The Faculty Lounge

What Justice Thomas Doesn't Understand about Respect for the Supreme Court

Here is the gist of my new column for The Hill:

Clarence Thomas is right about declining respect for the Supreme Court — but wrong about its cause

Speaking at a conference sponsored by three conservative think tanks, Thomas blamed the leak on either a clerk or fellow justice. In the old days, he said, nobody would have leaked a single line of an opinion, let alone an entire draft. There was “belief in the court” that made confidentiality sacrosanct. Now, alas, the court has experienced a sort of “infidelity.” You “begin to look over your shoulder,” he explained, which risks “destroying the institutions that are required for a free society.”

Almost nobody is in favor of disclosing confidences or disturbing the peace in residential neighborhoods, but those phenomena are at best symptoms of declining respect for the Supreme Court. The root causes are more profound, some of which can be traced to the justices’ open disregard for the ethical norms applicable to every other American judge.

Congressional attempts to remedy the crisis of confidence have lately broken down on political lines. Democrats have proposed reform legislation to address pressing institutional issues, with little or no support from Republicans.

Just last week, the House Judiciary Committee passed the Supreme Court Ethics, Recusal, and Transparency Act (SCERTA), which would enact the most comprehensive ethics reforms in many decades. The 22-16 vote was along strict party lines, with every Democrat voting in favor of the legislation and every Republican voting against it.

Perhaps congressional Republicans believe they must defend the court’s 6-3 conservative majority at every turn, but that is a mistake. Waning public confidence hurts the majority most of all, as it is their decisions that must meet the test of widespread acceptance.

[Thomas] is oblivious to the true nature of the court’s legitimacy problem, which has almost nothing to do with its internal dynamics (about which nobody else much cares, other than wannabe insiders) and far more to do with its haughty attitude toward public transparency.

You can read the entire piece here.

Law Schools Miss the Mark on Bar Passage - Will the ABA Act?

I promised to provide a bar passage update when this year’s bar passage reports came out, and they are available.  You can access the individual school reports here. You can access the all-school compilations here at the ABA Statistics Page.

As a reminder, the ABA bar passage standard, Standard 316, requires that law schools attain an “Ultimate Bar Passage” (UBP) rate of 75% within two years of graduation.  The most recent reported results are for the class of 2019, the graduates of which had until the July 2021 bar exam to pass the bar.   So far, the ABA has found only three schools to be out of compliance with Standard 316, so let’s start by reviewing the results at those schools.

Hutchins Named Dean of Maryland Law

The University of Maryland has announced that Dean Renée McDonald Hutchins of UDC Law will be the new dean of its law school.  She joined UDC as dean in 2019 after fourteen years on the Maryland Law faculty.   Hutchins, who holds a JD from Yale, will head back to Baltimore on August 1. 

Call for Papers – The Legal Treatise: Past, Present, and Future

An FYI on an important symposium:

The Lillian Goldman Law Library and Law Library Journal invite proposals​ for a symposium on the Legal Treatise to be held at Yale Law School on Friday, March 24, 2023. 

The purpose of this symposium is to examine the many aspects of the history, present circumstances, and future of the legal treatise as a source and genre. Possible topics include but are not limited to: the origins of the treatise, the role of the treatise in English and American law practice and legal culture during particular periods in history, the commodification of the treatise, international and comparative perspectives on the treatise, microhistories of specific treatise titles, biographical accounts of treatise writers, rivalries between treatise writers, treatise authorship successions, reflections on contemporary treatise writing and publishing, the rise of the scholarly monograph, the (in)accessibility of the treatise, the transition of the treatise from a print resource to an electronic resource, the decline of the multi-volume treatise in law practice and legal scholarship, and theories about and proposals for the future of the treatise. 

Jennifer Mnookin Named Chancellor of of UW-Madison

Jennifer Mnookin  has been named Chancellor of  the University of Wisconsin-Madison.   Mnookin has served as dean of the UCLA School of Law since 2015.  A Bruin no longer, Mnookin will become a Badger on August 4.  

The Sound of Silence

Paul Simon wrote "The Sounds of Silence" in 1963 and released an acoustic version with Art Garfunkel on their first album in 1964. The record flopped, leading Paul and Art to break up -- Simon going to London and Garfunkel to Columbia University. Unbeknownst to them, their producer released it as a single in 1965, with overdubbed drums and electric guitars. The song reached number one on the Hot 100 and became a standard for S&G and many others, under the name "The Sound of Silence," which I guess makes more sense philosophically and religiously (as we will see after the jump).

Call for Proposals for the Fourth Annual Equality Law Scholars’ Forum

November 4-5, 2022 – Loyola Law School, Los Angeles

Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, and at Boston University Law in 2021, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco, visiting Loyola Los Angeles AY 2022-23; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fourth Annual Equality Law Scholars’ Forum to be held in Fall 2022. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five or six relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 4-5, 2022, at Loyola Law School in Los Angeles.

David Yellen Named Dean of Miami Law

The University of Miami School of Law has announced that its new dean will be David Yellen.  Yellen, who is currently the CEO of Institute for the Advancement of the American Legal System, previously served as the president of Marist College, the dean of Loyola-Chicago Law and the dean of Hofstra Law. He holds a JD from Cornell.

Theresa Radwan Named Interim Dean of Stetson Law

Professor Theresa Radwan has been named interim dean of Stetson Law beginning on June 24th, stepping in for Michèle Alexandre who is decamping for Chicago.  Radwan joined Stetson in 2001 and holds a JD from William & Mary Law School.

 

"A Scholar's View of Supreme Court Leaks—and Why Chief Justice Roberts Presides Over an 'Accountability-Free Zone' (Feat. Steven Lubet)"

That is the episode title of my recent interview on the "Objections" podcast, part of the Law & Crime network. Here is the description:

Despite the aftershocks of Politico obtaining and publishing a draft majority opinion that would overturn Roe v. Wade, monumental Supreme Court leaks have a history dating back centuries.

 

Northwestern University Pritzker School of Law Professor Steven Lubet unpacks that tradition on the latest episode of Law&Crime's podcast "Objections: with Adam Klasfeld" and explains why he believes the chief shares some responsibility for what he calls the Supreme Court's "accountability-free zone."

 

The Supreme Court is the only one in the United States never to have adopted a code of conduct, and it has remained silent in the face of controversies involving justices, on the left and right.

 

In the episode, Lubet traces the development of the first U.S. judicial code of ethics to former President and ex-Chief Justice William Howard Taft, and he explains efforts after Watergate to make those guidelines mandatory, rather than aspirational. He also unpacks ongoing efforts in Congress that would require the Supreme Court to develop an ethics code, create new mechanisms for recusal, and expand access to court proceedings through live-streams.

 

You can listen to it here.

Robert Chesney Named Dean of Texas Law

The University of Texas has announced that Bobby Chesney, a member of its law faculty since 2008 and long-time associate dean of academic affairs, will become the new dean of UT Law.  Chesney, who holds a JD from Harvard, steps in for Dean Ward Farnsworth who has been leading the law school for the past decade. 

Rodney Smolla named President of Vermont Law

Vermont Law School has announced that its new president will be Rod Smolla. Smolla is currently dean at Widener's t Delaware Law School and has previously served as president of Furman University, and dean at Washington and Lee University and University of Richmond law schools. He holds a JD from Duke and will take over on July 1.

 

 

North Dakota Law Names Brian Pappas Dean

University of North Dakota School of Law has named Brian Pappas as its new dean.  Pappas is currently completing a multi-country Fulbright grant in Denmark and Greece, where he is training academic administrators in mediation and conflict resolution. Previously, Pappas served as associate provost and associate vice president for faculty affairs and academic personnel at Eastern Michigan University.  Pappas, who holds a JD from Wayne State, an LLM from Missouri, a PhD from Kansas, and an MPP from Michigan, will take over in July.

NB: Typo corrected.

CFP: Gender & Law Emerging Scholar Award

Elisabeth Haub School of Law at Pace University

Gender & the Law Emerging Scholar Award: Call for Submissions

The Elisabeth Haub School of Law is pleased to announce the competition for its annual Gender & the Law Emerging Scholar Award.  This paper competition is open to all having with five (5) or fewer years of full-time law teaching experience as of July 1, 2022. The deadline for submissions is July 1, 2022.

The purpose of the award is to encourage and recognize excellent legal scholarship related to gender and the law.  The work chosen for the 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 three members of the Haub Law faculty with expertise in this area: Bridget Crawford, 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 2022-2023 academic year, with reasonable travel expenses from within the continental U.S. paid, or via Zoom, as circumstances permit and by mutual agreement.

ELIGIBILITY:

• All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2022 are eligible for consideration. One does not have to be on the tenure-track or tenured to be eligible. Time as a VAP or Fellow does not “count” against the five (5) year clock.
• There is no subject-matter limitation for submissions, as long as the paper relates in some way to 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.
• Papers considered in prior years’ competitions are eligible for resubmission.
• 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 May 10, 2022, through July 1, 2022. The winner will be announced by August 30, 2022.
• To participate, please email your article, redacted as necessary to preserve anonymity (for the blind judging 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 or late papers will not be considered.

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

The Elisabeth Haub School of Law is pleased to host an annual paper competition for its 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 path to practice 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.

Prior Winners

2020 – Greer Donley, University of Pittsburgh School of Law, Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate, 71 Ala. L. Rev. 499 (2019).

2021 – Marie Amélie George, Exploring Identity, 54 Fam. L.Q. 1 (2021)

Barry Law Seeks Tenure-Track and Visiting Faculty

This just in:

Barry University School of Law is seeking to fill one or more full-time, tenure-track and visiting faculty positions beginning in the Fall 2022 semester. Areas of particular interest include Civil Procedure, Commercial Law, Constitutional Law, Contracts, Family Law, Professional Responsibility, Property, Tax, Torts, and Wills, Trusts, & Estates. Candidates with a focus in other doctrinal areas may also be considered.

Applications will be accepted on a rolling basis. Please submit application materials through the appropriate link below. Questions may be directed to Wes Henricksen, Associate Professor of Law, at whenricksen@barry.edu.

To apply for a tenure-track faculty position, please use the tenure-track faculty application link.

To apply for a visiting faculty position, please use the visiting faculty application link. 

Fun with Intermediate Appellate Courts

There is some interesting information on the Wikipedia page for state Intermediate Appellate Courts. There are nine states without intermediate courts: Delaware, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming.  New Hampshire is the largest, although not by much over Maine.

The oldest intermediate court is in Illinois (1877). Some other old ones are Louisiana (1879), Indiana (1891), Texas (1891), Colorado (1891), Pennsylvania (1895), New York (1896). The Evarts Act also established the U.S. Circuit Courts of Appeals in 1891, which was a very big year for intermediate appellate courts.

The newest intermediate courts are Nevada (2014), and before that Mississippi (1995). Alabama has two intermediate courts, both established in 1969. Pennsylvania also has two, dating to 1895 and 1968. There are no doubt readers who know why Pennsylvanians decided they needed a second appellate court after 73 years, instead of expanding the original one, but I don't.

The biggest surprise, to me, is Massachusetts, which did not have an intermediate court until 1972, despite having the oldest continuously functioning higher court in the U.S. -- the Supreme Judicial Court -- dating to 1692. (Pennsylvania disputes that, based on the origin of its Provincial Court in 1684, though it may not have been formalized as the Supreme Court until 1722.)

The number of appellate judges (or justices) varies widely. California predictably has the most at 105, which comes to one for every 376,000 people. Texas is next with 80, or one per 362,000. That seems like a fairly constant ratio of appellate judges per capita, at least in big states like Florida’s 58 (one per 368,000) and New York’s 60 (one per 324,000). But Illinois has nearly as many appellate justices much bigger Florida and New York, and therefore more per capita, with 54 (one per only 233,000).  

Less populous states, of course, necessarily have a smaller ratio of people per judge, given that there have to be multiple justices to constitute a court. Thus, Alaska’s four justices constitute one per 182,000 people, about double the rate for the three biggest states. Ohio has roughly the same concentration of appellate judges as Alaska, even though it is fifteen times the size. It’s 68 appellate justices are more than any state except California and Texas, coming to one for every 172,000 Ohioans.

Louisiana, however, is the true outlier. Its 54 appellate judges amount to one for every 86,000 people – more than double the per capita rate in Alaska, and four times California’s. They must have (1) a lot of appeals in Louisiana, or (2) a bunch of underworked or inefficient appellate judges, or maybe (3) civil law appeals are just much harder to decide.

Pennsylvania is at the other end of the spectrum. Even with two appellate courts, Pennsylvania has fewer than half as many justices (24) as Illinois (58), with almost exactly the same population. That means one justice for every 533,000 people, which struck me as the likely record for low judicial density. But then I checked out Nevada, whose meager three appellate justices come to one for every 1,080,000 people, who evidently like to gamble on getting attention from that court.

I doubt there are any conclusions to draw from this, except that the people of Ohio and Louisiana must really like judges, and Nevadans and Pennsylvanians not so much.