The Faculty Lounge

The 2018-19 Bottom Ten Law Schools

The 2018 ABA 509 Required Disclosures are hot off the press and I couldn’t wait to delve into the numbers and see who has been naughty and who has been nice.

The title for the least selective law school in the country goes to:

1. 2017 Defending Champion - Western Michigan University Thomas Cooley! Once again, Cooley tops the bottom 10 list, but this year there is a twist. Last fall, the ABA found that Cooley was out of compliance with ABA Standard 501 on Admissions. Cooley sued the ABA, and in March 2018, the ABA essentially capitulated and found Cooley back in compliance with Standard 501(b), based on “concrete steps” that the school was making to improve its admissions policies. I analyzed those steps in this post, and predicted that they would barely make a difference in the credentials of the admitted students. Well, guess what?  Turns out I was right.

Call for Presentations: White Collar Crime in the 21st Century (short deadline)

This just in:

On behalf of the members of the Belmont Criminal Law Journal, we write to inform you of an upcoming symposium regarding “White Collar Crime in the 21st Century: When Corporations and Individuals Collide.” This year’s symposium will consider, among other things, the tensions that can develop between the interests of a corporation and the interests of an individual during a white collar criminal investigation and how these conflicts impact the representation of each party.

The symposium will occur at Belmont University College of Law in Nashville, Tennessee on Friday, February 1, 2019, and include three academic addresses and two practitioner panels. Professor Ellen S. Podgor, the Gary R. Trombley Family White-Collar Crime Research Professor of Law at Stetson University College of Law, will deliver the keynote academic address at this year’s event. The Belmont Criminal Law Journal is seeking two additional academics to give 30-minute presentations on topics related to this year’s theme. Belmont University College of Law will cover travel and lodging expenses. Further, all academic addresses presented during the symposium will be transcribed for publication in the Belmont Criminal Law Journal, which we anticipate being published in May of 2019. Please note that the Belmont Criminal Law Journal has a policy of allowing all presenters to make edits to the transcript prior to publication to bring the text in-line with what the presenter intended to say.

The Journal's goal is to once again bring together academics, legal practitioners, government officials, and non-profit leaders to explore a cutting-edge issue in the field of criminal law. We hope you will consider joining us in Nashville for this interesting discussion. Those interested in submitting a proposed topic to present at the symposium should submit a draft title and brief one page summary of the proposed topic to Lexie Ward (Editor-in-Chief of the Criminal Law Journal) at lexie.ward@pop.belmont.edu by Monday, December 17, 2018. Decisions regarding the submitted topics will be made by Friday, December 28, 2018.

Tennessee Waltz

"The Tennessee Waltz" was released in 1950 by Patti Page, charting at number one and remaining popular ever since.  There have been dozens, if not hundreds, of covers and millions of copies sold, in styles ranging from R&B to polka (see last clip below), and pretty much everything in between. 

Patti Page

Drexel University Kline Law Seeks Director of Legal Research Center

This just in (from us!):

The Drexel University Thomas R. Kline School of Law, part of a dynamic, national research university, seeks applications for the position of Director of Legal Research Center and Information Services and Professor of Law. The school is committed to an innovative program of legal education that develops the broad range of lawyering skills among its students. The school is also committed to supporting a distinguished program of high quality legal and law-related interdisciplinary scholarship. The legal research center is a central asset in supporting the educational and research missions of the school. The current library staff comprises five professional librarians, four paraprofessional staff, and one administrative assistant.

The successful candidate will hold a J.D. degree from an ABA-approved law school and a Master of Library Science from an ALA-accredited institution. S/he will have demonstrated, progressive, and successful experience in law library administration and significant experience managing a staff.

The Director will most likely hold a long-term, presumptively renewable contract of 3-5 years; exceptional candidates may be eligible for a tenured or tenure-track position. Compensation and benefits are highly competitive.

The Director will:

1. Be responsible for all aspects of library planning and operations including:

• short-term and strategic planning;
• facilities planning;
• budget planning;
• personnel administration and development of law library staff;
• programmatic initiatives for innovative and responsive services to support faculty and student information needs;
• collection development (including cooperative collection development with the University library);
• library technology;
• planning for events and other ways of making the space innovative and community-oriented.

Ohio State Law Seeks Dean

This just in:

The Ohio State University invites nominations and applications for the position of Dean of the Michael E. Moritz College of Law. The College is a distinguished public law school and has achieved considerable successes in the last decade under the leadership of Dean Alan Michaels who is leaving his post at the end of the current academic year. Whether it is the College’s distinguished group of legal scholars; hiring a strong cadre of tenure and clinical-track faculty; high bar passage and career placement rates; developing new and exciting academic and clinical programs; to successful fundraising, the Moritz College is in a very strong position, and the next Dean will have the resources and the support of University leaders to achieve new levels of distinction.

Moritz is a collegial community of approximately 570 students and 54 full-time faculty. The College has an operating budget of $38.6 million, and its endowment is currently valued at approximately $86 million. Last year the College raised $7.2 million from foundation grants and individual contributions. Approximately 88% of its graduates passed the bar in 2017 and close to 90% were employed full-time following graduation. The College currently offers a Juris Doctorate (J.D.); a Master of Laws (LL.M.); a Master in the Study of Law (M.S.L.); and joint degree programs with the Fisher College of Business, the College of Public Health, the John Glenn College of Public Affairs, and the College of Medicine. While the College strives to be strong across the board in legal scholarship and professional development, Moritz has in particular developed depth and strength in alternative dispute resolution, election law, and law and leadership.

The successful candidate will be a dynamic and inclusive leader and should be an accomplished legal scholar, educator, and administrator who can advance the academic as well as the professional-school mission of the College. The next Dean must ensure that the Moritz College of Law continues to maintain and enhance its reputation for scholarly excellence. Raising the visibility of the College with the public and within the legal profession will be among the Dean’s most important external challenges, in addition to fundraising. As the head of a law school within a major land-grant university, the successful candidate’s enthusiasm for the public and civic engagement mission of Ohio State will be critical. The Dean will be tasked with addressing the status of clinical faculty within the College and with continuing efforts to expand diversity and inclusion among the College’s faculty, staff, and student populations. Finally, working as a collaborative and committed university citizen with other academic and senior university leaders will be essential qualities for a successful dean.

More details are available here.

Progress

Asher Durand’s Progress  is now in the Virginia Museum of Fine Arts.  Previously, Progress was in the private collection of Jack Warner of Tuscaloosa, Alabama.  There is a story about in the Richmond Times.

The Art of the Deal

Peter Osnos, the founder of PublicAffairs Books, was interviewed on CSPAN’s Q & A program Sunday night. During his long career, Osnos has edited many prominent books, including Barack Obama’s Dreams of My Father and Donald Trump’s The Art of the Deal.

In the CSPAN interview, Osnos describes his contract negotiations with Trump, including the remarkable fact that Trump did not have a lawyer present to represent him: 

Pleading in the Alternative

There is an old story from the shtetl, in which one neighbor takes another to court, claiming "his goat ate my cabbages." 

Replied the defendant:

He had no cabbages;

But if he did, they were not eaten;

But if they were eaten, it was not by a goat;

But if they were eaten by a goat, it was not my goat;

But if it was my goat, that goat is insane.

Five levels of defense in only 154 characters. Modern version after the jump.

A Noteworthy Dissent by Justice Thomas

Yesterday the Supreme Court declined to hear the case of Gee v. Planned Parenthood. The case posed the question of whether Medicaid recipients have a private right of action to challenge a state’s determination of who counts as a qualified Medicaid provider. The issue has given rise to a significant circuit split, which normally leads to a cert grant. But not in this case. 

Justice Thomas, joined by Justices Alito and Gorsuch, dissented from the denial of certiorari in a caustic and quite interesting opinion. Here is a portion of what Thomas wrote (I’ve omitted the citations):

“This question is important and recurring. Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider. Because of this Court’s inaction, patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions. . . .

So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion. It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider. But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood's ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background. The Framers gave us lifetime tenure to promote ‘that independent spirit in the judges which must be essential to the faithful performance’ of the courts’ role as ‘bulwarks of a limited Constitution,’ unaffected by fleeting ‘mischiefs.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing ... but the Constitution and the laws.’

We are responsible for the confusion among the lower courts, and it is our job to fix it. I respectfully dissent from the Court's decision to deny certiorari.”

You can find the full dissent on the Supreme Court website here. Professor Noah Feldman sees the dissent as evidence of an early split between Justice Thomas and Brett Kavanaugh. In a new Bloomberg Opinion column, he writes:

Bulldog, the Cop

A few days ago, I posted an appreciation of Marcia Lythcott, who recently retired as commentary editor at the Chicago Tribune. My post mentioned the first oped I wrote for her, in the summer of 1995, about a racist Chicago cop known as Bulldog.  Sadly, the story could ring just as true today as it did twenty-three years ago. Those who are interested can read it after the jump.

Congratulations to The Faculty Lounge!

Recently, the ABA Journal published its picks for the Best Legal Blogs of 2018. I am pleased to report that The Faculty Lounge was on this elite list of 34 blogs. Keep up the good work, fellow TFL bloggers! 

Richland Woman Blues

Originally recorded by Mississippi John Hurt, it was covered in the 1960s by Maria Muldaur and the Jim Kweskin Jug Band. I haven't been able to find a live clip of the song from the 60s, but here is a performance from 2015, with Muldaur, Kweskin, and John Sebastian of the Lovin' Spoonful: 

Execute Against Japan

Today marks the 77th anniversary of Pearl Harbor, one of history’s most famous events. On the morning of December 7, 1941, the Imperial Japanese Navy launched a surprise attack on the American naval and air facilities at Pearl Harbor, Hawaii. Striking without warning (and before Tokyo’s issuance of a formal declaration of war), the Japanese military caught the U.S. Army and Navy completely off guard. In a span of less than two hours, Japanese fighters, bombers and submarines killed 2,400 American service members (as well as 49 civilians) and sank or severely damaged a dozen American warships, including the battleships Arizona, Utah, and Oklahoma.

Without question, the Pearl Harbor attack was one of the most brilliant and sophisticated tactical operations in military history. To achieve surprise, the Japanese Navy had secretly moved six carrier battle groups across 4,000 miles of ocean in heavy winter seas to reach the waters off Hawaii. During the long dangerous voyage across the Pacific, the Japanese warships never broke radio silence. After the attack the Japanese fleet left Hawaii almost unscathed, having lost only 100 pilots and submariners. Few navies in history could have pulled off such a skillful feat as the Pearl Harbor operation.   

But Pearl Harbor ultimately proved to be a strategic disaster of truly epic proportions for Japan. In the years that followed the attack the United States went on a war footing that vastly exceeded Japan’s ability to match. Even before the Japanese planes returned to their carriers, Tokyo’s unconditional surrender became America’s central war aim in the Pacific theater. As Professor Gerhard Weinberg observed in his classic work, A World At Arms: A Global History of World War II, the unprovoked nature of Japan’s attack on Pearl Harbor “was guaranteed to unite the American people for war until Japan surrendered. . . . The attainment of surprise guaranteed defeat, not victory, for Japan.”

When Japan finally surrendered in August 1945, it had sustained one of the most crushing defeats in the history of modern warfare. American firebombing (including two atomic bomb attacks) had destroyed most of Japan’s major cities, Japan’s military was shattered, and over 2 million Japanese were dead. The war also devastated Japan’s reputation with its neighbors as the brutal Japanese military occupation of China, Korea, Vietnam, and the Philippines created bitterness that lasted decades. For the rest of the twentieth century, the United States stood as the dominant power in the Pacific.

Pearl Harbor’s enormous historical significance is self-evident. But there is a remarkable aspect of the Pearl Harbor story that even many students of World War II do not know. A few hours after the Pearl Harbor attack, the United States Navy issued an extraordinary order to its surface and submarine fleets, one that violated international law and probably the Constitution of the United States as well.

CFP: "New Directions, New Voices in Family Law in India"

I am very pleased to announce a Call For Papers for a conference on "New Directions, New Voices in Family Law in India" that I along with colleagues at the National Law School and Oxford are sponsoring on July 5-6, 2019 in Bangalore (Bengaluru), India.

Five Progressive Pro-Israel Organizations Send Open Letter in Support of Airbnb

Airbnb recently announced that it would no longer accept listings in Israeli settlements in the occupied West Bank. This prompted Strategic Affairs Minister Gilad Erdan to write to five U.S. governors, requesting that they take action against Airbnb's "modern form of anti-Semitic practice" by limiting commercial relationships with the company.

 

In response, five progressive pro-Israel organizations issued the following letter in support of the Airbnb decision, with which I strongly agree: 

 

December 5, 2018

Dear Minister Erdan:

We are dismayed to read your letter to governors of US states, in which you assert that Airbnb’s decision to delist homes in West Bank Jewish settlements is tantamount to adhering to the Boycott, Divestment, and Sanctions (BDS) Movement and constitutes anti-Semitism. Neither of these charges against Airbnb withstands scrutiny.

"No Scrubs" - Federal Income Tax Edition

Two creative students in my Federal Income Tax class made this video, a parody of the TLC song "No Scrubs."  Major kudos to Pace Law School students Alexis Bueno and Monica Lindsay. Lyrics -- fully appreciated by the tax nerds among us -- appear after the fold.

On the Retirement of Marcia Lythcott, Chicago Tribune Commentary Editor

My introduction to Marcia Lythcott came in the summer of 1995, when we were both concerned about a brutish Chicago cop known as Bulldog, who had earned a well-deserved reputation for harassing black teenagers. In the days before dashcams and cell phone videos, Bulldog obviously figured there was no risk to pushing kids around and taunting them with racial slurs.  Then one day he made a bad mistake, picking on an African-American student in front of his white teachers and classmates. Sadly, it took the intervention of white people to finally bring Bulldog’s bullying to the attention of the authorities, but he ended up facing civil rights charges in a federal court.

Reported prominently in the Chicago Tribune, the incident outraged me as a citizen and a parent, but also as a lawyer. Thugs like Bulldog can alienate minority communities from the police, which inevitably threatens our entire system of justice and law enforcement. When witnesses are reluctant to come forward and juries are hesitant to convict, criminals are encouraged to act with the same sort of impunity as Bulldog himself.

I thought that was an observation worth sharing, so I wrote it up in 800 words and mailed (yes, mailed) my essay to the Tribune. A few days later, I got a phone call from Marcia, the commentary editor. She liked my oped, and told me it would be in the newspaper the following morning. Even better, she told me that I would be paid $150 for the piece.

Thus began a relationship that would continue for the next 23 years, until late last month when Marcia retired.

Creighton Law Seeks Dean

Creighton University School of Law, in Omaha, seeks a new dean.  The hiring announcement and call for applicants is here .