent degree, possess excellent academic credentials, and demonstrate potential to be an outstanding scholar and teacher. Interested candidates should apply online at https://apply.interfolio.com/89265. Required materials include a cover letter, curriculum vitae, list of references, research statement, diverse learning environment statement, writing sample, and teaching evaluations (if available).

DePaul University College of Law is dedicated to excellence as Chicago’s law school, with its distinctive programs integrated throughout the city. Centered in the Loop — the heart of downtown Chicago, one of the world’s largest business and communication hubs — the College of Law is only a few blocks from the state and federal courts, bar associations, and the city’s historic legal and financial center. The law school is an integral part of DePaul University, a world-class institution of higher learning. DePaul Law is committed to improving the legal community by educating purpose-driven lawyers who will serve the public and legal profession in ways that enhance the broader community. 

To learn more, please visit https://law.depaul.edu/.

DePaul University is an Equal Opportunity / Affirmative Action employer.  All qualified applicants will receive consideration for employment without regard to race, color, ethnicity, religion, sex, sexual orientation, gender identity, national origin, age, marital status, physical or mental disability, protected veteran status, genetic information or any other legally protected status, in accordance with applicable federal, state and local EEO laws.

Misogyny, Homophobia, and Long COVID Denialism

The sad and frustrating story of a young psychiatrist in Canada, as explained by me on the Virology Blog:

Trial By Error: Professor Steven Lubet on Misogyny, Homophobia and Long COVID Denialism

As numerous studies continue to document the distressing sequelae of Covid-19 infections, the various “Long COVID” deniers in the medical profession are looking increasingly misguided. Among the most foolish of all has been Jeremy Devine, a psychiatry resident at Canada’s McMaster University. Devine somehow obtained space on a prestigious platform–the Wall Street Journal’s oped page–to advance a theory that Long COVID is “psychologically generated” and is actually a “psychosomatic-symptom disorder” invented by “vocal patient activist groups.” In June, Devine opined in an interview with London’s Sunday Times that Long COVID stems “from a subconscious desire to be sick” that may be “rooted in depression and anxiety,” for which he blamed  what he called “the chronic fatigue lobby.”

Unfortunately, Devine has not been alone in attributing patients’ continuing symptoms to depression or anxiety.  This response  is all too common when doctors confront a confounding condition, as is the case with Long COVID—and especially when the patients are predominantly female. In Unwell Women, a recently published examination of the medical establishment’s mistreatment of female patients,  the author Elinor Cleghorn observed that women’s “mysterious chronic diseases” are often “contested within the medical community.” Furthermore, she added, “those seeking diagnoses continue to be haunted by the . . . perception that the only place women’s pain and fatigue really exist is in their minds.” The prize-winning novelist Hilary Mantel related her painfully familiar experience with psychiatry in her memoir, Giving up the Ghost: “The more I said that I had a physical illness, the more they said I had a mental illness. The more I questioned the nature, the reality of the mental illness, the more I was found to be in denial, deluded.”

There is an unmistakable vestige of the same misogyny, amplified by a general mistrust of patients, in Devine’s dismissal of Long COVID. As a bonus,  he managed to add a bit of not-so-subtle homophobia. Informing his readers that the first organization to demand research on Long COVID was the Body Politic COVID-19 Support Group, he made a point of noting that the group “describes itself atop its website’s homepage as ‘a queer feminist wellness collective merging the personal and the political.’”  It makes sense, of course, that a wellness collective would be among the first to notice the lingering effects of a COVID-19 infection, and that feminists would be among the first to realize that the extended illness mostly affects women, many of whom were being shrugged off by their doctors.

But the sexuality of the Body Politic members is no more relevant to the etiology of Long COVID than is their race, ethnicity, or religion. Devine never bothered to explain why he brought up sexuality in an article about medical diagnosis, but it certainly looks like an attempt to discredit the Body Politic’s “patient led research.” It was not so long ago that gay men and lesbians were routinely disparaged in the mainstream press, and there is a regrettable whiff of that in Devine’s oped.

The Fendertones

Because it's summer and why not? (Don't miss the bonus clip at the bottom of this post.)