The Faculty Lounge

Reminder on Comment Policy

A couple of recent comments have come close to deletion per my policy on insults. I realize that people may be frayed from social distancing these days, so I left them up. But let's please try to be a little more polite, okay?

Deidré Keller Named Dean of Florida A&M Law

Florida A&M University College of Law has named Deidré Keller as its new dean. Keller, who is currently associate dean of academic affairs at Ohio Northern Law, holds a JD from Emory University.  

Best Practices for Law Students Before, During, After Online Sessions

Over at the ABA's Before the Bar blog here, here and here, I have some tips for law students on how best to prepare for and digest material covered in online sessions. The posts have click-baity titles, but I am responsible only for the first title:

• I Don’t Care What You Wear to an Online Class (but Sitting at a Desk is a Good Choice
• 4 Keys to Staying Focused and Active During Online Courses
• 7 Things to Do After an Online Class Session Ends

 

Cross Examining Richard Epstein

Just for fun, let's say someone, maybe an actual lawyer, wanted to cross examine Richard Epstein on his model projecting a far less severe Covid-19 pandemic. The details of the competing models -- the standard one advanced by most epidemiologists, including Drs. Fauci and Brix, and the heterodox model proposed by Epstein and said to have been admired and circulated by Jared Kushner -- are probably too complex for most people to understand. Consequently, the cross examination is likely to focus on Epstein's credentials as an expert. If Epstein lacks the qualifications necessary to reach a solid conclusion, then his opinion on the issue could simply be disregarded. How would that work?

First, our hypothetical cross examiner would turn to Isaac Chotiner's interview with Epstein in the New Yorker, asking him to affirm his own statement of expertise. To Chotiner's question about epidemiology, Epstein said,

I’m trained in all of these things. . . . I spent an enormous amount of time over my career teaching medical people about some of this stuff, and their great strengths are procedures and diagnoses in the cases. Their great weakness is understanding general-equilibrium theory. 

I’ve worked on evolutionary theory for forty years in its relationship to law.

Of course, the attorney would eventually challenge the relevance of general-equilibrium theory to a pandemic crisis. The lawyer would also question whether the "relationship of evolutionary theory to law" is helpful to death projections, and especially whether evolutionary theory itself is useful in a time frame of weeks or months(spoiler: epidemiologists say it is not). But that would come later, developed with other witnesses and in final argument.

Richard Epstein Self Destructs

What is the right way to deflate a dubious expert? It may be counter-intuitive, but the best approach is often just to let the expert talk.  The New Yorker’s Isaac Chotiner provides an outstanding demonstration that art in a recent interview with Richard Epstein, a professor of law at New York University and a fellow at the Hoover Institute, whose essay minimizing the risks of Covid-19 may have influenced President Trump’s views on social distancing. On March 16, on the Hoover Institute website, Epstein challenged the prevailing epidemiological model, and proposed instead that there might be only 500 deaths in the U.S. from Covid-19. Epstein’s contrarian post attracted a lot of attention, especially when it began circulating in conservative circles, including the White House, perhaps playing a part in President Trump’s announced goal of ending social distancing by April 12. Fortunately, Trump has since extended the social distancing guideline until April 30, on the advice of Dr. Anthony Fauci. And Epstein later revised his projection of deaths upward to 5000 -- 95,000 fewer than Dr. Fauci's estimate -- after  number his original 500 already been exceeded, blaming his earlier estimate on a math error.

Chotiner’s interview with Epstein was published today. It is fair to say that Epstein made fool of himself, with exchanges such as this (Chotiner’s questions in bold):

I know, but these are scientific issues here.

You know nothing about the subject but are so confident that you’re going to say that I’m a crackpot.

Women, Gender & the Law Emerging Scholar Award: Call for Submissions

The Elisabeth Haub School of Law is pleased to announce the competition for its inaugural Women, Gender & the Law Emerging Scholar Award.  This paper competition is open to all full-time law professors with five (5) or fewer years of full-time law teaching experience as of July 1, 2020. The deadline for submissions is July 1, 2020.

The purpose of the award is to encourage and recognize excellent legal scholarship related to women, gender and the law.  The work chosen for the Women, Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.

Papers will be reviewed on a blind basis by a committee comprised of four members of the Haub Law faculty with expertise in this area: Bridget Crawford, Darren Rosenblum, Noa Ben-Asher and Emily Gold Waldman.  The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2020-2021 academic year, with reasonable travel expenses paid.

ELIGIBILITY:

• All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2020 are eligible for consideration.
• There is no subject-matter limitation for submissions, as long as the paper relates in some way to women, gender, and the law.
• Jointly authored papers are accepted as long as each author independently meets the eligibility requirements.

PUBLICATION COMMITMENTS/LIMITATIONS:

• There is no publication commitment associated with the competition. 
• Papers are eligible regardless of whether they were published prior to submission date, are scheduled to be published after the submission date, or are not yet under submission.
• Each applicant is limited to one (1) entry.
• There are no page-length or word-count limitations.
• All publications (including scholarly articles, book chapters, legal briefs and other writings) are eligible for consideration.

SUBMISSION:

• We will accept submissions for the Emerging Scholar Award from April 1, 2020, through July 1, 2020. The winner will be announced by August 30, 2020.
• To participate, please email your article, redacted as necessary to preserve anonymity (for the blind grading process), as a portable data file (PDF) to Judy Jaeger, Senior Staff Associate, at jjaeger@law.pace.edu with the subject line “Emerging Scholar Award.”
• Please include in the body of the email your name, institutional affiliation and confirmation that you meet the eligibility requirements.
• Unredacted papers will not be considered.

Information on Emerging Scholar Award and the Elisabeth Haub School of Law

This is the inaugural year of the Elisabeth Haub School of Law’s Women, Gender & the Law Emerging Scholar Award.  The law school at Pace University is one of a small number of schools in the United States named after a woman, and we are proud of our school’s long-standing commitment to gender justice.

Since the establishment of the Women’s Justice Center in 1991, Haub Law has made gender justice a priority.  Students have the ability to pursue a concentration in Women, Gender & the Law, through which they develop skills and strategies for effective representation and advocacy for gender justice, regardless of what career they pursue.  The Haub Law faculty includes nationally-recognized academic experts and advocates for gender justice. Our faculty teach, research and write about gender equality and justice as it relates to constitutional law, corporate law, criminal law, education, environmental law, estate planning, juvenile justice, legal theory, poverty, public health, social media, and taxation, to name just a few areas.  An important hallmark of Haub Law is that in addition to our specialty classes that focus on gender, issues involving gender are also integrated into a wide range of other courses.

What Our Students Want Us to Know

This semester, I'm teaching 99 students in Corporations & Partnerships. The shift to online teaching has not been without its hiccups. Last week, I send out a survey asking my students how they are doing generally and how they are experiencing online education.

I included in the survey an open-ended question: "Is there anything you would like your professors generally to know?"  I reprint representative responses below. No law professor in this time of crisis will be surprised by any of the substantive comments, but they ground my perspective as I look at the calendar that includes four more weeks of teaching.

• It's extremely nerve wracking knowing that I will likely be graduating into a recession with $150K+ in student loan debt, and now I don't even know if I will still have a job this summer.

• Mental health-wise, my anxiety has been pretty bad but I have been doing my best to complete my school work and push through. I just wanted to point this out as it might not be seen as an extreme circumstance, it still has slightly disrupted how I normally am able to study in a library or have separation of school and home. 

• I live with an individual that suffers from various mental disorders. This means there are times that I have to tend to them because they have unpredictable outbursts. This may factor into my learning or the final exam.

• I would say mostly that it is difficult to learn from home especially that my wife is home as well. We live in a one bedroom with our two pets so not much space for me to be alone. It is hard for me to get quiet time. 

• I have a very limited study space at home and no ideal place to take exams - only a very small kitchen table in a shared apartment.

• When being home, there is more distraction especially since my younger siblings have begun online schooling as well. Being closer to school years than my parents (and more technology savvy) I feel responsible for helping my younger siblings and finding it harder to put my studies first.

• Student anxiety is much higher than usual. Having to worry about your family and loved ones during all of this makes it that much harder to focus on school. It is tough.

Guest Post by Professor Francine Lipman on CARES Act and Recovery Rebate Tax Credit

The following is a guest post by Professor Francine Lipman (UNLV).

The CARES Act was just signed into law, including a number of individual income tax provisions. Here are some details on the Recovery Rebate Tax Credit:

Who qualifies for the 2020 Recovery Rebate Tax Credit? 

All adults who have a valid Social Security number authorizing work who are not claimed as a dependent on another's tax return (for 2020). One exception to this general rule is if a married couple files jointly and one of the spouses is a member of the Armed Forces, then only one of the spouses has to have a valid Social Security number that authorizes work.

 

All children, grandchildren, brothers, sisters, stepbrothers, stepsisters, nieces, and nephews who live with the adult as a member of their household in the US for more than one-half of the year and who are under age 17 with a valid Social Security number authorizing work (as of December 31, 2020) ("qualifying children")(no limit to the number of "qualifying children").

 

How Much Will I Receive?

• Adults will receive $1,200 per qualifying individual ($2,400 for married filing jointly).
• Adults who have "qualifying children" (as described above) will receive an additional $500 each, without limitation.
• Adults who are claimed as a dependent on another's tax return will not receive a Recovery Rebate Tax Credit.

Crisis Grading Policy 2.0: Universality over Carve-outs

This is another guest post by UCLA's Noah Zatz:

As law schools continue to debate grading policy changes in response to the COVID-19 crisis, a new wrinkle has emerged. The first round largely focused on whether to move away from standard grading and, if so, whether to take an opt-in versus a mandatory pass/fail approach. I’ve previously explained my support for a mandatory over an opt-in approach, and law schools largely seem to be going in this direction. The wrinkle is whether to adopt some kind of hybrid, with a mandatory approach to some courses (especially larger, curved courses) and an opt-in approach to others (such as seminars and/or experiential courses). Most schools taking a mandatory approach have considered but rejected such carve-outs, as Cornell did when it adopted a mandatory pass/fail policy early on. My own institution (UCLA), however, recently included carve-outs for seminars and experiential courses, and so that approach is likely to receive additional interest. This post explains why I believe carve-outs are a mistake, and why a simple, universal approach is preferable.

I begin by noting that grading policy can be analyzed at the levels of the individual student, a single course, an entire school, or the legal academy more broadly. To an important extent, disagreements reflect familiar differences in the virtues of more individualistic versus more structural analyses, and the extent to which the particular circumstances of a pandemic crisis counsel movement away from whatever competitive individualism might ordinarily be appropriate. In the context of grading specifically, the rationale for more structural approaches gains power from the intrinsically comparative nature of grades and their subsequent use by other institutions. Thus, an opt-in approach sounds appealing when viewed as a seemingly win-win matter of giving an individual student access to the upside of a high grade and protection against the downside of a low one. But it suffers badly once one considers a cohort of students in a class, each with foreknowledge of the policy and making their election after their COVID-19 crisis performance is graded on a curve.

Eric Weissberg (1939-2020)

Eric Weissberg, who died on March 21,  was one of the great urban Bluegrass instrumentalists of his, or any other, generation. Born in Brooklyn, he attended the University of Wisconsin and Julliard, learning about Bluegrass from musicians in Washington Square. He became famous for playing "Dueling Banjos" in the film Deliverance -- in fact, the duel was between Weissberg's banjo and Steve Mandell's guitar -- which was the first Bluegrass instrumental to reach as high as number two on the Billboard pop chart. Weissberg was not only a banjo player. He also excelled on fiddle, mandolin, and guitar. He performed with The Tarriers, The Greenbriar Boys, and (after the movie) Deliverance, and he was also one of the most important session musicians in New York, playing on cuts with Judy Collins, John Denver, Bob Dylan, and Billy Joel. My first introduction to him was in the early 1960s, when he was the accompanist on "Cisco Houston Sings the Songs of Woody Guthrie." I have not been able to find much video of Weissberg, but here is what I located:

Dueling Banjos:

St. Mary's Law Names Patricia Roberts Dean

St. Mary's University School of Law has named Patricia Roberts as its new dean.  Roberts is the Vice Dean  of  William & Mary Law School.  She holds a JD from William & Mary.  She takes over June 1.

Eboni Nelson Named Dean of UConn Law

The University of Connecticut School of Law has announced that its new dean will be Eboni Nelson.  Nelson, who is currently the associate dean for academic affairs at the University of South Carolina School of Law, holds a JD from Harvard.  She takes over August 1.

Nevada Law Journal CFP: Race AND Gender AND Policing - May 5 deadline

From colleagues at the University of Nevada, Las Vegas William S. Boyd School of Law Program on Race, Gender & Policing:

We are pleased to announce a call for papers for a special issue of the Nevada Law Journal on “Race AND Gender AND Policing.”  Guest-edited by the faculty board of UNLV Boyd School of Law’s Program on Race, Gender & Policing, this issue will bring together scholars of Law, Criminology, and related fields for an interdisciplinary conversation centered on the simultaneous analysis of race and gender and policing.  We construe this topic broadly as encompassing all forms of surveillance and control, including but not limited to aspects of local law enforcement, national immigration policies, and school discipline rules that reflect or construct assumptions about both race and gender.  

Interested parties should submit abstracts of at least 375 words (we encourage longer abstracts and draft papers are permitted) to frankrudy.cooper@unlv.edu with the heading “Call For Papers.”  Submissions may be Essays of approximately 6,250 words or Articles of significantly greater length.  Abstracts are due on or before May 5, 2020.  We will notify people of their acceptance by May 20, 2020.  Complete first drafts of Essays will be due August 20, 2020.  Submissions will be published in Volume 21, Issue 3 of the Nevada Law Journal, which will print in April 2021. 

The Program on Race, Gender & Policing explores the relationship between race, gender, and the ways people are policed.  Policing refers to not only the activities of law enforcement officers, but also the ways that other actors, such as immigration officials, prison officials, schools, and private civilians, participate in surveillance and control.  The Program seeks to foster interdisciplinary research and concrete reforms in Nevada, the nation, and beyond.  Our goal for this symposium is nothing less than to produce an issue that becomes the best statement of how race and gender and policing come together.  

Potential paper topics include, but are in no way limited to, the following: 

• • Analyses of how police officers view both race and gender;
  • Constitutional issues surrounding policing of both race and gender;
  • Criminalization of Latinx identities;
  • Police assaults against women of color;
  • Policing of LGBTQ+ in Asia;
  • Differential race and gender effects of private patrolling of space;
  • Policing of Native women;
  • Racial profiling and masculinities;
  • Disappearances of women in Mexico, the U.S., Canada, or elsewhere;
  • Disparities in policing in schools;
  • Differential racial effects of low rape clearance rates;
  • [Anything else addressing a form of policing and both race and gender].

We also encourage activists and practitioners to write accounts of their activities and cases that bring together issues of race and gender and policing.  Regardless of an author’s topic, the editors will carefully review all proposals and make selections based on quality and relevance.  We encourage both veterans of this topic and emerging scholars to submit proposals. 

If you have any questions, please contact Frank at frankrudy.cooper@unlv.edu. 

U of Colorado Conference/Webinar April 3 - Women’s Enfranchisement: Beyond the 19th Amendment

The 2020 Ira C. Rothgerber Jr. Conference on Constitutional Law hosted by the University of Colorado has been converted to a webinar to be held April 3, 2020. The topic is "Women’s Enfranchisement: Beyond the 19^th Amendment.” It is still free.  Here's the info:

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women. This conference will use the centennial to take stock of how far we’ve come and how far we have to go in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly.

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference.  For more information on the panels and speakers please visit the CU Law Rothgerber event page.

More details below the fold.

Tips for Law Students Learning in the New Distance Formats

My Pace colleague Leslie Tenzer and I made a podcast with tips for law students as they transition to on-line classes.  It is available for free download here at Professor Tenzer's Law to Fact site.  I blogged some of those tips (here) under the title I Don't Care What You Wear to an Online Class (but Sitting at a Desk is a Good Choice). Each instructor will have a unique advice.  Most of mine is completely obvious. Yet in these unusual times, it is good to remind ourselves and our students that we already possess the tools we need to be successful.

It will take some adjustments and understanding (by students and faculty alike) until we get the hang of the new format.  We will, with patience and good humor.  Here are a few of my tips:

1.    Make a schedule. Block out times on your calendar for studying, attending classes (whether synchronous or asynchronous), reviewing material.  Otherwise, working and studying from home can be very difficult without the usual rhythms that propel us forward.

2.    Use Your Calendar. Whether you are fully digital, a paper-calendar type, or somewhere in between, put important school-related due dates, prompts, and reminders on your calendar.  Have a practice midterm due on a certain date? Write it down. Need to exchange drafts of a paper with a classmate on another date? Write it down. Professor’s office hours that you’d like to access? Write it down.  With new emails and reminders arriving every day, getting important deadlines and information down on the calendar can be a big help.

3.    Find a Space and Gather Your Materials. Bring to your online class everything you might need, i.e., casebook, statute book, highlighters, other materials.

4.    Sit at a Desk or Table.  I personally don’t care what you wear to an online class or where (or whether) you are sitting up or lying in bed.  But my students self-report that they feel more ready to learn when they are sitting at a desk or table.  Lounging in that recliner may feel great in the moment, but your actual physical posture and position may be working at cross-signals with your brain.  Ditto for taking a shower and getting dressed for class.  Highly recommended! No, this is not a recommendation to wear a ballgown or even business attire.  More that it helps keep you in “I’m in class” mode if you are wearing clothes similar to what you would ordinarily wear to class anyway.  Business casual on top, pajamas on the bottom?  I won’t ask and I won’t tell. 

Listen to the full podcast here. More soon over at the ABA Before the Bar blog for students.

 

Seeking Judicial Courtesy in the Fifth Circuit

I am proud to be among the 83 signatories to the Legal Ethics Professors Amicus Brief in U.S. v. Varner, calling upon the Fifth Circuit en banc to vacate a panel decision refusing to refer to a transgender litigant by the litigant's requested name and pronouns. The panel in the underlying decision devoted half of its opinion to a rationale for refusing to call the plaintiff by "female instead of male pronouns." Our brief (which does not address the merits of the litigation) was written by Bruce Green of Fordham Law School, and Evan Tager, Geoffrey Pipoly, and Jacey Norris of Mayer Brown. It argues,

The way in which a court refers to a litigant is a simple matter of courtesy. Judges should be courteous to litigants, and abiding by litigants’ requests to be addressed in a particular way consistent with their identities is a critical component of courtesy. Judges should be courteous to all litigants, including transgender litigants like petitioner, or litigants with less consequential requests regarding their identity (for example, litigants who present themselves to the world using a maiden name or nickname). A litigant whose request is not respected in this regard would feel disrespected. Worse, the litigant could reasonably perceive that the judge is biased.

The panel majority should have extended Petitioner the courtesy of addressing Petitioner by the name and pronouns with which Petitioner identifies. Alternatively, the panel majority should have eschewed personal pronouns and names altogether.

You can read the entire brief here; like this blog post, it uses no pronouns of any gender. The excellent amicus brief of Lambda Legal Defense is here.