The Faculty Lounge

Oh, Tom

In today's column on our fracturing political system, Thomas Friedman asks, "Could we have our first four-party election in 2020 [?]"

Uh, no we could not, given that our first four-party election already occurred in 1860, when the presidency was contested by Abraham Lincoln (Republican), Stephen A. Douglas (Northern Democratic), John Breckinridge (Southern Democratic), and John Bell (Constitutional Union). 

There was also a four-party race in 1848, with Zachary Taylor (Whigs), Lewis Cass (Democrats), Martin Van Buren (Free Soil), and John Hale (Liberty). Perhaps this one doesn't count, as only Taylor and Cass received electoral votes. On the other hand, Van Buren was a former president and Hale was a sitting U.S. senator, so their candidacies were certainly legitimate.

Steven Salaita's New Blog Is Worth Reading

Steven Salaita has launched a blog to “host some writing, mainly longform pieces with the occasional polemic.” The first entry details his “transition from professor to school bus driver.” It is extremely well written, quite moving, and very thoughtful. I strongly recommend reading it, and there will be some excerpts – with my commentary – after the jump.

But first, let me make my views clear on Salaita. As I have written several times, his deep animosity toward Israel led him to traffic in anti-Semitic images, especially in the tweets that brought him national notoriety. His books, for the most part, were often more diatribe than scholarship. Even so, as I have also written, he did not deserve the treatment he got at the University of Illinois and afterward, and he should not have been exiled from academics, which included the veto of a job offer at the American University of Beirut (AUB). There are many professors at U.S. universities who are equally ideological and whose work is no better than Salaita’s. Singling him out for banishment was an injustice.

Salaita’s friends and supporters, however, did him no favors by defending his most indefensible tweets, which only served to extend and intensify the controversy. If they had acknowledged anti-Semitism when they saw it, perhaps Salaita would have tempered his own response. As it was, he doubled and tripled down, rather than simply apologize for his bigoted language. He might well have made the whole thing go away at an early stage if he had been willing to step back and concede the obvious – which, of course, would have disappointed his perceived base. He appears to realize that now, to some extent, although it is unfortunately too late.

I feel badly for Salaita, even though I have been one of his strongest critics. Israel-Palestine issues have driven many people to deplorable rhetoric, and the consequences for Salaita have been far too grave.

The first essay on his blog is impressive and well worth reading.

"How To Speak About The Israel Lobby In A Non-Anti-Semitic Way"

Rep. Ilhan Omar was appropriately criticized for the anti-Jewish memes in her recent tweets, and she very appropriately issued a heart felt apology. Some of her supporters, however, evidently think that Rep. Omar is a hypocrite for "unequivocally" apologizing -- which she repeated just last Saturday -- as they believe that there was nothing wrong with her tweets in the first place.  Glenn Greenwald, for example, insisted that Aipac money matters, "and to call that anti-Semitic is just obscene." Among many others, Rebecca Vilkomerson expressed concern that "any and every type of criticism of the Israeli state was now being masked by accusations of anti-Semitism."

But of course, that is not what happened.

Omar's statement wasn't even initially directed at Aipac. She said that American political support for Israel is "all about the Benjamins," thus repeating an ancient and very recognizable conspiracy theory about "Jewish money" and government control, which went far beyond criticism of Aipac or Israeli policies. Omar has recognized this herself, as did Nancy Pelosi and the other Democratic leaders who prompted her apology. As Pelosi emphasized, "Legitimate criticism of Israel’s policies is protected by the values of free speech and democratic debate that the United States and Israel share." And even Omar's own apology, went on to say, "At the same time, I reaffirm the problematic role of lobbyists in our politics, whether it be AIPAC, the NRA or the fossil fuel industry. It's gone on too long and we must be willing to address it."

In other words, it is quite easy to criticize Israel and Aipac without being attacked for anti-Semitism. You just have to do it in a non-anti-Semitic way, as Batya Ungar-Sargon recently explained in The Forward, which I will excerpt after the jump.

Migrant Shelters, Federal Land, and Federalism

PBS ran a story  a few days ago about a shelter for unaccompanied migrant children in Homestead Florida. PBS reports that, because it is located on federal land, the facility isn’t subject to state inspections or standards for child care and education. CBS had a similar story back in July about a shelter in Tornillo, Texas. CBS claimed that “state officials have no authority” over the shelters because they are located on federal land. The Tornillo facility, however, closed last month.

The reporting on these facilities makes a common mistake by equating federal land ownership with the lack of state power. The Enclave Clause does grant Congress a power of "exclusive legislation" over federal enclaves that are purchased by the consent of the state legislature. Most federal land, however, does not qualify as an enclave and thus is governed by the Property Clause. This distinction is important because, when land is held only under the Property Clause, the states have concurrent jurisdiction. The same rules therefore should apply to migrant detention centers on state and federal land. Regardless of which government owns the land, the states have a power to regulate subject to federal preemption. Whether state law is preempted by Congress's power over immigration or its power to regulate federal land is irrelevant. In other words, assuming that Congress’s immigration power justifies the detention centers (something I express no opinion about), the fact that the facilities are located on federal land is legally irrelevant.  However, if the facilities are located on federal enclaves, the reporting is accurate and the states have no regulatory authority.

Determining whether federal land is an enclave is not a straightforward process.  There is no comprehensive list of enclaves, so one must look through historical land documents to determine if the state consented to federal jurisdiction. To make matters more complicated, the state can qualify its consent to the enclave and retain jurisdiction over certain matters.

Because the facility in Homestead is located next to an Air Reserve Base, it is probably a federal enclave. But it simply isn’t true that every facility on federal land is beyond the reach of state governments. If the federal government were to construct a new facility on federal land in Arizona or New Mexico, for example, the chances are that the Enclave Clause would not apply. (One article estimates that only about 6% of federal land is an enclave). Moreover, my latest paper argues that Congress’s power to preempt state law on federal land should be far narrower than the current doctrine.

This post is long enough, but I will discuss a California inspection law for such facilities in the future.

Limiting the Property Clause

The Supreme Court has repeatedly held that the Property Clause of the Constitution grants Congress the power to regulate the public lands “without limitation.” My latest Article argues that the Court’s interpretation of the Property Clause is inconsistent with constitutional history, antithetical to structure principles of federalism, and undesirable from the standpoint of environmental law. I have a few related posts in the works, including posts on shelters for migrants on federal lands, the equal sovereignty doctrine, relying on immoral precedent, and constitutional symmetry.

Take a Load off Fannie

Despite some aural ambiguity (and the presence of Anna Lee), it is Fannie, not Annie, from whom the load is taken in "The Weight." As explained by Robbie Robertson in an interview with the Wall Street Journal and summarized in The Forward:

As for the title character, such as she is, Robertson confirms once and for all that she is “Fanny,” and not “Annie,” as many have often misheard it to be. (Try singing “Take a load off Fanny” to yourself and you can see how the two easily converge). In fact, there was a Fanny upon whom the tune was based. As part of his self-education in European avant-garde cinema, Robertson studied Bergman’s and Bunuel’s film scripts, which he found at the legendary Gotham Book Mart on West 47th Street in Manhattan – located in a neighborhood with which he was already familiar from his days running diamonds from Toronto to New York City on behalf of a Jewish mobster uncle. The bookstore was originally opened on New Year’s Day, 1920, by Frances “Fanny” Steloff, who still ran it when Robertson haunted the film section in the late 1960s. Steloff eventually donated the building to the American Friends of the Hebrew University Foundation. Those film scripts had a huge influence on Robertson both thematically and as a songwriter; they gave him permission to write songs that included jump cuts and fadeouts and used surrealistic symbolism in a particular manner that became Robertson’s trademark, while dealing with questions of God, mortality, and fate.

Here is a 1970 clip of The Band in which it can be heard a little more clearly, especially at 3:49 where, unlike the chorus, there are not successive unvoiced fricatives:

 

The Weight

 

Beware of Presidents Invoking Invasions

“We’re talking about an invasion of our country,” said President Trump today as declared a national emergency on our southern border.  “It’s an invasion.  We have an invasion of drugs and criminals coming into our country.”

This is not the first time a president has signed a declaration of emergency.  The president noted this frequently during his announcement, and he’s right.

But it’s also not the first time an administration has justified emergency actions by lying about invasions.

In 1942, after the U.S. Army uprooted 120,000 Japanese Americans from the West Coast and forced them into concentration camps in the interior, several of them challenged those actions in the courts.  In testimony, in briefs, and in oral arguments, the government’s response was clear:  the Army was preparing for a Japanese invasion of the West Coast.  Removing Japanese Americans from the coastal strip – the zone of threatened invasion – was a reasonable military precaution, the Roosevelt administration argued. 

Uprooting Japanese Americans “was a … military necessity, based upon a threat of invasion, at a critical point in the war,” said the government in its brief in the notorious case of Korematsu v. United States.  In a brutal courtroom flourish, the Solicitor General told the Justices of the Supreme Court that anyone daring to doubt the threat of invasion in early 1942 should say it “to those who turned back that particular threat then, if they can be reached where they lie at the bottom of the Pacific Ocean, among the hulls of the warships which went down with them” in the Battle of Midway.

It was a lie.  Historical records make clear that at the time they uprooted Japanese Americans, military officials foresaw no Japanese invasion of the West Coast and were preparing for no such thing.

Top Army and Navy officials viewed a Japanese invasion of the coast as highly unlikely in early 1942. On the day after President Roosevelt authorized the Army to move against Japanese Americans, Army Chief of Staff George C. Marshall told his British counterpart that large sea-borne actions against the West Coast were “considered impracticable.”  When a general in San Francisco requested additional troops for the coast in early 1942, the Army turned him down because they would be “defending against very little or nothing.”  During the entire period in question, Army and Navy intelligence officials never envisioned anything more threatening than sporadic air attacks along the coast – mere “spectacular stunts in the Axis war of nerves.”  No invasion.

If you think about the logistics of D-Day in 1944 – the invasion of France across just the one hundred miles of the English Channel – it is obvious why military planners would have scoffed at the notion of an invasion across the five thousand miles of open waters between Japan and the continental United States.

Testifying in secret to Congress in early February of 1942, the Chief of Naval Operations and the Deputy Chief of Staff of the Army told Congress that an invasion effort was “out of the question” and was “not expected.” Justice Department lawyers knew this. 

Yet when the time came to defend the uprooting of Japanese Americans in court, those lawyers argued repeatedly that a threatened invasion was what justified it.

And the courts, having no other source of information, believed them.

Threatened invasions are terrifying.  They impair people’s vision and can motivate them to take extreme and unjustified measures to protect themselves.

Beware of presidents invoking invasions.

Chapman University Dale E. Fowler School of Law Seeks Visitor for 2019-2020

Chapman University Dale E. Fowler School of Law Seeks Visitor for 2019-2020

Chapman University Dale E. Fowler School of Law invites entry-level and experienced applicants for a visiting professorship for the 2019-2020 academic year in the areas of Civil Procedure and California Civil Procedure.

Interested candidates are invited to visit this link to learn more and apply for the position:  https://webfarm.chapman.edu/jobs/job.aspx?id=1017.  Please direct all inquiries to Marisa Cianciarulo, Associate Dean for Academic Affairs, at cianciar@chapman.edu. 

South Dakota Law Seeks Indian Law, Tax Clinic Faculty

These two postings just in:

The University of South Dakota School of Law invites applications for  the position of Low Income Taxpayer Clinic (LITC) Director, to begin in July 2019. The position is non-tenure track and paid out of a federal grant. Continued employment is contingent on the availability of grant funding. The grant period ends on December 31, 2019, but is expected to be renewed. Applicants may be eligible for a Lecturer or Senior Lecturer position, dependent upon qualifications.

The Director will lead the only LITC in the Dakotas. Responsibilities will include representing low-income taxpayers before the IRS and the U.S. Tax Court, teaching and supervising clinical law students in the representation of clients, engaging in outreach to South Dakota and North Dakota communities, developing and coordinating a panel of pro bono attorneys, managing the LITC’s docket, and ensuring compliance with the requirements of an IRS-funded LITC.

Teaching experience at an ABA law school and/or experience with an LITC are highly preferred qualifications.

The School of Law also looks to hire an Assistant or Associate Professor, dependent upon qualifications, with expertise in the fields of Indian Law and federal courts. USD Law has both a long-standing institutional commitment to the field of Indian Law, as well as an Indian Law program on which it hopes to build. This position is on the tenure track and will start at the beginning of the 2019-2020 academic year. The successful candidate will teach our Indian Law and Federal Jurisdiction courses; the remainder of the course package will be subject to negotiation. Areas of potential interest include bankruptcy, insurance, intellectual property, agricultural law, and cyberlaw.  Individuals appointed to tenure-track positions are expected to fulfill the tripartite responsibilities of teaching, scholarship, and service.

Successful applicants must be licensed attorneys in a United States jurisdiction (a state or the District of Columbia).

The University of South Dakota embraces and practices the values of diversity and inclusiveness. Candidates who support these values are encouraged to apply. EEO/AA

Applications must be submitted through the Board of Regents electronic employment site: https://yourfuture.sdbor.edu/. For application assistance or accommodation, call 605-677-5671. Please include your application letter, vita, and the names and addresses of three current references.

Interested individuals should apply by February 27, 2019.

Inquiries regarding the tax clinic may be directed to Ramon Ortiz, Director of Experiential Learning, ; e-mail Ramon.Ortiz@usd.edu; telephone 605-658-3528.

Inquiries regarding the tenure-track position may be directed to Tiffany C. Graham, Associate Dean of Academic Affairs; email Tiffany.Graham@usd.edu; telephone  605-658-3509.

Ethnography Presentation at Berkeley Law

For those in the Bay Area, I will be speaking on ethnography at Berkeley Law on February 28; details below:

 

 

 

 

 

 

 

 

 

 

 

 

Sorry about the blurry graphic, which I cannot seem to fix. 

The talk will be 4:00 - 5:30 in the Goldberg Room, 297 Simon Hall, Berkeley Law

Hiring Announcement: Harvard Law School Program on Corporate Governance (Post-Graduate Academic Fellows)

From an email message that I recently received:

The Harvard Law School Program on Corporate Governance invites applications for Post-Graduate Academic Fellows in the areas of corporate governance and law & finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at coordinator@corpgov.law.harvard.edu. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

FIU Law Seeks Podium Visitor for Next Year

This just in:

Florida International University College of Law, Miami, seeks a Visiting Professor of Law for the 2019-2020 academic year with particular needs in Wills and Trusts, Environmental Law, and Natural Resources. The visit may be for one semester or for the academic year. Please send an expression of interest and c.v. to Matthew C. Mirow, chair, Visiting Appointments Committee, mirowm@fiu.edu.

John Marshall Chicago Seeks Faculty Podium Visitors

This just in:

The John Marshall Law School in Chicago seeks two or more experienced faculty members to serve as full-time visiting professors for the 2019-2020 academic year (one or both semesters). We need coverage in the areas of Civil Procedure, Corporations, Employee Benefits, Estates & Trusts, Income Taxation, Legal Research and Writing, and Property. Candidates must have law school teaching experience. It is contemplated that the successful candidates will be current full-time faculty members at ABA-approved law schools, although others with extraordinary credentials may be considered.

To apply, submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at 7sorkin@jmls.edu. The Committee will begin reviewing applications as they are received and will continue on a rolling basis until the positions are filled. We may conduct an interview via Skype or a similar platform or in person, and may request submission of teaching evaluations or other materials.

The John Marshall Law School is committed to diversity, access, and opportunity. Subject to the approval of our accreditors, JMLS is in the process of being acquired by the University of Illinois at Chicago, with an anticipated closing date in August 2019. For more information, visit www.jmls.edu and jmls.uic.edu.

The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.

It's All about the Benjamins

Congresswoman Ilhan Omar (D. MN) has once again been criticized for an anti-Semitic tweet, this time claiming that congressional support for Israel is "all about the Benjamins, baby" and then adding that "AIPAC" was paying American politicians to be pro-Israel. 

It took less than 24 hours for Omar to issue an apology -- her second one since taking office in January -- in which she acknowledged “Anti-Semitism is real and I am grateful for Jewish allies and colleagues who are educating me on the painful history of anti-Semitic tropes.”

Even so, some of Omar's supporters continue to deny that the "Benjamins" tweet was anti-Semitic in the first place. The journalist Glenn Greenwald, for example, claimed that Omar's tweet was nothing more than criticism of Israel.

Claims about the influence of "Jewish money," however, have a long and sordid history in the U.S., making it impossible to consider Omar's tweet in a vacuum. 

On March 25, 1931, nine African American teenagers were arrested on bogus rape charges in Paint Rock, Alabama. They were soon taken to Scottsboro, the county seat, and the subsequent prosecutions became known as the Scottsboro Case. In a series of rapid-fire trials, conducted over only two days, eight of the nine young men were found guilty and sentenced to death. The convictions were reversed the following year in Powell v. Alabama, due to ineffective assistance of counsel.

On retrial, the defendants were represented by Samuel Leibowitz and Joseph Brodsky of New York City. The prosecutor in the case, Wade Wright, made a series of anti-Semitic comments in his closing argument, including the following:

Don't you know these defense witnesses are bought and paid for? . . . . Now the question in this case is this -- Is justice in the case going to be bought and sold in Alabama with Jew Money from New York?

Speaker Nancy Pelosi and the rest of the Democratic House leadership easily recognized the historic resonance of Omar's statement, even if Greenwald did not. As Pelosi put it,

Legitimate criticism of Israel’s policies is protected by the values of free speech and democratic debate that the United States and Israel share. But Congresswoman Omar’s use of anti-Semitic tropes and prejudicial accusations about Israel’s supporters is deeply offensive.

When it comes to support for Israel, alas, or anything else connected to Jews, it seems that someone is always going to insist that "it's all about the Benjamins."

Added note:  Omar was born in Somalia and did not immigrate to the U.S. until she was 15, after spending four years in a refugee camp in Kenya. It is understandable that she would be unaware of some classic anti-Semitic tropes, although a U.S. representative ought to make a point of educating herself. Greenwald has no excuse.

A Book Review Worth Reading

The book review is, regrettably, a vanishing literary format, as many newspapers (including the Chicago Tribune) have dropped their book sections. The long-form essay review is yet more endangered, even in academia; witness the passing of The New Rambler Review. Fortunately, we still have the New York Review of Books and the New York Times Book Review, along with the Los Angeles Review of Books and a few other holdouts -- for which we bibliophiles should be grateful.

And we should be still more grateful when we come across a book review so well written that it can stand on its own literary merit. Such is the case with Emily Cooke's review, in Sunday's Times, of Stephanie Land's MAID: Hard Work, Low Pay and a Mother’s Will to Survive. Cooke's review accomplishes its basic goals: describing Land's book and explaining why it is worth reading. But beyond that, Cooke's writing itself is exemplary. Here is an example:

Rent plus groceries plus utilities plus laundry plus insurance plus gas plus clothing minus an hourly paycheck of barely more than minimum wage and the scant assistance parceled out by the government with spectacular reluctance — the brute poetry of home economics recurs throughout Land’s book. When Land is faced with any kind of irregular expense, she must check the budget pinned to her wall, next to her notes about when each bill will be withdrawn and for how much. Math like this isn’t complicated, it’s merely endless. Calculated and recalculated as if the sums will improve with repetition, the figures overwhelm the mind. 

"The brute poetry of home economics" is an image that I will not soon forget.

You can read the entire review here.